LPJD and Military Rehabilitation and Compensation Commission (Veterans' entitlements) - [2022] AATA 275

LPJD and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 275 (22 February 2022)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/2059
Re:LPJD
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:22 February 2022
Place:Sydney

1.The Reviewable Decision is set aside.
2.In substitution it is determined that the Applicant suffered from a ‘service disease’, namely PTSD, with a clinical onset date on or about 26 June 2016, and the Respondent is liable for this disease pursuant to s 23 of the Military Rehabilitationand Compensation Act 2004 (Cth).

..................................................[sgd]......................
Senior Member Linda Kirk
CATCHWORDS
COMPENSATION – Service personnel –Sexual assault leading to PTSD - Injury occurred while socialising with work colleagues outside of work hours – Re-exposure to perpetrator on base - Whether injury arose out of employment - Whether injury would not have occurred but for employment – Decision under review set aside
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth) ss 5, 6, 23, 27, 319, 335, 336, 337, 339
Safety Rehabilitation and Compensation Act 1988 (Cth) s 6
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 196B
CASES
Bucknall v Military Rehabilitation and Compensation Commission [2007] AATA 2014
Central Asbestos Co v Dodd ([1972] 2 All ER 1135; [1973] AC 518
Comcare v PVYW [2013] HCA 41
Haughey and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 969
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525
Military Rehabilitation & Compensation Commission v Roberts [2007] FCA 1
QX07/1 and Military Rehabilitation and Compensation Commission [2007] AATA 1172
R v Monopolies and Mergers Commission; Ex parte National House Building Council [1994] TLR 38
Re David Guy Holthouse v Repatriation Commission [1982] FCA 113
Reinhard and Repatriation Commission [2013] AATA 522
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Gosewinckel [1999] FCA 1273, (1999) 59 ALD 690
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Warren (2007) 95 ALD 606
Robertson and Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 222 CLR 115
Sloan v Repatriation Commission [2012] FCA 1079
SJCL and Repatriation Commission [2008] AATA 688
Walsh v Rother District Council [1978] 1 All ER 510
Youngnickel v Repatriation Commission (2004) FCA 1691
SECONDARY MATERIALS
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.)
Statement of Principles concerning Posttraumatic Stress Disorder (No. 83 of 2014)
REASONS FOR DECISION
Senior Member Linda Kirk
22 February 2022
APPLICATION FOR REVIEW

LPJD (‘the Applicant’) was born in 1981. She joined the Royal Australian Navy (‘RAN)’ on 16 June 2014 and was medically discharged on 16 June 2017 having attained the rank of Able Seaman.[1]
[1] T18, 152.
On 15 August 2015, the Applicant was sexually assaulted in her home by another member of the RAN.
On 17 August 2018, the Applicant lodged a claim for compensation in respect of post-traumatic stress disorder (‘PTSD’).[2] In her claim form, the Applicant stated:
I believe that my Post Traumatic Stress Disorder was caused by an assault, bullying, and harassment during my Naval service …
[2] T35, 215.
On 10 December 2018, the Military Rehabilitation and Compensation Commission (‘the Respondent’) issued a determination that denied liability under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (‘MRCA’) for the Applicant’s claimed condition of PTSD. The delegate was not satisfied that the Applicant’s claimed condition was related to her service.
On 7 January 2019, the Applicant requested a reconsideration of the determination dated 10 December 2018.[3]
[3] T37.
On 6 February 2020, the Veterans’ Review Board (the VRB’) affirmed the determination of the Respondent (‘Reviewable Decision’).[4]
[4] T1.1.
On 3 April 2020, the Applicant applied to the Tribunal for a review of the Reviewable Decision.[5]
[5] T1.
The review application was heard by the Tribunal on 9 and 10 September 2021. The Applicant was represented by her advocates.
The following witnesses gave oral evidence and were cross-examined at the hearing:
·the Applicant;
·Dr Antonella Ventura, Consultant Psychiatrist.
The following documents were before the Tribunal:
·T Documents filed by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T1-T44);
·Supplementary T Documents (ST45-ST59);
·Further Supplementary T Documents (ST60-ST62);
·Bundle of Relevant Documents before the Tribunal (111 pages);
·Tribunal Book (containing documents A1 to A4, R1 to R9);
·Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 21 July 2020 (filed on 21 July 2021);
·Respondent’s SFIC dated 15 June 2021;
·Statement of Agreed Facts (annexed to Respondent’s SFIC);
·Respondent’s List of Authorities;
·Respondent’s Closing Submissions dated 10 September 2021.
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGAL FRAMEWORK
The following terms are defined in section 5 of the MRCA:
“disease” means
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
…
“service disease” has the meaning given by section 27, subsections 29(1) and (2) and section 30.
…
“service injury” has the meaning given by section 27, subsections 29(1) and (2) and section 30.
…
Section 6 of the MRCA outlines the ‘[k]inds of service to which this Act applies’. Section 6(1) of the MRCA provides:
(1) In this Act:
(a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)non-warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non-warlike service for the purposes of this Act; and
(c)peacetime service means any other service with the Defence Force; and
(d)defence service means warlike service, non-warlike service or peacetime service. (emphasis in original)
The Applicant’s service constitutes ‘peacetime service’ under s 6(1)(c) of the MRCA, which is also ‘defence service’ under s 6(1)(d) of the MRCA.
Section 23 of the MRCA provides:
(1)The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2:The standard of proof mentioned in subsection 335(3) applies to the following:
(i)     claims that the injury or disease is a service injury or disease that relates to peacetime service;
(ii)    all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(iii)   all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Section 27 of the MRCA prescribes legislative tests for determining if there is a connection between the claimed injury, disease or death and service. Only one head of liability need be satisfied. The various ‘tests’ or ‘heads of liability’ are in the alternative and are not cumulative: Haughey and Military Rehabilitation and Compensation Commission (Compensation).[6]
[6] [2018] AATA 969 at [37].
Section 27 provides:
Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.
The claim made by the Applicant on 17 August 2018 was a claim made under s 319(1) of the MRCA, which provides:
(1)A claim may be made under this section for one or more of the following:
(a)acceptance of liability by the Commission for a service injury sustained by a person or a service disease contracted by a person;
…
Reasonable satisfaction standard of proof
The standard of proof applicable to claims relating to peacetime service is stated in

s 335(3) of the MRCA which provides, in part:
… the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction. (emphasis added)
‘Reasonable satisfaction’ has been interpreted by the courts to be ‘the standard of proof required in civil litigation’, namely the balance of probabilities. For example, in Repatriation Commission and Smith,[7] when interpreting an equivalent provision, s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (‘VEA’), the Federal Court stated:[8]
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. …
[7] (1987) 15 FCR 327.
[8] at 335.
Further, s 337 of the MRCA provides:
Nothing in section 335, or in any other provision of this Act, imposes on:
(a)a person claiming compensation or claiming for the acceptance of liability; or
(b)the Commission, the Commonwealth, the Department or any other person in relation to such a claim;
any onus of proving any matter that is, or might be, relevant to the determination of the claim.
Section 336 of the MRCA is titled ‘Commission not entitled to make certain presumptions’. It provides:
Nothing in section 335, or in any other provision of this Act, entitles the Commission to presume that:
(a)an injury sustained by a person is a service injury; or
(b)a disease contracted by a person is a service disease; or
(c)the death of a person is a service death; or
(d)a person is entitled to be granted compensation.
Accordingly, under s 23 of the MRCA, liability for a ‘service injury’ or a ‘service disease’, as defined in s 27 of that Act, is to be determined applying the reasonable satisfaction standard of proof set out in s 335. Reasonable satisfaction is not at large but is subject to s 339 of the MRCA.
Section 339(3) of the MRCA provides:
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
b)there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this Act; and
c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Statement of Principles
Statements of Principles (SoP) are legislative instruments which, in accordance with ss 335(3) and 339 of the MRCA, the Tribunal is required to apply. In Lees v Repatriation Commission (‘Lees’),[9] the Full Federal Court adopted the following passage from Repatriation Commission v Gosewinckel:[10]
The tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP … Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable – see Deledio v Repatriation Commission at 411-2. …
[9] (2002) 125 FCR 331; [2002] FCAFC 398 at [16] (Heerey, Moore and Kiefel JJ).
[10] [1999] FCA 1273; (1999) 59 ALD 690 at [67].
Where a SoP has been determined in respect of the kind of injury or disease sustained or contracted by an applicant, reasonable satisfaction about the existence of a ‘service injury’ or a ‘service disease’ may be achieved only where the material raises a connection between the injury, disease or death under claim, and the particular service rendered by the applicant and the materials and the SoP uphold that connection on the balance of probabilities.
SoP are determined by the Repatriation Medical Authority: s 196B(1) of the VEA. Section 196B(3) of the VEA provides:
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
In the current application, the relevant SoP is the Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014 (SoP No. 83 of 2014).
Clause 3(b) of SoP No. 83 of 2014 defines PTSD with reference to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (‘DSM-5’):[11]
(b) For the purposes of this Statement of Principles, ‘posttraumatic stress disorder’ means a psychiatric disorder which meets the following criteria (derived from DSM-5): …
[11] American Psychiatric Association, Diagnostic and statistical manual of mental disorders (5th ed, 2013.).
The first of these criteria is criterion A of clause 3(b) of SOP No. 83 of 2014, which is relevant to the current application:
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i)directly experiencing the traumatic event(s);
(ii)witnessing, in person, the event(s) as it occurred to others;
(iii)learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; or
(iv)experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (for example, first responders collecting human remains; police officers repeatedly exposed to details of child abuse). This criterion does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related
Cause 5 of SOP No. 83 of 2014 provides that ‘… at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.’
The factors which the Applicant relies upon in the current application are set out in clause 6(a) and (e) of SOP No. 83 of 2014 which provides:
6. The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder or death from posttraumatic stress disorder is connected with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
…
(e) being exposed to repeated or extreme aversive details of severe traumatic events before the clinical onset of posttraumatic stress disorder; …
Clause 9 of SOP No. 83 of 2014 defines a ‘Category 1A stressor’ as follows:
For the purposes of this Statement of Principles:
‘a category 1A stressor’ means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
Clause 9 also defines the following:
‘being exposed to repeated or extreme aversive details of severe traumatic events’ means witnessing a person suffering real, severe, traumatic events (for example, first responders collecting human remains, police officers repeatedly exposed to details of child abuse or drone operators viewing planned strikes) or Page 6 of 7 of Instrument No. 83 of 2014 repeatedly listening to a person's account of their exposure to severe traumatic events. This definition includes media exposure of the traumatic event (for example, electronic media, television images or photographs) where viewing these images is a work requirement.
ISSUES FOR DETERMINATION
The principal issue before the Tribunal is whether the Respondent is liable under s 23 of the MRCA for the Applicant’s claimed PTSD (‘the claimed condition’). This involves the consideration of whether the claimed condition suffered by the Applicant is a ‘service injury’ or ‘service disease’ as defined in s 27 of the MRCA and in accordance with ss 335(3) and s 339 of the MRCA.
This requires determination of:
1)Whether the Tribunal is reasonably satisfied that the Applicant suffers from the claimed condition. This involves a finding as to:
a) the correct diagnosis of the Applicant’s claimed condition; and
b) the date of clinical onset of the claimed condition.
2)Whether the Tribunal is reasonably satisfied that Applicant’s claimed condition is due to her defence service under the provisions of the MRCA and the relevant Statement of Principles. This involves consideration of whether:
a)the material raises a connection between the condition and the Applicant’s service;
b)there are one or more applicable SOPs, and, if so;
c)the applicable factor(s) in the SOP have been satisfied; and
d)the relevant causal relationship in s 27 of the MRCA is satisfied.
EVIDENCE AND AGREED FACTS

The parties agreed to a Statement of Agreed Facts (‘SAF’). What follows is drawn from the SAF and from the oral evidence given by the Applicant, relevant medical reports, and the witnesses at the Tribunal hearing.
Posting to HMAS Watson
The Applicant joined the RAN in June 2014. After completing her initial training, she was posted to HMAS Watson in June 2015 where she completed a course in electronic warfare.[12] She was required to live at HMAS Watson during this course.[13] The ten members of the class were encouraged to socialise with their new ‘family’, and they spent most of their time with each other. There was a small bar on the base which sold cheap drinks which they would attend before going out to other venues.[14]
[12] T18, 152.
[13] Transcript of proceedings, 9 September 2021, 12.
[14] Transcript of proceedings, 9 September 2021, 9.
After completing the course, the Applicant moved to the North Strathfield Navy Apartments and commuted by car to HMAS Watson every day.[15] The Applicant did not remain on the base after work to drink and socialise with her peers. She was older than many of them who had joined the RAN after leaving high school and wanted to drink and socialise during the week. The Applicant preferred to go to the gym in her free time. She would only socialise with her ‘Navy family’ on weekends.[16]
[15] Transcript of proceedings, 9 September 2021, 13.
[16] Transcript of proceedings, 9 September 2021, 14.
Sexual assault
By August 2015 the Applicant had completed the course and had moved to a private rental apartment. She continued to commute daily to HMAS Watson.[17]
[17] Transcript of proceedings, 9 September 2021, 13.
In the evening of 14 August 2015, the Applicant and four Able Seaman gathered at the Applicant’s apartment.[18] She received text messages from some other Able Seaman asking the group to join them at a hotel (‘the first venue’). The perpetrator was invited to the gathering by one of her colleagues. This was the first time she had socialised with the perpetrator. Shortly after, the group moved to a nearby venue (‘the second venue’). The Applicant was offered and consumed a drink belonging to the perpetrator following which she felt ‘hypo’. After they left the second venue they returned to her apartment and she fell asleep on the couch. She awoke the next morning at approximately 6am and the perpetrator was raping her in her sleep.[19]
[18] T12.
[19] T12.
Consultations with Dr Freya Smith, Clinical psychologist
On 11 August 2015, the Applicant consulted with clinical psychologist Dr Freya Smith relating to ‘symptoms of depression and anxiety in the context of workplace stress’. She described a gradual deterioration of her mood over the previous ten months.[20]
[20] Report of Dr Smith dated 18 August 2018, Tribunal Book, R3, 10.
The Applicant informed Dr Smith about the sexual assault when she consulted her on 18 August 2015.[21] She told the Tribunal that Dr Smith was the first person she told about the sexual assault, because at the time she was ‘really fearful to tell anyone in the Navy’ because sailors are ‘just a number’ and ‘you hear what happens in there with all the bounties on your head and people reporting and how your life just gets ruined. So … anywhere I lived … I was terrified.’[22]
[21]; T12, 133 at [26]; ST62, 386.
[22] Transcript of proceedings, 9 September 2021, 15-16.
In a progress report dated 8 February 2016, Dr Smith stated that as at 12 October 2015, the Applicant’s Depression Anxiety and Stress Scale (‘DASS’) responses were in the normal range.[23]
[23] T5, 93.
On 19 October 2015, the Applicant consulted with Dr Smith and reported she had made good progress but continued to experience workplace stress.[24] She also reported that she continued to experience anxiety about her performance and low motivation, although noted that ‘this does not prevent her from completing her work duties’.[25]
[24] T4, 91.
[25] Idem.
The Applicant was posted at sea on HMAS Newcastle from 19 October 2015.[26]
[26] T18, 152.
In a report dated 27 March 2016, Dr Smith noted that the Applicant’s mood had deteriorated over the last two months in the context of ‘exposure to a working environment that she perceives to be hyper-critical and unpredictable, and in which she perceives herself to be unfairly treated and lacking control’.[27] Dr Smith noted that the Applicant was ‘again finding it difficult to manage work’.[28]
[27] Tribunal Book, R2, 14.
[28] Idem.
On 25 May 2016, the Applicant requested an urgent consultation with Dr Smith.[29] She reported to Dr Smith that she had experienced a rapid deterioration in response to ‘an accumulation of stressors on board the ship’. She reportedly believed that she was ‘unable to cope with the ‘constant scrutiny’ and accusations of others, lack of sleep and physical pain’. She was reportedly ‘determined that she would not continue to put herself in these aversive conditions’. Her DASS scores were as follows:
Depression – Extremely Severe;
Anxiety – Extremely Severe;
Stress – Severe.
[29] T9.
Consultations with RAN medical personnel
On 8 December 2015, in a consultation with Ms Kate Baecher at Kuttabul Health Centre, the Applicant reported a significant improvement in her mood since being posted to the HMAS Newcastle, that she was developing friendships, and that she had separated from her previous ‘on-and-off relationship’.[30]
[30] T3, 80.
On 25 May 2016, Directions Officer of HMAS Newcastle, LC Walters, provided a letter to Navy Psychology East in which he assessed the Applicant as ‘not suitable for service in the RAN’. LC Walters supported her removal from the RAN.[31]
[31] T8.
On 27 May 2016, the Applicant sought psychological assistance from Dr Richard Cohen at Kattabul Health Centre relating to symptoms of anxiety and depression. The Applicant considered that the stress response is ‘likely to be repeated should she be directed to return to sea’.[32] The Applicant reported to Dr Cohen that before Christmas 2015 a ‘friend’ had spiked her drink and raped her.[33]
[32] T3, 35.
[33] T3, 35.
On 31 May 2016, the Applicant reported experiencing an hour of racing heart with associated shortness of breath and nausea related to her upcoming deployment.[34]
[34] T3, 75.
On 2 June 2016, the Applicant was reported to be ‘bubbly’ and ‘doing well since removal from ship’.[35]
[35] T3, 74.
Posting to HMAS Kuttabul
On 3 June 2016, the Applicant was posted to HMAS Kuttabul.[36]
[36] T18, T52.
In the weeks following her posting, the Applicant encountered the perpetrator of the sexual assault on base at HMAS Kattabul. She explained her reaction to seeing him to the Tribunal:[37]
So when I was posted to Kuttabul, I did run into him. The first time I saw him, it was, like - like I wanted to run, but I couldn’t. Start to sweat. Felt nauseous. Felt like - just sweated everywhere, trembled, just everything. And the second time I ran into him was probably the worst. So I ran into him and he started to come towards me. So I, kind of - to me, I felt like I was running, but I was probably speed walking. He continued to follow me, and I didn’t know what to do. So I - this was on base, and so he followed me off base. Because when you’re at Kuttabul, we have parking for the Navy, but it’s just across the road. So you have to, sort of, go out through the security, across the road, and then the (indistinct) are there. So he followed me out there. And by that point I ran like - I’m not a runner. I actually ran quite fast to get away from him.
[37] Transcript of proceedings, 9 September 2021, 18.
On 14 June 2016, a Navy Suitability Assessment was conducted which supported the Applicant’s early separation from the RAN.[38]
[38] T3, 37.
Report to SeMPRO
The Applicant reported being re-exposed to the perpetrator when she phoned the 1800 Sexual Misconduct Prevention and Response Office (‘SeMPRO’) number on 23 June 2016 following advice from a psychologist that she was seeing through her base medical centre.[39]
[39] ST48.
The report of the one-hour phone call records that the Applicant described in detail to the SeMPRO officer the events surrounding the sexual assault by a RAN member on 15 August 2015. She also told the officer that she had since become aware that the perpetrator had tried unsuccessfully ‘to do this to another one of their friends previous to this incident’. She said that ‘she feels guilty for not reporting the offender as she feels that he is likely to assault someone else.’ She had ‘made the decision not to report him in order to protect herself.’
The report also records that the Applicant told the SeMPRO officer that she had recently been re-exposed to the perpetrator of the sexual assault:
[The Applicant] also reported that she is worried about being posted with the offender. When she has run into him on two occasions since the incident she has just frozen and has not been able to do or say anything. She said the psychologist on the base has recommended that she only be posted to areas where he is not able to be posted to due to his job role. I advised [the Applicant] that ADFIS may also be able to liaise with the people who organise her postings so that she is not posted to the same ship or establishment as he is.[40]
[40] ST48, 299.
On 27 June 2016 the Applicant saw Dr Jane Roberts at Kattabul Health Centre as her regular GP, Dr Cohen, was unavailable. Dr Roberts told her that she could just ask to resign if she wanted to leave the RAN, rather than go through the medical process.[41] The Applicant said that she does not remember being told this. She knew when she signed up that ‘you do your service’, and that ‘you can’t just ask to leave’. Her understanding was the only way a member could leave was if something happened to them or there were really good reasons. She told the Tribunal that if the events had not happened, she would have wanted to stay in the RAN. She stated, ‘the only reason why I wanted to get out is because I was terrified.’[42]
[41] T3, 73.
[42] Transcript of proceedings, 9 September 2021, 21.
The notes from a review of the Applicant with Dr Cohen at Kuttabul Health Centre on 28 June 2016 record the following:[43]
[43] T3, 73.
Anxiety state unspecified
Abdo bloating, softer stool past 2 weeks
Anxious, tired all the time, poor sleep
Contacting SEMPRO with friend who was also allegedly assaulted.
Feels her mental state is deteriorating.
Rehab talking about medical discharge.
Feels she needs a bit of leave, so she can have some TLC from Mum
Referral to psychiatrist Outpatient, Routine, (Consultant: Generic Referral)
Anxiety/depression Unfit for Work 14 days
Referral letter - Referral to psychiatrist…
On 29 June 2016, the Applicant attended an interview with Australian Defence Force Investigative Service (‘ADFIS’) investigators in which she provided details of the sexual assault.[44]
[44] ST61.
Leave and transfer to Randwick Barracks
The Applicant took two weeks’ sick leave from 28 June 2016 until 11 July 2016. She told the Tribunal that she remembers taking the time off and the reason she did so was because she ‘was scared to leave and scared to stay.’ It also was because she was a ‘complete, utterly, broken mess.’ As a consequence of the ‘nightmares and no sleep’ her ‘body was just breaking down physically’. She went to her mum’s and she made her eat.[45]
[45] Transcript of proceedings, 9 September 2021, 22.
The Applicant was transferred ‘on loan’ to Randwick Barracks commencing on or around 12 July 2016.[46] The Applicant told the Tribunal that when she was posted at Randwick Barracks it was ‘the first time I actually felt really safe’.[47]
[46] T3, 72-73.
[47] Transcript of proceedings, 9 September 2021, 17.
On 11 July 2016, a Service Police Report noted that the Applicant did not wish to proceed with a formal complaint to the ADFIS or NSW Police, and ADFIS ceased its investigation.[48]
[48] ST62.
Whereas some of the Applicant’s health care was transferred to Randwick Barracks, she was still required to attend HMAS Kattabul for some medical appointments. She told the Tribunal that the medical personnel at Randwick requested that all her medical files be transferred to Randwick so that she would not have to go to Kattabul and would not have to keep seeing the perpetrator. This request was not approved. She told the Tribunal that she does not know why it was denied, and the medical personnel at Randwick ‘were really shocked by it too.’[49] In addition to attending medical appointments at Kattabul, she had to go there once a week to see Lieutenant Curley who was in charge of her discharge.[50]
[49] Transcript of proceedings, 9 September 2021, 19, 24.
[50] Transcript of proceedings, 9 September 2021, 19.
The Tribunal asked the Applicant how many times per week she was required to attend medical appointments at HMAS Kattabul. She said she could not remember but she ‘was in and out, like, a lot.’ She said that she would not sleep the night before when she knew she had to go to Kattabul.[51]
[51] Transcript of proceedings, 9 September 2021, 19.
On 11 July 2016 the Applicant saw Mrs Jane Barnes at Randwick Health Centre. The notes record:[52]
Mbr presented with symptoms of chest tightness and episodes of SOB. Symptoms commenced this morning when mbr woke up. Kuttabul mbr has had two weeks off work due to work related stress. Mbr due to return to work tomorrow. Mbr has been relocated from Kuttabul to PSU RWK Bks. Mbr reports previously treated for anxiety symptoms and situational depressive symptoms related to previous work place. Mbr reports chest tightness felt like heaviness on the chest, symptoms worse this morning. … Mbr currently being seen by external psychiatrist ongoing. Mbr booked in with Psychologist at RWK BKS Fri 15 Jul to touch base in reference to how she is coping returning to work. …
[52] T3, 73.
On 15 July 2016 the Applicant saw Mrs Monica Kleinman at Randwick Health Centre. The notes record:[53]
ANXIETY
Member presents with indicators of PTSD - sleep problems, cognitive impairment of memory and concentration, avoidance of locations and activities that remind her of certain events etc. Member currently medically managed through KUTHC but posted on loan from PSU to LSU at Randwick. She has already seen the perpetrator of the assault on base at Kuttabul, reports active agitation upon entry to that base and has been advised considering having her health managed from Randwick even though she speaks highly of Dr Cohen and others at KUTHC. Depending on her decision, her MH case work needs to be in the same location.
Fit for full duties within current MEC/SPEC and Restrictions.
[53] T3, 72.
In a ‘Discharge Report’ dated 3 June 2017 Dr Smith outlined the Applicant’s condition following her return from her posting to HMAS Newcastle in June 2016:[54]
After a very brief period at sea in May 2016, [the Applicant’s] mental health deteriorated further and she was unable to remain at work due to symptoms of anxiety and depression in the extremely severe range. In July 2016 I reported my concerns to Dr Cohen and Dr Fukui regarding the significant decline in [the Applicant’s] functioning and the development of suicidal thinking. She commenced an antidepressant in August 2016 and continued to attend weekly psychology sessions. Between August and October 2016 she reported a significant improvement in mood which coincided with both the antidepressant and her change in role to Randwick Barracks. …
[54] Tribunal Book, R3, 24.
On 4 August 2016 the Applicant saw Dr Cohen at Kuttabul Health Centre. The notes record:[55]
Anxiety state unspecified
Psychologist feels she is getting worse
Seeing Dr Fukui 11/8/16. Scared about antidepressants
Anxiety re investigation into assault
Has lost interest in most things. Forces herself to go to gym
Requests referral to Dietician re IBS and variable eating pattern
Refer to dietician Outpatient, Routine, (Consultant: MS CONDON), Eating issues
[55] T3, 71.
Treatment with Dr Atsumi Fukui, Psychiatrist
On 14 July 2016, the Applicant commenced treatment with Dr Fukui following a referral by a medical officer at HMAS Kuttabul. In the handwritten notes from this date, Dr Fukui noted:[56]
Sexual assault – just before xmas last year / Saw civilian psychologist / Applied for medical D/C / Out c peers from HMAS Watson / one sailor sexually assault her [the perpetrator] / Has memory gaps / didn’t drink to excessively / woke up as he was raping her / shocked / [The perpetrator] was a friend / Also experienced bullying by a female peer at Watson + was feeling broken.
Disclosed to a close friend / kept it to herself as she didn’t feel RAN […] be helpful. / Told parents / He has done similar to another girl / told psychologist (Freya).
[56] Tribunal Book, R4, 2.
In a consultation on 14 July 2016, the Applicant described depressive and anxiety symptoms which had been worsening since January 2016, including low mood, easily tearful, low energy, constant tiredness, lack of motivation, social withdrawal, disrupted sleep and loss of appetite. She reported that she had noticed a decline in her concentration and memory, experiencing being physically ill with symptoms of irritable bowel and much anxiety.[57] Dr Fukui reported that the Applicant’s mental state had gradually worsened, and she was started on the fluoxetine, 20 milligrams daily, with a monthly review as an outpatient.[58]
[57] Report dated 25 July 2017. T29, 185.
[58] T29, 185.
Dr Fukui reported that the Applicant became a bit worse in November 2016, following notification she would be medically discharged in February 2017 when she had previously been approved for administrative discharge in June 2017. She appealed the decision and requested an extension of her discharge until June 2017. The Applicant told the Tribunal that she wanted to continue her treatment and she also wanted to have served three years with the RAN.[59]
[59] Transcript, 26.
On 11 August 2016, Dr Fukui diagnosed the Applicant with Major Depressive Disorder.[60]
[60] Tribunal Book, R4, 5.
The Applicant was asked during cross-examination why she did not appear to mention to Dr Fukui seeing the perpetrator at Kattabul. She said that she spoke more to Dr Smith about the assault, whereas with Dr Fukui she discussed the drugs she needed.[61]
[61] Transcript of proceedings, 9 September 2021, 28.
The Applicant told the Tribunal that the assault was ‘always on [her] mind.’ She was ‘really angry’ at her Lieutenant because she knew that the perpetrator was on the base and she did not warn her. If she had been warned, she may have ‘reacted a bit better’.[62] After she saw the perpetrator it made her nightmares worse, and she was ‘scared in [her] own house.’ There was no security at the front of her apartment so ‘he could just walk through the front door’ and ‘could just walk straight up in.’ She only had one lock on the back of her door, and he is a ‘big guy and he knew where [she] lived.’ Because the assault happened in her apartment ‘it was constantly there and … always in [her] head.[63] She stated:[64]
I always had the nightmares and like that was from after it happened but when I saw him, the nightmares like – like I would relive the situation but then I would have – like when he followed me back to my car and I ran away, I was dreaming that as well. And then I would – then when I saw him, I would play out in my dreams like how I could’ve stopped him or well what I could say to him …
[62] Idem.
[63] Idem.
[64] Idem.
Request for early discharge and claims for liability
On 25 July 2016, the Applicant requested early discharge. In her request, she stated that she was bullied while on HMAS Watson. She also stated that she was sexually assaulted by a ‘Watson sailor’ on 14 August 2015. The Applicant stated that she reported the incident to her treating psychologist, Dr Smith, the week following the alleged assault.[65]
[65] T10.
On 26 August 2016, the Commander of HMAS Kattabul, RE Jeffcoat, advised that he provided a response to the Applicant’s request for early discharge stating that he did not ‘believe it is in her interest for her to remain in the RAN’.[66]
[66] T17.

In late August 2016, the Applicant was working full-time at Randwick Barracks. She had requested employment outside of the RAN, but this was denied ‘due to the nature of the employment’.[67]
[67] T3, 70.
In a report dated 17 October 2016, Dr Smith stated that the Applicant reported a significant improvement in her mood over the last six weeks. She noted that this occurred since the Applicant had commenced Fluoxetine, as well as the change in role at the Randwick Barracks.[68]
[68] Tribunal Book, R3, 19.
On 14 February 2017, the Applicant reported feeling nervous following a panic attack the day before. She stated she saw the perpetrator of her alleged sexual assault on base twice.[69]
[69] T3, 62.
On 12 April 2017, the Applicant was advised that she would be put on rostered duty at HMAS Kattabul. She reported she could run into the member who assaulted her at Kattabul, and this would be a major stressor for her.[70]
[70] T3, 59.
In a report dated 3 June 2017, Dr Smith reported that over the last four to five months, the Applicant experienced uncertainty about her discharge which has been ‘very difficult for her to manage and she has had numerous health issues’. The Applicant reported being disappointed by her ‘premature termination of work at Randwick Barracks’.[71]
[71] Tribunal Book, R3, 24.
Dr Antonella Ventura, Consultant psychiatrist
Following an examination of the Applicant on 29 October 2020, Dr Ventura provided a report dated 4 November 2020.
In her report, Dr Ventura outlined the Applicant’s account to her of the events involving the perpetrator of the sexual assault:[72]
[The Applicant] told me that in 2014 or 2015 or some time when she was a student at HMAS Watson she was out with colleagues at [the first venue] and then moved to [the second venue]. She told me that her drink was spiked at [the second venue] as she has no memory until she woke up on her couch fully clothed except for her underpants, being raped by one of her colleagues. He reportedly stopped raping her when she woke up. She told a friend about the sexual assault and later reported it to her psychologist.
She told me that she was scared to be in her own home as a result of the assault.
[The Applicant] admitted that her symptoms improved when she was moved to HMAS Newcastle as she was moved away from the bullies. She told me however that her mental health deteriorated when she was moved to HMAS Kuttabul in Garden Island. It was at this base in 2016 where she saw the perpetrator of the sexual assault again.
She told me that she reported the sexual assault to the military police for the Navy and was hopeful that she would be separated from the perpetrator but she was not. [the Applicant] told me that she started to re-experience the trauma of the sexual assault when the perpetrator started following her on HMAS Kuttabul. She told me that she was very angry with the Navy as by then they knew about the sexual assault and they did nothing to protect her and separate her from the perpetrator.
She told me that she developed difficulties with sleep. She told me that she had nightmares of the perpetrator raping her or following her. She described her change in mood as “it was like it exploded it”. She said that it made her relive the sexual assault over and over again. She told me that she was constantly on edge and scared. She was constantly looking over her shoulders, thinking that he was there. She continued to be angry that the Navy did nothing to protect her.
[72] Tribunal Book, R2, 66.
Dr Ventura’s provided the following diagnoses for the Applicant:
[The Applicant] is a 39 year old woman who presents with symptoms on her Mental State Examination consistent with DSM-5 diagnoses of Post-Traumatic Stress Disorder, chronic and Major Depressive Disorder.
…
Her Post Traumatic Stress Disorder was caused by a sexual assault that took place in around the middle of 2015 and perpetrated by one of her Navy colleagues.
The symptoms of the Post Traumatic Stress Disorder however became evident only when she was re-exposed to this colleague whilst she was serving on HMAS Kuttabul in 2016.[73]
[73] Tribunal Book, R2, 67-68.
Dr Ventura stated that having regard to the definition of PTSD outlined in paragraph 3 of SOP No. 83 of 2014, specifically criterion A to H, in her opinion the Applicant suffered from PTSD.
In her report, Dr Ventura provided her opinion in relation to the date of clinical onset of the Applicant’s PTSD:[74]
I am unable to offer a specific date [of] clinical onset of Post Traumatic Stress Disorder as the Applicant could not specify the timing. From the information available to me it appears as if the onset was the middle of 2016.
[74] Tribunal Book, R2, 70.
In relation to causation, Dr Ventura stated:
The sexual assault which took place in the middle of 2015 shortly after reportedly being drugged at [the second venue] was the cause of the Post Traumatic Stress Disorder. The symptoms of the Post Traumatic Stress Disorder were triggered and became manifest sometime in the middle 2016 when she had a number of encounters with the perpetrator of the sexual assault while she was serving on HMAS Kuttabul.[75]
…
The causative element of the psychiatric disorder is not a vague vulnerability but the actual act of sexual assault and the re-exposure to the perpetrator in the workplace.[76]
[75] Tribunal Book, R2, 70.
[76] Tribunal Book, R2, 71.
During her oral evidence at the hearing, Dr Ventura agreed with the following explanation in the DSM-5:[77]
Development and Course
PTSD can occur at any age, beginning after the first year of life. Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression”, with the recognition that some symptoms typically appear immediately and that the delay is in meeting full criteria. Frequently, an individual’s reaction to a trauma initially meets criteria for acute stress disorder in the immediate aftermath of the trauma. The symptoms of PTSD and the relative predominance of different symptoms may vary over time. Duration of the symptoms also varies, with complete recovery within 3 months occurring in approximately one-half of adults, while some individuals remain symptomatic for longer than 12 months and sometimes for more than 50 years. Symptom recurrence and intensification may occur in response to reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events. For older individuals, declining health, worsening cognitive functioning, and social isolation may exacerbate PTSD symptoms.[78]
[77] Transcript of proceedings, 10 September 2021, 40-41.
[78] DSM-5 at 276-277.
Dr Ventura went on to describe the Applicant’s condition as a ‘mental injury’. She explained:
The injury occurred on the day of the rape. And the symptoms of the injury became manifest when she was re-exposed to the perpetrator of the rape.[79]
[79] Transcript, 44.
Dr Ventura was asked whether the Applicant seeing the perpetrator at HMAS Kattabul on at least two occasions in June 2016 constituted ‘being exposed to repeated or extreme aversive details of severe traumatic events.’ Dr Ventura agreed that the second of the two criteria in the definition of ‘being exposed to repeated or extreme aversive details of severe traumatic events’, namely ‘repeatedly listening to a person's account of their exposure to severe traumatic events’[80], ‘marries well with clinical experience’, that is for someone to be listening to their own account of their exposure to a severe traumatic event.
[80] SoP No. 83 of 2014, cl 9.
Dr Ventura was taken to Dr Fukui’s reports of her treatment of the Applicant.[81] Dr Ventura agreed that the re-exposure of the Applicant to the perpetrator was not mentioned in these reports. Significant events recorded by Dr Fukui, besides the assault, included a decline in the Applicant’s mental health in January 2016 then in November 2016.[82]
CONTENTIONS
Applicant
[81] T11; T19; T29.
[82] Transcript, 52.
Primary Case
The sexual assault of the Applicant constitutes a ‘category 1A stressor’ as defined in clause 6(a) of the SoP.[83]
[83] Applicant’s SFIC at [2].
The Applicant contends that the assault meets the definition of a ‘service injury’ as defined in section 27 of the MRCA. The link that ‘arose out of’ (s 27(a)), and ‘would not have occurred… but for’ (s 27(c)) the Applicant’s service is in relation to a number of factors. The perpetrator of the assault was the friend of one of the Applicant’s work colleagues and worked in the building next to her workplace. She had seen him on a regular basis given the proximity of their workplaces. The perpetrator was invited to the social gathering by one of work colleagues. Socialising and interaction of members is encouraged in the defence forces to promote esprit de corps, including teamwork. This is fostered within the service via encouragement for members to socialise with their peers.[84]
[84] Applicant’s SFIC, Appendix A at [2].
Following the assault, the Applicant learned that the perpetrator was making derogatory remarks about her to other people on the base prior to the assault occurring. Unknown to the Applicant at the time, the perpetrator was making these comments about her whist she was rendering defence service at HMAS Watson.[85]
[85] Applicant’s SFIC, Appendix A at [3].
The Applicant was posted to HMAS Kuttabul but was ‘on loan’ to Randwick Barracks. She requested that all her medical files and appointments be moved to Randwick Barracks due to the perpetrator being posted to HMAS Kuttabul at the same time as her. However, this request was denied. The Applicant had to return to HMAS Kuttabul on a number of occasions which made her mental health decline more and more as she saw the perpetrator on base at HMAS Kuttabul whilst she was there. He followed her on occasion, and she felt very vulnerable and intimidated.[86]
[86] Applicant’s SFIC, Appendix A at [4]-[5].
Alternate Case
The Applicant contends, in the alternative, that factor 6(e) of the SOP, ‘being exposed to repeated or extreme aversive details of severe traumatic events before the clinical onset’ of PTSD, also applies.[87]
[87] Applicant’s SFIC, Appendix B at [7].
The Applicant was exposed to repeated aversive details of the assault that occurred in August 2015 (the severe traumatic event). The Applicant being made aware that male sailors onboard HMAS Newcastle ‘were allegedly placing bets on who would be the first to sleep with her’ and being confronted by the perpetrator on numerous occasions when posted to HMAS Kuttabul support this contention.[88]
[88] Applicant’s SFIC at [7].
The Applicant contends that:
1)Although the sexual assault occurred on 15 August 2015, clinical onset of PTSD did not occur until she was posted to HMAS Kuttabul on 3 June 2016.
2)Clinical onset was triggered by repeated exposure to the perpetrator that she actively sought to avoid.
3)The aversive contact:
a)arose while she was rendering defence service, and
b)was attributable to:
(i)the perpetrator’s concurrent posting to HMAS Kuttabul, and
(ii)the RAN decision to detach her to Randwick Barracks rather post her away from HMAS Kuttabul; and
(iii)her continued aversive exposure while her discharge was delayed (reasonably) until her mental ill-health stabilised.
4)Therefore, arising from her defence service:
a)    she suffered ‘repeated or extreme aversive exposure’ to the traumatic event,
b)    thereby satisfying the definition of a ‘service injury’ or ‘service ‘disease’ pursuant to MRCA 2004 s 27(d)(i), and
c)    causally linking PTSD to the off-base sexual assault pursuant to clause 6(e) of SOP No. 83 of 2014.[89]
[89] Applicant’s SFIC, Appendix B at [7].
Respondent
The Respondent accepts that the Applicant has a diagnosis of PTSD.[90]
[90] Respondent’s SFIC at [25].
Clinical onset
The Respondent submits that the date of clinical onset for the Applicant’s PTSD was in or around 26 June 2016, following which she took two weeks off work until 11 July 2016.[91]
[91] Respondent’s SFIC at [27].
SoP factor
Having regard to clinical onset, the Respondent submits that the Applicant does not meet SoP factor 6(a) of the relevant SoP.[92]
[92] Respondent’s SFIC at [28].
The Respondent accepts that the Applicant suffered from a ‘Category 1A stressor’, namely ‘rape or sexual molestation’.[93]
[93] Respondent’s SFIC at [29].
The Respondent contends that the SoP factor was not casually connected to the Applicant’s service: Roncevich v Repatriation Commission (‘Roncevich’).[94]
[94] (2005) 222 CLR 115; Respondent’s SFIC at [30].
The Respondent contends that the Applicant does not meet the criteria of factor 6(e) of the relevant SoP on the basis that, but for the assault, any exposure to that perpetrator would not have caused the Applicant to experience an onset of PTSD.[95]
[95] Respondent’s SFIC at [31].
The relevant definition of being exposed to repeated or extreme aversive details of severe traumatic events includes that the ‘person … suffers real, severe traumatic events…’ constituted by the relevant exposure. The re-exposure was distressing for the Applicant. But it was not experienced by the Applicant at the time as a real, severe traumatic event. Dr Ventura was given a description of the event when she met with the Applicant on 29 October 2020 that magnified the significance of her re-exposure to the perpetrator. However, despite seeing Dr Fukui monthly from July 2016, it can be readily inferred that it was not reported to, or regarded by, Dr Fukui as significant at the time.[96]
[96] Respondent’s Closing Submissions at [24]-[25].
Clinical worsening
If the Tribunal finds that the Applicant suffered from a clinical worsening, rather than a clinical onset, of PTSD in July 2016, which is not conceded, then the Respondent submits that for similar reasons, the Applicant cannot meet either factor (g) or (k) of the relevant SoP.
CONSIDERATION AND REASONS
Diagnosis of claimed condition
In Repatriation Commission v Bawden[97] (‘Bawden’) the Court cited the following passage with approval in relation to the diagnosis of a condition having regard to the relevant DSM and the applicable SoP:
In Repatriation Commission v Warren (2007) 95 ALD 606 at [24]-[25], Kiefel J explained the two-stage process, and the legitimate use of the DSM-IV at the diagnosis stage:
[24]The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be ‘those specified in DSM-IV, and are as follows’. The criteria are intended as part of the definition for the purpose of the application of the SoP.
[25]The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
[97] (2012) 206 FCR 296 at [44].
Accordingly, the threshold question is the clinical diagnosis of the Applicant’s claimed condition in accordance with the criteria in the DSM-5. This question is one of fact, namely whether the correct diagnosis for the Applicant is one of PTSD. This requires an examination of the expert medical evidence.
In her report date 4 November 2020, Dr Ventura stated that in her opinion the Applicant’s diagnosis is PTSD. She confirmed that, having regard to the definition of PTSD outlined in clause 3 of SoP No. 83 of 2014 specifically criterion A to H, the Applicant suffered from PTSD. This is consistent with Dr Saker’s diagnosis of the Applicant on 6 June 2018 with Major Depressive Disorder and PTSD.[98]
[98] T32.
On the basis of the expert medical evidence before it, the Tribunal is satisfied that the correct diagnosis of the Applicant’s claimed condition is PTSD.
Clinical onset
The clinical onset of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[99] No finding can be made of clinical onset unless all the symptoms of the disease can be shown to be present.[100]
[99] Repatriation Commission v Cornelius [2002] FCA 750 at [26], approving Robertson and Repatriation Commission (1998) 50 ALD 668 at 670.
[100] Youngnickel v Repatriation Commission (2004) FCA 1691; Reinhard and Repatriation Commission [2013] AATA 522.
In Lees v Repatriation Commission (‘Lees’),[101]when considering a SoP for generalised anxiety disorder, the Full Federal Court stated, ‘the definition of “generalised anxiety disorder” does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest’.[102]
[101] [2002] FCAFC 398.
[102] Ibid, at [16]. The purpose of this judicial definition was to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from the condition in question: Kaluza v Repatriation Commission (2011) 122 ALD 448 (‘Kaluza’) at [63]. It is for a doctor to say when clinical onset occurs by the presence of features or symptoms. It can precede the date of first treatment: Kaluza at [51] and [66].
In Kaluza v Repatriation Commission,[103] Jacobsen J observed:[104]
The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[103] [2010] FCA 1244.
[104] At [92].
On appeal, in Kaluza v Repatriation Commission,[105] the Full Federal Court explained:
The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion ...’.
(emphasis in original)
[105] [2011] FCAFC 97 at [66].
In Sloan v Repatriation Commission,[106] Bromberg J observed:
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[106] [2012] FCA 1079 at [93].

In Bawden, the Full Court of the Federal Court explained in the context of PTSD:[107]
In our respectful opinion… the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. It may be that, as Dr White suggested in his evidence before the Tribunal, there are PTSD-like diseases not falling within the DSM-IV description, such as, for example, an adjustment disorder or a depressive disorder. The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.
The point on which the present case turns is not one of insufficient correspondence between the symptoms described in the DSM-IV and those described by Mr Bawden; rather it is concerned with the inability of the decision-maker to be satisfied that Mr Bawden suffered a traumatic stress. A diagnosis of the disorder depends on satisfaction as to the historical fact of a traumatic stress.
[107] at [47]-[48].
It follows that when considering the diagnosis of PTSD, the Tribunal must consider whether the traumatic event occurred. In the words of the Federal Court in Bawden, “[a] finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD”.[108]
[108] at [49].
On the basis of the evidence before it, the Tribunal is satisfied that the Applicant suffered a traumatic event when she was sexually assaulted by a RAN member at her home on 15 August 2015, and when she was re-exposed to the perpetrator on several occasions following her posting to HMAS Kattabul from 3 June 2016.
The parties agree that the date of clinical onset of the Applicant’s PTSD was on or around 26 June 2016. This is supported by the medical evidence before the Tribunal, particularly the evidence of Dr Ventura who stated in her report that in her opinion the clinical onset of the Applicant’s PTSD was mid-2016. The Tribunal is satisfied that the clinical onset of the PTSD was on or around 26 June 2016.
SoP Factors
Clause 6(a)
SoP No. 83 of 2014 includes, as a factor that must exist before it can be said that PTSD is connected to a person’s service, ‘experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.’[109] The Applicant and the Respondent agree that the sexual assault experienced by the Applicant constitutes ‘a category 1A stressor’ as defined in clause 6(a) of the SoP, specifically a ‘serious physical attack or assault including rape and sexual molestation”.[110]
[109] Statement of Principles 83 of 2014, cl 6(a).
[110] Statement of Principles 83 of 2014, cl 9.
The Tribunal is satisfied that the Applicant experienced ‘a category 1A stressor’ when she was sexually assaulted in August 2015. The Applicant experienced that stressor before the clinical onset of her PTSD. There is no evidence that the Applicant was experiencing symptoms of PTSD before experiencing the ‘category 1A stressor’ constituted by the sexual assault.
Accordingly, the Tribunal is satisfied that SoP No. 83 of 2014 with respect to PTSD identifies a factor that exists in relation to the Applicant, constituted by her having experienced ‘a category 1A stressor’ being the 15 August 2015 sexual assault.
Clause 6(e)
SoP No. 83 of 2014 also includes, as a factor that must exist before it can be said that PTSD is connected to a person’s service, (e) ‘being exposed to repeated or extreme aversive details of severe traumatic events before the clinical onset of posttraumatic stress disorder.’
Dr Ventura’s evidence is that the second of the two criteria in the definition of ‘being exposed to repeated or extreme aversive details of severe traumatic events’, in clause 9(b), namely ‘repeatedly listening to a person's account of their exposure to severe traumatic events’, in her opinion ‘marries well with clinical experience’, that is a person listening to their own account of their exposure to a severe traumatic event.
The Respondent contends that Dr Ventura could not reasonably be expected to have understood that ‘listening to’ meant ‘having a dream or some other experience that doesn’t involve listening with your ears.’ It contends that what was put to Dr Ventura about the Applicant listening to her own self-reports would naturally be interpreted ‘as her speaking to others, describing it to others, and having to hear those descriptions again.’[111]
[111] Transcript, 82.
The evidence before the Tribunal is that when the Applicant telephoned SeMPRO on 23 June 2016 she reported in detail the sexual assault by the RAN officer in August 2015. She also reported that she had seen the perpetrator on two occasions on base at HMAS Kattabul following her posting there from 3 June 2016, and she had ‘just frozen and [had] not been able to do or say anything’. She reported that the psychologist on the base had ‘recommended that she only be posted to areas where [the perpetrator] is not able to be posted to due to his job role.’ It is evident from this report that the Applicant had described the sexual assault by the perpetrator and her re-exposure to him not only to the SeMPRO officer to whom she spoke, but also to a RAN psychologist on the base prior to phoning SeMPRO. The Applicant had also told Dr Cohen at Kattabul Health Centre on 27 May 2016 that ‘before Christmas 2015’ a ‘friend’ had spiked her drink and raped her.[112]
[112] T3, 35.
The evidence demonstrates that between 27 May 2016 and 23 June 2016 the Applicant had described details of the sexual assault on 15 August 2015 to at least three other people. She had thereby repeatedly listened to herself recount the extreme details of the sexual assault, an obviously highly traumatic experience. She also had been exposed to the perpetrator on the base at HMAS Kattabul on at least two occasions during this period causing her to respond aversively. The Applicant’s exposure to the perpetrator and listening to herself recount to others the details of the traumatic events that surrounded the sexual assault triggered the clinical onset of her PTSD on or around 26 June 2016.
On the basis of the evidence before it, the Tribunal is satisfied that SoP No. 83 of 2014 with respect to PTSD identifies a factor that exists in relation to the Applicant constituted by her having been ‘exposed to repeated or extreme aversive details of severe traumatic events’.
Did the SoP factors ‘arise out of’, or were they ‘attributable to’, the Applicant’s defence service – s 27(b) MRCA
Having accepted that the Applicant was subjected to a ‘category 1A stressor’ and was ‘exposed to repeated or extreme aversive details of severe traumatic events’, following which there was clinical onset of PTSD, the remaining issue is whether one or both of these factors were related to the Applicant’s defence service in one of the ways prescribed in s 27 of the MRCA.
The authorities recognise that the phrases ‘arose out of’ and ‘attributable to’ are to be given a broad and generous meaning. In Roncevich, the High Court found that the phrase ‘arose out of, or was attributable to, any defence service’ in s70(5) of the VEA, which contains heads of liability very similar to those in sections 27 of the MRCA, were intended to be given a broad meaning. McHugh, Gummow, Callinan and Heydon JJ stated:
The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[113]
[113] At [27] citing R v Monopolies and Mergers Commission; Ex parte National House Building Council [1994] TLR 38; Walsh v Rother District Council [1978] 1 All ER 510 at 514 per Donaldson J.
The Court recognised that an activity may be service-related if it is one which was required, authorised or expected as part of a member’s duties, even if it was not compulsory.[114] Based upon the evidence in Roncevich, their Honours said there was little doubt that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance by members at the Sergeants’ Mess and the consumption of alcoholic drinks.[115] There was also a requirement for the appellant’s return to his quarters to prepare his uniform for the next day. These were regarded as capable of having been ‘attributable to’ his defence service. The remaining question arising was whether his climbing on to a box to expectorate through the open window and his falling because he was inebriated similarly either ‘arose out of’ or was ‘attributable to’ his defence service. Their Honours said that it was also relevant that the inebriation of the appellant occurred on the base.[116] The majority in Roncevich held that the correct question to be asked is not whether the person’s intoxication arose out of the task he was required to do as a soldier, but rather whether the injury arose out of or was attributable to his defence service.[117] In agreement, Kirby J said the issues which required consideration were ‘whether, whatever the legal or disciplinary obligations, attendance by the appellant in the mess function was expected of him, with the consequence that he would become involved in drinking with colleagues and might become intoxicated because of the social, cultural and environmental norms to which he was subjected at such an event.’[118]
[114] Roncevich at [24], [27], [95] and [98].
[115] at [24].
[116] at [26].
[117] at [22].
[118] at [96].
In Military Rehabilitation and Compensation Commission v Roberts (‘Roberts’)[119] the Federal Court emphasised that a causal, not merely temporal, connection must exist between a person’s defence service and an event for the event to be considered to ‘arise out of’ or be ‘attributable to’ that service.[120] Whereas defence service need not be the sole or dominant cause of the relevant event,[121] it must, however, be a contributing cause.[122] There will be a sufficient causal connection between a person’s defence service and a particular event if the event occurred in circumstances arising by reason of something which the person concerned was required or expected to do in carrying out their duties.[123]
[119] [2007] FCA 1.
[120] Ibid, at [55].
[121] Roncevich at [27].
[122] Repatriation Commission v Law (1980) 31 ALR 140 at 151 where it is said that “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.” See also Re David Guy Holthouse v Repatriation Commission [1982] FCA 113 where, in discussing legislative provisions analogous to those here under consideration, Davies J concluded that the required connection “…need not be the sole, dominant, direct or proximate cause and effect. It is sufficient if there be a contributory cause or connection... it is sufficient that there be a causal connection and that that causal connection has contributed in a material way to the incapacity or death”.
[123] Roncevich at [23]: “…whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.” See also Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525 at [69] where it is said that “The scope of “defence service” has been extended by the courts to include not only activities required to be done but also “expected or authorised”.
In Comcare v PVYW (‘PVYW’),[124] the High Court found that the relevant causal connection between an activity and employment, for the purposes of s 6 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRCA), will depend on whether the employer induced or encouraged that activity. If an injury occurred at a place and by reference to a place (because something was occurring to the premises or because of some defect in the premises), the injury would be related to employment if the employer had induced or encouraged the employee to be at that place.[125] In PVYW, the respondent had suffered an injury while being at a place she was induced or encouraged to be at by her employer, but as a result of an activity which the employer had not induced or encouraged her to engage in. Under these circumstances, the injury was not considered to be related to her employment.[126]
[124] [2013] HCA 41.
[125] at [38], [45], [52] and [60].
[126] See also Military Rehabilitation and Compensation Commission v Dalgrin [2022] FCA 83 at [78]:
The test of inducement and encouragement is concerned with actual conduct of the employer having an actual effect on the employee, thus giving rise to a sufficient connection between the employment and the activity that occasions the injury. It is the connection between the employer’s conduct and the activity that provides a principled basis for the imposition of liability within the confines of the statute.
In Holthouse v Repatriation Commission (‘Holthouse’)[127] Davies J emphasised that a distinction should be drawn between activities which were related to a person’s service and activities which were related to a person’s personal life, even if service might have provided the setting in which they occurred. The matter concerned a naval officer who suffered incapacity from a back injury caused by his moving a heavy potted palm at his house in anticipation of him letting that house to a tenant and moving into accommodation provided to him on a naval base to which he had been posted. It was held that the incapacity had not arisen out of, nor was it attributable to, his defence service because the cause of the incapacity, namely, the moving of the potted palm, was a matter which lay entirely within the sphere of his personal life and which was of no concern to the Defence Force.
[127] Holthouse v Repatriation Commission [1982] FCA 113.
This reasoning is reflected in the Tribunal’s decision in Re QX07/1 and Military Rehabilitation and Compensation Commission.[128] In this case the applicant had been posted to the Persian Gulf while serving with the RAN. During a period of shore leave in Goa, he engaged in the use of illegal substances, which led to him suffering a cardiac arrest which, in turn, led to hypoxic brain injury. The Tribunal held that although the applicant was in Goa because of his service, the activity of substance abuse and the injury he sustained as a result ‘did not arise out of or in the course of his employment’.
[128] [2007] AATA 1172.
Clause 6(a) - Category 1A stressor
The Applicant submits that there is the requisite causal connection in her circumstances between the ‘category 1A stressor’ and her defence service. She contends that socialising and social interaction of members is encouraged in the RAN to promote esprit de corps and, inferentially, the sexual assault would not have occurred if she had not been socialising with her peers on the night preceding the sexual assault.
The Applicant relies on the Tribunal’s decision in Bucknall v Military Rehabilitation and Compensation Commission (‘Bucknall’)[129] to support her claim that the RAN required, authorised or expected her to socialise with her peers. In Bucknall, the applicant was a staff cadet at the Royal Military College, Duntroon, and as a requirement of her service she resided at the College. During the evening of 13 November 1992, she was on authorised ‘local leave’ with other cadets and attended at a tavern in Canberra. Under the rules then governing the applicant, she was required to sign her company leave book before leaving the College grounds, remain within a 150 km radius of the College and return by midnight. Failure to comply with the terms of leave could have resulted in disciplinary action. The applicant determined to return to College in accordance with those rules and was offered a lift back by a fellow cadet who was known to her. On the way back to the College, the applicant was sexually assaulted by the other cadet, and she suffered a depressive disorder and made a claim under the SRCA.
[129] Bucknall v Military Rehabilitation and Compensation Commission (2007) AATA 2014 (‘Bucknall’).
The Tribunal considered when a sexual assault may be considered to ‘arise out of’ employment or ‘but for’ employment. It found that the assault arose out of the applicant’s employment:
Considering the circumstances in which Ms Bucknall was assaulted and the role of her employer in encouraging socialisation that we have referred to previously we find that the injury suffered by her ‘arose out of’ her employment. The causative factors which are not merely temporal are the encouragement of the employer for the socialisation to take place, the fact that the assault was occasioned by a fellow employee who had requested Ms Bucknall accompany him, and the assault occurring as Ms Bucknall was returning to the College from a social gathering of her peers.[130]
[130] Bucknall at [31].
In Bucknall, there was evidence that the chain of command directed the Applicant to improve her level of peer acceptance and her social interactions with her peers outside the College in formal performance assessment reports.
The Applicant’s evidence is that reports for enlisted personnel contain assessment criteria, including ‘Interpersonal Relations and Teamwork’. She argues that socialising and social interactions enables members to meet these requirements. This she says is supported by a statement from a Petty Officer (name redacted), dated 11 March 2016 in which it was recorded that he ‘wanted to encourage [the Applicant] to come and socialise with the team’.[131]
[131] T6, 100.
The Tribunal is not satisfied that there is a direct causal link between the ‘category 1A stressor’ and the Applicant’s defence service. The evidence does not support a finding that the RAN induced or encouraged the Applicant’s attendance at the external locations which led to her being sexually assaulted. The Applicant’s claims that she and her peers were encouraged to socialise and thereby promote esprit de corps among colleagues. There is however no specific evidence before the Tribunal in relation to a particular conversation with or direction from one of her superiors that might constitute inducement or encouragement for her to socialise with her peers outside of working hours. The Tribunal is reasonably satisfied that such a general encouragement falls short of a requirement, authorisation or expectation by the RAN that the Applicant socialise at a specific location, as specified by the High Court in Roncevich. There was not a RAN function nor a service-related reason for the Applicant to be at the first or second venues, other than for socialising with colleagues when off duty. The Tribunal cannot be satisfied that there was ‘some substantial link or connection with the employment which is causal, and not merely temporal.’[132] The Applicant’s attendance at both venues was an incident of her personal life.
[132] Roberts at [55].
The Tribunal’s finding is consistent with its decision in Re SJCL and Repatriation Commission which concerned broadly similar circumstances to those of the Applicant. The Tribunal found:
… it was sufficiently clear that the sexual assault, despite its adverse impact upon the applicant’s psychiatric wellbeing, took place off-base and therefore cannot be related back to service. Even if, as claimed, the assault was perpetrated by another serving member of the defence force, this does not make the assault a matter related to the applicant’s service.[133]
[133] Re SJCL and Repatriation Commission [2008] AATA 688 at [42].

The Tribunal therefore finds that the Applicant’s PTSD was not service related, because the ‘category 1A stressor’ was not attributable to her defence service.
Clause 6(e) - ‘Exposed to repeated or extreme aversive details of severe traumatic events’
The Tribunal has found that between 27 May 2016 and 23 June 2016 the Applicant had described details of the sexual assault on 15 August 2015 to at least three other people, and thereby had repeatedly listened to herself recount the extreme details of a traumatic event. She also had been exposed to the perpetrator on the base at HMAS Kattabul on at least two occasions during this period causing her to respond aversively.
The Applicant submits that there is the requisite causal connection between her re-exposure to the perpetrator and her defence service. She contends that the aversive contact arose while she was rendering defence service and was attributable to the perpetrator’s concurrent posting to HMAS Kuttabul and the RAN’s decision to detach her to Randwick Barracks rather than post her away from HMAS Kuttabul.
The Tribunal is satisfied that the SoP factor ‘exposed to repeated or extreme aversive details of severe traumatic events’ ‘arose out of’ and/or were ‘attributable to’ the Applicant’s defence service. Her posting on 3 June 2016 to HMAS Kuttabul exposed her to repeated aversive contact with the perpetrator of the sexual assault. Arising from this contact, the Applicant was reminded of the traumatic events which surrounded the sexual assault and led to her taking steps to report it to SeMPRO on 23 June 2016. Both her being present at HMAS Kattabul for the purposes of performing her work duties resulting in her encounters with the perpetrator, and her contact with SeMPRO to report the sexual assault and raise her concerns about her re-exposure to the perpetrator, were done while she was undertaking defence service.
The Tribunal is satisfied that a causal, not merely temporal, connection existed between the Applicant’s defence service and her re-exposure to the perpetrator on HMAS Kattabul where they were concurrently posted at that time, and her report to SeMPRO of the details of the sexual assault and her encounters with the perpetrator. It is satisfied that there was a sufficient causal connection between the Applicant’s defence service and these events as they occurred in circumstances arising by reason of actions which the Applicant was required or expected to do in carrying out her duties.[134]
[134] The scope of “defence service” has been extended by the courts to include not only activities required to be done but also “expected or authorised”.
Would the SoP factors have not occurred ‘but for’ the Applicant’s defence service – s 27(c) MRCA?
Having found in favour of the Applicant under s 27(b) it is not necessary for the Tribunal to consider s 27(c). However, in the event that the Tribunal is in error in relation to its findings in relation to s 27(b), it will consider whether s 27(c) is satisfied.
In Roberts, the applicant was a member of the RAAF who was living at RAAF Fairbairn in rented accommodation. She was not required to live on base and was free to exercise her discretion as to her living arrangements. On 13 May 2000 she was rostered ‘off duty’ and that evening attended an informal social function at the Airman’s Club, RAAF Fairbairn. The people attending wore civilian clothes and brought their own alcohol. At 11pm the applicant retired to bed and at 2.30am whilst in her room, she was sexually assaulted by an intruder. The intruder was one of her colleagues who resided in the same accommodation block. The intruder was charged with military offences but not convicted. The applicant suffered from a psychiatric condition and was medically discharged from the RAAF.
Madgwick J held that the applicant’s injury arose out of her employment by virtue of the ‘but for’ test. In residing on-base she was ‘… doing what her employer envisaged and expected she would do.’[135] His Honour stated:[136]
The relevant statute is certainly beneficial to employees and the enactment of the statutory ‘but for’ test by s 6(1)(a) must, being ambiguous, be construed to ‘give the fullest relief which the fair meaning of its language will allow’, as Isaacs J put it in Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384. A fair meaning will, however, not be one arrived at by straining language or exceeding its reach, nor will it be one that results in absurdity ex facie or an anomalous result, clearly shown: Esso Australian Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 518-19 and 565-6.
In that sense, a ‘commonsense or practical’ approach (per Tamberlin J in Kennedy) or a requirement for some degree of ‘proximity’ (per Weinberg J in Schmid) may be necessary to confine the unbounded logical possibilities of a ‘but for’ test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and ‘common sense’ law to deal with the subject at hand.
[135] Roberts at [64].
[136] Roberts at [60]-[61].
In Holthouse, Davies J observed, when commenting on analogous legislation, that the ‘but for’ test did not “abbrogate [sic] the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause of the incapacity or death”.[137]
[137] [1982] FCA 113. In Roberts, Madgwick J stated [at 62] that ‘… the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection.’
Clause 6(a) – Category 1A stressor
In the Applicant’s circumstances, the ‘category 1A stressor’ (the sexual assault) did not occur in circumstances in which she was doing what the RAN envisaged and expected of her in performing her duties. For the reasons previously stated, there was not an expectation of the Applicant that she would socialise with her peers after hours in non-RAN premises.
In Bucknall, for the reason that the assault on the applicant was considered to arise out of her employment, it was also found that it would not have occurred ‘but for’ her employment.[138] The Tribunal, referring to the decision in Roberts, observed:
… the Court described the injured employee as ‘doing what her employer envisaged and expected she would do. She was in no sense behaving in such a way that it would be anomalous to say that ensuring violence would not have the … occurred ‘but-for’ the employment.’ This description is equally applicable to Ms Bucknall.[139]
[138] Bucknall at [36].
[139] Bucknall at [37].
This is not a description that could be applied to the conduct of the Applicant in socialising with her peers out of work hours in places external to RAN premises. She was not doing what the RAN envisaged and expected she would do.
Accordingly, the Tribunal finds that there is no relevant service connection between the ‘category 1A stressor’ and the Applicant’s defence service under s 27(c) of the MRCA.
Clause 6(e) - ‘Exposed to repeated or extreme aversive details of severe traumatic events’
In the Applicant’s circumstances, her recounting of the details of the sexual assault to SeMPRO and her exposure to the perpetrator on base at HMAS Kattabul occurred in circumstances in which she was doing what the RAN envisaged and expected her to be doing in performing her duties. It was both envisaged and expected by the RAN that the Applicant would be on base for the purposes of her work duties following her posting to HMAS Kattabul from 3 June 2016. Similarly, it was both envisaged and expected that the Applicant would report to SeMPRO the details of the sexual assault and her concerns in relation to ongoing exposure at HMAS Kattabul to the perpetrator of that assault in circumstances where the performance of her work duties was being negatively impacted.
Accordingly, the Tribunal finds that there is a relevant service connection between the exposure by the Applicant ‘to repeated or extreme aversive details of severe traumatic events’ and her defence service under s 27(c) of the MRCA.
CONCLUSION
The Tribunal is satisfied that the Applicant suffered a ‘service disease’, namely PTSD, with a clinical onset date on or about 26 June 2016. The Respondent is liable for this disease pursuant to s 23 of the MRCA.
DECISION
The Reviewable Decision is set aside.
In substitution it is determined that the Applicant suffered from a ‘service disease’, namely PTSD, with a clinical onset date on or about 26 June 2016, and the Respondent is liable for this disease pursuant to s 23 of the MRCA.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...................................[sgd].....................................
Associate
Dated: 22 February 2022

Date(s) of hearing: 9 and 10 September 2021

Advocate for the Applicant: R Kelloway, Veterans Centre Mid North Coast
W Forsbey, Terrigal Wamberal Sub Branch

Counsel for the Respondent: S Wright, Australian Government Solicitor

Solicitors for the Respondent:
B Bourke, Australia Government Solicitor
N Donaghy, Australia Government Solicitor

… Counsel for Mr Walsh submits that it is a wider concept than 'directly caused by', or 'caused by or resulting from', but he accepts that it involves some nexus between the effect and the alleged cause. He suggests that 'owing to' or 'a material contributory cause' or 'a material cause in some way contributing to the effect' may be synonyms. Lord Reid in Central Asbestos Co v Dodd ([1972] 2 All ER 1135 at 1141, [1973] AC 518 at 533) said:
‘… "attributable". That means capable of being attributed. "Attribute" has a number of cognate meanings; you can attribute a quality to a person or thing, you can attribute a product to a source or author, you can attribute an effect to a cause. The essential elements is connection of some kind".
Suffice it to say that these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.

Date(s) of hearing:	9 and 10 September 2021
Advocate for the Applicant:	R Kelloway, Veterans Centre Mid North Coast W Forsbey, Terrigal Wamberal Sub Branch
Counsel for the Respondent:	S Wright, Australian Government Solicitor
Solicitors for the Respondent:	B Bourke, Australia Government Solicitor N Donaghy, Australia Government Solicitor