Livermore and Repatriation Commission
[2011] AATA 217
•30 March 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/1124
Veterans' Appeals Division )
Re: Peter Livermore
Applicant
And: Repatriation Commission
RespondentORDER TO AMEND WRITTEN DECISION
TRIBUNAL: Senior Member Jill Toohey
DATE: 15 April 2011
PLACE: Sydney
1.On 30 March 2011, the Tribunal published a decision and written reasons in this proceeding.
2.The Tribunal is satisfied that that there are obvious errors in the text of the decision and the written statement of reasons and directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision from:
The decision under review is set aside and the following decision substituted for it:
(i) Mr Livermore’s post traumatic stress disorder was aggravated by his service in East Timor; and
(ii) the matter is remitted to the Repatriation Commission for assessment.
so that it now reads:
The decisions under review are set aside and the following decision substituted for them:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.
3.Paragraph 8 of the written statement of reasons is amended so that reference to ‘a decision’ is now ‘decisions’.
4.Paragraph 102 is deleted and replaced with the following text:
Other than the evidence of Dr Dinnen and Dr Roberts concerning whether Mr Livermore suffers from depression, no evidence was led in relation to any of his other conditions. While they do not appear to be in dispute, we make no findings about them. In the circumstances, we set aside the decisions under review and instead decide that:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.
..................[sgd]................................
Jill Toohey
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1124
Veterans' Appeals DIVISION ) Re Peter Livermore Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Jill Toohey and Dr H S Toh, Member Date30 March 2011
PlaceSydney
Decision The decisions under review are set aside and the following decision substituted for them:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder...................[sgd]............................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – reasonable hypothesis - post traumatic stress disorder following service in Malaysia accepted – whether post traumatic stress disorder aggravated by service in East Timor – whether incidents relied on occurred – failure to disclose two incidents for several years – Tribunal satisfied on balance of probabilities that incidents occurred – hypothesis connecting aggravation of post traumatic stress disorder to service reasonable – decision under review set aside
Veterans Entitlements Act 1986, ss 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408 and 414
Repatriation Commission v Yates [1995] FCA 1234; 21 AAR 331
Lee v Minister of Pensions (No 2) (1948 3 War Pensions Appeals Reports 1901)
Gerzina v Repatriation Commission [2004] FCAFC 96
REASONS FOR DECISION
30 March 2011 Senior Member Jill Toohey
Dr H S Toh, MemberBACKGROUND
1. Mr Peter Livermore served as a medical assistant in the Royal Australian Air Force from February 1995 to April 2003, including for two years from 1996 in Butterworth, Malaysia, and two weeks in East Timor in May 2000. His service in East Timor is operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
2. While he was at Butterworth, Mr Livermore had to recover the body of a soldier who was killed when two grenades exploded in his pockets. Mr Livermore had to collect the soldier’s body parts, take them back to the morgue and clean the body. The whole operation took over nine hours and was extremely traumatic.
3. Mr Livermore continued serving at Butterworth for another four months or so after this incident and believed, at the time, that he was coping. However, after returning to Australia, he started to have flashbacks and began drinking heavily. In June 1999, he was referred to a psychologist, Dr Anthony Nicholas, whom he saw for a short time. He underwent cognitive behaviour therapy, apparently with good results, and he continued in service.
4. In May 2000, an opportunity arose for Mr Livermore to undertake some relief work in East Timor. On 8 May 2000, he was certified fit for deployment and, from 11 May to 25 May 2000, he was deployed to the United Nations military hospital in Dili.
5. After returning from East Timor, Mr Livermore deteriorated rapidly. In July 2000, he was referred to a psychiatrist, Dr Len Lambeth, who diagnosed post traumatic stress disorder (PTSD) as a result of the incident at Butterworth (Dr Lambeth’s report referred in passing to East Timor but did not relate Mr Livermore’s PTSD to events there).
6. Mr Livermore has since been diagnosed as also suffering from major depression, hypertension, alcohol dependence, irritable bowel syndrome and pancreatitis. He has been admitted to a psychiatric hospital eight times and takes numerous prescription medications. He was discharged from the army in May 2003 on medical grounds and has not worked since.
7. Mr Livermore contends that events while he was serving in East Timor aggravated his PTSD and led to his other conditions. The Repatriation Commission (the Commission) accepts that he suffers from PTSD as a result of his service in Malaysia but rejects his claim that it was aggravated by events in East Timor. In particular, it takes issue with his account of what happened to him there.
DECISION UNDER REVIEW
8. On 30 January 2009, the Veterans Review Board (the Board) affirmed decisions by the Commission that:
(i)Mr Livermore’s PTSD was not aggravated by his service in East Timor; and
(ii)his major depression, hypertension, alcohol dependence and irritable bowel syndrome are not war-caused.
9. The Board found that Mr Livermore’s pancreatitis was acute, rather than chronic, as the Commission determined, but otherwise affirmed the decision that it was not war-caused.
10. At Mr Livermore’s request, the Board heard his application in his absence. There was no appearance for the Commission.
THE ISSUE
11. We have to determine whether Mr Livermore’s service in East Timor aggravated his PTSD.
12. There is a difference of opinion between the psychiatrists who assessed him as to whether Mr Livermore suffers from depression, and we heard evidence on that point. However, although there are references in various medical reports to Mr Livermore’s other conditions, evidence was not led about them.
MR LIVERMORE’S EVIDENCE
13. Mr Livermore claims his PTSD was aggravated by three incidents that occurred while he was stationed at the United Nations (UN) military hospital in Dili, East Timor. The Commission contends that his evidence about these events is unreliable. We will return to this below.
The first incident (“the beating incident”)
14. On about his second day in East Timor, Mr Livermore drove another navy medical officer into town. The following day, his superior, Warrant Officer Peter Matthey, was not happy with him for returning the vehicle without refuelling and cleaning it first, and directed him to do both. Mr Livermore drove some distance to a refuelling shed and, on returning to base, came across a group of men beating another man.
15. In a written statement, Mr Livermore described this scene as “the systematic slaying of an individual against (sic) a savage mob”. He had been briefed in Australia about “revenge beatings” and believed that was what he was witnessing. From the condition of the body, the person may already have been dead. Mr Livermore slowed down but the group waved him on. He did not know what to do; he had no radio to call anyone, he could not use his rifle because he was non-combatant and so he kept driving and returned to base.
16. Back at the base, Mr Livermore says he told W/O Matthey who said he should not have been out on his own and that someone should be notifying the rapid response team. Mr Livermore says he handed the keys back, went downstairs, and then went to the back of the hospital where he started to vomit. He was shaky and sweaty, his body was in shock and his mind was disturbed and confused because he felt he should have helped the man; that night he drank as much as he could.
17. Mr Livermore does not know if the rapid response team was called or if the incident was reported to anyone. He assumed the person was not brought to the hospital because when someone critically ill was brought in, the siren would sound. He did not know whether the person was taken to the Red Cross hospital.
The second incident (“the Red Cross hospital incident”)
18. Several days later, Mr Livermore says he was asked to drive a Specialist Reservist Medical Officer to the main public hospital run by the Red Cross. He describes the hospital as “trashed”, with limited facilities for emergency aid only. While they were there, a man was brought in bleeding profusely from several large wounds.
19. Mr Livermore says no proper equipment was available to treat internal blood loss and the man bled until his heart stopped. He felt useless and “shattered at this senseless death” and believed the man could have been saved had he been taken to the UN hospital. He recalls the specialist on the way back “voicing his anger” at the way militia had ransacked the hospital to render it unrepairable.
The third incident (“the smoke grenade incident”)
20. On about his ninth or tenth day in East Timor, Mr Livermore was involved in evacuating an injured soldier by helicopter from an area where fighting was going on. Conditions were difficult but they managed to evacuate the soldier and Mr Livermore treated him on board. On returning to the hospital, he found there had been a grenade on board. It turned out to be a smoke grenade but his “deep mistrust” of grenades made him feel like his life had been threatened.
21. Mr Livermore has made a number of inconsistent statements about this incident. He did not mention it at all in a written statement made in September 2000. In a statement in January 2001, he wrote that, after returning to the hospital, he went through the soldier’s belongings and found “a number of grenade type devices in the patient’s webbing”; he realised he had been sitting on them throughout the flight and “felt a feeling of horror shoot through me”. In his oral evidence, he was not clear whether he discovered the grenades by himself or with another officer, and whether the smoke grenades were in the soldier’s pack or webbing.
Return to Australia
22. Not long after returning from East Timor, Mr Livermore began to have increasingly intrusive thoughts and emotions. On one occasion, he was at work when he broke down in tears and, on another, his wife found him in tears and told him he needed help.
23. In July 2000, a reservist doctor referred Mr Livermore to Dr Lambeth. On 8 September 2000, Dr Lambeth reported that he had been seeing Mr Livermore weekly. He diagnosed moderately severe PTSD “as a result of having to attend the grenade incident in Malaysia”. He noted that the diagnosis of PTSD had also been made by Dr Nicholas and by consultant psychiatrist, Dr John Westerink. In relation to East Timor, Dr Lambeth stated only: “He then went to East Timor, but since his return from Timor his symptoms have returned.” In a further report on 7 September 2001, Dr Lambeth made no reference to East Timor.
24. Mr Livermore says he talked to Dr Lambeth about how he was feeling and Dr Lambeth suggested that East Timor might have brought back events in Malaysia, and prescribed an anti-depressant.
25. Around this time, Mr Livermore was using alcohol to get to sleep. He was drinking about ten stubbies of beer every day, including at work before he went home, and his wife became concerned about his intake. He was using more and more sleeping pills. His marriage eventually broke down around the end of 2003 because of what he describes as his “explosive and unpredictable behaviour”.
26. In June 2001, Mr Livermore “became unstuck mentally, big time”. He was admitted to St John of God Hospital (SJGH) at North Richmond for one month. He has been admitted on six or seven occasions since then for periods of up to three months.
27. On 6 August 2001, Dr Westerink, consultant psychiatrist at SJGH, reported that Mr Livermore had PTSD “which is now chronic”. Dr Westerink referred to the incident in Malaysia followed by “a traumatic incident” in East Timor. He referred to the smoke grenade incident but not to either other incident. Dr Westerink reported:
His [PTSD] was caused by traumatic experiences in Malaysia. He received treatment for that and continued to work until the trauma experienced in East Timor which aggravated his [PTSD] to an extent that he cannot cope with his work any longer.
28. Mr Livermore gave evidence that, while at SJGH, he attended group therapy for people with PTSD but he found it difficult to participate. He would walk up and down the grounds wearing dark glasses. Around 2006, a nurse who is now an art therapist, suggested he start drawing. Over a three-month stay, he “made about 10 kilograms of art” and he ”drew bodies”. The nurse therapist encouraged him to talk about the bodies and he says that was when he realised he needed to talk about what happened in East Timor. He realised that part of him had said those people deserved to die because they were the enemy but “his human side” said he should have helped them, and he realised he needed “not to feel guilty”.
The Commission’s contentions
29. The Commission says that Mr Livermore’s evidence about events in East Timor is unreliable because:
(i)he did not disclose the first two incidents until 2007;
(ii)there are inconsistencies in his account of the smoke grenade incident;
(iii)his claims are not supported by independent evidence; and
(iv)it is improbable that he experienced three such incidents within two weeks.
Failure to disclose incidents until 2007
30. A one-page statement written by Mr Livermore in July 2000 is before the Tribunal. It was apparently written on the day Mr Livermore was to see a psychiatrist and when he was considering “putting in a compo claim”. In September 2000, he wrote a four-page statement in connection with his claim.
31. The first statement starts “During my posting [to Butterworth] an event happened … that changed my life”. It goes on to outline that event. It concludes “Going to East Timor scared me a lot, when I was out in the chopper on a Casevac I was worried we may get diverted from our dehydrated patient to someone with battle casualties. Even if that were the case, I would have done my job no questions asked”.
32. The second statement deals with the Butterworth incident in detail. Mr Livermore writes that seeing a psychologist helped him to cope. He then refers to East Timor, citing the medical evacuation incident which was “pretty hair-raising”. He writes that, later that night, he realised that the whole time they were in the air trying to locate the casualty, he was “petrified” they would be diverted to a more horrific casualty”; he felt he had failed on the mission and, since returning to Australia, has been “constantly nagged” by this thought and has not been happy with himself “as a professional medic”. He does not mention the smoke grenade or either of the other incidents.
33. In connection with his claim for pension, Mr Livermore first disclosed the beating incident and the Red Cross hospital incident in a written statement made in November 2007.
34. The Commission submits that it is not plausible, if these events occurred – or if they affected Mr Livermore as he claims – that he would fail to disclose them over the course of several years of treatment and counselling.
35. Mr Livermore has offered several explanations for the delay in mentioning the first two incidents. He says his “military programmed brain” filtered out the incidents as “non-emotional stressors” because they were carried out by lay people, not military people, against what he presumed were militias and therefore the enemy. He had seen footage of atrocities carried out by the enemy and he felt both men deserved to die. As well, he feared ridicule if he told others that he felt bad about an enemy person dying. On the other hand, as a medic, he felt guilty at not helping both men. He felt he could not say, as a peace-keeper, that he witnessed someone being murdered but did nothing about it, and so he “shoved the events away”. Also, he did not think the Commission would even consider the incidents stressors because things that happen to “the other side” are part of war, and veterans’ advocates told him the incidents were not “stressors” (and so could not be the basis for a claim). In contrast, the smoke grenade incident was different because it was a threat (or perceived threat) to himself.
36. Mr Livermore gave evidence that he did not tell Dr Lambeth about events in East Timor because he did not feel he could say he was upset at seeing the enemy mistreated. When Dr Lambeth said he had PTSD following Malaysia, and prescribed an anti-depressant, he was “quite happy” with that response because he “didn’t really understand what was going on” with him at the time. However, his “recall and reasoning” have developed over time, which he puts down to eventually being able to accept treatment.
37. Mr Livermore says he did not make the connection in his mind between his psychological condition and the first two incidents until some time in 2006, through the art therapy and, slowly, he came to feel not so bad about what had happened. He says that, even then, it took “a fair bit of therapy to come around to what my brain was actually processing there”.
38. For the reasons set out below, we accept Mr Livermore’s explanations for not disclosing these incidents for several years as plausible.
Inconsistencies in evidence about the smoke grenade incident
39. The inconsistencies in Mr Livermore’s accounts of this incident are noted at paragraph [21] above.
40. Mr Livermore says his earlier written statements were done while he was intoxicated, and his statement in November 2007 was written when he was an in-patient at SJGH. As noted, he says his “recall and reasoning” have developed over time, which he puts down to eventually being able to accept treatment. There is also evidence, from Dr Anthony Dinnen, psychiatrist, that a chronic severe psychiatric illness as well as medications can impair memory and concentration.
41. In all the circumstances, we do not think the inconsistencies in Mr Livermore’s evidence about the smoke grenade incident are of real consequence. His account has remained broadly consistent and some allowance should be made for the passage of time and the effects of PTSD and medications on his memory.
Claims not supported by independent evidence
42. The Tribunal heard evidence from W/O Matthey, who was Mr Livermore’s squadron leader in Dili, researcher Mr Warren Barsley, and historian Dr Jennifer Cornwall. The Commission submits that the weight of their evidence is against Mr Livermore.
43. W/O Matthey was the senior medic and squadron warrant officer at the UN Hospital in Dili from January to August 2000. He disputes Mr Livermore’s claims. In a letter to Mr Barsley, he wrote that, if a beating incident such as that described by Mr Livermore had occurred, the UN military or police would have responded, and the victim would have been brought into the UN hospital or the hospital would have sent an ambulance.
44. Under cross-examination, W/O Matthey conceded that the police might not have been told about such an incident and the victim might not have been brought to the UN hospital.
45. In relation to the Red Cross hospital incident, W/O Matthey wrote to Mr Barsley that, in May 2000, the hospital was “fairly well-equipped”; further, that if a patient had been brought in when Mr Livermore was there, it would have been with a Timor Aid ambulance staffed by Australian paramedics. He wrote that, if this incident had occurred, the doctor whom Mr Livermore drove to the hospital would have started treatment to help the staff and, moreover, the hospital was adequately stocked with supplies and would have been able to treat the patient “sufficiently”.
46. Under cross-examination, W/O Matthey conceded that a patient could have arrived in a civilian vehicle, and he acknowledged that he did not know whether the hospital had resuscitative equipment in May 2000.
47. For the most part, W/O Matthey’s evidence amounted to his view of what “would have”, or should have, happened. He could not recall Mr Livermore and he conceded that his memory of events at that time was hazy. He agreed that he did not have “hands on contact” with patients. We place no weight on his evidence.
48. In contrast, Mr Barsley and Ms Cornwall gave considered and helpful evidence. They were engaged by the Commission and Mr Livermore, respectively, to research events in Dili around May 2000. They agreed their research was severely hampered by a lack of records and poor record-keeping. Mr Barsley reported there were no relevant files held by the Australian War Memorial Research Centre and the commander’s diary for the UN hospital in Dili did not commence until June 2000.
49. Mr Barsley and Dr Cornwall prepared written reports and gave oral evidence concurrently. Their methodologies were different in that Mr Barsley spoke directly to W/O Matthey and Flight Sergeant Joseph Stubbington, both of whom Mr Livermore says were there when he returned after the beating incident, and Dr Cornwall spoke to others, including a lawyer who was in Dili around May 2000. However, they were substantially in agreement about conditions in Dili in May 2000.
50. W/O Matthey gave Mr Barsley the account referred to above. Flight Sergeant Stubbington told Mr Barsley he had no recollection of the beating incident.
51. A report prepared by Dr David Wilson in connection with Mr Barsley’s research indicates that United Nations records show only four reports of beating incidents around early 2000, and none in the time Mr Livermore was in Dili.
52. Dr Cornwall’s research indicated there were isolated incidents of retaliatory action by locals against refugees returning from West Timor who were believed to be militias, from which the United Nations High Commissioner for Refugees was unable to protect them, and there were accounts of violence by vigilante groups against those suspected of links to the militia. There was an entrenched culture of violence among younger people and a real problem of maintaining law and order in Dili. Street crime, including killings, beatings and robberies were common and increased after February 2000, when the multinational peacekeeping taskforce withdrew, and more so from May 2000 when the transitional administration ended and East Timor became independent.
53. Mr Barsley’s research indicated that conditions at the Red Cross hospital had improved “tremendously” by May 2000, since September 1999 when it was looted. However, Dr Wilson thought Mr Livermore’s description of the Red Cross hospital in May 2000 appeared to be “sound”. Dr Cornwall’s research indicated that, in 2010, the Red Cross hospital was a “third world facility” and she concluded it would have had no capacity to treat serious and life-threatening conditions in May 2000. In her view, Mr Livermore’s account is “entirely consistent” with conditions at the time.
Improbability
54. Finally, the Commission submits, it is improbable that Mr Livermore would have experienced three such incidents in just two weeks in East Timor.
55. However, there is evidence that the first two incidents were consistent with conditions in Dili at the time. The third was not itself an incident; it was Mr Livermore’s perception and response to an ordinary event that would have been of little, if any, significance to anyone else. (The Commission does not suggest that the medical evacuation did not actually occur).
56. We do not think it so improbable that these events should occur within the space of two weeks that they seriously call Mr Livermore’s credibility into question.
EVIDENCE OF DR DINNEN AND DR ROBERTS
57. Dr Dinnen and Dr John Roberts, psychiatrists, assessed Mr Livermore in July 2009 and April 2010 respectively. They provided written reports and gave oral evidence.
58. The doctors agree that Mr Livermore suffers from PTSD. However, they disagree about aspects of PTSD generally, in particular whether memories can be repressed. They also disagree as to whether Mr Livermore’s service in East Timor aggravated his PTSD; whether he suffers from depression; whether his medications might account for his poor memory; and whether he is able now to work.
Dr Dinnen’s evidence
59. Dr Dinnen gave evidence that Mr Livermore suffers from chronic PTSD associated with depressive features and autonomous nervous system dysfunction reflected in bowel disorder in particular. He attributes the conditions to the cumulative effect of stressors in Malaysia and East Timor, with the condition becoming aggravated, and much more severe, after serving in East Timor. He describes the condition as having its genesis in Malaysia, but prior to East Timor, it did not cause clinical illness; the onset, requiring ongoing clinical treatment, was following Mr Livermore’s service in East Timor. Further, there is no indication of depressive illness or the related conditions, prior to East Timor.
60. In Dr Dinnen’s view, there are three possible explanations for Mr Livermore’s failure to disclose the first two events for several years: they were suppressed while memories of Butterworth were more vivid; they were actually relatively insignificant and Mr Livermore is making more of them for the purposes of his claim; or he has fabricated them. Dr Dinnen considers the first explanation the most likely.
61. Dr Dinnen gave evidence that failure to disclose traumatic events is common among people affected by a traumatic experience, and Mr Livermore’s failure to disclose the incidents in East Timor is consistent with PTSD. He told the Tribunal that people with PTSD commonly respond only when asked specifically about events and, having reviewed Mr Livermore’s clinical notes, he thought it quite possible that he was not specifically asked about East Timor in the course of his treatment. He strongly disagreed with Dr Roberts’ view that “retrospective perceptions arising out of an event are not relevant in the diagnosis of PTSD”.
62. It was put to Dr Dinnen that, in contrast to East Timor, Mr Livermore had earlier provided a very detailed written account of the incident in Butterworth. Dr Dinnen acknowledged this apparent inconsistency but said that clinicians working with PTSD have to work with how a person presents, rather than notions of how they should present, and he did not think there was a necessary inconsistency. He told the Tribunal that impaired memory and concentration is consistent with a chronic severe psychiatric illness and he also thinks it possible that Mr Livermore’s memory has been affected by his medications.
63. Dr Dinnen believes that symptoms described by Mr Livermore of regretful thoughts, anxiety, lethargy, sleep disturbance, lack of emotion, feelings of worthlessness and suicidal thoughts are indicative of a depressive disorder. He believes Mr Livermore is now very ill.
Dr Roberts’ evidence
64. Dr Roberts accepts that Mr Livermore had PTSD following his time in Butterworth. However, he gave evidence that he found no evidence that his experiences in East Timor were clinically significant. He found no evidence of clinical worsening of Mr Livermore’s condition and no evidence that he has marked symptoms now. At most, what happened in East Timor led to a temporary recurrence of Mr Livermore’s pre-existing PTSD.
65. Dr Roberts disagrees with Dr Dinnen about repressed memory. In his view, the notion that a traumatic event can be suppressed is without foundation and is rejected by the majority of leading psychiatrists throughout the world. He conceded that there are some who believe in repressed memory. Dr Roberts accepts that such memories may be genuinely held but says there is uniform agreement that they have no forensic validity because there is no guarantee they are true and accurate.
66. Dr Roberts considers it significant that, in the course of ongoing treatment by Dr Lambeth, East Timor was never dealt with, and he asked Mr Livermore about this. Mr Livermore told him it was because, at the time, it did not affect him. Dr Roberts told the Tribunal that, although people with PTSD are often reluctant to discuss their experiences, if East Timor were a significant aggravating factor, Mr Livermore would have volunteered, or at least discussed, it.
67. In Dr Roberts’ opinion, for Mr Livermore to say a traumatic event did not concern or affect him was “a negation of the very essence of PTSD”; it “would never be said”. PTSD can take many courses including relapses and deterioration not linked to any observable event. Whatever the reason for Mr Livermore’s deterioration after East Timor, it was not due to anything that happened there.
68. Dr Roberts also found Mr Livermore’s readiness to reveal in detail the grenade incident at Butterworth “a peculiar feature” given the general reluctance of people with PTSD to talk about their experiences. Dr Roberts considers it at odds with genuine PTSD because of the natural tendency of people with PTSD to avoid reliving the experience. He also considers a very detailed account to be characteristic of malingering, although he does not suggest that Mr Livermore is doing so.
69. Dr Roberts does not believe Mr Livermore’s recall of events would be affected by his medications and he disagrees with Dr Dinnen that his symptoms indicate depression. He says Mr Livermore presented well, spoke well, and did not present as an unwell man.
Consideration of medical evidence
70. Mr Livermore’s evidence was that he felt unable to talk about the beating incident and the Red Cross hospital incident. Neither doctor actually addressed these questions directly.
71. A good deal of the medical evidence was directed to the question of repressed memory, evidently a contentious question in psychiatry on which both doctors were firm in their opinions. However, although he mentioned poor memory in passing, Mr Livermore does not appear to rely on repressed memory. The evidence took that course after Dr Dinnen suggested it as a possible explanation for Mr Livermore’s failure to disclose the first two incidents.
72. In any event, in our view, Dr Dinnen’s assessment of Mr Livermore was more careful and considered, and we prefer his evidence to that of Dr Roberts who, it seemed to us, had very fixed views about Mr Livermore.
73. In contrast to Dr Dinnen, Dr Roberts did not go into the events in East Timor with Mr Livermore after he said he did not discuss them with Dr Lambeth because they did not affect him. With respect, Dr Robert’s mind seems to have become somewhat closed from that point. In his view, it would simply never happen that a person with PTSD would make such statement. Further, he said it would never happen that someone would detail a traumatic event in the way that Mr Livermore described what happened while recovering the soldier’s body in Butterworth. This last statement is difficult to reconcile with Dr Roberts’ acceptance that Mr Livermore did suffer PTSD following the Butterworth incident.
74. We also prefer Dr Dinnen’s evidence that Mr Livermore suffers from depression, that his medications could affect his memory, and that he is currently unwell. Whereas Dr Roberts seemed somewhat dismissive, Dr Dinnen explained why Mr Livermore’s symptoms and medications are consistent with depression, and why his medications might affect his memory. Further, Mr Livermore’s demeanour at the hearing appeared to us more consistent with Dr Dinnen’s assessment than Dr Roberts’.
75. Dr Roberts does not dispute that Mr Livermore has deteriorated since returning from East Timor but he discounts what happened there as a cause. We note his view that it does not follow “logically” that it caused his deterioration but his only explanation for Mr Livermore’s chronic condition was that it was a recurrence of his pre-existing PTSD. Finally, Dr Roberts’ opinion that there is no reason Mr Livermore could not work at present is at odds with all other medical opinion.
THE LAW
76. By s 120(1) of the Act, we must determine that Mr Livermore’s PTSD was war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting his condition(s) with his service: s 120(3).
77. Whether a hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time: s 120A.
78. The steps to be followed in determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must:
(i)determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant SOP;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SOP; and
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s incapacity did not arise from a war-caused injury.
79. A hypothesis will only be reasonable if the material that raises it includes all of the essential elements in the SOP: Repatriation Commission v Hill [2002] FCAFC 192. It will not be reasonable if it is “obviously fanciful or impossible or not tenable or too remote or too tenuous”. It does not follow, merely because a hypothesis has none of those characteristics, that it is necessarily reasonable: the material must point to the connecting hypothesis: East v Repatriation Commission (1987) 16 FCR 517.
80. The material will raise a reasonable hypothesis if it points to “some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”: Bushell v Repatriation Commission (1992) 175 CLR 408 and 414.
81. In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
STATEMENTS OF PRINCIPLES
82. The SOPs set out the factors, at least one of which must exist and must be related to the veteran’s service, before it can be said that a reasonable hypothesis has been raised connecting a condition or conditions with his or her service. The relevant SOPs in Mr Livermore’s case are as follows.
Post Traumatic Stress Disorder: No 5 of 2008
83. For the purposes of the SOP, PTSD means a psychiatric condition meeting the diagnostic criteria, derived from DSM-IV-TR, that the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror
and the traumatic event is persistently re-experienced in one or more of the ways in paragraph 3(B) including recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions. Further, that there is a persistent avoidance of stimuli associated with the trauma in at least three of the ways described, including efforts to avoid thoughts, feelings or conversations associated with the trauma; inability to recall an important aspect of the trauma, feeling of detachments from others; restricted range of affect. At least two of the characteristics in paragraph 3(D) must be present, including irritability or outbursts of anger and difficulty concentrating. The condition must have lasted for more than one month and cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
84. Mr Livermore relies on the following factors in the SOP:
6 (e) experiencing a category 1A stressor before the clinical worsening of PTSD;
6 (f) experiencing a category 1B stressor before the clinical worsening of PTSD
85. A “category 1A stressor” means:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.
86. A “category 1B stressor” means:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties.
87. “Clinical worsening” means real and permanent worsening and not merely the normal deterioration of a condition: Repatriation Commission v Yates 21 AAR 331. Lee v Minister of Pensions (no 2) (1948 3 War Pensions Appeals Reports 1901).
88. SOPS relevant to Mr Livermore’s other conditions are:
(a) Major Depression: No 27 of 2008 as amended by No 40 of 2010:
(b)Alcohol dependence: No 17 of 2008; Alcohol dependence and alcohol abuse: No 1 of 2009
(c)Hypertension: No 35 of 2003 as amended by No 3 of 2004 and No 11 of 2008
(d) Irritable Bowel Syndrome: No 103 of 2006
(e)Acute Pancreatitis: No 45 of 97 as amended by 74 of 1998 and 41 of 2003
DOES THE MATERIAL POINT TO A HYPOTHESIS CONNECTING THE AGGRAVATION OF MR LIVERMORE’S PTSD WITH HIS SERVICE?
89. The hypothesis advanced by Mr Livermore is that his service in East Timor led to an aggravation of his pre-existing PTSD. There is evidence that, despite having needed counselling after the incident in Butterworth, Mr Livermore was fit for deployment to East Timor. There is clear evidence from Mr Livermore and his doctors that his condition deteriorated and became chronic within a short time of returning from East Timor. There is evidence which, for the reasons set out below, we accept, that Mr Livermore was exposed to stressors while in East Timor.
90. We are satisfied that there is material pointing to the hypothesis connecting the aggravation of Mr Livermore’s PTSD with his service in East Timor.
DOES THE HYPOTHESIS CONFORM WITH THE SOP
91. We accept that there is material before us pointing to the beating incident and the Red Cross hospital incident as category 1B stressors. In the first, Mr Livermore says he was an eyewitness to a person being killed or critically injured. The second incident fits with viewing corpses or critically injured casualties as an eyewitness.
92. In accordance with the diagnostic criteria, the “fear, helplessness, or horror” experienced by the veteran must be “intense”: Gerzina v Repatriation Commission [2004] FCAFC 96. “Intense” means “existing in a high degree, extreme, forceful”: The Australian Oxford Dictionary, 2009.
93. In his written statement in 2007, Mr Livermore described the state of the body he came across in the beating incident; he continued on his way “with complete horror”; after returning the keys he became shaky and sweaty; his body was in shock and his mind was disturbed and confused; he felt he should have helped the man. He repeated these claims in oral evidence, adding that he said he went out the back of the hospital and started to vomit and shake and feel physically ill.
94. In relation to the Red Cross hospital incident, Mr Livermore wrote in 2007 that he felt “useless” and “shattered at this senseless death” watching the man die.
95. We are satisfied that there is material pointing to Mr Livermore having experienced intense helplessness on each occasion.
ARE WE SATISFIED BEYOND REASONABLE DOUBT THAT MR LIVEMORE’S PTSD WAS NOT AGGRAVATED BY HIS SERVICE
96. The matters raised by the Commission make it reasonable to question Mr Livermore’s account of events in East Timor, in particular, the lack of any corroboration of his claims, and his failure to disclose the first two incidents for some six years.
97. As set out above, we do not think the inconsistencies in Mr Livermore’s evidence about the smoke grenade incident are of real consequence. On the other hand, it is not easy to reconcile his disclosure of the smoke grenade incident to Dr Lambeth shortly after returning with his failure to mention either other incidents at all.
98. The historians’ research indicates that Mr Livermore’s accounts of the beating incident and the Red Cross incident are plausible. There is no evidence to positively contradict his claims. Even if reliable records were available, the first two incidents might not have been recorded. In the circumstances, the absence of corroboration is understandable and does not necessarily undermine his claims.
99. Mr Livermore’s failure to disclose the first two incidents for so long is more difficult. Nevertheless, we found him to be a credible witness who gave his evidence frankly and without exaggeration. It is not in dispute that he had apparently recovered from his post-Butterworth PTSD and was fit for duty in East Timor, or that he suffered a rapid deterioration after East Timor that quickly become chronic. We note Dr Roberts’ statement that it does not “logically” follow, in psychiatric terms, that his service in East Timor aggravated his PTSD. However, Dr Roberts offered no other explanation other than that Mr Livermore had a temporary recurrence of his PTSD. That is contrary to the opinion of Dr Lambeth, whose opinion Dr Roberts says he accepts.
100. Although there is room for doubt, in our view Mr Livermore is entitled to the benefit of the doubt. Taking all of the evidence into account, we are satisfied, on the balance of probabilities, the events on which he relies occurred.
101. We are satisfied that the material before the Tribunal points to each of the elements of the hypothesis connecting Mr Livermore’s PTSD to his service in East Timor. While there is room to doubt aspects of his evidence we do not think his evidence so doubtful or unreliable that we can be satisfied beyond reasonable doubt that the hypothesis is not reasonable.
102. Other than the evidence of Dr Dinnen and Dr Roberts concerning whether Mr Livermore suffers from depression, no evidence was led in relation to any of his other conditions. While they do not appear to be in dispute, we make no findings about them. In the circumstances, we set aside the decisions under review and instead decide that:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr H S Toh, Member.
Signed: .......................[sgd].........................................................
Diana Weston, AssociateDate/s of Hearing 13, 14 and 15 December 2010
Date of Decision 30 March 2011
Counsel for the Applicant Mr L Karp
Solicitor for the Applicant Ms A Toliopoulos, Legal Aid
Counsel for the Respondent Mr A Carter, Sparke Helmore
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