Keith John Breeding and Repatriation Commission
[2012] AATA 329
•1 June 2012
[2012] AATA 329
Division VETERANS' APPEALS DIVISION File Number(s)
2010/1517
Re
Keith John Breeding
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Professor P L Reilly AO (Member)Date 1 June 2012 Place Adelaide The Tribunal:
(a) varies the decision under review so as to provide that:
(i) Mr Breeding suffers from the condition of post-traumatic stress disorder (PTSD);
(ii) Mr Breeding's condition of PTSD is defence-caused with a date of effect of 14 February 2009; and
(b) remits the matter to the respondent for assessment of the amount of pension payable to Mr Breeding as a result of this decision.
........[signed]......
Senior Member K Bean
CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - Eligible service - Claims for post-traumatic stress disorder, alcohol dependence, depression and hypertension - Whether veteran suffers from PTSD - Veteran suffers from PTSD and also from the other conditions claimed - PTSD is defence-caused - Alcohol dependence, depression and hypertension are not defence-caused - Decision under review varied.
LEGISLATION
Veterans Entitlements Act 1986 ss 70(1), 70(5), 70(7), 120(1), 120(4), 120B(3)
CASES
Repatriation Commission v Milenz (2006) 93 ALD 107
SECONDARY MATERIALS
Statement of Principles No. 6 of 2008
Statement of Principles No. 2 of 2009
Statement of Principles No. 28 of 2008Statement of Principles No. 36 of 2003
REASONS FOR DECISION
Senior Member K Bean
Professor P L Reilly AO (Member)1 June 2012
INTRODUCTION
The applicant, Mr Breeding, served in the Royal Australian Navy from 29 March 1972 to 19 October 1997. His eligible service under the Veterans’ Entitlements Act 1986 (the VE Act) commenced on 7 December 1972.
Mr Breeding was only 18 years old when he joined the Navy and he suffered a number of traumatic incidents in the course of his service.
As a result of his service, Mr Breeding is currently in receipt of a disability pension at 100 per cent of the general rate, having regard to his accepted conditions of lumbar spondylosis, loss of the right little finger, osteoporosis and ischaemic heart disease.
In recent years however he has also been diagnosed with depressive disorder, alcohol dependence and hypertension. In addition, he claims to be suffering from post-traumatic stress disorder (PTSD) although that diagnosis is in dispute in the context of this matter.
Following a claim having been lodged by Mr Breeding, the Repatriation Commission (the Commission) rejected liability for the conditions of PTSD, alcohol dependence and depressive disorder[1] and that decision was affirmed by the Veterans’ Review Board (the VRB)[2].
[1] T4.
[2] T2.
On 20 April 2010, Mr Breeding lodged an application with this Tribunal seeking review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
THE ISSUES
In addition to the conditions considered by the Commission and the VRB, as we have alluded to above, it was also agreed before us that Mr Breeding was suffering from hypertension and that we should also consider liability for that condition.
It follows that in broad terms, the question before us is whether liability is established under the VE Act in relation to any of the following conditions:
(a)PTSD;
(b)alcohol dependence;
(c)depressive disorder; and
(d)hypertension.
THE STATUTORY FRAMEWORK
Sub-section 70(1) of the VE Act provides for the Commonwealth to pay pension in respect of incapacity from a defence caused injury or disease:
“(1) Where:
(a) …
(b)a member of the Forces … is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.”
Sub-sections 70(5) and 70(7) relevantly define “defence-caused injury” and “defence-caused disease” as follows:
“(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)….
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)…
…
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.”
Sub-section 120(4) sets out the standard of satisfaction applicable to making determinations or decisions under the Act as follows:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
Sub-section 120(1) applies to claims based on operational service and sub-s 120(2) applies to claims based on peace keeping or hazardous service. As neither of those provisions applies in this matter, the “reasonable satisfaction” standard is applicable. This has been held to be the same as the civil standard of proof or the balance of probabilities.[3]
[3] Repatriation Commission v Smith (1987) 15 FCR 327.
Sub-section 120B(3) sets out how Statements of Principles relate to the application of “reasonable satisfaction” standard when determining whether an injury or disease is defence-caused:
“(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
It is accordingly clear that in applying s 120B, the first step (after determining what injury or disease is the subject of the claim and whether that condition exists) is to consider whether the material before the decision-maker raises a connection between the injury, disease or death of the person and some particular service rendered by the person. Clearly the relevant connection must be one or more of the connections to service specified in sub-s 70(5) or (7). The material before the decision-maker must raise such a connection on the balance of probabilities. If the probative material before the decision-maker does not raise such a connection, the claim cannot succeed.
However, where the probative material before the decision-maker does raise such a connection, the next step is to determine whether there is a relevant SoP in force, and to identify that statement or those SoPs.
If there is no SoP, the claim will succeed unless a disentitling provision applies such as those set out in sub-s 70(8)-(10).
If there is a SoP, the decision-maker must determine whether the contention of a connection that has been raised on the balance of probabilities by the material is upheld by the relevant SoP. If a factor in the SoP upholds the connection that has been raised, the claim succeeds unless a disentitling provision applies. If it does not uphold the contention, the claim fails.
CONSIDERATION
As our analysis of whether the other conditions claimed by Mr Breeding are related to his service will be affected by whether we accept that he has PTSD and this is service related, we propose to first consider Mr Breeding’s PTSD condition, before proceeding to the other conditions which he has claimed. We will first consider whether or not we are satisfied that Mr Breeding suffers from PTSD before proceeding to consider whether, if he does, this is service related.
Does Mr Breeding have PTSD?
The extent to which this is a live and difficult issue in this matter is highlighted by Dr Ewer’s evidence on the question of whether Mr Breeding was suffering from PTSD.
Dr Ewer was the only doctor to give evidence at the hearing and he has also provided reports in relation to his assessments of Mr Breeding, dated 22 May 2001, 16 June 2009 and 28 July 2009.[4]
[4] T12, T22 and T25.
Following his first assessment of Mr Breeding in May 2001, Dr Ewer diagnosed him as suffering from major depressive disorder and alcohol abuse[5]. Following his next assessment in June 2009, Dr Ewer indicated he would require additional information before offering a final opinion in relation to diagnosis[6] and in his final report of 23 July 2009, he stated that he was satisfied Mr Breeding was suffering from alcohol dependence and said that he also considered it probable that he was suffering from a major depressive disorder.
[5] T12/73.
[6] T22/123.
In relation to a diagnosis of PTSD, Dr Ewer stated as follows:
“When taking into account my concerns regarding Mr Breeding’s reliability as a historian, I am less certain as to whether or not he is suffering from Post-Traumatic Stress Disorder. If the decision-maker determines the history Mr Breeding gave to me in June of this year is accurate, then he probably is suffering from Post-Traumatic Stress Disorder. If the decision-maker determines the facts of Mr Breeding’s history are different to what he told me on this occasion I could not say he is suffering from Post-Traumatic Stress Disorder.”[7]
[7] T25/138.
At the hearing, Dr Ewer was questioned in some detail as to whether he thought Mr Breeding had PTSD. He had been provided with a transcript of Mr Breeding’s evidence prior to giving his own evidence, and was also asked to give his opinion in light of Mr Breeding’s evidence.
At several points during his oral evidence, Dr Ewer expressed concerns about Mr Breeding’s reliability as a historian. He also commented on the fact that this made it much more difficult to determine whether in fact he was suffering from PTSD.
Dr Ewer also made reference in his evidence to a report from Professor McFarlane[8], in which Professor McFarlane indicated that on the basis of his limited assessment, he could not diagnose Mr Breeding as suffering from PTSD and also expressed reservations about his reliability.[9] Dr Ewer also commented on the fact that a Discharge Summary from the Repatriation General Hospital relating to an admission in 2009 did not refer to PTSD, although it referred to numerous other problems.[10] He also said there were inconsistencies in Mr Breeding’s history which were not explained, and additional material supplied to him subsequently had caused him to become more concerned. When asked as to the reason for this concern, Dr Ewer responded as follows:
“Because of the lack of consistency of the way that he gave his history, like Professor McFarlane having apparently seen him twice didn’t record any of the stressful events, which for someone who is very good at interviewing veterans, very empathic – and I was just surprised that a significant number of the stressors weren’t in that report. So the inconsistency between seeing experienced clinicians, the inconsistency in the history, the additional information, the discharge summaries from the Repat didn’t refer to post-traumatic stress disorder, and as I said he was presenting there for treatment. You would think he would give his history in the most straightforward way where the reward is for him to get help and benefit; in medico-legal setting, having assessed many people, there are the motivations, so it caused me concern that PTSD was not on the list of diagnoses at the Repat where he was presenting for treatment. I think they were the main concerns. And as I say, just the nature of Professor McFarlane’s report, it’s a very unusual report. I see a number of Professor McFarlane’s reports, and that one is quite different to most that I see. He had seen him twice; he said he couldn’t make any axis 1 diagnosis and said there were a couple of factors for that, the patient’s anger and also the way he – his attribution, meaning I think Mr Breeding may have had in his mind what his problems were due to and that was the way he was portraying his situation. So that report caused me concern as well.”[11]
[8] T24.
[9] T24.
[10] T23.
[11] Transcript 27 September 2011, p 10, 25-42.
Later in his evidence, Dr Ewer indicated that having regard to these matters, all things considered, he could not positively state on the balance of probabilities that Mr Breeding was suffering from PTSD. His evidence was as follows:
“That’s a really difficult question and, you know, something I’ve been playing over in my mind, leading up to this case. And, weighing everything up, I would have difficulty saying, on the balance of probability, that he had a post-traumatic stress disorder. I think alcohol dependence, which is now – was in remission when I saw him – and a major depressive disorder. But, clinically, for the reasons I have given and what I read in the repat discharge summary, acknowledging I haven’t seen the notes, on what I’ve seen, I probably couldn’t say he did have PTSD.”[12]
[12] Transcript 27 September 2001, p 13, 30-36.
However, it also emerged very clearly from Dr Ewer’s evidence that if the Tribunal formed the view that the events reported by Mr Breeding had occurred in the way in which they were reported by Mr Breeding, then those events would meet the criteria relevant to a diagnosis of PTSD.
In light of Dr Ewer’s evidence, it is accordingly critical for us to carefully review Mr Breeding’s evidence as to the relevant events, with a view to determining whether we accept that the relevant events occurred and, if they did, whether they occurred in the manner in which he now says they did.
Ultimately, Mr Ower, who appeared as counsel for Mr Breeding, relied upon two specific events to support a diagnosis of PTSD and we accordingly propose to focus upon those events.
The first event relied upon by Mr Breeding was an incident which occurred in 1974 whilst he was in Singapore in which a taxi ran over a child. The second incident was a refuelling accident that occurred whilst he was stationed on board HMAS Hobart in around 1975 or 1976.
We propose to focus first on Mr Breeding’s accounts of the taxi incident before turning to the refuelling accident.
The taxi incident
In his claim for a disability pension, Mr Breeding stated “My condition was worsened by an incident in 1974” but did not elaborate on what this incident was.[13] He was subsequently referred to Dr Ewer and, as noted above, he was first assessed by Dr Ewer in 2001. According to Dr Ewer’s report relating to this consultation, Mr Breeding did not report the taxi incident at this appointment, although he did refer to the “refuelling accident”.[14]
[13] T3/22.
[14] T12/71.
Mr Breeding was also assessed by a consultant psychiatrist, Dr Tai, at the Flinders Medical Centre in 2006. According to Dr Tai’s report of this assessment,[15] Mr Breeding did not refer to the taxi incident, although he referred to a number of other traumatic events which occurred during his service.[16] Two of these occurred in 1972, prior to his eligible service. Dr Tai diagnosed Mr Breeding as suffering from chronic PTSD, alcohol and nicotine dependence and a major depressive disorder[17].
[15] T15.
[16] T15/89.
[17] T15/92.
When Dr Ewer saw Mr Breeding on the second occasion, he reported a number of additional events, including the taxi incident. Dr Ewer reported this as follows:
“Mr Breeding told me of another stressful event that occurred in 1974 in Singapore when he witnessed a child being run over by a taxi. The child was killed. Mr Breeding was horrified. Mr Breeding did not know why he did not tell me about this when I last saw him.”[18]
[18] T22/119.
Mr Breeding was also asked about the taxi incident in the course of the hearing before the VRB. He said that a child was hit by a cab and “We were right behind it”[19]. He also said:
“Well, we just told our cab to keep going but it wouldn’t stop.”
He explained that he was in another taxi, just behind the one which hit the child and said:
“We were behind it and the next thing there’s people coming from everywhere and they’re yelling and screaming and carrying on and we just … ourselves. So did the driver. Come, come, go, go. We weren’t mucking around. We jumped in and took off and the poor kid was under the car.”[20]
[19] Exhibit 4, p 20.
[20] Exhibit 4, p 21.
He went on to explain that before his taxi left the scene, he and the other sailors:
“Stopped and we were getting out …. We got out of the cab and the child was under the right hand side of the other cab and the next thing people just came from everywhere yelling and screaming and they were charging straight at us and all pointing their fingers at us and they must have thought we got out of the first cab.”[21]
[21] Exhibit 4, p 21.
In his statement filed with this Tribunal, Mr Breeding said the following in relation to the “taxi incident”:
“I had been in a taxi with approximately three other men and we were driving between the naval base and Singapore city.
Ahead of us I witnessed another taxi driver run over a child, no more than 8 years old, who was crossing the street.
After the taxi hit the child, she was lying motionless on the road.
I observed the child had a lot of blood streaming out from underneath her head and her leg was bent up awkwardly behind her.
The taxi driver did not stop after he hit the child.
We asked our taxi driver to pull over so that we could render assistance and he said ‘No, no, no’ and he would not stop the car.
The taxi driver said if he stopped the car, he would be killed and so would we.
There was some people who witnessed the accident but nobody went to help the child. …
I felt helpless because I was trained in first aid and I might have been able to help the child, but because our taxi driver would not stop I could do nothing. I regret that I was not able to assist.”[22]
[22] Exhibit 2, [43-53].
When Mr Breeding was asked about this incident during his oral evidence, he described it as follows:
“A young girl got hit by the cab in front of us, and the cab ran over her. And then she got dragged for a bit. And the taxi wouldn’t stop so we could see if we could do anything.”[23]
[23] Transcript, 4 August 2011, p 15.
He later explained in more detail what he had seen, saying:
“She was coming out the back of the cab, coming out from the under the wheels of the cab and she flipped a couple of times and that was that.”
He also said that:
“At least one of her legs was broken and an arm and her stomach had split open.”[24]
He said that the other sailors in the taxi he was in wanted the taxi to stop and that:
“We had first aid training and we thought at least we might be able to help somehow.”
He said that he and other sailors had repeatedly asked the driver of their taxi to stop, but he had refused, indicating that they would risk being killed if they stopped.
[24] Transcript, 4 August 2011, p 15.
Mr Breeding was cross-examined further in relation to this incident at a resumed hearing before us on 27 October 2011. In particular, he was asked about the account he gave to the VRB, when he indicated that the cab he was in had stopped. When he was asked about this previous account, he indicated that this was correct and the “cab driver didn’t want to stop, but we did”. He said he had made a mistake previously when he said that the cab did not stop. He also mentioned on this occasion that the child who had been hit by the taxi had entrails coming out of her stomach but also her “back passage”.
It was put to Mr Breeding that he did not have a clear memory of this event and he replied by indicating “some parts I do, other parts I don’t and I don’t want to remember”. He also said that “It comes back in bits and pieces”.
The refuelling incident
As we have alluded to above, Mr Breeding did refer to this incident the first time he saw Dr Ewer, in 2001. Dr Ewer reported this event as follows:
“Mr Breeding told me of a refuelling accident due to a sailor error. Mr Breeding was on the refuelling deck and the wire joining the Derwent with the other vessel nearly snapped. Mr Breeding said ‘It would have cut me in half if it had broken. I nearly crapped myself’.”[25]
[25] T12/71.
He gave a consistent but more detailed account in his statement filed with this Tribunal[26], in which he stated as follows:
[26] Exhibit 2.
“This incident occurred whilst I was stationed on board HMAS Hobart in around 1975 or 1976. …
HMAS Hobart was being re-fuelled by a US tanker when the incident occurred.
Refuelling generally takes place over a distance of 40-100 feet, the ships travel side by side and a wire is connected between the two to initiate refuelling.
The wire between the ships must be consistently tense but on this occasion the US tanker did not have a self-tightening winch (only a manual tension).
Someone must not have been paying attention because the wire became too tight and pulled the refuelling probe from the Hobart right in the middle of refuelling. As a result, fuel sprayed everywhere onto HMAS Hobart deck.
I had been standing on the deck, assisting with the refuelling process.
Fuel went all over me, covering me from head to toe.
I knew that I had to hold my nose and keep my mouth shut as I was fearful the fuel was going to burn my lungs out and burn my skin …
When the wire became detached and the fuel sprayed everywhere, everyone on the deck panicked. There was yelling and screaming and everyone was trying to get away. This incident made me feel scared, the ship was in chaos, there were people running around, yelling and screaming. The smell of fuel was overpowering.”[27]
[27] Exhibit 2.
Mr Breeding again gave a consistent though more detailed account of this incident in his oral evidence. He said that he knew the wire was becoming too taught when it started to “sing” or “hum”. He said the ropes were also pulled so tight that the oil greasing the wire inside started to come out. He said the steel cable was “singing louder and louder and if that had parted it would have cut us all down. It wouldn’t have been – I can’t see there being one live person left”.
He explained that the wire then slackened off again and before those on the other ship got charge of it:
“It had one last spring and it just pulled the probes straight out and the pressure on that probe from before must have been astronomical and … the oil just went everywhere and it’s black and thick like glucose and tar and it just went everywhere all over the officers up the top, all over us.”
He said:
“I thought we were going to get … blown over the side with it. With the pressure, if it had hit you straight on, it could have blown you over the side and I just jumped down on me guts and held on to anything I could.”
He said he was “scared as hell” and that he was “scared either the probe hitting us – hitting me or the wire coming forward again and snapping and cutting me in half”.[28] He also explained that he had read about refuelling accidents where refuelling wires snapped and people were injured and this led to him being worried about the wire “snapping and just whipping around and cutting me in half”.
[28] Transcript 4 August 2011, p12.
Under cross-examination, Mr Breeding acknowledged that the line to which the probe was attached was not the same line as one which was “singing”. He explained that the wires between the two ships which were “singing” remained attached throughout the refuelling. Rather the messenger lines attached to the fuel nozzle had pulled it out of its coupling. Mr Breeding also confirmed that he was frightened of one of the two wires between the ships snapping “and whipping back around and wrapping itself around us all on that… aft deck”. He also said he had been afraid of “oil going down my throat and everybody else’s throat and down in – and down in your lungs”[29].
[29] Transcript 4 August 2011, p 58.
Reliability of Mr Breeding’s evidence
As we have foreshadowed above, having regard to Dr Ewer’s evidence, the next issue for us to decide is the extent to which we accept that events of the kind described by Mr Breeding, in particular the taxi accident and the refuelling incident, occurred.
We have given this issue careful consideration and had regard not only to the inconsistencies in Mr Breeding’s accounts of the two most relevant events, but other inconsistencies which have been drawn to our attention, including the fact that when he first saw Dr Ewer, Mr Breeding did not report seven stressful events which he later told Dr Ewer about when Dr Ewer assessed him in June 2009. We have also had regard to Dr Ewer’s evidence, to the effect that there was no clear explanation for the inconsistencies in Mr Breeding’s reporting of relevant events. In addition, we have had regard to Dr Ewer’s evidence that it was surprising to him that Mr Breeding was not found to suffer from PTSD when he spent approximately seven weeks in the Repatriation General Hospital in 2009[30] and further that when Mr Breeding was assessed by Professor McFarlane, Professor McFarlane did not assess him as suffering from PTSD.
[30] T23.
However, we have also had regard to the fact that Mr Breeding suffers from alcohol dependence and, on the material before us, has abused alcohol for many years. He is now also quite unwell, and is taking a large number of medications. In addition of course, the events which he is attempting to recall all occurred some time ago.
Ultimately, we have come to the conclusion that whilst there are significant differences between some of the accounts Mr Breeding has given of relevant events, including the two events he relies upon, his accounts are tolerably consistent in key respects. In relation to the refuelling incident in fact, we note that his accounts are highly consistent. His accounts of the taxi accident are less consistent. In fact, in some respects, they are starkly inconsistent, particularly as to whether the taxi he was in actually stopped at the scene of the accident or not, and as to what he observed in relation to the state of the child who had been run over. Nevertheless, in regard to other aspects, such inconsistencies as exist are not such as to cause us to conclude that Mr Breeding’s accounts are entirely unreliable, or that the events he described did not occur at all. Rather, we are satisfied, notwithstanding the inconsistencies to which we have referred, that Mr Breeding is attempting to describe real, albeit incomplete recollections, and, in the case of both the refuelling incident and the taxi accident, events of the general kind which he describes did in fact take place. As we have noted above, his accounts of the refuelling incident are in any event relatively consistent. In the case of the taxi accident, whilst we consider it to be unclear on the evidence whether Mr Breeding’s taxi stopped or not, we are satisfied that whilst he was in Singapore, Mr Breeding did witness a child being hit by a taxi and that he saw the child’s body after this event.
For completeness, we should also acknowledge that we have had regard to the report of Writeway Research Service Pty Ltd dated 9 March 2011, prepared by Commodore Mulcare.[31] We note that Commodore Mulcare was unable to find any records supporting the occurrence of the refuelling incident or the taxi accident. However, we consider the absence of a record in either case not to be inconsistent with the event having actually taken place. In other words, as Commodore Mulcare expressly acknowledges in the case of the refuelling incident, we would not necessarily have expected there to be available records.
[31] Exhibit 3.
Conclusion as to diagnosis
As we have indicated above, Dr Ewer expressed reservations in his evidence about a diagnosis of PTSD being applied to Mr Breeding and in fact, on balance, said that he was not convinced that Mr Breeding had PTSD. However, he also made it very clear both in his written reports and oral evidence that if, having considered all of the material, the Tribunal was satisfied that the relevant events did take place, then he considered a diagnosis of PTSD to be appropriate. In particular, he confirmed that the traumatic events described by Mr Breeding would meet the criteria for an event capable of giving rise to PTSD.
Accordingly having regard to the fact that we accept that stressors of the kind described by Mr Breeding did occur, including the taxi accident and the refuelling incident, and having regard to Dr Ewer’s evidence that he considered that Mr Breeding probably did have PTSD if his history of these events was accepted, we have concluded that on the balance of probabilities, Mr Breeding does suffer from the condition of PTSD.
Does the material raise a connection between Mr Breeding’s eligible service and his PTSD?
For the reasons we have outlined above, we are satisfied that the material does raise a connection between Mr Breeding’s service and his PTSD condition. That connection arises by virtue of the two events described by Mr Breeding which occurred during his eligible service and which Dr Ewer has indicated are events capable of producing PTSD, and which probably did result in Mr Breeding contracting PTSD if we accepted that the traumatic events occurred.
Is the connection upheld by the SoP?
There is a SoP currently in existence in relation to PTSD, namely Instrument No 6 of 2008. That SoP relevantly provides as follows:
“Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder or death from posttraumatic stress disorder is connected with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
Other definitions
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
…”
We have referred above to Dr Ewer’s evidence that the events described by Mr Breeding, including the two most relevant events, if they occurred, meet the applicable diagnostic criteria for PTSD, contained at paragraph 3(b)(A) of the SoP, which provides as follows:
“(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;
…”
As we understood Dr Ewer’s evidence, it also follows from his conclusions that the taxi incident constitutes a “category 1B stressor” within the meaning of the SoP, and the refuelling incident satisfied the definition of a “category 1A stressor” within the meaning of the SoP. In relation to the refuelling incident, we note that Dr Ewer specifically indicated in his final report that this was an event of the kind capable of giving rise to PTSD.[32]
[32] T25/139.
As there is no dispute that each of these events occurred in the course of or as a result of Mr Breeding’s service, it therefore follows that we consider he experienced both a category 1A and a category 1B stressor, before the clinical onset of PTSD.
Accordingly, the contention of a connection between Mr Breeding’s service and his PTSD condition is upheld by the SoP. It follows that Mr Breeding’s PTSD condition is defence-caused for the purposes of the VE Act.
Alcohol Dependence
As we have noted above, there is no dispute between the parties that, consistently with Dr Ewer’s opinion, Mr Breeding is suffering from alcohol dependence. There was also no dispute between the parties that this condition had its onset in 1972, again consistently with Dr Ewer’s opinion.[33]
[33] Transcript 27 September 2011, p 9, T12/73.
Does the material raise a connection between alcohol dependence and eligible service?
As the onset of Mr Breeding’s alcohol dependence was prior to his eligible service, it follows that his claim for alcohol dependence can only succeed if it is established that his alcohol dependence was aggravated by his eligible service.
Mr Crowe submitted that there was no evidence that Mr Breeding had suffered an aggravation of his alcohol dependence following the commencement of his eligible service, or specifically, following the clinical onset of his PTSD condition. However Mr Ower referred to a number of aspects of the evidence which he said supported a conclusion that Mr Breeding had suffered an aggravation of his alcohol dependence after and as a result of the onset of his PTSD condition.
Mr Ower referred to the report of Dr Tai dated 26 October 2006 and in particular to the history taken by Dr Tai, which he said suggested that his alcohol dependence had worsened since 1984. Mr Ower also referred to Dr Tai’s records of Mr Breeding’s marriage coming to an end in 2004 which Dr Tai reported was “following exacerbation of Mr Breeding’s post-traumatic stress disorder symptoms”.
Mr Ower accordingly contended that the evidence showed not only that Mr Breeding had increased his drinking since 1984, but that since that time he had given up more social activities as a result of his alcohol dependence, demonstrating an aggravation of the condition.
However, Dr Ewer did not give evidence that Mr Breeding had suffered an aggravation of his alcohol dependence and it was our understanding of Mr Breeding’s evidence that he drank a great deal from when he first joined the Navy in 1972.[34]
[34] Transcript 4 August 2011, pp 29-30.
Whilst we have carefully considered the matters put by Mr Ower, we are not satisfied that the material raises a connection between Mr Breeding’s eligible service and his alcohol dependence by reason of an aggravation of his alcohol dependence caused by Mr Breeding’s eligible service.
In case we are wrong in that conclusion however, is it appropriate that we proceed to consider whether the connection contended for is upheld by the applicable SoP.
Is the connection contended for upheld by the SoP?
The SoP currently in force in relation to alcohol dependence and alcohol abuse is Instrument No 2 of 2009, which relevantly provides as follows:
“Kind of injury, disease or death
3. (a) …
(b) For the purposes of this Statement of Principles:
"alcohol dependence " means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
We note that the question of “clinical worsening” and how it is to be measured was dealt with by Finn J in Repatriation Commission v Milenz (2006) 93 ALD 107. Finn J stated in that decision (at [33]-[34]):
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) Tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b) markedly diminished effect with continued use of the same amount of the alcohol.
(2) Withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for the alcohol; or
(b) the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3) The alcohol is often taken in larger amounts or over a longer period than was intended.
(4) There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5) A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
(6) Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7) The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
…
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service is:
…
(f) having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
…”
Given that Mr Breeding’s alcohol dependence had its onset before the commencement of his eligible service and he relies upon an aggravation of the condition by his eligible service, the only factor which is relevant to his circumstances is factor 6(f) which requires a “clinical worsening” of alcohol dependence at the time of suffering from a clinically significant psychiatric condition related to service.
We note that the question of “clinical worsening” and how it is to be measured was dealt with by Finn J in Repatriation Commission v Milenz (2006) 93 ALD 107. Finn J stated in that decision (at [33]-[34]):
““The question whether a disease “as defined” in a SoP has clinically worsened is a medical one, raising as it does a diagnostic question. I have emphases “as defined” for the reason that the clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the relevant SoP’s definition: compare Lees v Repatriation Commission (2002) 125 FCR 331; 74 ALD 68; [2002] FCAFC 398 at [16].
As I have already indicated, the definition of “alcohol abuse” provides its own diagnostic criteria. I need not repeat them here. These contrive the inquiry to be undertaken by a doctor in determining for the purposes of the SoP whether the disease is, or was, present at a particular time: compare Repatriation Commission v Cornelius [2002] FC 750 at [26]; or whether that disease, being present, had worsened. In other words, to use the language of the definition, the worsening is in the “clinically significant impairment or distress” which resulted from the maladaptive pattern of alcohol abuse and which, importantly for present purposes, was “manifested” in one or more of the prescribed ways within a 12 month period.”
As we have noted above, Mr Ower contended that Mr Breeding had suffered a “clinical worsening” of his alcohol dependence after the commencement of his eligible service and after the clinical onset of his PTSD condition. Having regard to the requirements which must be satisfied to show “clinical worsening”, he directed our attention to the fact that Mr Breeding’s marriage had ended in 2004, and that some of the evidence suggested that he had drunk more heavily since 1984.
For reasons which we will discuss further below, we have concluded that Mr Breeding’s PTSD had its clinical onset in approximately 2004 and we have therefore restricted our consideration to the evidence referred to by Mr Ower relating to the period from 2004 onwards. Whilst we have taken account of that evidence however, it does not satisfy us that at any time after the clinical onset of his PTSD in 2004, Mr Breeding suffered a “clinical worsening” of his alcohol dependence, reflected in a worsening of the symptoms of alcohol dependence set out at paragraph 3 of the SoP.
Therefore even if we had been satisfied that a connection was raised, we would not have been satisfied that Mr Breeding suffered a “clinical worsening” of alcohol dependence at any time after the clinical onset of his PTSD. Accordingly, even if we had been satisfied that a connection was raised, we would not have been satisfied that that connection was upheld by the applicable SoP relating to alcohol dependence and alcohol abuse, namely Instrument No 2 of 2009.
It accordingly follows that we do not consider Mr Breeding’s alcohol dependence to have been defence-caused.
Depressive disorder
As we have noted above, a diagnosis of major depressive disorder is not in dispute having regard to Dr Ewer’s opinion. The only issues therefore are whether the material points to a connection between the condition and Mr Breeding’s service and, if so, whether that contention is upheld by the applicable SoP.
Does the material point to a connection between depressive disorder and Mr Breeding’s service?
In relation to the likely causes of this condition, Dr Ewer stated in his report of July 2009:
“Mr Breeding’s depressive disorder was probably caused by his alcohol dependence and by his dysfunctional personality structure. His depression is now being perpetuated by his persistent pain.”[35]
He also stated in his oral evidence that “approximately 50 percent of people with a post-traumatic stress disorder develop a major depressive disorder, so PTSD is often complicated by depression”[36].
[35] T25/139.
[36] Transcript 27 September 2011, p 4.
In cross-examination he also said as follows as to how Mr Breeding’s major depressive disorder was likely to have developed:
“I think his alcohol probably played a role. Depression is a well-known complication of long-term alcohol abuse, other losses in his life, possibly attributed to the alcohol use, such as the breakup of his family and the loss associated with that. The personality problems may have contributed. I note looking through the repatriation notes and also what he told me, there is the mention of a back injury needing surgery. That could have contributed. Persistent pain is a well-recognised – is often complicated by major depression. And also the repatriation summaries refer to opioid dependence. Opioids are complicated by – excessive use are complicated by depression. So they would probably be the main factors.”[37]
[37] Transcript 27 September 2011, p 9.
In his oral evidence, Dr Ewer also said he found it difficult to determine when Mr Breeding’s major depressive disorder had its onset but that this had occurred “possibly by the 1990s”. This is consistent with him having diagnosed major depressive disorder in 2001, when he also referred to Mr Breeding’s symptoms of anxiety and depression being “consistently present throughout the 1990s”.
As to the onset of Mr Breeding’s PTSD condition, Dr Ewer said in his oral evidence that this was of “late-onset”, stating that the history Mr Breeding had given him in 2009 was one of “relatively new symptoms”. Further we accept Mr Crowe’s contention that the evidence before us suggests that PTSD was not present at the time of Mr Breeding’s visits to Mildura Base Hospital between October 1994 and October 1996 or his visit to Dr Ewer on 17 May 2001. However it does appear to have been present by the time Mr Breeding saw Dr Tai on 25 July 2006, and in his report Dr Tai referred to a separation between Mr and Mrs Breeding “about two years ago” and “due to increased PTSD symptoms”. Doing the best we can on the material therefore, we consider that Mr Breeding’s PTSD had its clinical onset in approximately 2004.
Notwithstanding Dr Ewer’s reference to PTSD often being “complicated by depression” therefore, the evidence before us is clearly to the effect that Mr Breeding’s depressive disorder had its onset during the 1990’s and before his PTSD condition. Accordingly we are not satisfied that the material raises a connection between Mr Breeding’s service and his depressive disorder, via his defence-caused PTSD condition. In these circumstances, and in the absence of material pointing to any other direct or indirect connection on the evidence between Mr Breeding’s depressive disorder and his service, we are not satisfied on the balance of probabilities that the material raises a connection between Mr Breeding’s service and his depressive disorder.
In case we are wrong in that conclusion however, it is appropriate that we proceed to consider whether, if a connection had been established, that connection would have been upheld by the SoP.
Is the connection upheld by the SoP?
There is a SoP currently in existence in relation to depressive disorder, being Instrument No 28 of 2008. That SoP relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
…
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service is:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
(i) experiencing a category 1A stressor within the two years before the clinical onset of depressive disorder; or
(ii) experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder; or
…
(vi) having a clinically significant psychiatric condition within the one year before the clinical onset of depressive disorder; or
…”
As we have indicated above, we are satisfied that Mr Breeding’s PTSD condition had its onset after his depressive disorder and it follows that Mr Breeding did not have a service related “clinically significant psychiatric condition within the one year before the clinical onset of depressive disorder”. Therefore factor 6(a)(vi) of the SoP is not satisfied.
That leaves the question of whether factors 6(a)(i) or (ii) are satisfied. As we have indicated above, we accept that Mr Breeding experienced both a category 1A and a category 1B stressor during his service in the 1970’s. However, as we consider Mr Breeding’s depressive disorder had its onset during the 1990’s, it is clear that neither of those stressors occurred within two years prior to the clinical onset of his depressive disorder. Accordingly neither factor 6(a)(i) or (ii) are satisfied and it follows even if we had found there was material pointing to a direct connection between Mr Breeding’s service and his depressive disorder, this would not have been upheld by the SoP. Therefore we have concluded that Mr Breeding’s condition of depressive disorder is not defence-caused.
Hypertension
As we understood the position, Mr Crowe did not contest the fact that Mr Breeding suffers from hypertension. Further, he also conceded that if alcohol dependence was defence-caused, then hypertension was also defence-caused.
However, as we have concluded that Mr Breeding’s alcohol dependence is not defence-caused, it is our understanding that Mr Crowe’s contention was that in those circumstances, hypertension also was not defence-caused.
There is an SoP in relation to hypertension, being Instrument No 36 of 2003, which relevantly provides as follows:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service are:
…
(b) consuming an average of at least 300 grams per week of alcohol which cannot be decreased to less than an average of 300 grams per week, at the time of the clinical onset of hypertension; or
…”
We have considered the other factors referred to in this SoP, but on the evidence before us, none of these are potentially applicable to Mr Breeding.
It follows that in order to satisfy this SoP, Mr Breeding would need to establish that his alcohol consumption was related to his eligible service. As we have indicated above however, we have concluded that Mr Breeding’s alcohol dependence is not defence-caused and in those circumstances, we do not consider his alcohol consumption to have been related to his service as required by the SoP.
As Mr Breeding’s claim therefore does not satisfy the SoP, his claim in respect of hypertension cannot succeed and could not have succeeded even if we had been satisfied that a connection had been raised between Mr Breeding’s hypertension and his service.
For those reasons, we have concluded that Mr Breeding’s condition of hypertension is not defence-caused.
CONCLUSION
We have concluded that Mr Breeding suffers from PTSD which is defence-caused. However, we have concluded that his conditions of alcohol dependence and hypertension and his depressive disorder are not defence-caused. We propose to vary the decision under review accordingly. As Mr Breeding’s claim was lodged on 14 May 2009, we consider that the date of effect in relation to his defence-caused condition of PTSD should be 14 February 2009, being three months before the date of lodgement of his claim.
DECISION
The Tribunal:
(a)varies the decision under review so as to provide that:
(i)Mr Breeding suffers from the condition of post-traumatic stress disorder (PTSD);
(ii)Mr Breeding’s condition of PTSD is defence-caused with a date of effect of 14 February 2009; and
(b)remits the matter to the respondent for assessment of the amount of pension payable to Mr Breeding as a result of this decision.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean and Professor P L Reilly AO (Member) ......[Signed]....
Administrative Assistant
Dated 1 June 2012
Date(s) of hearing 4 and 5 August 2011, 27 September 2011 and 27 October 2011
Date final submissions received 4 April 2012 Counsel for the Applicant Mr S Ower Advocate for the Applicant Ms B Tapscott Solicitors for the Applicant Tindall Gask Bentley Advocate for the Respondent Mr A Crowe Solicitors for the Respondent Dept of Veterans' Affairs Advocacy Section
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