Lake and Repatriation Commission
[2006] AATA 116
•13 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 116
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/93
VETERANS’ APPEALS DIVISION )
Re ROBERT LAKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date13 February 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
……[Sgd]……
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – defence service –operational service – post traumatic stress disorder – alcohol abuse or dependence – anxiety disorder – application of Deledio – severe psychosocial stressor – scare charges as stressors – decision affirmed.
Veterans’ Entitlements Act 1986 s7, 9, 29, 70, 120
Repatriation Commission & Gosewinckel (2000) 59 ALD 690
Benjamin and Repatriation Commission (2003) 70 ALD 622
Fogarty and Repatriation Commission [2003] FCAFC 136
Gibbs and Repatriation Commission [2005] AATA 516
Delahunty v Repatriation Commission [2004] FCA 309; 38 AAR 511
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 200 ALR 332.
White v Repatriation Commission [2004] FCA 633
Hill v Repatriation Commission (2001) 66 ALD 293
Repatriation Commission and Deledio (1998) 83 FCR 82
Repatriation Commission and Hancock (2003) FCA 711
Mines v Repatriation Commission [2004] FCA 1331.
Lees and Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Hill [2002] FCAFC 192
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Tuite (1993) 39 FCR 540
Re Stonehouse and Repatriation Commission [2004] AATA 707
Re Sparks and Repatriation Commission [2005] AATA 319
Re Cannon and Repatriation Commission [2003] AATA 428
Re Harrison-Kyte and Repatriation Commission [2004] AATA 360
Re Lees and Repatriation Commission [2003] AATA 1027
Re Lees and Repatriation Commission [2005] AATA 549
Beveridge and Repatriation Commission [2005] AATA 962
Sly v Repatriation Commission [2004] AATA 958
Wiseman v Repatriation Commission [2005] AATA 156
Re McCutcheon and Repatriation Commission [2004] AATA 329
Lamont and Repatriation Commission [2005] AATA 149.
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Stoddart (2003) 77 ALD 67
Stoddart v Repatriation Commission (2003) 74 ALD 366
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Gerzina and Repatriation Commission [2003] FMCA 490
Re Martin and Repatriation Commission [2003] AATA 1228REASONS FOR DECISION
13 February 2006 Dr KS Levy, Member Introduction
1. The applicant, Robert Lake, has applied for a review of a decision under the Veterans’ Entitlements Act 1986 (the Act). This application is made under section 29(1) of the Administrative Appeals Tribunal Act 1975.
2. The application is for review of the decision of the delegate of the Repatriation Commission dated 3 April 2002 which determined that Post Traumatic Stress Disorder (PTSD) and Alcohol Abuse or Alcohol Dependence were not war-caused or defence-caused under the Act. It was also decided that Anxiety Disorder was not present in the applicant. This decision was affirmed by the Veterans’ Review Board on 1 July 2004. The application to this Tribunal was lodged on 15 February 2005, which was outside the statutory time limit. However, an application for an extension of time was granted by Senior Member B McCabe on 3 March 2005, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975.
3. This claim is based on the applicant’s assertions that his present conditions, which he argues are PTSD and/or Generalised Anxiety Disorder and/or Alcohol Dependence or Alcohol Abuse, satisfy the prescribed definitions and diagnostic criteria which are set out in the approved Statements of Principles (SoPs). The applicant also maintains that these conditions are linked to his operational service in Vietnam or to his eligible defence service.
4. The applicant was represented by Ms B Carter-Nicoll of Counsel instructed by Ms C Haney, partner of Haney Lawyers. The respondent was represented by its advocate Mr M Smith.
Background
5. The applicant is currently 57 years of age. His date of birth is 2 September 1948.
6. He was born in Brisbane, Queensland, and is the eldest of five siblings. Both the applicant’s parents are presently alive and the applicant is reported to come from an in-tact family with an unremarkable childhood. In his early childhood and in some primary schooling, he was raised in rural and Queensland and then later, his parents moved to Rockhampton and then to Brisbane. He was educated to Grade 9 level (although he did not complete it). He left school at 15 ½ years of age and joined the Royal Australian Navy (RAN) in 1964. He enlisted as an apprentice electrician, but was subsequently reallotted to the boiler-maker/welder trade.
7. He served in the RAN for 21 years from 2 July 1964 to 10 March 1985. Of that service, he had operational service and eligible defence service as follows:
(i) Operational service in Vietnam on HMAS Vampire 14 to 25 May 1969;
(ii)Operational service in Vietnam on HMAS Perth 14 September 1970 to 22 February 1971;
(iii) Eligible defence service from 7 December 1972 to 10 March 1985.
8. The applicant rose to the rank of Chief Petty Officer 3rd Class during his service and held that rank at the time of his discharge.
9. In relation to the accepted and non-accepted medical conditions determined by the Department of Veterans’ Affairs in relation to his service, the applicant has been recognised as suffering from Bilateral Sensorineural Hearing Loss. He is also entitled to treatment for PTSD, but it is not recognised as a service related condition. He has had claims rejected in respect of disabilities for PTSD, Alcohol Dependence and Alcohol Abuse. A claim for Anxiety Disorder was also rejected.
Issues for Determination
10.The questions for determination by the Tribunal in this case are as follows:
(i)Is a diagnosis of PTSD and/or Generalised Anxiety Disorder and/or Alcohol Dependence or Alcohol Abuse is/are appropriate for the applicant’s psychiatric condition?
(ii) Whether any accepted diagnoses are war-caused within the meaning of section 9 of the Act?
(iii)If the applicant has Alcohol Dependence or Alcohol Abuse, whether he had an existing psychiatric illness which was war-caused prior to the onset of the condition of Alcohol Dependence or Alcohol Abuse?
Legislation
11. The following provisions of the Act are relevant in the determination of the claim for eligibility for pension;
“Section 7- Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and …
Section 9 - War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service 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 of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war 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 eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; 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 war-caused disease contracted by the veteran.
…
(5)Paragraph (1)(c) does not apply:
(a)to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b)to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(i)the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duty; or
(ii)in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c)to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
70 Eligibility for pension under this Part
(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;
…
(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
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
12. For claims made on or after 1 June 1994, the Tribunal is obliged to assess these claims with specific reference to the SoPs issued by the Repatriation Medical Authority (RMA) under section 196B of the Act. In terms of the claims made by the applicant, the following SoPs must be referenced:
§ Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) – Post Traumatic Stress Disorder
§ Instrument No 1 of 2000 – Generalised Anxiety Disorder
§ Instrument No 76 of 1998 – Alcohol Dependence and Alcohol Abuse
13. Sections 120(1) and 120(3) require the Tribunal to assess the applicant’s claims which relate to operational service using the standard of proof of a “reasonable hypothesis”. In assessing other aspects of the claim (including diagnosis and any claims relating to eligible defence service, the “reasonable satisfaction” standard is the appropriate standard of proof. (See section 120(4)). The application of these sections has been succinctly described in Repatriation Commission and Gosewinckel (2000) 59 ALD 690 at 691:
“…The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4), not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war-caused. All other matters were to be dealt with by the reasonable satisfaction standard in s 120(4)….” (Tribunal emphasis)
14. The term “reasonable satisfaction” is generally regarded as being equivalent to the civil standard of proof. This is commonly referred to as the test of the “balance of probabilities” (Benjamin and Repatriation Commission (2003) 70 ALD 622; Fogarty and Repatriation Commission [2003] FCAFC 136 ).
Evidence
15.The following documentary exhibits were admitted:
§Exhibit 1 The T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
§Exhibit 2 Report of Dr Janis Carter, Consultant Psychiatrist, dated 21 July 2005
§ Exhibit 3 Statement of the applicant Robert Lake dated 2 April 2005
§ Exhibit 4 Applicant’s letter dated 1 September 2005
§ Exhibit 5 Report of Dr William Kingswell dated 10 June 2005
§ Exhibit 6 Report of Writeway Research Service dated 7 July 2005
16. Oral evidence was provided by the applicant in person. Dr Janis Carter, the applicant’s treating psychiatrist provided telephone evidence and Dr William Kingswell, psychiatrist, was called by the respondent and provided evidence in person.
The Applicant’s Evidence
17. The applicant submitted that the following incidents are the basis of his present claims:
§Incident 1 – whilst on HMAS Vampire between 14 to 25 May 1969, scare charges were detonated without warning.
§Incident 2 – whilst on exercise, he was part of an attack carrier group which was called to support the tragedy when HMAS Melbourne cut the USS Evans in two. He heard of the accident but was on watch in the boiler room. He did not see any dead bodies.
§Incident 3 – whilst posted to HMAS Perth and undertaking duty in Vietnam, he was concerned about bombs being strapped to the hull of the ship or floating mines near the ship. He also heard gun fire at night and slept fully clothed and with a life jacket on as a result of anxiety.
§Incident 4 – On HMAS Perth in Vietnamese waters, he observed prisoners who had been taken on board and some who appeared to have white phosphorous burns and/or other injuries.
§Incident 5 – By 1974, the applicant had been drinking heavily for a considerable period of time and this resulted in his being hospitalised with a schizophrenic reaction.
§Incident 6 – Whilst on HMAS Ardent in 1983, and being involved in an exercise for HMAS Aware which had a new Captain, he was involved in an incident in which the boat he was in was unbalanced and he thought he was going to be drowned.
18. In examination in chief, the applicant described Incident 1 on HMAS Vampire and indicated that this occurred in Vung Tau Harbour. He was working in the boiler room during his rounds hourly and taking temperature and assuring there were no leaks. When he was behind the boiler, he heard a very loud bang and started to run out of the boiler room. He was told by the NCO in charge to go about his duties and that he would ascertain the cause of this loud sound. About ten to fifteen minutes later he was advised that it was a scare charge. He stated there were two sets of stairs in the boiler room but that it would be difficult to get out in an emergency and this made him feel uneasy for the rest of the journey. He said he kept busy and tried to divert his attention elsewhere, although he remained nervous. At night particularly, he had difficulty sleeping when there was a change in the sound of the engines.
19. In relation to Incident 2, he described that he was at sea when he heard of the incident between HMAS Melbourne and USS Evans. He was still on watch in the boiler room. However, he said that his ship had the role of helping to search for survivors and this incident reinforced his fears about the dangers of working in the boiler room. He did not see any dead bodies. As a result of this incident, the applicant stated that he had night mares about being trapped in a sinking ship.
20. In relation to Incident 3, the applicant was posted to HMAS Perth when it sailed for Vietnam. He had only just completed a trade course with the RAN and joined the ship without having undertaken the preparations for war, as had the rest of the crew. He was also concerned about the possibility of bombs being strapped to the hull of the ship or floating mines doing significant damage to the ship. The applicant recalled an occasion when divers were reported to have been seen close to the ship and that the Captain had ordered the ship seawards and a subsequent searching of the hull by the ship’s divers. Whilst he was working in the boiler room, and after he learned that the ship’s divers had been ordered to search the hull, he remembered feeling very cold and petrified. The applicant said that he had to hide his fear as he was in charge of the watch at that time.
21. In that period also, there was firing at night. The applicant slept fully clothed with a life jacket on.
22. In relation to Incident 4 involving prisoners, the applicant got a short view of the prisoners lying on the deck. He observed also, that one had a bandage on his arm and that the prisoners appeared to have mercurochrome on their heads. From rumours on the ship, he thought that the prisoners had been hit by white phosphorous which had been fired by the ship. His evidence was also that there was a rumour on the ship that a hospital had been hit by the ship’s gun fire and women and children had been killed.
23. In relation to Incident 5, the applicant described heavy drinking over a long period of time. He said this culminated in a “schizophrenic reaction”. He was ultimately hospitalised as a result of dreams of being drowned and dreams of women and children being injured from the shelling of the ship. There was also reference to homosexual incidents.
24. In relation to Incident 6, he volunteered to serve on HMAS Ardent in 1983. The incident involved, hitting HMAS Aware at almost full speed. The applicant stated that this commenced bringing back memories from Vietnam. He recalled on his return from Vietnam in 1971, that he was called a “baby killer”. The applicant described limited access to alcohol while he was at sea, but once the ship docked, he drank excessively.
25. Under cross-examination, the applicant was asked what was the most stressful of the events that he has raised. He responded that none of the incidents could be described as the worst case, although the prisoners’ incident was distressing, as was the scare charge incident. The applicant was referred to folio 105 (his alcohol questionnaire) which indicated he commenced drinking as a result of peer pressure. However, the applicant said in evidence that this was not the only reason or not the full reason. He emphasised he just wanted to get drunk.
26. In relation to his hospitalisation in 1974, he referred to a homosexual act while visiting nightclubs in Sydney. There was also a paranoid episode where for one week, the applicant believed that his ship mates were talking about him and plotting to kill him. He was referred to folios 9 to 12 of the T documents which described the medical records of his hospitalisation at that time. Dr Smythe, on 28 May 1974, noted that a report from Dr Foxton indicated that the applicant’s paranoid episode may have been due to Mr Lake’s personality which was “somewhat immature” and attributed the psychotic reaction in part, to his “unfortunate childhood background”.
27. There was also a report on 17 April 1974 by a psychologist who referred to sexual relations with a transvestite and the applicant’s delusional beliefs about other sailors who might have been planning to kill him. That report also referred to incidents with “Beanie Boys” in Singapore on previous occasions. Psychological tests noted considerable anxiety at that time and that the applicant revealed denial and minimisation of events as justification of the incidents reported.
28. It was also noted whilst at HMAS Penguin in November 1975 that the applicant was drinking excessively. There was reference that the paranoid reaction may have been due to his personal life at that time, having been “without direction with the result that he drank excessively” (see folio 27 - T documents). Reference was also made to May 1977 where his medical records showed that at that time, “there is no evidence available that he has a drink problem now” (Folio 32, T documents). The applicant said that he was not drinking as heavily then as he was in 1974.
29. Reference was also made to the letter by the applicant to Mr B Temple on 27 March 2002 as a basis for his contentions. Submissions were made in relation to the SoP dealing with PTSD and the evidence and legal definitions which support concluding that the applicant has experienced a severe stressor. The Tribunal was also referred to Gibbs and Repatriation Commission [2005] AATA 516 and the weight of evidence that might be put on the Writeway Research Report. It was submitted that it is unlikely that Kelson would fabricate a story that divers were in the water when scare charges were dropped.
Evidence of Dr Janis Carter
30. Dr Carter has been practising in the area of psychiatry since 1970 and has been a qualified Psychiatrist since 1975. She has been the applicant’s treating psychiatrist.
31. Dr Carter provided two reports, the first one dated 3 January 2002 and the second report dated 21 July 2005. At the date of the first report, Dr Carter had seen Mr Lake on 9 occasions. Dr Carter diagnosed the applicant as having PTSD, Generalised Anxiety Disorder and Alcohol Abuse or Alcohol Dependence. She described the differences between PTSD and Generalised Anxiety Disorder and emphasised that the applicant revealed much of the evidence concerning the incidents which he had reported, over a large number of consultations.
32. She indicated this was not unusual for patients with PTSD. Some stressors are regarded as being more significant at different times than others. However, he demonstrated hypervigilence and other symptoms of PTSD such as arousal symptoms (sleep disorder and exaggerated startle response).
33. She referred to the incident in 1974 where he was diagnosed with reactive schizophrenia, or paranoid psychosis. She stated this has not re-occurred. However, in relation to the 6 incidents submitted by the applicant, she believed he had PTSD as he had the symptoms of re-experiencing events and panic attacks. These symptoms are common with Generalised Anxiety Disorder, however, he also described symptoms of startle response and avoidance, which are peculiar to PTSD.
34. Dr Carter was of the view that the incidents which he described were within the definition of “experiencing a severe stressor” in the SoP for PTSD. More specifically, she stated that the incident of reports of a hospital being bombed and women and children being injured or killed by gunfire from the ship, was more likely a stressor associated with Generalised Anxiety Disorder. But the incident involving the prisoners having “phosphorus sort of burns” were more characteristic of a stressor for PTSD. In relation to scare charges, Dr Carter thought that could be a stressor for PTSD when “….added to other things like his belief that he might have been bombed. It depends how that occurred sequentially with his other stressors, if it added to some previous ones…”. In relation to the incident where the USS Frank E Evans was cut in half by HMAS Melbourne, she thought that the applicant may have believed that he was in threat of serious injury or death. She emphasised that it was his perception that was the critical factor.
Evidence of Dr William Kingswell
35. Dr Kingswell is a qualified Psychiatrist and is currently the Director of Psychiatry, Gold Coast District Mental Health Service. Dr Kingswell’s diagnosis for the applicant is that of Generalised Anxiety Disorder and Alcohol Dependence.
36. In Dr Kingswell’s view, a diagnosis of PTSD was difficult to support as an appropriate stressor was not evident. In his report dated 10 June 2005, he stated:
“A diagnosis of a generalised anxiety disorder is appropriate. Mr Lake described a chronically anxious mood with a need to check doors and windows and a concern about his own health and mortality. Mr Lake’s experience of irritability and sleep disturbance I expect is a consequence of his alcohol dependence as are his concerns about his relationships especially with his children who endured either his absence from the home or his intoxication.”
37. Dr Kingswell’s assessment also was, based on Mr Lake’s presentation to him, that the onset of his Anxiety Disorder was 1968. He was also of the view that there was no evidence that the disorder was clinically significant prior to 1974. Dr Kingswell’s report states that Mr Lake progressively increased his use of alcohol from 1968 onwards.
38. In oral evidence, Dr Kingswell further described why he did not believe a diagnosis of PTSD was not justifiable. He stated that when he asked the applicant about the stressors which were instrumental in causing his Anxiety Disorder, he referred to scare charges being dropped and that he had not been informed prior to their use or that he had not heard the warning. According to Dr Kingswell, the applicant “….said that it was very frightening and he thought that the ship had blown up but he then shrugged it off and got on with his work. So this is not – well, described – the way it was described to me was not a stressor that caused him tremendous fear of helplessness or didn’t really meet the sort of subjective criteria ….but I don’t think it actually meets the objective criteria either.”
39. In relation to other diagnostic criteria for PTSD, Dr Kingswell also had some concerns. He stated in evidence that this is “….the only disorder in psychiatry where a specific aetiology is required. And unless you find that, the diagnosis can’t be made. So while there is no doubt that Mr Lake is an anxious man and describes having had an anxiety disorder for many years, that it could only be attributed to post traumatic stress disorder if you could identify that stressor and be satisfied that it was the type of stressor described in DSM-IV.”
Consideration of the Issues
40. The Tribunal has considered all of the oral and documentary evidence which has been presented, and taken account of the relevant statutory and case law.
Diagnosis
41. The evidence presented to the Tribunal has resulted in somewhat different conclusions as to diagnosis by Dr Carter and Dr Kingswell. It is the Tribunal’s role to determine the most acceptable diagnosis in a case such as this. It is also to be made on the balance of probabilities and not by reference to a SoP (Benjamin and Repatriation Commission (2001) ALD 622. The Tribunal is obliged to have regard, on the balance of probabilities, to the “collection of relevant symptoms” and to the appropriate SoPs to determine whether those symptoms apply (Fogarty and Repatriation Commission [2002] FCA 1541.
42. Dr Carter diagnosed PTSD, Generalised Anxiety Disorder and Alcohol Dependence. Dr Kingswell concluded that diagnoses of Generalised Anxiety Disorder and Alcohol Dependence were more appropriate. As Dr Carter pointed out in her oral evidence, the symptoms of PTSD and Generalised Anxiety Disorder have many common elements. But the factors of re-experiencing traumatic events, arousal symptoms of exaggerated startle as well as avoidance symptoms tend to differentiate PTSD from Generalised Anxiety Disorder. Both psychiatrists have diagnosed Mr Lake with Generalised Anxiety Disorder and Alcohol Dependence. The one difference in diagnosis is that Dr Carter maintains that the applicant is entitled to a diagnosis of PTSD as well.
43. Proof of the three disorders as diagnosed by Dr Carter and that there is a link to the applicant’s naval service, involve establishing a reasonable hypothesis that there is a triggering event which is either a “severe stressor” or “severe psychosocial stressor”.
44. “Severe stressor” and “severe psychosocial stressor” are terms associated with psychopathology. “Stress” means any thought or pressure that when applied to a system, causes some significant modification of its form, usually implying a deformation or distortion from its original condition. A “stressor”, when used as a psychological force, means a state of psychological tension produced by the stress or pressure and is the causal agent in the system or the antecedent, which might result in the mental health condition claimed.
45. A stressor which is “psycho-social” relates to socially related tasks which either facilitates or impedes the effective integration of a person with the external world. It is clear that distorted or fragile mental health as a result of a shocking incident or prolonged period of stress or abuse (mental or physical), can lead to difficulty in maintaining a healthy and well adjusted mental outlook. This can also affect personal psychological states such as trust/mistrust, intimacy/self focus, productivity in work/stagnation in learning an experience.
46. The respondent submitted that none of the events amount to a “traumatic event” and therefore a diagnosis of PTSD cannot be made (Re Martin and Repatriation Commission [2003] AATA 1228). It also referred to the subjective element of criterion A and that the applicant’s response must be shown to be “intense” fear, helplessness or horror. A response simpliciter, that is, a response which is not intense, would not satisfy the definition (Gerzina v Repatriation Commission [2003] FMCA 490).
47. The respondent also referred the Tribunal to the definition of “severe stressor” as set out in Stoddart v Repatriation Commission (2003) 197 ALR 283. It was submitted that that case did not deal with the issue of severity. To place that in context it was submitted that one needs to take account of the decision of Spender J in White v Repatriation Commission [2004] FCA 633. The latter case deals with a stressful event in the context of a “severe psychosocial stressor”.
48. In Delahunty v Repatriation Commission [2004] FCA 309 the Federal Court considered the relevance of two significant authorities in relation to this assessment – Stoddart v Repatriation Commission (2003) 197 ALR 283; Woodward v Repatriation Commission (2003) 200 ALR 332 at paragraphs 26-27. There, Tamberlin J said:
“26 In my view, the AAT reasons indicate that there was an incorrect understanding of the relevant principles. On the criteria adopted by the Woodward Full Court, it is necessary to ask whether there was an event. In my opinion, there was an objective event, namely the violent destruction of a sampan or junk. This is an objective fact. The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran’s position and knowledge was. The answer is that he associated these vessels with families of women and children because of his observations on relation to similar vessels in Asian ports. At that time he had the position of a relatively junior member of the ship’s contingent. He had a limited education. He perceived a vessel of a type that he associated with women and children, from a distance in circumstances where similar vessels were suspected of laying mines. He said that if he had believed, contrary to his evidence, that there were men and not women on board, then he would not have regarded the sinking of the vessel as an atrocity, and nor would he have been shocked.
27 The term "stressor" denotes something which leads to stress. It is inherent in the notion of "stress" that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. It is clearly not a purely objective construct such as is applied in negligence cases. It is not a case of deciding how "the man on the Clapham omnibus" might react. There is more. The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.”
49. The subjective element was discussed by Spender J in White v Repatriation Commission [2004] FCA 633. There, his Honour said:
“29 The reference to ‘experiencing’ a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase ‘experiencing a severe stressor’ in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence ‘that evokes feelings of substantial distress in an individual’ also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase ‘experiencing a severe stressor’.
30 In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.” (See paragraphs 29-30).
50. In considering a diagnosis of generalised anxiety disorder, criterion A of Statement of Principles No 1 of 2000 reads as follows:
“A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months about a number of events or activities.”
This criterion is described in Diagnostic and Statistical Manual of Mental Disorders – fourth edition. (DSM-IV) as the “essential feature” of the disorder.
51. With respect to PTSD, there are six descriptive characteristics in the definition in SoP Instrument No 3 of 1999. All must be satisfied. The first of these is:
“(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..”
52. In considering whether the incidents submitted by the applicant are capable of being regarded as objective events, incidents 1, 2, 3, and 6 are accepted for the purpose of considering diagnosis that they are objective events. Incident 4 which involved a brief glimpse of prisoners seems, to the Tribunal, on the face of it to be questionable. The glimpses were relatively brief and the first image was only for a minute or so. Whether that could be a traumatic event from an objective point of view, and one which would lead to feelings of guilt about the war and heavy consumption of alcohol seems unreasonable. The prisoners were small in number and unarmed. There was no threat apparent. Incident 5 deals with drinking as a consequence of the other incidents. However, the Tribunal was conscious of a notion that different people will find the same experience stressful to differing degrees (see Delahunty v Repatriation Commission (supra). Therefore, for the purpose of this analysis, the Tribunal accepts all of the incidents as being objective events.
53. In considering whether a diagnosis of PTSD might be accepted, the triggering events must be considered from an objective viewpoint. It is recognised that the applicant has demonstrated evidence of distressing dreams and arousal symptoms which would elicit feelings of distress. It is also accepted that there is avoidance of some activities sufficient to satisfy criterion C. There is evidence to indicate that Mr Lake suffered from an ongoing anxiety condition.
54. The Tribunal does not agree that the applicant satisfies Criterion A for PTSD, as the events were not such as to evoke in a person of Mr Lake’s age, experience and training “intense fear or helplessness or horror” (my underlining). Also, looked at subjectively, and based on Mr Lake’s evidence about his response to the scare charges or the suspicion that there may have been enemy divers, or night firing or the observation of prisoners compelling situations, these are not incidents which would lead to intense fear, helplessness or horror and it is not accepted as having a long lasting effect such as that described by the applicant. The word “intense” has been held to qualify the words “fear”, “helplessness” and “horror” (see Hill v Repatriation Commission (2001) 66 ALD 293 per Von Doussa J). The Tribunal is therefore bound by the Federal Court’s decision to weigh the intensity of the fear, helplessness or horror in the incidents described.
55. The applicant’s observations in Incidents 1,2,3 and 6 are not unreasonable, and based on his anxious personality, his subjective assessment is not irrational or baseless (see Woodward supra). It is accepted that the incidents might result in feelings of subjective distress for Mr Lake, but they were all short term incidents, return fire was not involved, and in relation to alleged feelings of distress from the report of a hospital being bombed, there was never any confirmation of this and it was based on rumour only. There was no observation of any destruction, merely unconfirmed rumour on board the ship. Whilst Dr Carter’s view that the applicant’s psychological state is based upon his own perceptions rather than fact, there was no experiencing or witnessing of events which could have been regarded as risks to his own life or a risk of serious injury or to his physical integrity or to others which might result in that response. The description of Incident 4 would seem to be baseless as a stressor for PTSD, and therefore is unreasonable. It is not accepted this could result in “intense fear, helplessness or horror”. The Tribunal is not satisfied that the feelings evoked could be described as “intense” as a result of the incidents described. (see White supra).
56. Likewise, Incident 5, involving a schizophrenic reaction is well documented by the psychiatric assessment and his reports to Doctors when that occurred in 1974. His emotional state and his drinking behaviour are not linked to, nor is the Tribunal reasonably satisfied that they could be linked to the incidents put forward. Even Incident 6, on HMAS Ardent in 1983, could not objectively be regarded as of sufficient impact to result in re-emergence of memories of Vietnam twelve years later and which could progressively result in the dysfunction which the applicant claims he now experiences. The latter incident had been reported to Dr Carter on a number of occasions over the previous couple years, but was not reported at all to Dr Kingswell.
57. On the balance of probabilities therefore the Tribunal accepts the opinion of Dr Kingswell. Therefore, the Tribunal decides that the applicant does not suffer from PTSD. Consequently the diagnoses of Generalised Anxiety Disorder and Alcohol Dependence are accepted. It is accepted that onset of Generalised Anxiety Disorder was in 1968 but that it was not clinically significant until 1974. It also accepts that alcohol abuse commenced in 1968.
Are the Conditions of Generalised Anxiety Disorder and Alcohol Dependence War-caused?
58. The framework set out in Repatriation Commission and Deledio (1998) 83 FCR 82 is well accepted as being the normative approach in dealing with veterans’ claims for pension in the circumstances of the applicant. However, there are two preliminary matters which must be satisfied and which are an assumption which is accepted in the use of the Deledio authority.
59. Before examining the SoPs for generalised anxiety disorder and alcohol dependence are satisfied for the applicant, the Tribunal must first be satisfied that two pre-conditions set out in Repatriation Commission and Hancock (2003) FCA 717 are satisfied. More recently, a similar approach was advocated by Gray J in Mines v Repatriation Commission [2004] FCA 1331. In Hancock’s case, the following are the relevant pre-conditions:
(i) Was Mr Lake a veteran under the Act?; and
(ii) Is the “kind of injury” or “disease” submitted by the applicant consistent with a SoP which has been issued?
60. Mr Lake has served on operational service and this has not been disputed. He therefore satisfies section 7(1)(a) as having had “operational service” which according to that definition, is a subset of “eligible war service”. (See section 5B, 6C and Schedule 2, Item 4 of the Act). Also, the conditions claimed are each a disease or injury within the meaning of those terms in section 5D(1) of the Act. These conditions relate to a SoP which has been formally issued. The above two pre-conditions set out in Hancock’s case have therefore been satisfied.
Findings of Fact
61.The Tribunal finds that:
(i) the applicant had no previous psychiatric history before joining the RAN and before his Naval service in Vietnam waters;
(ii) the applicant demonstrated a propensity for an anxiety disorder from as early as 1968;
(iii) the applicant experienced a number of events as set out in Exhibit 3 and which heightened his anxiety;
(iv) he drank progressively more alcohol between 1968 and 1974, particularly when on leave or not on a ship at sea;
(v) he witnessed the aftermath of the collision between the HMAS Melbourne and USS Frank E Evans;
(vi) he heard rumours or reports which heightened his awareness of possible divers or bombs strapped to the hull of the ship;
(vii) he briefly witnessed Viet Cong prisoners on board who apparently had received medical treatment (evidence of mercurochrome on their skin and a bandage);
(viii) on HMAS Ardent he experienced a mishap where a patrol boat was almost capsized;
(ix) he has been employed as a postman since leaving the Navy;
(x) He has curtailed his drinking recently but has had more time off work in recent years.
Clinical Onset
62. In Lees and Repatriation Commission (2002) 125 FCR 331 at paragraph 16, the Full Court of the Federal Court held that “clinical onset” requires demonstration of sufficient proximity of the events claimed to be associated with the applicant’s operational or defence service and the manifestation of the disease to demonstrate the causal link between the service and the disease. There must be evidence of a temporal alignment between the onset of the disease and the psycho-social stressors claimed.
63. Dr Carter had referred to her diagnosis of PTSD occurring at about 1982 or 1983. Dr Kingswell said the anxiety disorder probably occurred in the late 1960s but was not clinically significant until 1974. That was also a period in which alcohol abuse became particularly evident as revealed by the Naval medical records. The respondent submitted that the generalised anxiety disorder probably had its onset in or about 1969 and alcohol abuse about 1970. He told Dr Kingswell that his anxiety condition started about 1968. As the applicant is entitled to the most generous interpretation where there is a doubt, the Tribunal accepts that the onset of generalised anxiety disorder was in 1968 (as submitted by the applicant himself) and for alcohol abuse to have existed since 1970, as submitted by the respondent.
Assessment
64. To determine the assessment of generalised anxiety disorder for this applicant and whether it is “war-caused”, four steps are required as set out by the Full Court of the Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82 at 82. The relevant steps are:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11)…….
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.”
65. In dealing with Step 1 of Deledio, there must be material which can establish an hypothesis connecting the applicant’s generalised anxiety disorder with facts relating to his service. An hypothesis is a proposition which may seem logical, without acceptance of its truth, but it is to be regarded as a starting point for further enquiry. “A hypothesis is no more than a supposition of conjectural explanation of an ultimate fact” (Repatriation Commission v Stares (1996) 41 ALD 212 at 217. )
66. The Tribunal must have regard to the requirement to make its determination “after consideration of all of the material”. This was first referred to in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569, when the High Court said a reasonable hypothesis is raised when “….the material point to some fact or facts (‘the raised facts’) which support the hypothesis”. The term “consideration of all of the material” was further clarified in Repatriation Commission v Webb (1998) 51 ALD 575 where it was held that the overall hypotheses requires consideration of each sequential part of the hypothesis and whether facts point to each part of the hypothesis being reasonable. If each part is reasonable, the overall hypothesis may be reasonable.
67. The Tribunal is of the view that an hypothesis could be made connecting the applicant’s condition with the circumstances of his service if it can be shown that his generalised anxiety disorder was aggravated within two years of his operational service in Vietnam. With respect to the incidents claimed to have occurred in Vietnam, an hypothesis could be raised in respect to the applicant’s present condition.
68. In relation to Step 2 of Deledio, a SoP exists for the condition of generalised anxiety disorder and has been issued by the RMA. The relevant Instrument is No 1 of 2000 – Generalised Anxiety Disorder.
69. Step 3 of Deledio requires an assessment of whether the hypothesis raised in Step 1 is a reasonable one. The Explanatory Memorandum to the Act makes it clear that a reasonable hypothesis is not the existence of a mere possibility, but that the intention of the legislation is that a pension will be payable only where the evidence provides “….some positive inference in favour of a connection between the injury, disease or death and the veteran’s or member’s particular service” (at page 107).
70. The approach to be adopted in assessing this question was set out by the High Court in Byrnes and Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with 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)
71. In determining whether the hypothesis is reasonable, the material before the Tribunal must fit the template in the SoP for Anxiety Disorder. That is, the material before the Tribunal must demonstrate the elements of Anxiety Disorder as defined in clause 2(b)(ii) and clause 5 of the SoP (Repatriation Commission v Hill [2002] FCAFC 192 at paragraph 67). In that case, the diagnosis of post traumatic stress disorder was not in dispute and the Court there approached the assessment this way:
“The correct issue was, assuming [the applicant] suffered from PTSD as defined in cl 4 of the SoP, did the material raise or point to his “experiencing a stressor”, as defined, during his operational service?”
72. The Tribunal has adopted the approach in Hill’s case in assessing the reasonableness of this hypothesis. The relevant factors in the SoP which contribute to this assessment are as follows:
SoP Instrument No 1 of 2000 –Generalised Anxiety Disorder
“Kind of injury, disease or death
2.(a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b)For the purposes of this Statement of Principles, “anxiety disorder” is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
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 as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)being a prisoner of war before the clinical onset of anxiety disorder; or
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv)having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;
or
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
(vi)having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(vii)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
(b)for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or
(c) inability to obtain appropriate clinical management for anxiety disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(a)(v) to 5(a)(vii) and 5(c) apply only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
8 Other definitions –
“generalised anxiety disorder” means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;”
73. The third step in the Deledio process requires the Tribunal to make a relatively macro-level of assessment of the applicant’s story and to determine whether it fits the template set out in the SoP. Findings of fact are not made on the basis of Step 3. At this point, however, if the applicant’s story does not fit within the template of SoP Instrument No 1 of 2000. To be reasonable in terms of Hill’s case, an hypothesis must reveal a credible proposition and one that is not too remote or too improbable. It must be “….more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities” (East v Repatriation Commission (1987) 16 FCR 517 at 532-533.
74. In a practical sense, the evidence must “point to” or “support” the hypothesis and not merely be “left open” on the evidence as a possibility (Gilbert v Repatriation Commission (1989) 86 ALR 713) (Repatriation Commission v Bey (1997) 79 FCR 364). It must also show more than just a temporal connection with military service (Repatriation Commission v Tuite (1993) 39 FCR 540). The High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 affirmed this approach or the “points to” test. Their honours determined that the test in s120(3) will manifest a reasonable hypothesis in circumstances where “….there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”.
75. Considering the applicant’s account of the claimed incidents, the fundamental question is whether the incidents are “severe psycho-social stressors” as defined. The definition of “severe psycho-social stressor” requires the applicant to experience feelings of substantial distress and provides examples of “being shot at, death or serious injury of a close friend of relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
76. As submitted by the respondent, in White v Repatriation Commission (2004) FCA 663, Spender J held that a “severe psycho-social stressor” contains both objective and subjective elements. The “severity” of the examples in the definition must be used as indicative of the threshold by which the applicant’s incidents must be judged.
77. To interpret them in any other way, would be to regard those examples as being meaningless. It is clear that the examples were inserted with the intention that they provide greater particularity to the definition and to set the standard or “benchmark” against which to measure claims made. I accept that the examples are the “benchmark” which are indicative of (although not a strict threshold), of the severity of a stressor which is required to satisfy the definition of a severe psycho-social stressor.
78. The definition as discussed in Re Stonehouse and Repatriation Commission [2004] AATA 707 at paragraphs 18 and 19 should also be given effect in interpreting the definition. There, it was said:
“The events described in the definition are stressful – but not simply because they are frightening or unusual. Many of the events described, like a divorce or unemployment, are common events that do not ordinarily engender fear. They do cause distress, however, and almost everyone can relate to the pressure and tension one experiences in those situations. Even events that involve violence (eg, being shot at) are psychosocial stressors because the victim is likely to be distressed by the motivation of the aggressor (‘What have I done to deserve this? Why me? How could someone do such a thing?’) rather than simply being frightened or fearing for his or her bodily integrity. An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension. The term was not intended to include all kinds of stressful and terrifying events – the social element makes it quite distinct from the concept of a severe stressor for the purposes of the SoP regulating post-traumatic stress disorder.
A severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature, and cause the requisite level of distress to the individual. To satisfy the SoP the individual must have experienced an identifiable which has social factors that affected his or her mind or behaviour, causing the requisite level of distress.” (See paragraphs 18 and 19).
79. The respondent also submitted that the applicant’s claims must be assessed as to whether they “…severely compromise a person’s health or social and financial support.” (see Re Sparks and Repatriation Commission [2005] AATA 319 at paragraph 25).
80. Specifically in relation to the claims made, the respondent submitted that the scare charges (Incident No 1) had been rejected by the Tribunal previously (see Re Cannon & Repatriation Commission [2004] AATA 428; Re Harrison-Kyte and Repatriation Commission [2004] AATA 360; Re Lees and Repatriation Commission [2003] AATA 1027; and Re Lees and Repatriation Commission [2005] AATA 549.
81. Incident 2, involving the collision of HMAS Melbourne with USS Frank E Evans, was mostly conveyed to the applicant rather than actual involvement. He was on duty in the boiler room at the time.
82. The respondent submitted that the diver incident (Incident 3) has previously been rejected by the Tribunal as being a severe stressor (see Beveridge and Repatriation Commission [2005] AATA 962.
83. The respondent further submitted that Incident 4 dealing with the Viet Cong defectors has likewise been rejected as being severe stressors (Sly v Repatriation Commission [2004] AATA 958; re Wiseman v Repatriation Commission [2005] AATA 156). The respondent also submitted that the situations in all of the authorities above are arguably more stressful than the situations put forward by the applicant. It also noted the case of Re McCutcheon and Repatriation Commission [2004] AATA 329, an incident involving “a close-up encounter with a soldier wounded far worse than any of the defectors seen by Mr Lake, was found not to have been a severe stressor”. The incidents, based on the assessment of both psychiatrists, worsened his anxiety, particularly when he was in the boiler room. However, despite his anxiety, he was able to continue working although he became somewhat surly in his interactions with others.
84. Incident 3 was regarded by the applicant as being the most important event when he was interviewed by Dr Kingswell. This was somewhat inconsistent with his oral evidence at the Tribunal where he could not differentiate between the incidents in terms of severity. However, in relation to Incident 4 involving the Viet Cong defectors, there have been a number of cases where contact with wounded personnel could be a severe stressor (see Lamont and Repatriation Commission [2005] AATA 149. However, the Tribunal is not satisfied that the incidents raised by the applicant are anywhere near as severe as those in Lamont. Also, while the authorities submitted by the respondent are very persuasive, that alone is not sufficient in assessing the applicant’s claims. It must consider the type of danger and whether it could fairly be said that in a person in the applicant’s position, that the level of distress and emotions evoked as a result are such that they are of the same level and severity as those provided in the SoP. Having considered all of those, the Tribunal is not so satisfied.
85. Incident 6 occurred during eligible defence service under section 68(1) of the Act, and whilst on a training exercise. The incident has been previously decided not to meet the requirements of “severity” for it to be a severe stressor.
86. The period of hospitalisation in 1974 was associated with alcohol abuse and homosexual contacts. His Naval medical records show that he was assessed at that time by a psychiatrist and the following assessment was made - “Mr Lake’s personality is a somewhat immature and schizoid one that the present episode was precipitated by both obvious and covert stressors from his present situation and from his unfortunate childhood background” (T-documents folio 10). A psychologist report revealed the result of various psychometric tests in explaining some of his involvement in homosexual activities in Sydney as well with “Beanie Boys” in Singapore, were as a result of peer pressure and his desire to be one of the boys. The psychometric tests revealed he used denial and minimisation as defences for his behaviour.
87. Despite the above assessment that the incidents submitted by the applicant are not of the level of severity contained in the SoPs, to allow a determination that the applicant suffers from war caused anxiety disorder. The applicant did not have any clinically significant anxiety until 1974, based on the assessment of Dr Kingswell, which the Tribunal accepts. Therefore, while he had a pre-existing anxiety disorder, there was no clinical onset within the required period nor is it apparent that those incidents have created any aggravation of his anxiety condition within the two year period following his service in Vietnam waters. Therefore, the Tribunal is not satisfied that the conditions which the applicant currently suffers are attributable to his operational service with the RAN.
Alcohol Dependence
Did the Applicant experience a Severe Stressor as Defined in Paragraph 8 of Instrument 76 of 1998 (Alcohol Dependence or Alcohol Abuse)?
88. The relevant provisions of SoP Number 76 of 1998 are:
“Kind of injury, disease or death
2. ….
(b) For the purposes of this Statement of Principles,
“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
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 alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) 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 alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) 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 alcohol;
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Other definitions
8. For the purposes of this Statement of Principles:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
89. As stated earlier, in dealing with Step 1 of Deledio, there must be material which can establish an hypothesis connecting the applicant’s Alcohol Dependence with facts relating to his service.
90. The Tribunal is satisfied that an hypothesis can be made connecting the applicant’s condition of Alcohol Dependence with the circumstances of his service based on the applicant’s version of events and the other evidence, including medical evidence.
91. In relation to Step 2 of Deledio, a SoP has been issued by the Repatriation Medical Authority for the condition of PTSD. This is contained in Instrument No 76 of 1998 – Alcohol Dependence or Alcohol Abuse.
92. Step 3 of Deledio requires an assessment of whether the hypothesis raised in Step 1 is a reasonable one. As explained in the earlier assessment of Generalised Anxiety Disorder, a hypothesis therefore is merely a possibility, but to be a reasonable hypothesis, it must “….be pointed to or supported, and not merely left open as a possibility by the material before the decision maker” (Repatriation Commission v Bey (1997) 79 FCR 364 at 372).
93. The approach to be adopted in assessing this question was set out by the High Court in Byrnes and Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with 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)
94. In determining whether the hypothesis is reasonable, the material before the Tribunal must fit the template in the SoP for Alcohol Dependence. That is, the material before the Tribunal must demonstrate the elements of Alcohol Dependence as described in paragraph 2(b) and clause 5 of the SoP (Repatriation Commission v Hill [2002] FCAFC 192 at [67]). In that case, the Court said that the relevant question was:
“..did the material raise or point to his “experiencing a stressor”, as defined, during his operational service?”
95. The third step in the Deledio process requires the Tribunal to make a relatively macro-level of assessment of the applicant’s story and to determine whether it fits the template set out in the SoP. Findings of fact are not made on the basis of Step 3. At this point, however, if the applicant’s story does not fit within the template of SoP Instrument No 76 of 1998, then the hypothesis will not be reasonable (see section 120(1)). In those circumstances, the claim would be unsuccessful.
96. As stated earlier, to be reasonable, the hypothesis must be not too remote or too improbable, not fanciful but pointed to by the facts, and not merely left open as a possibility (Repatriation Commission v Bey (1997) 79 FCR 364).
97. In Stoddart v Repatriation Commission (2003) 74 ALD 366, Mansfield J held that in considering the meaning of the term “experiencing a severe stressor”, there does not need to be an actual threat, judged objectively with full knowledge of the circumstances. His Honour said that that expression extended to a person experiencing an event involving threat of death or serious injury, when judged objectively by a reasonable person in the position of the applicant. That judgment was quoted with approval in Woodward v Repatriation Commission (supra) and said that “experiencing” had a subjective element to the extent described by Mansfield J. In Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 108, the term “experiencing a severe stressor” was considered in that context, it was stated that:
“The word ‘experienced’ suggests that the person observed or encountered such an event and the word ‘confronted’ that he or she was faced with such an event.”
98. Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366 (at 378) in considering the definition “experiencing a severe stressor”, referred to it this way:
“….the adjectival clause ‘that involved actual or threat of death or serious injury…’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively do not in fact fall within the adjectival clause.”
99. His Honour also considered the word “threat” and held that it extended to an event which “…judged objectively from the point of view from a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. subjectively experienced) the risk of death or serious injury or to physical integrity”. A person’s physical integrity is intended to mean that their physical entirety or complete functioning is not diminished.
100. The requirement therefore for the Tribunal to determine whether a particular event satisfies the objective requirements of the definition of the stressor is not a simple one. Some assistance is drawn in considering the application of these principles to an event or events to be considered by the judgment of Tamberlin J in Delahunty v Repatriation Commission (2004) 38 AAR 511 (supra). The objective requirements are more properly considered from the standpoint of a member of the armed forces who is not idiosyncratic or unduly timorous or sensitive. It must take account of the diversity in age and experience of persons in the armed forces and include their formal training and experience, particularly in combat or stressful situations. Certainly, the examples provided in the SoP provide some guidance as to what would amount to a severe stressor.
101. As stated previously, the incidents raised do not satisfy the definition of a severe psycho-social stressor and equally, they do not create “intense fear, helplessness or horror”. “Intense” is defined in the Oxford Dictionary as “very deep; feeling ardent….feeling or susceptible to intense emotion”. “Fear” is concerned with impending danger. “Horror” is defined in the Oxford Dictionary as “…a shuddering with terror and repugnance, feeling excited by something shocking or frightful…”.
102. Based on the events submitted, the psychiatric reports, the oral evidence and applicant’s service medical records, the Tribunal is not satisfied that the hypothesis raised is a reasonable one. The incidents are not “severe stressors” which could relate to the applicant’s alcohol dependence.
103. The Tribunal affirms the decision under review.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: J Lauriston
Administrative Assistant
Date/s of Hearing 6 December 2005
Date of Decision 13 February 2006
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Haney Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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