Landells and Repatriation Commission
[2005] AATA 85
•27 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 85
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/182
VETERANS' APPEALS DIVISION ) Re THEODORE DOUGLAS LANDELLS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Mr Conrad Ermert, MemberDate27 January 2005
PlaceMelbourne
Decision
The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that Mr Landells’ Post-Traumatic Stress Disorder is a war-caused disease under s 9 of the Veterans’ Entitlements Act 1986.
[sgd] Joan Dwyer
Senior Member
VETERANS’ APPEALS – whether post-traumatic stress disorder (PTSD) war-caused – applicant ordered to climb on top of engine and tonk valve which was sticking whilst serving on HMAS Voyager – fearful of severe injury from escape of high pressure steam – guilt and anxiety after Voyager collision – diagnosis of condition – medical evidence – finding that applicant suffers PTSD – hypothesis that applicant developed PTSD because of engine incident – evidence applicant faced with threat of serious injury judged objectively from point of view of a reasonable person in position of the applicant – reasonable hypothesis – medical evidence that events regarding Voyager collision caused PTSD – Tribunal satisfied beyond reasonable doubt PTSD not war-caused on hypothesis relied on at hearing – Secondary hypothesis raised on evidence – steam valve incident a traumatic event that contributed to development of PTSD after Voyager collision – applicant experienced a severe stressor and subsequently developed PTSD – material fits the template in the Statement of Principles – reasonable hypothesis – disease can be war-caused if a factor specified in SoP was one cause or a contributory cause – Tribunal not satisfied beyond reasonable doubt that PTSD not war-caused – decision under review set aside.
PRACTICE AND PROCEDURE – inquisitorial approach by Tribunal – Tribunal’s duty to arrive at correct or preferable decision on material before it – Tribunal of the opinion that material before it may raise a secondary hypothesis – letter to parties inviting submissions on that issue.
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 109 ALR 30
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Deledio (1998) 49 ALD 193Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION
27 January 2005 Mrs Joan Dwyer, Senior Member
Mr Conrad Ermert, MemberINTRODUCTION
1. The point at issue in this matter is whether Mr Landells has a psychiatric condition which is “war-caused” within the meaning of that term in s 9 of the Veterans' Entitlements Act 1986 (“the Act”). There is a question as to the appropriate diagnosis of Mr Landells’ psychiatric condition. There is also a question as to whether that condition, however diagnosed, is attributable to the circumstances of “operational” or “eligible” service, as those terms are defined in ss 6 and 7, of the Act.
2. On Mr Landells’ behalf, it was submitted that the appropriate diagnosis of his conditions is Post Traumatic Stress Disorder (“PTSD”), major depressive disorder and alcohol dependence or alcohol abuse. In the alternative, anxiety disorder was relied upon. The respondent submitted that Mr Landells suffers from bipolar disorder with secondary alcohol abuse (in remission), which are not causally related to his operational service.
3. The reviewable decision is a decision of the Commission made 27 March 2002. The Veterans’ Review Board (“the VRB”) on 21 January 2003 varied the decision of the Commission by amending the diagnosis of the claimed condition from “Bipolar Disorder and Post-Traumatic Stress Disorder” to “Anxiety Disorder”, and affirmed the decision in so far as it had rejected the claim, on the ground that the psychiatric condition was not war-caused.
4. At the hearing, Mr Chancellor of Counsel appeared for Mr Landells and Mr Purcell of Counsel appeared for the Repatriation Commission (“the Commission”). Evidence was given by Mr Landells, his wife Ms Morris, and Dr Epstein. Dr Gidley, Mr Cameron and Commander Ferrier gave evidence on behalf of the respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered at the hearing.
5. Mr Landells served in the Royal Australian Navy (“the Navy”) from 24 January 1955 to 7 September 1964. He had “operational service” in the Far East Strategic Reserve (“FESR”), within the meaning of that term in s 6C of the Act, during the following periods:
Voyage 1 21st September 1956 to 13th October 1956 on HMAS Sydney
Voyage 2 8th February 1963 to 1st March 1963 on HMAS Voyager
Voyage 3 10th March 1963 to 29th March 1963 on HMAS Voyager
Voyage 4 15th April 1963 to 8th May 1963 on HMAS Voyager
DIAGNOSIS OF CONDITION
6. It is necessary to decide from what condition or conditions Mr Landells was suffering at the time he lodged the claim which gives rise to this review. That claim was lodged on 7 March 2002 (T5). It claimed that Mr Landells suffered from war-caused anxiety due to stressful occurrences during Mr Landells’ FESR service on board HMAS Voyager between 10 March and 8 May 1963.
7. At the time Mr Landells lodged his claim (T5), he had some diseases accepted as war-caused under the Act, but none of those were psychiatric conditions.
8. Mr Landells held approximately 40 jobs in the period from September 1964, when he was discharged from the Navy, until 1988, when he started working for the Red Cross Blood Bank in Brisbane. He held that position until 1993, when he ceased working and commenced receiving disability support pension.
9. There is no doubt about the fact that Mr Landells has suffered from psychiatric disease after his discharge from the Navy. He was hospitalised in psychiatric units a number of times between late 1979 and 1986, and then once more in November 1997 (T7, p95). The diagnosis of the condition which required hospitalisation was noted at the time as bipolar disorder. There is a suggestion that it may have been a result of alcohol abuse.
10. Fortunately, there has been some improvement in Mr Landells’ psychiatric well-being. It seems to be associated with the fact that on 9 August 1986 he joined Alcoholics Anonymous, and has not had an alcoholic drink since (T10, p120). Mr Landells suggested that was also the reason why he was able to hold down the job with the Red Cross for five years from 1988, rather than continue with his earlier employment record of frequent change.
Standard of proof for decision as to diagnosis
11. The Full Court of the Federal Court established, in Repatriation Commission v Cooke (1998) 52 ALD 1, that the issue whether a disease exists is to be decided on the reasonable satisfaction standard of proof.
12. In order to appreciate the reasons of the Full Court it is necessary to set out s120(1), (3) and (4) of the Act. They provide as follows:
(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.
…
13. The Full Court in Cooke explained that s120 (1) and (3) specify the standard of proof for the determination whether or not a disease relates to operational service. Section 120(4) of the Act requires the civil standard of proof to be applied to the question whether there is a disease. Cooke was approved by the Full Court of the Federal Court in Repatriation Commission v Budworth (2001) 66 ALD 285.
14. Issues of diagnosis are usually determined on the specialist medical evidence. The Statements of Principles issued by the Repatriation Medical Authority are not relevant to the question of diagnosis (Benjamin v Repatriation Commission (2001) 70 ALD 622). The relevant diagnostic criteria are set out in the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (“DSMIV”).
Background to Medical evidence
15. Mr Landells was a Leading Engineering Mechanic and part of the crew of HMAS Voyager from 27 August 1962 until 22 September 1963. At that time, he transferred from HMAS Voyager to HMAS Vampire, in order to remain in Sydney to be with his wife, who was expecting their third child. He arranged to swap places with a Leading Engineering Mechanic from HMAS Vampire.
16. Mr Landells was not part of the crew of HMAS Voyager at the time of her collision with HMAS Melbourne on 10 February 1964 (“the Voyager collision”). By that time, Mr Landells’ replacement had been discharged from the Navy, and another Leading Engineering Mechanic was performing the relevant duties on HMAS Voyager.
17. The material lodged in relation to this hearing included a statement by Mr Landells (A1), in which he said that he related his anxiety and depressive condition to a specific incident that occurred during his last operational service voyage on HMAS Voyager. He said:
I relate my anxiety and depressive condition to a specific incident that occurred on one of the voyages into the operational zone. I believe that it was the third voyage because I recall that we were travelling from Hong Kong. I believe that the particular incident (which is described by the Veterans’ Review Board at page 4 of its decision) occurred on the second day of that voyage (i.e. I believe it occurred on or about 16 April 1963). Prior to the specific incident I was not suffering the symptoms which I now suffer and understand to be part of my anxiety and depressive disorder. The incident as described on page 4 of the Veterans’ Review Board decision is reasonably accurate. The Chief Engine Room Artificer (Alan Cameron) approached me whilst I was on watch and advised me that the steam inlet valve to the turbine engine was not responding to throttle and was stuck open. He ordered me to climb on top of the engine and to hold a 2 foot brass rod in place which he intended to strike so as to force the valve to close. I was straddling the engine and I was terrified because I believed that if he missed the rod and instead struck the casing of the engine and/or if the valve broke from the force of the blow then a shot of steam from the engine was likely to slice me in two. Despite the fact that I was terrified I felt that I could do nothing but to follow the orders.
I have suffered nightmares and flashbacks of the aforementioned incident ever since it occurred.
Prior to the aforementioned incident I had been a light social drinker of alcohol. On the occasions when I did drink I consumed not more than about 2 to 3 pots of beer as a rule. I recall that when we reached the end of that particular period of operational service I was still overcome by the incident and that I drank more alcohol on shore leave than I previously had. I found that the alcohol helped settle my nerves and from that time onwards I have consumed significantly greater alcohol than previously. I relate the increase in my consumption of alcohol to the aftermath of the incident involving the steam valve. Whilst at sea I was unable to obtain much liquor; we were rationed with alcohol and I consumed my ration. Thereafter when on shore leave or other leave I drank much more heavily than previously (on average 6 to 8 pots (10oz.) of beer) in order to feel better.
medical evidence as to diagnosis
18. The T documents include reports from a number of psychiatrists. Dr Wilkie, a psychiatrist, provided a report dated 19 February 1996 (T7 pp 91‑92). At the time he had been treating Mr Landells for 13 years, from 1983. He wrote that he had “seen Mr Landells on a number of occasions exhibiting an obviously elevated mood, talking too much and too fast, in a grandiose manner”. Dr Wilkie’s notes (R22) include a copy of a statement Mr Landells wrote about the history of his naval service (T10). Mr Landells said that he wrote that statement in 1995, when he was contemplating lodging his first claim with the Department of Veterans’ Affairs for psychiatric disease to be accepted as war-caused (trans, p53). It seems that Dr Wilkie had seen the statement before he wrote his report of 19 February 1996 (T7).
19. Dr Wilkie wrote in his notes for 1 December 1995 (R22, p37):
1/12/95 Thinks he may have a claim for damages related to the Voyager disaster. Fears associated with talking about the burial detail – felt guilty – …
My opinion
Ted’s condition has always been difficult to diagnose.
Stress associated mania and alcoholism
Seemed to become irrational and high in situations where he was being placed in a position of personal responsibility
His condition consistent with a PTSD related to survivor guilt and it hasn’t ever been discussed until now.
20. At the next consultation, Dr Wilkie wrote (R22, p37-8):
…
2nd Royal Commission 1967
Ted’s concern about the steam engine.
His survivor guilt
Family history on mother’s side of alcoholism
Not family history of M-D Psychosis
Report – not addressed to anyone
1. Unusual Manic response to stress
2. Guilt plays large part in symptomatology
3. No obvious genetic tendency
4. Story Voyager is consistent
5.Unable to say that the Voyager guilt caused this but consistent with having an effect
21. Dr Wilkie concluded his report of 19 February 1996 (T7, p92):
9. Given Ted’s ability to talk non-stop for an entire appointment I was surprised at first that he had not spoken except in passing, of his service on the Voyager previously, although he had plenty of opportunity to do so. I believe he has avoided recalling his service on the Voyager because these memories were associated with a feeling of survivor guilt and he avoided thinking about the problem with the engine that could have been the cause of the death of so many of his friends.
10. Now that Ted has told me in detail about his service on the Voyager, his secretly held concerns that the problem with the engine may have caused the ship to veer out of control, and how guilty he felt about surviving when many of his friends had not, I now believe that these feelings have contributed to his abnormal behaviour pattern.
11. I believe there is sufficient reason to consider that Theodore Douglas Landells suffered nervous shock as a result of the Voyager incident and that this nervous shock has contributed significantly to his mental illness. [emphasis added]
22. The next report (T6) is a medico-legal report from Dr Knox dated 10 March 1997. It was written for proceedings claiming that Mr Landells suffered PTSD resulting from his confrontation with the Voyager collision. Dr Knox mentions as relevant to the development of PTSD that, prior to the collision, Mr Landells had a number of experiences during his service in HMAS Voyager, which led him “to hold some fears for his safety in connection with service aboard HMAS Voyager” (T6, p82). The matters mentioned include “near misses with other ships” and “the experience of seeing the ship’s commander … on two occasions in his opinion heavily intoxicated”. Another matter mentioned was “the jamming of a valve in the ship’s throttle control”. The report states that Mr Landells felt concern as to whether the defective valve, of which he was aware, may have played a part in the collision. Dr Knox wrote (T6, pp82-85):
Mr Landells was aboard the Voyager during its last two extended periods at sea in waters north of Australia. He told me of several unsettling experiences during this time including “near misses” with other ships, the jamming of a valve in the ship’s throttle control, and the experience of seeing the ship’s commander, Captain Stevens, on two occasions, in his opinion, heavily intoxicated. On one occasion Captain Stevens was seen ashore, and on the other occasion Mr Landells visited him in his ship-board accommodation when he appeared to Mr Landells to be “very sick”.
These experiences, along with others mentioned in the written report, led Mr Landells to hold some fears for his safety in connection with his service aboard the Voyager. Despite this however he does not appear to have suffered from psychiatric illness, or begun to drink heavily, at the time, as reportedly became the case following the Voyager sinking.
Over the years since the accident Mr Landells has often speculated over whether or not the faulty throttle valve had perhaps played some part in the collision with the Melbourne. Certainly there had been control problems with the ship at earlier times, as mentioned by Mr Landells to me, and expressed in his written statement. His knowledge that the matter was never subsequently given an airing in the enquiries has troubled him. To this day Mr Landells doesn’t know whether or not the problem had been rectified during the refit at Williamstown. As Mr Landells noted the Voyager had been notorious for mechanical failures, no doubt arising from the Voyager being the first of the Daring Class destroyers.
Mr Landells increasingly buried his troubled thoughts and emotions concerning the Voyager beneath heavy consumption of alcohol. [emphasis added]
23. Dr Knox’s opinion was that Mr Landells developed PTSD because of his guilt when he learnt about the Voyager collision. That guilt was partly due to the fact that Mr Landells had arranged to transfer off HMAS Voyager prior to the collision. It was also due to Mr Landells’ concern that engineering defects, of which he was aware, including the defective valve, may have played a part in the collision.
24. Dr Knox, in explaining his diagnosis, wrote (T6, p87):
. . . He and his wife believed that they had both been through very considerable suffering and disruption to their lives triggered by the Voyager sinking, seemingly triggering Mr Landells’ collapse into alcohol abuse in an attempt to deal with the emotional distress of his peculiar set of circumstances surrounding the Voyager sinking. I know of no other event, or vulnerability in Mr Landells that might have been expected to cause such a massive change in him.
. . .
I believe Mr Landells did in fact suffer what is now recognised as the illness Post-traumatic Stress Disorder. Given the climate of those times, particularly in male culture, where men did not express their feelings of fear or sadness, Mr Landells sought no treatment, but self-medicated with alcohol.
Particularly given Mrs Landells’ description of her husband’s withdrawal from his interests and the family, his poor ability to express emotions, his disturbed sleep, irritability, poor concentration, and obsessive concern and rumination over the various aspects of the Voyager sinking that were of great significance to him, particularly his guilt, with such aroused recollection also being triggered by certain reminder events, this diagnosis is apt. He had met the diagnostic criteria laid down in The Diagnostic And Statistical Manual Of Mental Disorders, 4th edition, for Post-traumatic Stress Disorder.
Given your client’s failure to report his involvement in the Voyager sinking in his dealings with doctors during the years of his treatment, I believe they were unable to make the connection with the original traumatic event necessary to make the diagnosis, and instead saw only his very agitated troubled mood disorder, leading them to diagnose Manic Depressive Disorder. There is however no family history of Manic Depressive Disorder or indeed alcohol abuse. [emphasis added]
25. Mr Landells moved from Queensland to Melbourne in the year 2000. He then started seeing Dr Gidley, a psychiatrist in Melbourne, on an approximately monthly basis from March 2001. Dr Gidley provided a report in August 2001, after approximately five visits. He wrote in his report under the heading “Service History” (T8 pp96-97):
Review of his history shows that he served in the Navy between 1955 and 1964, which included a posting to HMAS Voyager. He was a leading Engineer Mechanic and had been on other ships involved in near collisions. While he was a crew member of the Voyager, between 1962 and 1963, this ship was involved in minor collisions, which contributed to him developing the belief that it was a jinxed vessel. He describes an incident directly involving himself, where an engine valve stuck, reducing the ship’s manoeuvrability. He later worried that this defect might not have been properly attended to and therefore could have been a factor in the collision with HMAS Melbourne in 1964, causing major loss of life.
Many of his close friends were killed on the Voyager and it particularly upset him to see the sea burial of a Voyager victim from HMAS Vampire, his own ship at the time. His survivor guilt was increased by the circumstances of his posting to Vampire from Voyager, which had involved an arranged direct swap with another sailor. [emphasis added]
26. Dr Gidley diagnosed Mr Landells as suffering from Bipolar Disorder and Alcohol Abuse which has been in remission since 1986. He wrote (Tdocs pp96-97, 98):
Bipolar Disorder is essentially a biological condition, although the guilt Mr Landells experienced as a result of the Voyager disaster may have been an aggravating factor for his depressive episodes.
27. In his evidence, Dr Gidley said that he had made the diagnosis of bipolar disorder on the basis of the reports of Dr Wilkie, who saw Mr Landells when he was having manic episodes. He regarded that as confirming the diagnosis. He said Mr Landells was referred to him for treatment of symptoms of depression. He also had some symptoms that could have been attributable to PTSD, associated with the Voyager collision, but they were not sufficient to warrant a diagnosis of PTSD. Dr Gidley said that, although Mr Landells had stopped drinking when he saw him, he was still suffering from alcohol abuse, in remission.
28. The T documents also include a report dated 20 August 2002 from Mr Landells’ most recent treating psychiatrist, Dr Le Bas (T14, p145-6). His description of Mr Landells’ condition, written after he had seen Mr Landells as a patient on three occasions, was as follows (T14 p145):
Mr Landells currently experiences symptoms consistent with a form of Post-Traumatic Stress Disorder. This is linked with his experiences on the Voyager and his transfer off that ship prior to its final collision. He is plagued by guilt at transferring off the ship and someone else transferring into his position. This man subsequently died. He recounts his anxiety as having commenced whilst serving on the Voyager. This was due to a combination of various engineering defects in the ship and an alcoholic captain. At one point Mr. Landells was obligated to stand on top of the engine to hammer a main steam valve which had become stuck. This could have resulted in the engine exploding with him on top of it. He describes a number of near misses on the boat. In relation to the final demise of the Voyager, he recounts that ‘I should have been down there’. In addition to these symptoms of guilt he has broken sleep and nightmares. There is evidence of irritability and hypervigilance. He comes across as rather detached from many events around him. Whilst he was not witness to the collision of the Voyager, he certainly demonstrates survivor guilt. His affect tends to be rather numbed as is common in post-traumatic conditions. [emphasis added]
29. Dr Le Bas concluded (T14, p147):
DIAGNOSIS
From the evidence at hand it would appear that Mr. Landells’s psychiatric troubles stem from the time of service on the Voyager. His anxiety symptoms were exacerbated subsequent to the sinking of this ship and he developed secondary alcoholism in response to these anxiety symptoms. He fits within the ICD 10 criteria for Post-Traumatic Stress Disorder, having experienced a number of threatening experiences culminating in the sinking of the Voyager. Though he was not present at this time, he was psychologically linked to the ship. Though not a visual witness to the death of his colleagues, he was an emotional witness. He experiences repeated ruminations about the Voyager and experiences dreams, particularly pertaining to the incident with the stuck steam valve. He demonstrates emotional blunting and detachment with anhedonia. He avoided contemplation of the ship for quite a number of years through heavy alcohol consumption. He suffers with survivor guilt and experiences irritability.
In addition to these related problems Mr. Landells had experienced manic mood disregulation aggravated by alcohol and antidepressants. This has not been in evidence over the last 5 years and apart from the single episode in 1997, for ten years previous to this. [emphasis added]
30. The valve incident is also mentioned in a report from a psychiatrist Dr Bonwick, dated 18 November 2002, provided at the request of an RSL advocate (T16 p150-153). Dr Bonwick wrote (T16, p151):
On being asked specifically about traumatic experiences during his naval service the veteran gave a convoluted story about swapping positions off the HMAS Voyager and onto the HMAS Vampire prior to the Voyager’s collision with the HMAS Melbourne. He described considerable guilt concerning this swap. He also described an incident on the Voyager during which he was involved in the repair of an engine. He gave considerable and lengthy detail concerning this but in brief it appeared that during repairing the engine he found himself in an extremely vulnerable position sitting astride the damaged engine fearing that the process of repair would cause him to be severely injured. His written report, entitled “HMAS Voyager – 1963 Northern Trip” (which was submitted to the DVA on 25/10/2001) described this in more detail on page 3. His written report does not include the fact that he felt fearful of possible injury, but he stressed this to me during our interview.
When questioning the veteran about current psychiatric symptoms he described “dreams of people trying to kill me” although he was unable to be more specific about the content of these dreams. He also described “intrusive thoughts about people on the voyager” which cause him distress and feelings of guilt. He stated that he becomes extremely anxious when driving his car particularly when someone is trying to tailgate him. He also complained of a poor short term memory, insomnia, anxiety, an exaggerated startle to loud noises (such as a door slamming) and fluctuating depressive thoughts (including passive suicidal ideation). In the past he has had problems with excessive alcohol consumption, but although he has drunk no alcohol for the last 16 years he still attends Alcoholics Anonymous. [emphasis added]
31. Dr Bonwick concluded (T16, 152 -153)
Part 5: Final Diagnostic assessment and Report Summary
The veteran does not provide a history which allows a clear cut psychiatric diagnosis. Dr Le Bas’ report makes a diagnosis of “PTSD” and Dr Gidley’s report makes a diagnosis of “bipolar disorder with secondary alcohol abuse (in remission)”. In my opinion there is limited evidence to support one or either of these diagnoses, although I note that in the past alcohol has been a major problem and so the veteran may have previously qualified for a diagnosis of either alcohol dependence or alcohol abuse.
I do note the presence of a number of current anxiety and depressive symptoms which are causing distress to the veteran. I note that the veteran has received psychiatric treatment for the last 23 years. I also note the presence of a traumatic event during the veteran’s service which the veteran now describes to me as potentially life threatening.
Utilizing the criteria detailed in the “Diagnostic and Statistical Manual of Mental Disorders, Edition 4 (DSM 4)” and based on the information available to me, I believe Mr Landells would best qualify currently for a diagnosis of anxiety disorder, not otherwise specified (NOS). However I stress that I make this diagnosis with no absolute certainty.
This diagnosis raises the question of any causal relationship with the veteran’s service. The history of the diagnosis is not clear. The veteran has certainly suffered with psychiatric problems of one sort or another since 1979, but the date of onset of anxiety disorder is unclear. The veteran described a traumatic event during his service but again the relationship with the onset of anxiety disorder is not clear. Given this uncertainty it is difficult to attribute any causal relationship between the veteran’s naval service and his current psychiatric diagnosis. [emphasis added]
32. Dr Epstein saw Mr Landells on 8 May 2003, at the request of Mr Landells’ solicitors. In his report (A2), he diagnosed Mr Landells as suffering from a Major Depressive Disorder, PTSD and alcohol dependence or alcohol abuse. He wrote that he was uncertain as to the relationship between Mr Landells’ war service and his psychiatric conditions, as the major relevant factors were the steam valve incident and the Voyager collision.
33. Dr Epstein gave evidence. He said that he thought the steam valve incident and the Voyager collision both contributed to Mr Landells’ PTSD. After Mr Chancellor told Dr Epstein that the steam valve incident was the sole incident on which Mr Landells could rely in the proceedings (trans, p96), he said he understood that, after the steam valve incident, Mr Landells was displaying symptoms like increased arousal, heightened levels of anxiety, palpitations, sweating, becoming fearful in certain situations. He said that incident “in particular contributed to the PTSD”.
34. Dr Epstein said, in cross-examination, that he understood that Mr Landells became fearful after the steam valve incident and wanted to leave the ship because he was frightened (trans, p98). He also said Mr Landells began drinking more to dampen down his levels of anxiety. Mr Purcell pointed out to him that Mr Landells had applied to leave the ship because his wife was in Sydney and having complications with her third pregnancy, and he did not want to have to go to Melbourne, which is where HMAS Voyager was due to go. He asked for a transfer to HMAS Vampire so he could remain in Sydney, and his request was granted.
35. Dr Epstein’s attention was drawn to a number of histories which said that Mr Landells’ drinking did not become a problem until after the Voyager collision. He said “All I can say I suppose … is that he told me clearly a different story, and that I regarded the Voyager collision as another very significant factor which exacerbated his level of fear” (trans, p99). He explained that his impression was that Mr Landells already had some level of fear arising from the steam valve incident and other incidents on HMAS Voyager prior to the Voyager collision. He said, “in my view… the Voyager collision may have exacerbated some tendency for pre-existing PTSD and the increase in symptoms from the Voyager collision and the pre-existing problems may have been factors leading onto increased alcohol consumption” (trans, p100).
36. Mr Purcell asked Dr Epstein to read the different account of the valve incident in Dr Knox’s report, where, as set out in paragraph 22 of these reasons, Dr Knox emphasised the importance of the steam valve incident more as giving rise to anxiety about the seaworthiness of HMAS Voyager and guilt that he had not reported that incident, than as an incident of particular danger to Mr Landells.
37. Dr Epstein responded that he had taken Dr Knox’s opinion into account, and had raised those matters with Mr Landells, but had then formed his own opinion on the totality of the information he had.
38. Dr Epstein was asked about the bipolar disorder, from which Mr Landells was diagnosed as suffering from 1979 – 1986, and of which he had one further episode in 1997. He said that, although Mr Landells apparently had had manic episodes when he was seeing Dr Wilkie, there had been no evidence of it for quite some time. He said that it would have been quite inappropriate for him to diagnose bi-polar disorder when he saw Mr Landells (trans, p105).
39. Dr Epstein said that if he had been told by Mr Landells, that he had never mentioned fear as to his safety as a result of the steam valve incident until this application, and had not described any symptoms as a result of that incident, he may have come to a different conclusion as to the importance of that incident.
findings as to diagnosis
40. As is so often the situation in these sort of matters, there is no agreed diagnosis. The preferred diagnoses of the various psychiatrists are as follows:
Dr Knox
· PTSD due to Voyager collision and to guilt and troubled thoughts about his own service on HMAS Voyager, in particular, his knowledge of the defective steam valve and his transfer to HMAS Vampire
· Alcohol abuse due to Voyager collision
· No psychiatric impairment prior to Voyager collision
Dr Wilkie
· Manic symptoms treated with lithium (Bipolar disorder)
· Nervous shock
· Survivor guilt due to Voyager collision – transfer and problems with steam valve
· Alcohol abuse
Dr Gidley
· Bipolar disorder
· Alcohol abuse
· Depressive episodes – recurrent depression
· PTSD symptoms but no current PTSD
Dr Le Bas
· PTSD due to experiences on HMAS Voyager
· Survivor guilt
· Anxiety due to engineering defects and alcoholic Captain and near misses, exacerbated by the Voyager collision
· Past history of manic mood disorder
Dr Bonwick
· Anxiety disorder not otherwise specified – tentative diagnosis
· Survivor guilt
· Depressive symptoms
· Not PTSD
· Not bipolar disorder
· Past history of alcohol abuse
Dr Epstein
· PTSD due to steam valve incident and Voyager collision
· Depressive Disorder
· Alcohol dependence or alcohol abuse
41. Some of the suggested diagnoses can be set aside as not relevant to these proceedings. We find that Mr Landells did suffer from manic episodes while he was being treated by Dr Wilkie. He has had only one episode since, in 1997. There have been no further manic episodes since 1997, even though Mr Landells has ceased taking Lithium. We find that there is a question whether Mr Landells ever suffered from bipolar disorder, or whether it was simply “manic mood disregulation, aggravated by alcohol and antidepressants”. But even if he did once suffer from bipolar disorder, we are satisfied that Mr Landells was not still suffering from bipolar disorder in March 2002, when he lodged the claim which is the subject of this application.
42. The evidence is that Mr Landells has not taken alcohol since 1986. Dr Gidley said that he still regards him as suffering from alcohol abuse. Dr Bonwick wrote that Mr Landells may have previously qualified for a diagnosis of either alcohol abuse or alcohol dependence.
43. We were not addressed on the question whether an alcoholic who has managed to abstain from drinking alcohol for almost 20 years, but who still attends AA (trans, p34), can be diagnosed as suffering alcohol abuse.
44. We were not referred during the hearing to the diagnostic criteria for alcohol abuse or alcohol dependence. We have referred to the current edition of DSMIV, the text revised fourth edition. We arranged for the District Registrar to advise the parties by letter dated 15 November 2004 (Appendix I to this decision) that we had done so and had also referred to the diagnostic criteria for PTSD and that we proposed to take them into evidence. The parties did not object to the Tribunal doing so. We have marked the criteria for substance dependence, substance abuse and PTSD as an additional Tribunal exhibit.
45. We see the diagnostic criteria for substance abuse, which includes alcohol abuse, include criterion A(4), as follows:
continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights) (DSMIV p199)
46. Mr Landells gave up using alcohol on 9 August 1986 and has not used it since. We find that, as at 7 March 2002, Mr Landells did not suffer from alcohol abuse. Similarly, he did not suffer from “alcohol dependence” as he was no longer dependent on continued alcohol use at that time. That is criterion (7) for substance dependence (DSMIV p197).
47. Dr Knox and Dr Le Bas diagnosed Mr Landells as suffering from PTSD resulting from the Voyager collision. Dr Knox explained that it may well not have been diagnosed prior to 1995 as Mr Landells had not told treating psychiatrists about the effect on him of the Voyager collision. Both Dr Knox and Dr Le Bas mentioned the steam valve incident as playing a role in the development of PTSD. Dr Epstein diagnosed PTSD related to both the steam valve incident and the Voyager collision, but after Mr Chancellor told him that only the steam valve incident was relevant to these proceedings, he was asked questions only about that incident and gave it most emphasis. Dr Wilkie did not diagnose PTSD. Nor did Dr Bonwick.
48. Dr Gidley seemed undecided as to whether or not Mr Landells suffered from PTSD. He wrote in his report (T8, p98):
As far as Post-Traumatic Stress Disorder is concerned, this would appear to be much less of a problem now. He has continuing preoccupations with traumatic aspects of his service in the RAN, however ongoing litigation with respect to these traumatic events, has probably helped keep many distressing memories in his conscious focus. Further, ruminations about past misfortunes can be a feature of depression, these ruminations sometimes being difficult to differentiate from traumatic memories related to PTSD.
49. In his evidence Dr Gidley said that when he saw Mr Landells it was his opinion that Mr Landells had suffered from PTSD, but that his symptoms were so reduced in severity as to not be significant enough to warrant a diagnosis of PTSD at that time. He explained (trans, p190):
My conclusion about PTSD was based, to a large extent, on reports of psychiatrists who had treated Mr Landells previously. So what I was saying there was that the diagnosis had been made. I accepted this had been a problem but at the time of seeing me the symptoms were minimal and, in fact, difficult to sort out from his other symptoms related to his depression which was the major problem at the time of him being referred to me.
50. Dr Le Bas, in his report (T14, p147), briefly addressed the way in which Mr Landells satisfied the diagnostic criteria for PTSD (see paragraphs 28 and 29 of these reasons).
51. The diagnostic criteria for PTSD are set out in DSMIV. The Federal Court said in Benjamin, that in questions of diagnosis, reference should be made to the DSMIV diagnostic criteria, rather than to those in the relevant SoP. The DSMIV diagnostic criteria are often in evidence before the Tribunal. Somehow they were not before the Tribunal in this matter until taken in by the Tribunal after the hearing. However, as Whitlam J said in Benjamin, they are almost identical to those in the relevant SoP for PTSD (No. 3 of 1999).
52. The DSMIV criteria are as follows:
A. The person has been exposed to a traumatic event in which both of the following were present:
1. 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
2. the person's response involved intense fear, helplessness, or horror. …
B. The traumatic event is persistently reexperienced in one (or more) of the following ways:
1. recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
2. recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
3. acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). …
4. intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
1. efforts to avoid thoughts, feelings, or conversations associated with the trauma
2. efforts to avoid activities, places, or people that arouse recollections of the trauma
3. inability to recall an important aspect of the trauma
4. markedly diminished interest or participation in significant activities
5. feeling of detachment or estrangement from others
6. restricted range of affect (e.g., unable to have loving feelings)
7. sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
1. difficulty falling or staying asleep
2. irritability or outbursts of anger
3. difficulty concentrating
4. hypervigilance
5. exaggerated startle response
E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor
53. Dr Le Bas, the current treating psychiatrist, provided a considered opinion that Mr Landells suffers PTSD. Dr Le Bas’ diagnosis is the same as that of Dr Knox and Dr Epstein, and is supported in part by Dr Gidley, who found Mr Landells had some symptoms attributable to PTSD.
54. In the claim he made, which gave rise to this hearing, Mr Landells did not claim pension in respect of PTSD. He claimed in respect of anxiety and described his signs and symptoms as “constant worry, apprehension, irritability, inability to sleep, fatigue, headaches, uncontrollable …, flashbacks”. He wrote that he believed his condition was due to “stressful occurrences during my FESR service onboard HMAS Voyager…” (T5, p76).
55. In his statement (A1), Mr Landells described his condition as “my anxiety and depressive condition”. He described the steam valve incident as causing him to suffer symptoms of anxiety and depression, and the Voyager collision as aggravating his symptoms. Dr Epstein diagnosed Mr Landells as suffering a depressive disorder as did Dr Gidley, who prescribed Cipramil for depression. Dr Le Bas and Dr Bonwick both referred to symptoms of anxiety and depression. Dr Bonwick’s tentative opinion was that Mr Landells’s symptoms were best diagnosed as anxiety disorder not otherwise specified (“GAD”).
56. We find that Mr Landells’ symptoms are due to PTSD. We find a passage in Dr Knox’s report to be particularly helpful. He wrote (T6, p89):
While I do not doubt that there was very significant depression on Mr Landells’ part over many years, both causing and being secondary to his alcohol abuse, and he may well at times have manifested manic behaviour, in association with the obvious diagnosis of alcoholism on Mr Landells’ part I believe that the evidence suggests that a diagnosis of Post-traumatic Stress Disorder is particularly appropriate. I believe the alcohol abuse came secondary to the Post-traumatic Stress Disorder and was an attempt on Mr Landells’ part to cope with his distressing emotions, including his guilt. Survivor’s guilt is not a necessary part of Post-traumatic Stress Disorder and I believe is best accounted for by the specific circumstances of Mr Landells’ situation, and is a part of his depression. Post-traumatic Stress Disorder is in fact made up of symptoms which include a mix of anxiety and depression in the context of exposure by the individual, or significant others, to death or a life threatening event. [emphasis added]
57. An issue to which we will return is whether the PTSD is war-caused. We will consider whether it is attributable to Mr Landells’ experience with the steam valve, or to him being confronted with the tragedy of the Voyage collision, or to a combination of those two and other matters.
WHETHER THE PTSD IS WAR-CAUSED
Standard of Proof
58. As Mr Landells has operational service, the standard of proof, in relation to each period of operational service, is that laid down in s 120(1) and (3) of the Act which are set out in paragraph 11 of these reasons for decision.
59. Section 120A of the Act provides, so far as relevant:
120A Reasonableness of hypothesis to be assessed by reference to 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 …..
that upholds the hypothesis.
60. The Full Court of the Federal Court, in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206, explained the four step process to be adopted in applying s 120(1) and (3) of the Act:
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) . . .
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.
APPLICATION OF THE PROCEDURE EXPLAINED IN DELEDIO
step 1 – does the material before the Tribunal point to a hypothesis connecting ptsd with the circumstances of service?
61. The main way in which the case for Mr Landells was put at the hearing, relied on the steam valve incident itself as causing the PTSD, and/or other conditions, rather than on it being one causative factor leading to the development of PTSD and/or other conditions, after the Voyager collision. The Applicant’s Statement of Facts and Contentions describes the steam valve incident as a stressor during which Mr Landells was “terrified” because he feared serious injury. It alleges that Mr Landells suffered symptoms of anxiety and depression after the incident.
62. However, the Applicant’s Statement of Facts and Contentions also included a claim that Mr Landells’ anxiety, which resulted from the steam valve incident, was aggravated by the Voyager collision. It stated:
The applicant also will give evidence that he suffered an aggravation of his anxiety and depression following the collision between HMAS Melbourne and HMAS Voyager in 1964. The applicant will say that he had transferred from the Voyager to HMAS Vampire in about September 1963. His evidence will be that the transfer was at his request and by way of arranging a direct exchange with a similar rating on board the Vampire. The applicant was not present at the Melbourne and Voyager collision. His evidence will be, however, that he felt guilty on hearing the news of the collision because he had secured the aforementioned exchange and felt that he should still have been on the Voyager and that somebody else was the victim of the collision rather than himself. He also felt some guilt that the throttle which was the subject of the stressful incident in 1963 may have contributed to the collision with the Melbourne. He felt guilty that the valve may not have been fixed and that it may have contributed to the collision even though on a rational level he realises that such maintenance was beyond his control.
The applicant will say that he was already suffering symptoms of anxiety and depression from the steam valve incident in 1963 before the Voyager/Melbourne collision. Hearing of that collision he believes did tend to aggravate his symptoms.
It is conceded that any stressor related to the collision of HMAS Voyager and HMAS Melbourne was not within operational or eligible war service under the Act and accordingly it cannot form the basis of a successful claim by the applicant in these proceedings in which he seeks a disability pension under the Act.
63. The Applicant’s Statement of Facts and Contentions did not specifically allege that Mr Landells’ guilt about transferring away from HMAS Voyager and about the possibility that the defective steam valve may have contributed to the collision, played a part in the development of PTSD after that collision. However, the evidence before us in our view did raise that hypothesis. Many of the psychiatrists, as set out in paragraphs 18 – 40 above, explained the impact of the Voyager collision on Mr Landells by reference to his prior experiences, including the steam valve incident, when he was serving on HMAS Voyager. We will return to consider the significance of that issue later in these reasons. First, we will consider the hypothesis as relied on at the hearing.
64. Mr Landells gave evidence about the incident with the steam valve. He said it was the first time he had seen an attempt made to close an engine valve that way, even though he had been in the Navy at that time for over seven years. He said (trans, pp 22 and 23):
The incident I refer to is I was on watch as chief of the watch and sometimes, depending on what the operation was, the commander engineer, the head of the engineering section and the chief ERA, engine room artificer and others would station themselves on the plates of A engine room as an engineering control point and this was happening at the time I was down there going about my business, when a problem developed with the steam engine. The chief ERA ordered me to assist him, to get up onto the machine, straddle the valve, hold onto a brass strip while he hit it with a sledgehammer to see if it was going to close the valve which was open, unable to be closed, with the propeller spinning around of its own accord.
…
I was holding a brass strip, rod, onto the top of the valve and the chief engine room artificer was going to strike it, which he did. He struck it with a sledgehammer. I was praying, because I was fearful for my life, because I was in a situation where a steam valve was stuck open, wouldn't respond to the throttle wheel from the control plates, which was connected by linkages and with my thoughts of super heated steam escaping, I felt that if the valve broke or if the hammer hit the part that would have shattered, that I would have been shot with a shot of super heated steam in the crutch probably and would have made a mess of me, so we closed the valve and continued on.
…
65. Mr Landells said he was fearful for his life and fearful of sustaining serious injury, because of what he had learnt during his training at Flinders about the danger of super heated high pressure steam. He said he had learnt that “if one walked past a [steam] leak that developed at neck height, it would cut your head off” (trans, p20). He said he was anxious about what would happen to him if the attempt to close the valve released high pressure steam. He understood that it could “slice me in two” (trans, p42).
66. Mr Landells said that even prior to the incident he was a bit on edge because of the reputation of HMAS Voyager as a jinxed ship, and because of the reputation of the Captain, Captain Duncan Stevens, who was known as “Drunken Duncan”. He explained that was “because our captain had a reputation that preceded him” (trans, p21).
67. Mr Landells described his view of HMAS Voyager (trans, p20):
Well, the ship was a problem ship to my knowledge. When I first went on the ship, others informed me that it was a jinx ship and somebody committed suicide just when I arrived…
68. Mr Landells said that after the steam valve incident (trans, p24):
Well, I was more on edge. As I said, we had other incidents that were difficult to understand, for me, anyway. We had a doctor on board and I later learnt that he took to sleeping on the upper deck in a stretcher, not in his cabin, when we were operational. I believe he said in case he needed to leave the ship in a hurry.
[Well, how was your sleep following the incident?] --- I started having intruding thoughts and dreaming a bit about consequences of happenings that the ship may have had a collision or had an accident with other ships or whatever. I suppose I probably thought it was only a matter of time before something happened. I don't know, really.
69. Mr Landells spoke of his emotions after the steam valve incident (trans, p26):
Well, firstly, after the incident of the steam valve, I was trying to steady my emotions, my feelings of the incident and it was some months after [that] the collision between the Melbourne and Voyager occurred and that was bad news.
70. There is no issue about the fact that Mr Landells was transferred from HMAS Voyager to HMAS Vampire at his own request in September 1963, so that he could stay in Sydney and be with his family (trans, p25). He said that there were also other reasons for the transfer (trans, p25):
I didn't like being on the ship when I went to the ship. I didn't like being on the ship when we got the new captain. I didn't like being on the ship when I had bad experiences, particularly on the valve, that problem with the stuck valve. I wanted to get off the ship.
71. Mr Landells said he drank to deal with disturbing thoughts and emotions. The first emotion which came to mind, when Mr Chancellor asked him what his thoughts and emotions were, was to do with “the person that swapped with me” (trans, p26). Mr Chancellor cut off that answer and asked Mr Landells to talk about his feelings between the steam valve incident and the Voyager collision.
72. Mr Landells said that after the steam valve incident, during the remainder of his operational service, on the third voyage from 15 April 1963 to 8 May 1963, he drank more because “I felt more comfortable sedating myself … with alcohol”. He said he was sedating himself against “staying onboard the ship and other near misses with other ships and situations at sea”. He said he felt “nervous” (trans, p28). He said that after the steam valve incident he was more on edge. He started having disturbed sleep, with intrusive thoughts and dreams about collisions at sea, or about somebody trying to kill him. Mr Landells said he greatly increased his drinking after the incident in order to “steady his emotions” (trans, p26), but he said his “tolerance was pretty good” and the drinking did not interfere with performance of his duties.
73. Mr Landells acknowledged in cross-examination that for approximately five months after the steam valve incident, his access to alcohol was very limited as HMAS Voyager remained at sea. He said they were in port about five times and on those occasions he drank more than he would have done in port before the incident.
74. Mr Landells described the effect on him of the Voyager collision (trans, p30):
After the Voyager collision, on the Vampire, one of the bodies recovered from the collision, Able Seaman Parker, was to be buried at sea from the Vampire, so we went to sea. I was part of the burial detail on the quarterdeck and we buried him. Some wreaths went over the side. I stayed on the quarterdeck and I was looking into a wreath, actually, and thinking about the collision and my friends and all kinds of things and I felt a surge of guilt which I later believe was survivor guilt, so the combination of the thinking about the ship and what I believed to be malfunction, I just started to drink more, I suppose, still.
75. Mr Landells said that he had more trouble sleeping and was medicating more with alcohol to the extent that he became “a practising alcoholic” and finally went to AA. He said that at one stage he spoke to a social worker who told him about “survivor guilt”, “but it did not do much good” (trans, p31).
76. Mr Landells’ term with the Navy was close to expiry when HMAS Vampire was next due to go North for a six month tour of duty. He declined a suggestion that he serve an extra month or two, and was transferred to HMAS Penguin, the Naval hospital at Balmoral, N.S.W. for the remainder of his service.
77. As explained in paragraph 8 above, after his discharge from the Navy, between 1964 and 1988 Mr Landells had almost 40 jobs. From 1988 he had steady employment with the Red Cross Blood Bank for about 5 years, before ceasing work altogether. He said he thought his drinking was the reason he had so many different jobs. After he gave up drinking in 1986, he did hold his position with the Red Cross for five years, until he had to give up work because he developed Ross River Fever and then Chronic Fatigue Syndrome (trans, p15).
78. From 1979 onwards, Mr Landells has been having psychiatric treatment. He has spent quite a bit of time as a hospital inpatient because of his psychiatric problems. The drinking caused marriage separation, but in 1986, in order to get back with his wife, Mr Landells started attending AA regularly. That enabled him to overcome his alcoholism.
79. Mr Landells said that he still has a treating psychiatrist who he sees when necessary. He said that his stress started “the day I was on top of the engine” (trans, p35).
80. The hypothesis raised by Mr Chancellor on behalf of Mr Landells was that he suffers PTSD as a reaction to the traumatic event when he had to straddle the engine to assist the Chief Artificer release a steam valve which had become stuck. Mr Landells’ statement (A1) does raise or point to that hypothesis. So did some of his evidence, although at times he seemed to give most emphasis to the Voyager collision when explaining the onset of his psychiatric problems. There is also other evidence to that effect, but that evidence is not relevant at this stage.
81. Dr Epstein’s report of 9 May 2003 did not point to or raise the primary hypothesis relied on by Mr Chancellor. As set out in paragraph 32 of these reasons, Dr Epstein wrote that he was uncertain as to the relationship between Mr Landells’ psychiatric conditions, including PTSD, and his war service. Again, in his evidence, he expressed the opinion that both the steam valve incident and the Voyager collision had contributed to Mr Landells’ PTSD. Although he emphasised the steam valve incident more, he did refer to a “tendency for pre-existing PTSD” before the Voyager collision.
82. We have concluded, with some hesitation, that the evidence does raise a hypothesis pointing to Mr Landells’ PTSD being caused by or attributable solely to the steam valve incident.
step 2 – Is there a sop for ptsd?
83. The relevant SoP for PTSD is No. 3 of 1999, as amended by No. 54 of 1999.
step 3 – Is the primary hypotheses reasonable – does it fit the template in the sop?
84. The hypothesis raised must contain one of the factors in clause 5 of the relevant SoPs. In regard to PTSD, the only relevant factor is factor (a) which provides:
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 …
85. Clause 4 of the relevant SoP provides that the factor relied upon must be related to service. It provides:
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.
86. In regard to PTSD, SoP No. 3 of 1999 defines “experiencing a severe stressor” and “relevant service” as follows:
“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;
“relevant service” means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
87. Mr Landells graphically described praying because he was fearful for his life, or fearful that a shot of steam in the crutch “would have made a mess of me” (trans, p23), while he was assisting Mr Cameron release the steam valve. He said he understood that it could “slice me in two” (trans, p42). Thus, Mr Chancellor submitted that, on Mr Landells’ evidence, he experienced an event that involved the threat of death or serious injury to him.
88. Mr Purcell submitted that the raised facts did not point to any risk of injury to Mr Landells or any other person as a result of the steam valve incident, nor to Mr Landells having a reasonable belief that the incident involved actual or threatened serious injury or death to him or anyone else. Mr Purcell seemed to discount Mr Landells’ own evidence on the ground that it did not point to the valve having been given a blow of sufficient force to cause significant damage.
89. The definition of “experiencing a severe stressor” has been considered in a number of Federal Court decisions. It has an objective element. There must be material raising or pointing to an “event that involved actual or threat of death or serious injury”, but the threat need not be “real judged objectively”. The issue is whether Mr Landells’ perception of a threat was a reasonable perception for him to have.
90. In Woodward v Repatriation Commission (2003) 200 ALR 332, the Full Court was considering a claim to have PTSD accepted as war-caused. Mr Woodward claimed to have been in fear a number of times while engaged in operational service with the Australian Army in Vietnam. He described a number of incidents while on patrol, when he had been in fear of being shot, although there was no engagement with the Viet Cong. The Tribunal found that Mr Woodward’s claim failed because the material did not raise or point to him “experiencing, witnessing or being confronted with an event or events involving actual or threatened death or serious injury or threat to him and others”. The Full Court, at paragraph 134, held that the Tribunal had been in error in requiring that the material point to incidents involving “an actual threat of death”, as opposed to “a perceived threat”. The Full Court said that the Tribunal would have been in error if it accepted a distinction propounded on behalf of the Commission that “the threat of death must be real judged objectively”.
91. The Full Court explained at paragraphs 135-141:
[135] The question then is whether material pointing to a genuine belief based on reasonable grounds that an event or events involve a threat of death or serious injury can satisfy the definition of “experiencing a severe stressor” when there is no material pointing to the reality in fact of what is genuinely and reasonably perceived.
[136] When the question ultimately in issue involves the effect of an objectively stressful event upon a person’s mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shotgun (in fact unloaded) are just two such examples.
[137] In Stoddart v Repatriation Commission (2003) 197 ALR 283 (Stoddart), Mansfield J held that the AAT had erred in requiring that a “threat” be one that, judged objectively and remote from the circumstances and state of knowledge of the person experiencing it, has a real or actual prospect of resulting in death or serious injury. His Honour considered that by doing so the tribunal had thereby imported into the concept of “threat” in the applicable SoPs more than was demanded by their wording and their purpose: see at 292–3, [41].
[138] Mansfield J observed (at 294–5):
[47] 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 ALD [alcohol liver damage] or 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 ALD or PTSD. The respondent contends, and the tribunal accepted, that in the former case the conditions are consistent with an hypothesis of being war-caused, but in the latter case they should be seen beyond reasonable doubt as not consistent with an hypothesis of being war-caused. In this matter, if the applicant is believed about the occasions he referred to, his operational service was in an area where his vessel might come under attack (but did not) and battle stations were signalled and he feared for his personal integrity and suffered ALD and PTSD as a result.
[50] In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the respondent and accepted by the tribunal. 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. 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 …
[139] Mansfield J concluded that the AAT erred in law in its understanding of the expression “experiencing a severe stressor” in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.
[140] It would be open to the AAT to conclude the situation involving Mr Woodward was similar, in relevant respects, to that considered by Mansfield J in Stoddart. It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger while he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to Mr Woodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more “events” which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of “experiencing a severe stressor” in the SoP in relation to the incident on patrol.
[141] We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.
92. Mansfield J’s decision in Stoddart v Repatriation Commission (2003) 197 ALR 283 was upheld by the Full Court (Repatriation Commission v Stoddart (2003) 77 ALD 67).
93. In Delahunty v Repatriation Commission [2004] FCA 309, Tamberlin J discussed the application of Stoddart v Repatriation Commission (2003) 197 ALR 283 and Woodward v Repatriation Commission (2003) 200 AR 332. His Honour said at paragraphs 26 – 28:
[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.
[28] There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.
94. We are also assisted by White v Repatriation Commission [2004] FCA 633, where Spender J said at paragraphs 29 and 30:
[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.
95. As set out above, Mr Landells in his statement (A1) and in his oral evidence said that the steam valve incident occurred and that he was terrified, because of what he had learnt about the escape of high pressure steam, that it could “slice me in two”. There is evidence in this matter supporting Mr Landells’ evidence as to an objective occurrence, involving a steam valve on HMAS Voyager. The Writeway report (R11) contained an attachment from Commander Ferrier who, as a Lieutenant, was an Engineer officer on HMAS Voyager, at the time Mr Landells served on that ship. Commander Ferrier wrote:
2. The engine control valves in DARINGS … (VOYAGER VENDETTA and VAMPIRE) were of the type where the valves were mounted directly onto the main (high pressure) turbines and thus did not need external piping between the valve/s and the turbines…
3. I have recollections of the ahead throttles (control valves) in VOYAGER and others of the Class occasionally “hanging open” when rapidly running down from high speed. There was a well practiced on watch procedure where a suitable bar was kept by the engines and at the first sign of a valve “hang up” a reliable person was quickly sent up to the valves to jolt the sticky valve down. Quite effective.
96. In a later report (part of R14), Commander Ferrier wrote:
I have … made reference to jolting sticky valves when they did not close in to the required position. Small bars about ½” diameter and about 12” long along with fitter’s hammers (about 1 – 1 ½ lbs) were usually kept close by to effect closing in the event of “valve hang up”.
97. Commander Ferrier then analysed various elements in Mr Landells’ account. He disagreed with Mr Landells’ description of the engine as 22,000 horsepower and said one turbine was approximately 13,500 horsepower. He also raised issues as to the position Mr Landells might have adopted on the turbine, and as to the length of the steel rod or drift, and the weight of the hammer used to “tonk” the valve. He commented as to the danger:
Would the control valve disintegrate or catastrophically fail if struck with a seven pound sledge hammer? My inclination is no; given the considerable robustness of the steam chest construction including the materials of construction (probably chrome molybdenum castings) and the general nature of hostile operating conditions to which machinery items such as this would have been designed and would have intended to be exposed ex shock; vibration; steam pressure; including pre installation hydraulic testing to probably twice the working pressure which was about 650 pounds per square inch ie a test pressure of about 1300 pounds per square inch; temperature up to at least 850º Fahrenheit and probably 900º F to allow for variations in on board instruments and real world problems. I am not aware of any reports of tests demonstrating resistance of valves or fittings to controlled sledge hammer impacts. I am to add that early UK type testing of original valves/samples used in construction may have involved some form of controlled impact test simulating shock due to underwater explosion.
118. However, we see a more significant problem facing him, in that the medical evidence, when analysed, fails to support the primary hypothesis relied on by Mr Chancellor that Mr Landells’ incapacity from PTSD results from the steam valve incident alone. The substance of all the medical evidence, and also to some extent of the evidence of Mr Landells and his wife, is that his psychiatric problems only developed after the Voyager collision. The unusual feature of this matter, of course, is that Mr Landells developed those problems, even though he was no longer serving on HMAS Voyager at the time of the collision.
119. In explaining how it happened that Mr Landells developed a form of PTSD or similar psychiatric illness, even though he was not on HMAS Voyager at the time of the collision, the psychiatrists have generally given two significant reasons. They have said that Mr Landells’ problems stemmed from survivor guilt associated with his transfer shortly before the Voyager collision, and also from guilt and worry about not having reported the faulty steam valve, which he believed may have contributed to the collision.
120. Dr Knox wrote his thorough and well considered 9-page report after reading Mr Landells’ statement and consulting with him and his wife for two and a half hours, and with his wife for a further half hour. He described the jamming of a valve in the ship’s throttle, together with other “near misses”, and the experience of seeing the ship’s Commander heavily intoxicated as “unsettling experiences” leading Mr Landells to have fears for his safety in connection with service aboard HMAS Voyager.
121. Dr Knox, as set out above, described the effects on Mr Landells of the Voyager collision, in terms of his alcohol abuse, his moody responses and his speculation as to whether the faulty valve may have played some part in the collision. Dr Knox (T6, p87) diagnosed Mr Landells as suffering from PTSD due to the Voyager collision, and self-medicating with alcohol. He wrote (T6, p87):
I know of no other event, or vulnerability in Mr Landells that might have been expected to cause such a massive change in him.
He added (T6, p88):
I inquired into Mr Landells’ capacities in the navy prior to the Voyager sinking. He told me that he had been promoted ahead of his peer group by and large, and despite some use of alcohol during shore leave had not indulged regularly or destructively in the use of alcohol. There is no history of significant psychological impairment in this earlier period.
122. Dr Wilkie, who had treated Mr Landells for 13 years when he wrote his report in 1996, only learnt about Mr Landells’ service on HMAS Voyager in December 1995. He was of the opinion that Mr Landells’ memories associated with a feeling of survivor guilt, and with concern about whether the problem with the valve may have caused the ship to veer out of control, may have contributed to his abnormal behaviour pattern. He did not refer to Mr Landells’ having any fear of personal injury in the valve incident.
123. Mr Chancellor submitted (paragraph 4 of his written submissions) that we should bear in mind in dealing with the earlier psychiatric reports, that the emphasis of the medical examiners, and of Mr Landells in making his statement and affidavit, was on the Voyager collision and its effects on Mr Landells’ health, rather than on the earlier incidents. We accept that analysis. But that is no reason to disregard those opinions. They focus mainly on the Voyager collision, although the steam valve incident is recognised as a relevant factor in the context of Mr Landells’ ruminating about whether it may have played a role in the collision. He has at all relevant times described the incident as a factor contributing to his severe reaction to the Voyager collision. We find that Mr Landells reacted to being confronted by the news of the Voyager collision, by developing PTSD, although he did not know that was the appropriate diagnosis for many years.
124. We cannot be satisfied beyond reasonable doubt that Mr Landells did not feel “intense fear” about the threat of injury to him or the threat to his physical integrity while he was squatting on the turbine, straddling the steam valve and holding a steel rod in position so that the Chief Engine Room Artificer could hit the rod with a small hammer in an effort to unstick a jammed valve. He said, “I was praying because I was fearful for my life”. He described his fear that he might receive “a shot of superheated steam in the crutch” (trans, p22 & 23). There is no reason to reject his evidence that, because of his training about the dangers of high pressure steam, he did feel such fear.
125. However, we are satisfied beyond reasonable doubt that we cannot accept the raised facts which suggest that Mr Landells’ PTSD results from or is attributable solely to his fear that he would suffer personal injury in the steam valve incident, which occurred during his operational service. There is no evidence that Mr Landells developed any psychiatric illness after the steam valve incident. He said in his affidavit (R9) that he remained in relatively good health until after the Voyager collision. While his evidence points to him becoming anxious about the safety of the ship and her crew because of the danger due to engineering defects, including the defective steam valve, following the incident, it does not point to Mr Landells developing a disease or psychiatric reaction to the steam valve incident until its effect became more significant in his mind due to the disaster of the Voyager collision. We agree with the VRB that “despite his concern about the risks involved, once the operation was successfully concluded, he had continued with his duties and had not reported sick or taken any other action about the matter”. Thus, the primary hypothesis relied on in these proceedings does not provide sufficient ground for determining that Mr Landells’ incapacity from PTSD is war-caused.
THE SECONDARY HYPOTHESIS
126. Our detailed consideration of the evidence relied on by the respondent as showing that Mr Landells did not develop PTSD as a result of fear for his own personal safety in the steam valve incident, brought home to us that he has always emphasized that incident as one factor causing his feelings of guilt and anxiety subsequent to the Voyager collision. At that time, he began to ruminate about whether the defective steam valve may have actually played a part in the collision, and to feel guilt about not speaking out about it earlier. That led us to consider whether the material before us pointed to or raised the hypothesis that Mr Landells developed PTSD after the Voyager collision, even though he was not serving on Voyager at that time, partly because of his stressful experience in the steam valve incident, and because of his guilt about whether the defective steam valve, of which he was only too well aware, had contributed to the collision.
127. The medical evidence which we consider points to or raises that hypothesis includes the following passages in the reports before the Tribunal.
(1)Dr Wilkie, in his report of February 1996 (T7, p92) wrote:
Given Ted’s ability to talk non-stop for an entire appointment I was surprised at first that he had not spoken except in passing, of his service on the Voyager previously, although he had plenty of opportunity to do so. I believe he has avoided recalling his service on the Voyager because these memories were associated with a feeling of survivor guilt and he avoided thinking about the problem with the engine that could have been the cause of the death of so many of his friends.
10. Now that Ted has told me in detail about his service on the Voyager, his secretly held concerns that the problem with the engine may have caused the ship to veer out of control, and how guilty he felt about surviving when many of his friends had not, I now believe that these feelings have contributed to his abnormal behaviour pattern. [emphasis added]
(2) Dr Knox, in his report of 10 March 1997, wrote (T6, p82):
Mr Landells was aboard the Voyager during its last two extended periods at sea in waters north of Australia. He told me of several unsettling experiences during this time including “near misses” with other ships, the jamming of a valve in the ship’s throttle control, and the experience of seeing the ship’s commander, Captain Stevens, on two occasions, in his opinion, heavily intoxicated. On one occasion Captain Stevens was seen ashore, and on the other occasion Mr Landells visited him in his ship-board accommodation when he appeared to Mr Landells to be “very sick”.
These experiences, along with others mentioned in the written report, led Mr Landells to hold some fears for his safety in connection with his service aboard the Voyager. Despite this however he does not appear to have suffered from psychiatric illness, or begun to drink heavily, at the time, as reportedly became the case following the Voyager sinking.
…
I believe Mr Landells did in fact suffer what is now recognised as the illness Post-traumatic Stress Disorder. Given the climate of those times, particularly in male culture, where men did not express their feelings of fear or sadness, Mr Landells sought no treatment, but self-medicated with alcohol.
Particularly given Mrs Landells’ description of her husband’s withdrawal from his interests and the family, his poor ability to express emotions, his disturbed sleep, irritability, poor concentration, and obsessive concern and rumination over the various aspects of the Voyager sinking that were of great significance to him, particularly his guilt, with such aroused recollection also being triggered by certain reminder events, this diagnosis is apt. He had met the diagnostic criteria laid down in The Diagnostic And Statistical Manual Of Mental Disorders, 4th edition, for Post-traumatic Stress Disorder. [emphasis added]
Dr Knox concluded (T6, p90):
I believe the sinking of the Voyager, given the peculiar relationship of Mr Landells to the situation, was the catalyst for his psychiatric breakdown. I believe Mr Landells’ lengthy association with the Voyager, and the particular circumstances of him having swapped his duties, effectively bound him to the tragedy of 10 February 1964. His link to the man who died in his place has been an indelible reference point in his mind.
Earlier in the report, as well as describing the circumstances which led to Mr Landells swapping his duties and transferring to HMAS Vampire, Dr Knox also described the steam valve incident:
Over the years since the accident Mr Landells has often speculated over whether or not the faulty throttle valve had perhaps played some part in the collision with the Melbourne. Certainly there had been control problems with the ship at earlier times, as mentioned by Mr Landells to me, and expressed in his written statement. His knowledge that the matter was never subsequently given an airing in the enquiries has troubled him. To this day Mr Landells doesn’t know whether or not the problem had been rectified during the refit at Williamstown. As Mr Landells noted the Voyager had been notorious for mechanical failures, no doubt arising from the Voyager being the first of the Daring Class destroyers.
Dr Knox explained, as already set out, that because Mr Landells had not reported his service on Voyager to treating doctors, he had not been diagnosed as suffering from PTSD. Dr Knox wrote that he believed that PTSD was the appropriate diagnosis, and that, in Mr Landells’ case, survivor guilt was a part of the PTSD and was best accounted for by the “specific circumstances of Mr Landells’ situation”. Although the main circumstance in Dr Knox’s opinion was clearly Mr Landells’ transfer away from HMAS Voyager, the report suggests that the concern about the defective steam valve was another part of the “specific circumstances of Mr Landells’ situation” (T6, p87).
(3) Dr Gidley wrote (T8, pp97):
He describes an incident directly involving himself, where an engine valve stuck, reducing the ship’s manoeuvrability. He later worried that this defect might not have been properly attended to and therefore could have been a factor in the collision with HMAS Melbourne in 1964, causing major loss of life.
Dr Gidley also mentioned Mr Landells’ survivor guilt due to his posting away from HMAS Voyager by swapping with another sailor. Although Dr Gidley’s primary diagnosis was bipolar disorder, he said that Mr Landells also had some symptoms that could be associated with PTSD related to traumatic aspects of his service in the Navy. He considered that they were not sufficient to warrant a diagnosis of PTSD at the time he saw Mr Landells.
(4) Dr Le Bas, in his report of 20 August 2002 (T14, p145-6) stated:
Mr Landells currently experiences symptoms consistent with a form of Post-Traumatic Stress Disorder. This is linked with his experiences on the Voyager and his transfer off that ship prior to its final collision. He is plagued by guilt at transferring off the ship and someone else transferring into his position. This man subsequently died. He recounts his anxiety as having commenced whilst serving on the Voyager. This was due to a combination of various engineering defects in the ship and an alcoholic captain. At one point Mr. Landells was obligated to stand on top of the engine to hammer a main steam valve which had become stuck. This could have resulted in the engine exploding with him on top of it. He describes a number of near misses on the boat. In relation to the final demise of the Voyager, he recounts that ‘I should have been down there’. In addition to these symptoms of guilt he has broken sleep and nightmares. There is evidence of irritability and hypervigilance. He comes across as rather detached from many events around him. Whilst he was not witness to the collision of the Voyager, he certainly demonstrates survivor guilt. His affect tends to be rather numbed as is common in post-traumatic conditions.
…
He fits within the ICD 10 criteria for Post-Traumatic Stress Disorder, having experienced a number of threatening experiences culminating in the sinking of the Voyager. Though he was not present at this time, he was psychologically linked to the ship. Though not a visual witness to the death of his colleagues, he was an emotional witness. He experiences repeated ruminations about the Voyager and experiences dreams, particularly pertaining to the incident with the stuck steam valve. He demonstrates emotional blunting and detachment with anhedonia. He avoided contemplation of the ship for quite a number of years through heavy alcohol consumption. He suffers with survivor guilt and experiences irritability.
128. Our consideration of all the material before us led us to conclude that the material raised or pointed to the hypothesis:
(i) That the steam valve incident was a traumatic event during operational service which caused Mr Landells to feel intense fear for his personal safety, and, even after the valve had been safely released, left him anxious about the handling of HMAS Voyager and the safety of her crew because of the continuing danger of that defective valve; and
(ii) That when confronted by the news of the sinking of HMAS Voyager with the loss of 82 lives, that anxiety led to ruminations and guilt as to the fact that Mr Landells should have spoken up about the defective valve which, he believed, may have contributed to the collision; and
(iii) That the steam valve incident was one of a number of factors related to Mr Landells’ own service on HMAS Voyager, which led to him developing PTSD when confronted with the news of the Voyager collision, and the associated loss of life, even though he was not present at the collision. They were:
(a) His guilt at arranging his own transfer away from HMAS Voyager, and the possible death of the person performing “his” duties;
(b) The steam valve incident; and
(c) His concerns, partly due to that incident, about the safety of HMAS Voyager, which concerns appeared to him to be justified by the collision.
129. The Applicant’s Statement of Facts and Contentions did not raise that hypothesis, not was it put in those terms at the hearing. On the other hand, the medical evidence did point to the PTSD being partly attributable to the steam valve incident.
130. There is Federal Court authority on how the Tribunal should deal with such a situation. In Grant v Repatriation Commission (1999) 57 ALD 1 at 6 [17-18], the Full Court of the Federal Court said:
[17] The AAT is entitled to be guided by the issues that the parties choose to put before it for its consideration: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 342; Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487–9; 29 ALD 647) and is entitled to have regard to the case put: Noble v Repatriation Commission (Fed C of A, Full Court, No 1159/97, 3 November 1997, unreported) at para 16. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424–5; 29 ALD 1 at 15–6; 109 ALR 30 at 43 Brennan J said of the inquisitorial procedure of the AAT:
Proceedings before the AAT may sometimes appear to be adversarial when the commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the commission, the board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it … The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
[18] An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].
131. In Benjamin at 633 [47-48], the Full Court said:
[47] Proceedings before the tribunal sometimes give the appearance of being adversarial but, in substance, a review by the tribunal is inquisitorial. Each of the commission, the board and the tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Grant v Repatriation Commission (1999) 57 ALD 1 at 6, [17]–[18], and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; 58 ALD 30.
[48] The facts that the claim originally lodged by the veteran referred only to “PTSD” and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of “post traumatic stress disorder” do not preclude the relevant decision-maker, be it the commission or the tribunal, from reaching a conclusion that the veteran suffered from a different disability. Certainly, the tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war-caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
132. On the basis of those decisions, the Tribunal arranged for the District Registrar to write to the parties advising them that the Tribunal considered that the material before it raised or pointed to an additional hypothesis connecting Mr Landells’ PTSD following the Voyager collision with the circumstances of his operational service, specifically the steam valve incident. The text of the District Registrar’s letter is set out as Appendix I to these reasons.
133. The parties agreed to respond to that letter by making further written submissions. We have considered those submissions. The Applicant’s Further Written Submissions endorsed the Tribunal’s approach and pointed out that Dr Epstein had spoken of the Voyager collision as exacerbating Mr Landells’ level of fear, which had originally arisen from the steam valve incident, and, as set out earlier, had referred to the Voyager collision as exacerbating Mr Landells’ “tendency for pre-existing PTSD” (trans, p99-100).
134. The respondent’s Further Submissions at paragraphs 4.1 – 4.11 submitted that the Tribunal should not consider the secondary hypothesis, or if it did, it should find that the hypothesis did not meet the relevant SoP.
135. As to whether the Tribunal should consider the secondary hypothesis, the respondent submitted that the Tribunal should assume that the applicant’s solicitor and Counsel intentionally explicitly limited the hypothesis relied on, and that in conceding that any stressor related to the Voyager collision was not within operational or eligible war service, as defined in the Act, they had considered and rejected matters which formed part of the secondary hypothesis.
136. While that may well be correct, the Applicant’s Further Submissions made it clear that, if the opportunity was available to rethink that approach, the applicant’s legal representatives sought to do so on his behalf.
137. The respondent’s submissions further pointed to the difficulty for the respondent in raising this matter at this late stage in view of the complexity of the hearing and the large number of pages of exhibits and transcript.
138. The Tribunal regrets the delay in raising the matter and is well aware of the complexity of the hearing and of the documents tendered in evidence. It is concerned of course that natural justice must be given to both parties. It was after considering all those issues that it arranged for the District Registrar to write to the parties as set out in Appendix I. The Tribunal considered it was under a duty, as explained by the Full Court in Grant and Benjamin, to reach the correct or preferable decision according to the material before it, even if that meant adopting an inquisitorial approach and raising a hypothesis on a basis not articulated by the applicant.
139. The respondent further submitted that it was entitled to rely on the concession by the applicant that stressors related to the Voyager collision were excluded from the raised hypothesis.
140. There was no concession in precisely those terms. Mr Chancellor in opening said (trans, p13):
Despite all the documentation, in a sense it is a relatively narrow issue and that is whether or not the steam engine incident referred to by Mr Landells is a relevant stressor for the purposes of his psychiatric illness.
We understand that to be an acknowledgement that in order to succeed in his claim, Mr Landells had to raise a reasonable hypothesis connecting his PTSD with the circumstances of his eligible or operational service. It is quite clear that the Voyager collision was not part of Mr Landells’ eligible or operational service and thus Mr Landells sought to rely on another incident which he claimed occurred during his operational service. It was because the Tribunal recognised that the hypothesis it considered was raised by the evidence was not part of the applicant’s case at the hearing, that it arranged for the District Registrar to write to the parties and offer them the option of responding with written submissions or in a further hearing.
141. In paragraphs 4.4 onwards, the respondent addressed the merits of the secondary hypothesis. We have decided that we are bound to consider that hypothesis. We will refer to those paragraphs in that consideration.
APPLICATION OF THE PROCEDURE EXPLAINED IN DELEDIO TO THE SECONDARY HYPOTHESIS
step 1 – does the material before the Tribunal point to a hypothesis connecting ptsd with the circumstances of service?
142. We have already set out the material which we consider points to a hypothesis connecting Mr Landells PTSD with the steam valve incident. That material does not suggest that the PTSD developed solely as a result of the steam valve incident, but that it was one factor leading to the development of PTSD after the Voyager collision.
step 2 – Is there a sop for ptsd?
143. We have already identified the relevant SoP for PTSD and set out the relevant provisions of that SoP.
step 3 – Is the primary hypotheses reasonable – does it fit the template in the sop?
144. The respondent’s further final submissions state at paragraphs 4.4, 4.5 and 4.8:
4.4As to the merits of the Tribunal’s hypothesis the respondent relies on the unequivocal statement by the applicant that any stressor related to the Voyager collision was not within operational or eligible service under the Act. This means that the applicant’s case is essentially as stated in the first paragraph (i) of the Tribunal’s hypothesis:
(i) That the steam valve incident was a traumatic event during operational service which caused Mr Landells to feel intense fear for this personal safety…
4.5What follows in the rest of the hypothesis articulated by the Tribunal, is not relevant to the issues of whether the claimed act of striking the valve with a hammer constituted a severe stressor as defined in the SoP and whether the applicant’s reaction at that time was one of intense fear, helplessness or horror. Rather the Tribunal’s hypothesis relates to another claimed sequelae of the “traumatic event”, namely a continuing state of anxiety about the defective steam valve, which is said to have contributed to the onset of PTSD after the Voyager collision.
…
4.8The respondent understands the Tribunal hypothesis to be proposing, in effect, a connection between a claimed stressful event during operational service (the valve sticking) with aggravation of anxiety symptoms related to this incident which manifested at about the time of the Voyager collision and contributed to the development of PTSD. If this is an accurate summary of the hypothesis, the respondent contends that it does not meet the SoP template for PTSD. While the applicant may have ruminated about whether the valve was a factor in the collision, there is no evidence that such ruminations involved intense fear, helplessness or horror or occurred in conjunction with the claimed stressful event.
145. We agree with paragraphs 4.4 and 4.5 of those submissions. As to paragraph 4.8, the evidence, as we have already stated, does raise or point to Mr Landells having suffered intense fear, as required in the diagnostic criteria for PTSD, at the time of the steam valve incident.
146. Paragraph 4.8 of the respondent’s Further Submissions does accurately summarise the secondary hypothesis. However, it does not accurately reflect the requirements of the SoP for PTSD. Once there is material raising or pointing to the requirements of factor 5(a) of the SoP being satisfied, in this case by intense fear for his personal safety in the steam valve incident, it is not necessary that Mr Landells’ subsequent ruminations about the event also involve “intense fear, helplessness or horror”.
147. There is evidence in the reports of Dr Knox (see paragraph 23 above) and Dr Le Bas (see paragraph 28 above) as to Mr Landells meeting the diagnostic criteria for PTSD. The role the valve played as part of the cause of Mr Landells’ psychiatric condition is mentioned in the reports of both psychiatrists.
148. We find that step 3 is satisfied.
step 4 – are we satisfied beyond reasonable doubt that mr landells’ incapacity from ptsd is not war-caused?
149. The respondent’s further submissions as to Step 4 again raise the unlikelihood of there being any danger to Mr Landells in the valve incident. We have already dealt with that issue. We are not satisfied beyond reasonable doubt that Mr Landells fear was idiosyncratic, in the sense of not being a reasonable perception from his point of view. While there is doubt raised by the material as to whether Mr Landells did feel intense fear at the time of the steam valve incident, we have decided that we cannot be satisfied beyond reasonable doubt that he did not.
150. Once a reasonable hypothesis is raised, the question we must ask is whether we are satisfied beyond reasonable doubt that Mr Landells’ incapacity from PTSD is not a war-caused disease under s 9 of the Act. Section 9(1)(b) provides:
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:
…
(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;
151. In Repatriation Commission v Law (1980) 31 ALR 140 at 151, Bowen CJ, Brennan and Lockhart JJ considered the meaning of the term “attributable to” in s 101(1)(b) of the Repatriation Act 1920. Their Honours said at 151:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show “attributability” if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.
Law establishes that a disease can be war-caused if a factor specified in a SoP, related to relevant service, was one of a number of causes, or a contributory cause, of the incapacity resulting from that disease.
152. In this matter we have concluded that the steam valve incident was a severe stressor which occurred during operational service, as required by clause 5(a) of SoP No. 3 of 1999. It occurred prior to the clinical onset of PTSD. We are satisfied beyond reasonable doubt that it did not, on its own, lead to or result in the development of PTSD by Mr Landells.
153. However, we are not satisfied beyond reasonable doubt that Mr Landells’ experiencing a severe stressor, as constituted by the steam valve incident, during operational service, was not one of the contributory causes of him developing PTSD. He developed that condition when confronted with the knowledge that HMAS Voyager had sunk with the loss of 82 lives. There is a considerable amount of medical evidence pointing to him developing PTSD because of his guilt and anxiety about not reporting the defective steam valve, which he believed may have contributed to the collision, as well as guilt and anxiety about his transfer from HMAS Voyager. On the medical evidence, at that stage, the severe stressor which had caused Mr Landells to suffer intense fear for his own safety at the time it occurred, and anxiety for the safety of those serving on HMAS Voyager, played a part in the development of PTSD.
154. Thus, we are not satisfied that the steam valve incident was not one of the causes of Mr Landells’ PTSD so as to make the PTSD attributable to Mr Landells’ operational service.
155. We find that PTSD is a war-caused disease. The decision under review will be set aside. In substitution, we will decide that PTSD is a war-caused disease under s 9 of the Act.
I certify that the 155 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, and Mr Conrad Ermert, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 13 October 2003 & 8 December 2003
Date of Decision 27 January 2005
Counsel for the Applicant Mr Chancellor
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr Purcell
Solicitor for the Respondent Department of Veterans' Affairs
21
0