Krause and Repatriation Commission
[2004] AATA 359
•7 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 359
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/799
VETERANS' APPEALS DIVISION
)
Re WILLIAM KRAUSE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date7 April 2004
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Krause “experienced a severe stressor” whilst serving on the HMAS Vendetta in 1969/70. The severe stressor that he experienced has led to his psychiatric conditions.
........(Sgd) E K Christie........
Member
CATCHWORDS
VETERANS’ AFFAIRS – reasonable hypothesis – PTSD and operational service – experiencing a severe stressor – Statement of Principles and up-to date medicine and science – observations on contemporary medical and scientific knowledge for stressors and PTSD following Tame v New South Wales
Veterans’ Entitlements Act 1986 s 9
Repatriation Commission v Deledio (1998) 49 ALD
East v Repatriation Commission (1987) 74 ALR 518Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 47 ALD 481
Stoddart v Repatriation Commission [2003] FCA 334
Byrnes v Repatriation Commission (1993) 1777 CLR 564
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gorton (2001) FCR 321
Tame v New South Wales (2002) 76 ALJR 1348REASONS FOR DECISION
7 April 2004 Dr E K Christie, Member 1. This is an application by William Krause to review a decision of the Veterans’ Review Board (VRB) made on 26 April 2002 that decided that Mr Krause’s post traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse and hypertension to not be war-caused or defence-caused.
2. At the hearing William Krause was represented by Mr A Harding of Counsel. Mr M Smith, a Departmental Advocate, represented the Repatriation Commission.
3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents, Exhibit R1) and the various documents tendered by the parties.
Facts
4. Mr Krause was born on 20 October 1947 and served in the Royal Australian Navy from 10 February 1967 to 13 February 1987. He had operational service in Vietnam whilst serving on HMAS Vendetta from 15 September 1969 to 11 April 1970; and, later, from 28 October to 9 November 1970.
5.Mr Krause had defence service from 7 December 1972 to 13 February 1987.
Issues To Be Decided
6. At the commencement of the hearing the parties agreed that the central issue for the Tribunal to decide was whether Mr Krause’s conditions of PTSD or alcohol dependence/abuse were war-caused, within the meaning of section 9 of the Veterans’ Entitlements Act 1986.
7. It was further agreed by the parties that the resolution of this issue turned on whether Mr Krause experienced a severe stressor during operational service in Vietnam (Tribunal emphasis).
8. Accordingly, Mr Harding advanced the following hypothesis upon which the applicant’s case relied: during the course of Mr Krause’s operational service, he experienced a number of events whilst on board the HMAS Vendetta which, for him, constituted severe stressors and which led to his psychiatric conditions of PTSD and alcohol abuse/dependence.
9. Four separate incidents were advanced by Mr Harding as events that constituted the requirement for experiencing a severe stressor and which led to the psychiatric conditions that Mr Krause now suffers:
(a)Rocket Fire in Da Nang Harbour, 4 October 1969;
(b)Enemy Swimmer Incident/Lower Decks Closed, 5 October 1969;
(c)Scare Charge Explosion and Lighting Failure; and
(d)Enemy Mortar Fire, 1 March 1970.
10. In addition to the oral evidence given by Mr Krause, evidence on behalf of the applicant was given by some of the crew who had served on the “Vendetta” at the relevant time:
(a)Joseph Durick, “Captain’s Valet” on HMAS Vendetta;
(b)Colin McAlister, Safety Equipment Sailor, HMAS Vendetta;
(c)Dennis Murray, Seaman/Radar Specialist, HMAS Vendetta;
(d)Leslie Cavanagh, Leading Seaman, (in charge of watch), Operations Room, HMAS Vendetta; and
(e)Malcolm Wheat, Able Seaman, Radar Plot HMAS Vendetta.
In addition, evidence on behalf of the applicant was given by Dr Geoffrey Leong, Consultant Psychiatrist.
11. The respondent called the following witnesses:
(a)Philip Mulcare, Rtd. Commodore RAN, and Contracted Researcher DVA and Writeway Research Service (specialising in research of Defence War Records):
(b)Bryan Wilson, Rtd. Commodore, RAN – Gunnery Officer HMAS Vendetta late 1969-1970;
(c)David Gaul - Rtd. Lieutenant Commander RAN Sub Lieutenant HMAS Vendetta 1969/70.
12. The Tribunal considers the factual evidence in relation to the four separate incidents that are claimed by Mr Krause to constitute severe stressors.
Incident 1 – Rocket Fire in Da Nang Harbour, October 1969
13. Mr Krause served in the ship’s operation room immediately beneath the bridge. His role was to look after the surface plot. At the time of this incident, he was constantly tracking 50 to 100 Vietnamese fishing boats and other craft in the harbour. Because of the large number of surface contacts, there was a great deal of tension between the officer on watch on the bridge and the operations room. At around 11.00pm, Leading Seaman Cavanagh, the leading hand on the watch, was given permission to go to the bridge from the operations room to talk to the Officer of the Watch about the tension associated with tracking craft in the harbour. Mr Krause stated that, during his absence, the Officer of the Watch called down the voice pipe “Bridge, Captain we’ve just been straddled by two missiles (or two rockets)”.
14. Mr Krause said that he became alarmed and concerned for his safety because they were under attack. Being immediately beneath the bridge – the highest point on the ship, Mr Krause believed a rocket attack on the Vendetta would certainly mean death. His response at the time reflected his increasing concern for his life as memories of his past life became more pronounced.
15. Mr Krause said that the Vendetta concentrated fire on the location of the rocket installations for 15 minutes. Target co-ordinates for the installations were by “spotters”. The spotter eventually reported back that the target had been destroyed.
16. Mr Krause stated, following this incident, that he could not sleep that night because of thoughts running through his mind that he was close to being killed and that his life had been under an “extreme threat”.
17. Under cross-examination by Mr Smith, Mr Krause gave the following response as to the significance of this incident on his safety, welfare and his life – relative to the three other incidents:
“The first event is the most significant because it was the one that is always dominant in my mind, even today. It’s the one event that started my concerns about my safety and my welfare, my life. The ongoing events added to my original concerns – my sense of the potential loss of life that I might have; I thought that I was looking death in the eye; the fact that I was going to get burnt to a cinder; the fact that the – that my life was in danger. My past was going through my mind. It was just an ongoing series of events.” (Tribunal emphasis)
18. Mr Durick said that to the best of his knowledge the Vendetta came under rocket attack the first night they were in Da Nang harbour. The Vendetta was engaged in harassment and interdicting fire. He said that he went to the upper deck to get some fresh air and noticed rockets going over. He said that at first, he thought the rockets were the enemy firing from one side of the harbour to the other. However, the rockets landed in the harbour:
“They were in close proximity to Vendetta … but were not near enough [according to the terminology] to definitely say … they just missed us … they went over the top of us .. I cannot say whether it was four or six that I had seen.”
19. Mr Wheat recalled the first week of their deployment in 1969. He stated that the Vendetta was at anchor at the time and had commanded H & I fire when, around 11.00pm, it was straddled by 2 rockets. This was observed on the bridge and reported to the C.O. The Vendetta returned fire at the source of the attack on co-ordinates provided by a spotter. Mr Wheat stated that he was made aware of this sequence of events following a briefing from the sailor who he was relieving at the next watch.
20. Mr Murray said he was working in the operations room at this time – early October 1969. He said that the Vendetta was anchored in Da Nang harbour involved in H & I fire. After about thirty minutes fire, they were warned that the enemy was setting up mortar implacements to return fire. He said that it was the Captain’s decision to weigh anchor and, during this time, the Vendetta was fired upon by enemy mortar.
21. Mr Murray said that Mr Krause had described to him at this time, the impact of the event upon him: that Mr Krause believed his life, as well the lives of other members of the ship’s company, were threatened.
22. Mr Cavanagh gave the following recollections of his experience when his deployment in Vietnam commenced in 1969. He said that during the pm of 2 October 1969, the Vendetta was engaged in naval gunfire to support ground troops. Two rounds from a shore battery straddled the Vendetta. The Captain then decided to vacate the site and head out to sea for the safety of the crew and ship. Mr Cavanagh stated:
“[The two rounds] straddled the vessel, they were about 50 metres either side. When they happened – I mean, it came it (sic) out of the blue, for an opening sighting rounds to straddle the ship is – they have got the range down pretty pat, and the next ones – you know, could be well on to the vessel.”
23. Commodore Mulcare prepared his report (Exhibit A) by examining the Reports of Proceedings (RoPs) of HMAS Vendetta from September 1969 to April 1970, the ship’s log for the relevant periods and by applying his general naval knowledge. He had also referred the substance of Mr Krause’s statement to a number of officers who had served on the Vendetta at this time. However, he had not served on the Vendetta.
24. Commodore Mulcare’s analysis was that there was no record of the Vendetta coming under fire on the night Mr Krause claimed that the mortar attack occurred – or on any other occasion during the ship’s period of operational service in 1969/1970. If the ship had come under fire, it would have assumed a higher state of damage control readiness immediately.
25. Commodore Mulcare stated that the procedure that would be followed if a ship came under fire would be:
“…it probably would have gone to MBCD State 1 Zulu in case it got hit and take the ship to the highest level of watertight integrity and readiness. And, secondly, I think they were probably at immediate notice for steam …
There are two ways of handling the situation. If, in fact, you believe that you might have to leave suddenly, quickly, you will put a buoy on the anchor cables so that you can split the anchor cable and just let it go, come back and recover it later; …[if you] don’t do that, you’ve got to hoist the anchor which takes a few minutes. Well, whatever happened if it had come under fire, … my opinion, and I’ve discussed it with other people, is that the ship would have moved. It can carry out its firing under way but it would have moved.”
26.Under cross-examination, Commodore Mulcare acknowledged:
(a)that the Vendetta was well and truly in an enemy zone fighting a war;
(b)depending on its distance at sea, the Vietnamese had the capability of inflicting damage on the Vendetta at that time it was in Vietnamese waters;
(c)that he did not know the location of the Vendetta in Da Nang harbour (that is the distance from the shore) at the time of the rocket attack incident and so could not say how far it was firing away from the edge;
(d)that the Vendetta would have been a logical target for the Viet Cong.
27. Commodore Wilson prepared his report (Exhibit C) based on the RoPs. He stated that the Vendetta did not, at any time, during its deployment in Vietnam in 1969/70 come under fire from ashore. However, on the night of 4 October, at around 23:15, there was an interruption in the progress of a night H & I firing mission when the spotter gave the ship “a call for fire” on three locations which were said to be rocket firing positions being set up to fire rockets – “presumably at US marine positions ashore”.
28. Had the Vendetta been fired upon from a known location, he said that the procedure, would be to go into “counter-battery fire” drill. However, if the enemy fire was from an unknown position, the ship would move away from the location as it could not engage the enemy fire. However, this situation never arose.
29. Commodore Wilson acknowledged that there was no prescribed distance for defining when a ship came under fire but was rather “a perception you have”. His view, for example, was that “the ship had come under fire if anything landed within 1000 yards of the ship”.
30. David Gaul stated that at the time of the claim that the Vendetta came under enemy fire on 4 October 1969, he was one of three Officers of the Watch (OOW). The OOW conned the ship during defence watches when the ship was operational in the Vietnam theatre. He did not make the report to the Captain as described by Mr Krause. At no time, to his knowledge, did the ship come under enemy fire during its deployment in Vietnam. Nor did he recall any of his fellow officers reporting any such incidents.
Incident 2: Enemy Swimmer/Lower Decks closed
31. This incident is acknowledged by both Commodore Mulcare and Commodore Wilson (Exhibits B, C). The Vendetta assumed NBCD State 1 Condition Zulu, a state that recognises imminent danger. The lower decks were cleared of all personnel. Navy divers then went into the water and cleared the hull. The incident was described in the RoP and the ship’s log. It was not in dispute that this incident did not result in any physical damage to the ship or its company.
32. Mr Krause said that, at the time, he was asleep below decks when he heard the call “Assume State 1, Condition Zulu”. He followed the ship’s procedures and went to the mustering point at the forecastle. Mr Krause said that, from the outset of his deployment, he was well aware of the continual danger enemy swimmers would represent for ships.
33. He said that this attack occurred a very short time after the rocket attack. Because of the close proximity of both events, his response was that death was imminent. He said that he continues to have regular and distressing dreams, consumed by the vision of death and in which he is running from death; it represented “a vision of what he saw at the time”.
34. Commodore Mulcare acknowledged that there was a real risk that enemy sapper divers could swim out and attach mines to ships and that “the threat was always there”.
Incident 3 – Scare Charge Explosion and Lighting Failure
35.The evidence of the respondent’s witnesses is summarised as follows:
(a)Commodore Mulcare:
(i)The ship’s log did not mention an incident of this nature. However, he referred to Captain Hewett recalling an incident when a scare charge was not thrown as far from the ship as usual. This elicited a “What the hell was that?” on the intercom to the bridge from either the engine room or boiler room. However, he did not recall when this happened.
(ii)He could not find any evidence that Vendetta suffered a power failure as a result of the scare charge explosion. His report (Exhibit A) stated that “if power had failed, either because of a scare charge explosion, or co-incidentally for some other reason, the Automatic Emergency Lanterns in all the manned compartments and passageways in the ship would have come on, and the ship would not have been in darkness. Also, with the redundancy built into the electrical generation and distribution system, any power failure is likely to have been for a short period only”.
(iii)In his oral evidence, he stated that a “scare charge going off a bit closer than normal is not something that would feature in the RoPs. Its rather like a mere car accident”.
(b)Commodore Wilson
(i)In his report [Exhibit C] he stated that a similar incident had been reported by other sailors and that “I have a feint recollection of such an incident when there must have been a coincidental loss of electrical power at the same time as a care charge woke a good number of people in the ship. I cannot be sure of the date”.
(ii)In his oral evidence he stated that he did not discount the idea that a power failure may have occurred at the same time as the scare charge but it would not have been caused by the scare charge. Rather he suggested the two following possibilities:
“The generator could have dropped off just coincidentally or possibly more likely an automatic reaction of going to emergency stations is to bring more power on line, so possibly the engine room bringing a second generator on and then trying to balance the two could have caused them both to trip. That sort of thing did occasionally happen.”
(c)Lieutenant Commander Gaul
In his report (Exhibit B) he stated:
“With respect to the scare charge incident it is true that we closed up to NBCD State 1 condition Zulu on occasion. The first being after the apparent sentry sighting of a swimmer at 0420 Sunday 5th October 1969 (ROP OCT Para 10). Is extremely likely that on this particular occasion a scare charge (1Kg of TNT) was deployed immediately without warning as this was the accepted procedure.”
36. Mr Krause said that he was woken by a loud speaker whilst asleep when the NMCD State 1 Condition Zulu call was made. Mr Krause said that the scare charge had gone off down beside the ship rather than a safe direction away. He said that the ship was in darkness and that he had to fumble through the pitch black to find his way to the hatch. The impact of the darkness on him was to exacerbate his need to get out to the upper deck and have a possible pathway to the water.
37. He stated that the combination of fumbling in the pitch darkness, and the general confusion finding a way to the upper deck, left him with a response that the ship had been hit.
38. Mr Krause described the circuitous path to the upper deck that contributed to the impacts upon him:
“You’ve got to remember that from the front of the ship under – below decks we had to go from the front of the ship back to the middle of the ship, right, and then from the middle of the ship then back up to the front of the ship again.”
39. Mr Murray’s recollection of the incident was that a scare charge went too close to the ship’s hull and the Vendetta went into State 1 Condition Zulu. The main power was shut down, doors and hatches locked and then emergency power ultimately switched on. He recalled that Mr Krause was off watch and asleep at the time and that this incident, set off fear and trauma, in Mr Krause, once again.
Incident 4 – Enemy Mortar Fire, March 1970
40. Mr Krause stated that it was usual for the Vendetta to be 1 to 2 kms off shore and so out of range of enemy fire. However, on this occasion, the Vendetta was 700 to 800 yards off the beach. On the advice of spotters, that there was VC activity in the area, co-ordinates were given to fire rounds at a “concentration of VC”. He said that the ship “seemed to fire for ages”. He said that he was on the upper deck at the time and could hear reports going to the bridge. His recall of this incident was that, at the time, the Vendetta was in water of 2 metres depth only.
41. He stated that from the upper deck he noticed figures on the beach dressed in black. He became concerned for his personal safety and went back inside the ship. He believed that the figures on the beach were the enemy and was aware that they had the potential to carry mortars and so place the Vendetta under risk of attack.
42. Under cross-examination, Mr Krause acknowledged:
(a)That the Vendetta did not weigh anchor and move out of range but got its bearings and fired;
(b)That the ship would have to move a considerable distance in order to move out of range;
(c)That the Vendetta has moved the next day;
(d)That the ‘puff of smoke’ he had observed on the beach could have been a shell fired from the Vendetta or a mortar fired by the enemy or a smoke bomb dropped from an aircraft; and
(e)Advice he received following an inquiry he made in the operations room, at the time, informed him that the Vendetta had been advised by a spotter that a mortar was being set up 700 to 800 yards away.
43. Mr McAlister had taken footage of the Vendetta’s activities using a Super 8 movie camera. He said that he had recorded events on the spur of the moment to “capture a lot of what was going on”. He said that the footage (Exhibit R10) was probably in the latter part of the Vendetta’s deployment in 1970. The footage taken by Mr McAlister showed Bofors 4.5 guns firing into mountain sides and anti-aircraft guns firing on a beach. Mr McAlister said that he had found out later that the North Vietnamese were expected in that area.
44. Mr Durick said at the time of this incident he was “an observer” standing on the open bridge with the Captain. He said that the Vendetta had been involved with naval gunfire support. As the enemy had moved further inland, the Vendetta had to come in closer from their “safe haven of a mile and a half off the coast” in order to keep range with the enemy. He said that the Captain had conned the ship slowly, to approximately 800 yards from the beach. To the best of his knowledge, he believed that, in this position the Vendetta was well within the range of most enemy mortar and rockets.
45. He said that the operations room had then been given coordinates on the beach by an air-spotter which were used to train fire on these positions. The air-spotter had noticed a contingent of NVA/Viet Cong setting up position to fire rockets and mortar at Vendetta. The 40/60 Bofors guns were then engaged to fire on these positions. About 400 rounds were fired. He said that several “secondary explosions” indicated that the various targets had been hit.
46. Mr Wheat stated that in late February 1970, the Vendetta sailed within less than 1500 yards of the coastline for a 40/60 Bofors bombardment. This situation was described by him as “very unusual and highly dangerous” because of the shallow water (5 to 6 feet depth) and the possibility of running aground – as well as the limitations in manoeuvring the ship. His recall of the ship’s speed was about 3 knots.
47. Mr Wheat said, along with others, he observed the engagement from the port side B Deck. He stated that he saw the enemy on the beach setting up a mortar position to return the Vendetta’s fire.
48. Mr Murray recalled an encounter in late February 1970 when the Vendetta came into about 800 yards from shore to provide fire from its 40/60 Bofors guns. He was on watch at the time and the ship was in approximately two feet of water under the keel. When the enemy was spotted setting up mortars on shore, the Vendetta then moved to about 4000 yards offshore to avoid any threat of mortar attack.
49. Mr Murray’s described his recollection of this incident as follows:
“…it was such an unusual request to get us in so close, such a large ship in so close and to use our bay for ammunition. We were a destroyer, not a bloody minesweeper but I can recall the Captain … saying quite clearly, jokingly he said to the crew that were closed up in the operations room, ‘Should we stop here to give the poor little bastards a better chance of hitting us’ I recall that and that’s 'as clear as anything’."
50. Commodore Mulcare stated that the RoP described the firings in 1 March 1970 as follows:
“The afternoon mission, again air spotted, took an unusual turn when the spotter requested that the ship engage targets on the beach with close range weapons. Accordingly the ship was anchored in 10 fathoms and M4 and G2 mountings engaged an area of trails and trees leading down to the seafront. On completion the ship weighed and proceeded to seaward to engage further targets with main armament."
51.Furthermore, his Report (Exhibit A) refers to:
“Appendix A to the ship’s March ROP which shows that this engagement was carried out between 1500 and 1540 when 414 rounds of 40/60 ammunition were fired against a VC location at 3000 yards range. The Gun Damage Assessment, presumably from the air observer, was “4 secondary fires; 100 metres of trail interdicted”. Commodore Wilson describes the target area as moderately sloping hinterland behind a beach and says the ship closed to about 800 yards range (I understand he means about 800 yards off the beach), and engaged the area with the portside single and twin 40mm mountings. He has also advised that there was no sighting of the enemy or an enemy mortar.”
52.Commodore Wilson’s response to this incident was as follows (Exhibit C):
“The only direct bombardment mission conducted during the deployment took place on 1 March 1970 not in February as suggested. The mission was terminated when I recommended to the Captain that it was time to do so as further expenditure of 40/60 Bofors ammunition could not be justified (as some 400 odd rounds had been fired). The suggestion that a mortar was being set up or even that any enemy were sighted is a figment of someone’s imagination.”
53. Commodore Wilson acknowledged that the Vendetta had come in fairly close. The anchor had been dropped, but not a lot of cable had been let out: “We just had the anchor sitting on the bottom holding the ship there”.
54. Lieutenant Commander Gaul’s recollection of this incident (Exhibit B) based on ROP Mar. Para 2, was that on Sunday 1 March 1970 Vendetta was requested in the afternoon to come close inshore and engage directly a target on the beach area – mainly well used trails and cover leading down to the beach. However, the ship did not come under direct threat of rocket or mortar attack.
55. Under cross-examination, he conceded that he had no “clear recollection” whether he was on watch when the Vendetta went close in shore. Moreover, he acknowledged that the ship’s log of this incident merely recorded that the firings commenced and that there was a bottom surge.
Expert Medical Opinion evidence
56. In his diagnosis of Mr Krause’s PTSD and Alcohol Abuse conditions, Dr Leong concluded that both disorders commenced immediately after the traumatic events in 1969 and that these illnesses were caused by the war service of the veteran in Vietnam (T4, Folio 38).
57. In his assessment of Mr Krause, Dr Leong considered the following traumatic events:
“The veteran described several psychologically traumatic events that occurred while he was serving in Vietnam. He recalled an event when his ship arrived in Da Nang harbour to assist the army with fire [Incident 1]. However upon arrival the vessel was attacked by Viet Cong land artillery. As he was not expecting to be attacked his response was of much fear that he would die. On another occasion, his ship came to provide bombardment at about one kilometre off shore (much closer than the usual 2-3 kilometres) and was again attacked by shore artillery [Incident 4]. He described another occasion in which he was fearful when a scare charge was detonated by mistake close to the ship [Incident 3]. The usual distance of 20 metres was not observed, and when the charge was detonated close to the hull of the vessel, the ship was considered to be under fire by the enemy.
I am of the opinion that these events were traumatic to the veteran and were experiences that involved threatened death and serious injury to him and to others. His response in all of the described events was of intense fear.(T4, Folios 34, 35).
58. When asked whether Incident 4 (enemy Mortar March 1970) in itself would constitute a severe stressor leading to PTSD and Alcohol Abuse, Dr Leong stated:
“That single incident itself may not cause PTSD, but for this veteran, I mean, there are a variety of – well, there are at least two other incidents which were mentioned to me which I consider to be, you know, stressors in themselves, which can cause the condition.”
59. The Tribunal referred Dr Leong to an article titled “The Definition of Psychological Trauma: Psychiatric and Legal Approaches”, which was published in the Australian Law Journal this year – volume 77 (at page 369) by Professor C Tennant. Dr Leong agreed with the statement of Professor Tennant that “a trauma, defined simply on the basis that the subject’s own response was reported as intense fear, helplessness or horror, was a very subjective index”.
Reports of Proceedings
60. The Tribunal considers the evidentiary role of the ROPs as part of this application for review.
61. Mr Durick stated that not all information provided by the head of each department in the ship (eg gunnery, engineering…) found its way in the actual Report of Proceedings as the ship’s Captain would make a decision as to the final content of the Report of Proceedings. As an example, Mr Durick gave an account of an event involving the Vendetta during ammunition replenishment in difficult conditions at sea. He said that there were “drastic consequences if something had gone wrong”. However, “because nothing had gone wrong nobody said anything about it in the Report of Proceedings”.
62. In response to a Tribunal question, Commodore Mulcare acknowledged that the ship’s Captain had clear responsibilities for the safety of the ship. However, there was “no necessity” to put into fact in the ROP an event or situation where the ship had “nearly” been placed in danger – particularly, in circumstances where the ship was taking precautions to avoid that danger.
63. Commodore Mulcare stated that:
“As a general idea all significant events affecting the vessel are to be included in the reports of proceedings. Some events which are reported separately need not be included, but they’re not significant events in sort of ship terms – but they might be significant events affecting personnel individually and things like that. I’ve seen lots of reports of proceedings.”
And
“I would say that it’s inconceivable in my opinion for an incident of a ship coming under fire to be not reported in the report of proceedings.”
64. When asked by Mr Smith as to the likelihood that some matters may not be entered in the ROPs if they were embarrassing to the Captain of the ship, Commodore Wilson replied:
“I don’t think that any Captain would omit from a report of proceedings a matter [of] an important operational nature such as his ship coming under fire, but something like this scare charge and going to emergency stations was perhaps something that might not have got mentioned in the ROP. It is a fairly sort of routine thing.”
65. Lieutenant Commander Gaul said that at this time of the claims of rocket fire in Da Nang harbour, he was officer of the watch. He said that it was inconceivable that something like this would happen and a record in an ”enemy contact report” not being made. Furthermore, coming under enemy fire would be a prominent part of the ROP as it would cover every operational aspect for the ship each month.
66. The Tribunal asked Lieutenant Commander Gaul questions concerning the status of the ROP in circumstances where the Vendetta was returning fire to an enemy position on shore – but where there was some danger not only because of the danger from enemy fire, but also because the ship was in reasonably shallow water. However, the potential dangers from enemy fire or grounding did not occur. The Tribunal asked, in these circumstances, given nothing had happened to the ship, would the event be reported in the ROPs?
67. Lieutenant Commander Gaul stated that the event would not be reported as it would be considered routine and not out of the ordinary. Only “out of the ordinary” operational matters must be reported in the ROPs.
68. Furthermore, he considered a situation where the Vendetta was fired upon by rockets and where those rockets missed the ship by a 1000 yards, to happen and not be reported in both the ROPs and the log as “inconceivable”.
Contentions and Submissions of the Parties
69. Mr Harding submitted that from any analysis of the oral evidence before the Tribunal as well as military history texts (Exhibits R5, R6, R7) it could be adduced that HMAS Vendetta was in an actual war zone. Accordingly, the central issue whether Mr Krause experienced a severe stressor should be considered in the context of his service on the “Vendetta” whilst on service in an actual war zone.
Incident 1 – Rocket Fire in Da Nang Harbour
70. Mr Harding submitted that Mr Krause served on the “Vendetta” at a time when it engaged the enemy. It was his contention that evidence before the Tribunal (Naval Gunfire Support Firings Appendix ”C”; oral evidence of Commodore Mulcare) confirmed the enemy rocket sites. It was his contention that it could be “reasonably inferred” that the enemy would be present and to be armed at these sites.
71. Mr Harding further submitted that the fact the ship was not damaged did not change the fact that the state of affairs was that the ship and its crew were in danger in an actual war zone and that the danger was neither abstract or remote. Furthermore, he stated that Mr Krause was in the operations room at the time the “Vendetta” was fired upon and got word of the firings “down the pipe”. The response of “Vendetta” was to return fire upon the rocket sites.
72. It was Mr Harding’s submission that this sequence of events needed to be considered objectively as it could be adduced that they placed Mr Krause in circumstances where there was a risk of death or serious injury, or on the physical integrity of Mr Krause himself. Moreover, Mr Krause’s response to this event, at the time, was also significant - namely that he would die: “I’ll be burnt alive, I’ll be dead when the next rocket hits”. In addition, Mr Krause relived each second of the attack and these thoughts ran through his mind reflecting how close to death he may have been. In these circumstances, he contended that this response of Mr Krause satisfied the SoP requirement of “intense fear, helplessness or horror”.
Incident 2 – Enemy Swimmer Incident and Lower Decks Closed
73. Mr Harding contended that the report of the presence of an enemy swimmer in the vicinity of the “Vendetta” could be adduced objectively given Commodore Mulcare’s oral evidence that enemy swimmers with their explosives posed a real and constant threat to the ship.
Incident 3: Scare Charge (Explosion and Lighting Failure)
74. It was not in dispute that a scare charge had been released. Mr Harding contended that Mr Krause’s response in this situation was relevant: that he was asleep at the time and awoke in pitch black in response to a ship’s alarm call – and through this time his focus was on averting the risk of danger that he felt his life was under.
Incident 4: Enemy Mortar Fire
75. Mr Harding submitted that the enemy were armed with mortar having a range that would encompass “Vendetta’s” position off shore; and that in these circumstances, the “Vendetta” was a likely target. Mr Harding contended that, at this time, the incident was capable of and, did convey, the risk of death or serious injury to either Mr Krause or his shipmates on the “Vendetta”. He further contended that it was significant that the “Vendetta” returned fire as this represented an engagement with the enemy.
76. Mr Harding challenged the accuracy of the materials contained in the “Reports of Proceedings” because:
(a)There was no standard, documented procedure or criteria to follow in compiling a Report;
(b)That, depending on the Ship’s Captain, the Reports of Proceedings could vary from a lengthy, comprehensive document to a relatively short document;
(c)That the Reports of Proceedings may have contained value judgements.
77. To illustrate his submissions on this point, and using Incident 1 (Rocket Attack) as an example, Mr Harding stated that whereas the Report of Proceedings described the “Vendetta” firing in the confirmed rocket sites as “harassment fire”, the oral evidence of Commodore Wilson was that this was not “harassment fire”, but “direct fire on a target”. Accordingly, Mr Harding contended that the Reports of Proceedings were not 100% accurate. In turn, he contended that any information or evidence before the Tribunal that relied exclusively on the Report of Proceedings would have limitations on the weight that could be attributed to it.
78. Mr Smith submitted that there were no “severe stressors” experienced by Mr Krause whilst in operational service on the “Vendetta”, regardless of the nature of the four incidents that were the basis for Mr Krause’s application for review.
Incident 1: Rocket Fire in Da Nang Harbour
79. Mr Smith stated that there was a continuum of possible stressors that the crew on the Vendetta could experience in the event of a rocket attack. To have a ship sunk whilst under rocket fire would clearly be a severe stressor. To be on the deck when a rocket landed nearby would still be severe, but not as serious. To witness the rocket strike at the other end of the ship would be less serious relative to witnessing a near miss. However, he stated that Mr Krause did not witness a near miss, but to have been told about it immediately afterwards. Accordingly, he contended that these circumstances would not be enough to qualify as a “severe stressor” as they would be on the lowest end point of the above continuum.
80. It was Mr Smith’s contention that the factual basis of the incident of the rocket attack, as relied upon by Mr Krause, did not occur for the following reasons:
(a)Inconsistency between the applicant’s witnesses as to the actual date of the rocket attack (3 October or 4 October 1969);
(b)Differences in the number of rockets claimed to have been seen by the applicant’s witnesses, whether the rockets straddled the ship or went wide – through to whether the ship actually received any enemy fire at all.
(c)Differing accounts as to whether the ship remained at anchor whilst returning fire on the rocket bases, or whether it moved out of range; and
(d)That receiving enemy fire would be a significant event, so it would be impossible to believe that it would not have been mentioned [in the Report of Proceedings], if it had indeed happened”
Incident 2: Enemy Swimmer Incident and Lower Decks Closed
81. Mr Smith acknowledged that Mr Krause’s evidence for this incident agreed with the official record. However, he submitted that the official record confirmed that the incident was “quite minor”. That is, the incident did not represent a severe stressor, because:
(a)It was uncertain whether an enemy swimmer was actually present;
(b)The crew were summonsed to the forecastle and remained there for about an hour watching standard naval procedures being implemented.
Incident 3: Scare Charge Explosion and Lighting Failure
82. Mr Smith submitted that this incident was not a “severe stressor” as it merely involved the crew being called out, after dark, on a “false alarm” before being returned to their bunks. Mr Smith stated that at all times the crew were informed that it was a false alarm. He contended that a “brief misperception of danger” was subsequently corrected by the crew being informed that it was a false alarm. Furthermore, Mr Smith submitted that it was relevant that there was inconsistency between the evidence of the applicant and witnesses in terms of the crew’s responses and ship’s procedures following the alarm.
83. Mr Smith contended that this incident was minor; the fact that it was not officially recorded was indicative of the low significance of the incident for the crew.
Incident 4: Enemy Mortar Fire
84. Mr Smith submitted that there was no evidence before the Tribunal from which it could be construed that there was a mortar, or any significant threat, to Mr Krause. Furthermore, Mr Smith submitted that it was relevant in Dr Leong’s oral evidence that merely seeing a mortar being set up might not cause PTSD. Mr Smith contended that little weight should be given to Mr Krause’s evidence as it was based on observations some 3000 yards distant from the ship. Moreover, Mr Krause’s oral evidence was that he only saw figures coming down to the beach dressed in black but did not actually see any mortars being carried.
85. Mr Smith submitted that Mr Krause’s evidence that the “Vendetta” was in immediate danger from the mortar fire by immediately breaking away from the shoot and moving out of range was inconsistent with:
(a)The Report of Proceedings which contained no such record of the ship’s response; as well as
(b)Mr Durick’s oral evidence; and
(c)The video (Exhibit R10) which revealed that the “Vendetta” did not move from shore until later.
Legal Framework
84. Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four stages as follows:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
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 (emphasis added).”
85. The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
i.e. a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
86. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and
“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 supports the hypothesis and if the hypothesis can be regarded as` reasonable if the facts are true.”
87. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges summarised the historical development of the concept of “reasonable hypothesis”. At page 490 the Court said:
“A reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts even though not proved upon the balance of probabilities…
While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
88. In Stoddart v Repatriation Commission [2003] FCA 334 )17 April 2003), Manson FCJ concluded at (para.51):
“That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them” (Tribunal emphasis).
89. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 1777 CLR 564, at 571 said:
“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 Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis (Emphasis added).”
90. The term "experiencing a stressor" is defined in cl 4 of the PTSD SoP as meaning:
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror.
91. In Repatriation Commission v Hill [2002] FCFC 192 (18 June 2002) the Full Federal Court [at paras. 61, 67] considered the approach taken by the Tribunal in determining whether a reasonable hypothesis existed. That is, whether the material before it fitted the template in the PTSD SoP that is whether the material before it pointed to the elements of "post-traumatic stress disorder" as defined in cl 4 of the PTSD SoP. However, it was not in dispute that the applicant actually suffered PTSD. The Full Court concluded that, in these circumstances, such an inquiry was incorrect, and stated that:
“The correct issue was, assuming that [the applicant suffered] from PTSD as defined in cl 4 of the PTSD SoP, did the material raise or point to his experiencing a stressor, as defined, during his operational service?”
92. In Stoddart v Repatriation Commission [2003] FCA 334 (17 April 2003), Manson FCJ concluded at (paras. 42, 47, 50):
“The definition of "experiencing a severe stressor" relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity …”
and
“It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to … PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to …PTSD.”
and in considering the meaning of the word "threat" as used in the definition of "experiencing a severe stressor" in relation to the adjectival clause "that involved actual or threat of death or serious injury…”
“…the nature of the event or events which must be experienced …contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs.”
Consideration of the Issues
93. The Tribunal has reached a decision in this application for review taking into account the oral and documentary evidence, the legislation and the case law.
94. The Tribunal accepts the expert medical evidence of Dr Leong and is reasonably satisfied that Mr Krause suffers from the psychiatric conditions of PTSD and alcohol abuse: Repatriation Commission v Cooke (1998) 160 ALR 17. In making this conclusion, the Tribunal finds that Dr Leong has been objective in his assessment to ensure the correct diagnosis was made. Part of Dr Leong’s assessment involved the use of “The Structured Interview for PTSD [adopted for DSM-IV from Davidson et al (1989)”] as he regarded it as an “objective diagnostic tool” and because “it was recommended by the DVA”.1
1 Transcript page 156
95. The Tribunal has adopted the sequential stages in Deledio’s case in order to resolve the issues in dispute.
whether the Material Before the Tribunal Points to an Hypothesis that Connects the Death of the Veteran with the Circumstances of Service
96. The hypothesis raised by the applicant connecting Mr Krause’s operational service with his illnesses was as follows:
§ During the course of Mr Krause’s deployment on the Vendetta in 1969/70 in Vietnam, he experienced four separate incidents whilst on board – which, for him, constituted severe stressors. In turn, the stressor(s) he experienced in operational service led to his psychiatric conditions of PTSD and alcohol abuse.
97. Applying the principles in East and Stares, the Tribunal concludes that the essential elements are pointed to by the material before the Tribunal and so raises an hypothesis connecting the psychiatric conditions of Mr Krause with the circumstances of his service. The Tribunal recognises the hypothesis to be “a supposition made as a starting point for further investigation from known facts and no more than a conjectural explanation of an ultimate fact”.
Whether a SoP in is Force
98. The relevant SoPs in force that are relevant to this application for review are:
(a)For PTSD: Instrument No 3 of 1999 as amended by Instrument No 54 of 1999; and
(b) For Alcohol Abuse: Instrument 76 of 1998.
99. The question that section 120(3) requires to be asked is whether some or all of the facts raised by the material before the decision-maker gives rise to a reasonable hypotheses connecting Mr Krause’s psychiatric conditions with his operational service: see Byrnes case at 571.
100. In relation to the hypothesis advanced by the applicant, and pursuant to section 120(3) of the Act, the following factors are contained within the “PTSD SoP” and are consistent with the template or factor:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
whether the Hypothesis is a Reasonable One
101. Given the Tribunal’s finding that Mr Krause suffers from PTSD and alcohol abuse, the Tribunal has adopted the approach in Hill’s case to determine whether a reasonable hypothesis exists, that is whether the material raises or points to Mr Krause “experiencing a severe stressor, as defined, during his operational service?”
102. There is a difference in how each SoP defines the phrase “experiencing a severe stressor”:
(a) “PTSD SoP”
“‘experiencing a severe stressor’ means the person experienced, witnessed,
or was confronted with an event or events that involved actual or threat of
death or serious injury, or a threat to the person’s, or another person’s,
physical integrity.In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlement Act applies, events that qualify as stressors include:(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;”
(b) The “Alcohol Abuse SoP” prescribed meaning for “experiencing a severe stressor” is slightly different to the meaning under the PTSD SoP:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence; (Tribunal emphasis to indicate the difference in meaning with the “PTSD SoP”);
103. The following material before the Tribunal relates the circumstances of Mr Krause’s operational service on the Vendetta in 1969/70 to his psychiatric conditions:
(a)Dr Leong’s diagnostic evaluation refers to Mr Krause having “no past psychiatric history” and that he had consumed 60g alcohol/day since he returned from Vietnam (T4 Folios 35, 36). Furthermore, Dr Leong’s conclusion that both illnesses were caused by Mr Krause’s war service In Vietnam and that both disorders commenced immediately after the traumatic events in 1969 (Exhibit R1, T4, Folio 38).
(b)that there was no dispute that the “scare charge explosion incident” and the “enemy swimmer incident” actually occurred and were recorded at the time;
(c)there was evidence before the Tribunal – notwithstanding that divergent views existed, as to the Vendetta coming under on-shore enemy fire during its deployment in Vietnam in 1969/70; and
(d)Commodore Mulcare’s evidence that the ROP did not necessarily record events or situation where a ship was “nearly” placed in danger – particularly in circumstances where the ship was taking precautions to avoid that danger. An analysis of the evidence of Commodore Wilson and Lieutenant Commander Gaul provides the basis for corrobarating this response.
104. Accordingly, based on the evaluation of all the material before the Tribunal there is an hypothesis pointed to by the facts, that is reasonable, as it involves more than a “mere possibility”. Furthermore, by applying the reasoning in Stoddart’s case there is material before the Tribunal that raises the threat of serious injury or death as perceived by Mr Krause.
Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof
105. The Tribunal has carefully considered all of the oral evidence and documentary material before it in determining the final step in Deledio, in relation to the reasonable hypothesis.
106. The central issue for the Tribunal to decide is whether Mr Krause experienced a severe stressor during operational service on the Vendetta in 1969/70.
107. An essential part of the Tribunal’s fact-finding process is to determine the evidentiary weight to be given to the ROP – particularly with respect to the issue whether the Vendetta had been fired upon during its deployment in Vietnam in 1969/70 [that is Incident 1, “Rocket Fire in Da Nang Harbour October 1969” and Incident 4 “Enemy Mortar Fire, March 1970”.
108. The Tribunal has considered all of the evidence and materials concerning the role and scope of the ROPs and makes the following conclusions:
(a)that it is quite clear that not every event/situation that involved risk to the Vendetta and its crew would be reported;
(b)that it accepts the evidence of Commander Mulcare and Commander Wilson and Lieutenant Commander Gaul that only significant events of an operational nature affecting the vessel would be reported; and
(c)“Routine” events or events “not out of the ordinary”, or events where the ship had “nearly” been placed in danger and where the ship was taking precautions to avoid that danger, would not be reported. Mr Durick’s oral evidence on this point is consistent with the evidence of these officers.
109. However, these findings should not be construed to establish that Incident 1 and Incident 4 did not necessarily occur. Rather, the Tribunal concludes that there were very different perceptions between the crew and officers whether the Vendetta had come under fire. That is, in terms of whether this was either an actual risk of danger - or a threatened risk of danger.
110. Part of this difficulty is reflected in the evidence of Commodore Wilson. Specifically, that whether a ship came under fire was “a perception” you have. His view was that “the ship came under fire if anything landed within 1000 yards of the ship”. However, the former Captain of the Vendetta is now deceased and so there is no evidence before the Tribunal as to his perception in this regard.
111. Accordingly, given the above findings, and applying the reasoning in Byrnes case, the Tribunal concludes that the truth of another fact in the material which is inconsistent with the hypothesis cannot be proved beyond reasonable doubt viz that the Vendetta had not come under fire on any occasion, during the ship’s period of operational service in 1969/70. Because of the distinction in ROPs in reporting actual and threatened risk of danger, the Tribunal accepts the evidence of Mr Durick, Mr Murray and Mr Cavanagh that the Vendetta was subject to enemy fire in Da Nang Harbour (Incident1). Mr Wheat’s evidence provides further corroboration. However, their evidence also makes it quite clear that the enemy fire straddled the ship but that it was not near enough to say whether they had just been missed as it went over the top of them (Mr Durick); and that the ship’s Captain had taken precautions to avoid danger by weighing anchor (Mr Murray). Applying the Tribunal’s findings on the scope of the ROP to this situation, it can be adduced that the incident would not be reported in the ROP – notwithstanding that it represented a threat of danger to the ship and crew, as ultimately, the risk of danger did not occur.
112. The Tribunal further concludes that a similar finding can be made for the March 1970 event (Incident 4). The Vendetta was close to shore in “shallow” water providing fire from its Bofors guns. Precautions taken were to sail at a very slow speed, and to move to about 4000 yards off shore when the enemy was spotted setting up mortars on shore. The Tribunal accepts the evidence of Mr Durick, Mr Wheat and Mr Murray in this regard. Commodore Mulcare’s analysis of the ROP indicates that the ship then closed to about 800 yards range and engaged the area with fire; in addition, that an air spotter requested the ship to engage targets on the beach with close range weapons. Commodore Wilson confirmed that the Vendetta had come in fairly close, dropped anchor but had not let out a lot of cable, as a precaution.
113. The Tribunal concludes that this situation would not be reported in the ROPs. There was a threat of danger in this situation, but the ship’s Captain had taken precautions to avoid danger. Ultimately, the risk of danger did not occur.
114. The Tribunal next considers whether the incidents described by Mr Krause constitute the legal requirement of “experiencing a severe stressor”. The Tribunal has undertaken this analysis with reference to four principles that emerge from Stoddart’s case.
Principle 1: What event has the applicant experienced or been confronted with that may amount to a threat of Death or Serious Injury to his Physical Integrity (Emphasis added)
115. The Tribunal concludes that all four incidents described by Mr Krause represent events that he experienced (Incident 1,2,3) or was confronted with (Incident 4) that may amount to a threat of death or serious injury to his physical integrity. The Tribunal considers each incident in turn, commencing with Incident 1 (Rocket Fire in Da Nang Harbour).
Principle 2: whether the event(s) actually involveD the threat of death or serious injury leading to PTSD or event(S) which were “reasonably” perceived as involving the threat of death or serious injury leading to PTSD? (Emphasis added)
116. Based on the Tribunal’s earlier findings as to the characterisation of each incident, the Tribunal concludes that the events were “reasonably” perceived involving the threat of death or serious injury leading to PTSD. The Tribunal accepts Mr Krause’s response to the event (para 17); it is quite clear in this regard.
Principle 3: Whether the nature of the events experienced represents an objective and assessable state of affairs?
117. The Tribunal considers the following objective materials associated with the circumstances of the first incident: rocket fire in Da Nang harbour:
(a)that the Vendetta had just commenced its deployment in the Vietnam war zone;
(b)that the atmosphere in the operations room was tense from constantly tracking innumerable craft in the harbour;
(c)that the Vendetta was involved in H & I fire;
(d)that the Vendetta had been straddled by enemy rockets but at a distance that represented a threat of danger;
(e)that Mr Krause was engaged in radar plots in the operations room immediately beneath the bridge – a location he believed to be the most vulnerable if the ship were fired upon;
(f)that he was reliant on oral communication to be informed on the nature of the gunfire at the time. That is, he had no direct vision of the gun or rocket fire;
(g)that he had heard a call down the voice pipe that the ship had been straddled by 2 missiles.
118. The evidence of Mr Durick, Mr Murray are Mr Cavanagh, which the Tribunal accepts, was that enemy fire straddled the ship. The Tribunal has made a finding that the situation, at the time, represented a threat of danger to the ship and crew.
119. Accordingly, the Tribunal concludes that, in these circumstances that it would be reasonable for Mr Krause to understand that there was a real risk to the Vendetta being at risk of attack. In turn, that it would be reasonable for Mr Krause to perceive that there was a threat to his life or of serious injury in the way he described (in para 17).
Principle 4: Whether the events said to constitute the threat, judged objectively from the viewpoint of a reasonable person, are capable of conveying (that is, are subjectively experienced) the risk of serious death or serious injury or to physical integrity? (emphasis added)
120. Mr Krause’s evidence in terms of “subjectively experiencing” the risk of serious death or serious injury in this incident is quite clear. His evidence was that this incident was the most significant of all the incidents in terms of the threat of death or serious injury to himself. He thought that he “was looking death in the eye”, that he “was going to get burnt to a cinder” and that his “life was in danger”. Dr Leong’s expert evidence corroborates Mr Krause’s account of this incident in that Mr Krause’s response to that incident was of “intense fear” and that his opinion was this experience was one “involv[ing] threatened death and serious injury to him and to others”. In addition, Dr Leong acknowledged, that a trauma defined simply on the basis that the subject’s own response being intense fear, helplessness or horror was a subjective index.
121. The Tribunal has approached its analysis of the principle in the context of the example given by Manson FCJ in Stoddart’s case. The Tribunal concludes, based on the Tribunal’s findings, that for the circumstances associated with the first incident and with Mr Krause’s knowledge, that it was reasonable for him to understand that there was real risk of the Vendetta being at risk of a attack. In turn, that it could be understood why he perceived that there was a threat to his life or of serious injury in the situation described.
122. The Tribunal concludes that there is nothing in the material for the purposes of section 120(1) that disproves beyond reasonable doubt that Mr Krause did not experience a severe stressor during the time of the rocket fire in October 1969 when the Vendetta was engaged in H & I fire in Da Nang Harbour.
123. Given this finding, there is no reason for the Tribunal to consider whether each of the other three incidents also constitute a severe stressor.
124. Furthermore, based on its findings, the Tribunal concludes that for the purposes of section 120(1) of the Act that it is not satisfied beyond reasonable doubt that the PTSD condition of Mr Krause was not caused by his operational service. The Tribunal finds that Factor 5(a) of the PTSD SoP is satisfied; Mr Krause experienced a severe stressor prior to the clinical onset of PTSD.
125. Based on its findings, a similar conclusion can also be made for Mr Krause’s condition of alcohol abuse. He satisfies the requirement for “experiencing a severe stressor” under the “Alcohol Abuse SoP”. In turn Factor 5(b) is satisfied at the requisite level of proof under section 120(1) of the Act.
126. The Tribunal has made observations in the past concerning the characterisation of the term “stressor” and the phrase “experiencing a severe stressor”
127. The purpose of SoPs was discussed in Stoddart v Repatriation Commission by giving effect to the observations by Allsop J in Repatriation Commission vGorton (2001) FCR 321 at 335 [58-59] as being to represent:
“…sound medical-scientific evidence and to identify, on that sound contemporary science, minimum factors relevant to the issue of the causal connection between injury, disease or death and service.”
And as deploying:
“…the most up-to-date medicine and science to identify or refine the proper scientific and medical frame of reference or universe of discourse for the reliable answering of the question whether the death, injury or disease was caused by the service” (Emphasis added).
128. The Full Court concluded that SoPs must be construed or understood in that context.
129. In the Repatriation Medical Authority Report titled Consensus Conference: Stress and Challenge, Health and Disease, Brisbane (9-11 February 1998), the following conclusion appeared in the “Executive Summary” with respect to situations that qualify as “stressors” under the Veterans’ Entitlements Act 1986:
“It was recognised that this definition of stressor was at the more severe end of the spectrum of psychosocial stressors that individuals can be faced with either in military service or in civilian life.
The participants recognised that less obviously severe stressors might contribute to morbidity but chose not to deal with data concerning such effects because of lack of consistent systematic definitions for such stressors in the scientific literature and the very diverse methodologies and outcome measures which allowed little opportunity for pooling of data or comparison”
130. Recently in Tame v New South Wales (2002) 76 ALJR 1348, the High Court clarified the definition of psychological trauma in the legal setting by addressing the three control mechanisms for assessing liability.
131. In reviewing Tame’s case in a medico-legal context, Professor C Tennant2 states:
“That there is good evidence that chronic stressors may be more potent in causing psychiatric morbidity than many acute stressors, the current court decision [in Tame] is thus supported by good empirical psychiatric evidence (at p 372)”.
2 Definition of Psychological Trauma: Psychiatric and Legal Approaches (2003) 77 ALJ 369
132. In Tame’s case, Gummow and Kirby JJ stated:
“To require proof of ‘sudden shock’ is often to mandate a similarly contrived search for an identifiable ‘triggering event’. This is because the distinction upon which the ‘sudden shock’ rule pivots is often illusory …
Moveover, does satisfaction of the requirement of ‘sudden shock’ depend on self-serving evidence by the plaintiff or on expert evidence? If it be the latter, liability may turn on the colloquial description of a state of mind that has no recognised medical meaning (para 212).
133. Furthermore, in relation to PTSD, Professor Tennant states:
“…there are now many published studies of different types of trauma where the severity of the trauma does not in fact seem to predict later PTSD. These include burns patients, motor vehicle accident patients, combat veterans, handling dead bodies, torture victims, Holocaust survivors, ICU patients, prisoners of war, those exposed to terrorist killings, children exposed to bombing, rape victims, bush fire fighters, and flood victims. There findings do not negate the fact that severe ‘objective’ trauma does contribute to the syndrome of post-traumatic stress disorder, but at the same time it is far from universal that PTSD follows trauma, and indeed other disorders such as depression may be predicted with a greater frequency than PTSD”
134. Given the beneficial nature of the legislation, some reconsideration may be warranted, in the future, for an update of “severe stressors” and PTSD through a review of contemporary medical research and publication.
135. The decision under review is set aside and in substitution thereto the Tribunal decides that Mr Krause “experienced a severe stressor” whilst serving on the HMAS Vendetta during its deployment in Vietnam in 1969/70. The severe stressor that he experienced has led to his psychiatric conditions.
I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Sam Appleton
Associate
Date/s of Hearing 10 September 2003
Date of Decision 7 April 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Poteri Woods
For the Respondent Mr M Smith, Department Advocate
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