Malady and Repatriation Commission

[2005] AATA 713

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 713

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V2002/1245

VETERANS' APPEALS  DIVISION		)
Re		MICHAEL PATRICK MALADY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Mr E Fice, Member
Associate Professor J H Maynard, Member

Date28 July 2005

PlaceMelbourne

Decision

1.         The decision under review is set aside and in substitution IT IS DECIDED ‑ the conditions of major depressive disorder, alcohol dependence or abuse and drug dependence or abuse are war-caused. 

2.         The application is remitted to the respondent with the direction that pension be assessed in accordance with these findings.

(Sgd)  John Handley

Senior Member

VETERANS’ ENTITLEMENTS – service in East Timor – eight days – extensive medical treatment after discharge – diagnosis – whether any reasonable hypothesis – decision set aside

Benjamin v Repatriation Commission (2001) 34 AAR 270

Repatriation Commission v Budworth [2001] FCA 1421

Repatriation Commission v Codd [2005] FCA 888

Meehan v Repatriation Commission [2001] FCA 597

Repatriation Commission v Deledio (1988) 49 ALD 193

Repatriation Commission v Stoddart [2003] FCAFC 300

Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334

White v Repatriation Commission [2004] FCA 633

REASONS FOR DECISION

28 July 2005 Mr John Handley, Senior Member
Mr E Fice, Member
Associate Professor J H Maynard, Member       

1.       The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 7 October 2002.  The VRB then affirmed a decision previously made by the respondent on 2 February 2001 to refuse his claim for acceptance of the conditions of major depression, alcohol abuse and drug abuse as war-caused.

2.       We should at this stage of the review record that the T‑documents appear to be deficient because in the applicant’s claim of 3 August 2000 (page 41) the only condition sought to be associated with service is “major depression”.  There is provision within the form for recording other conditions alleged to be caused by service but those parts of the form do not contain any entries.  The decision of the respondent was made on 2 February 2001 (page 79) and records that the decision refused a claim for major depression, alcohol abuse and drug abuse.  In these circumstances we can only conclude that there are other documents which have not been lodged with the T‑documents and which refer to a claim made by Mr Malady for acceptance of the conditions of alcohol abuse and drug abuse.

3.       We should also record at the outset that this application is unusual having regard to the age of the applicant and the relatively short period of time between the period of service which has given rise to the injuries over which this claim is made and the actual making of the claim.

4.       Mr Malady was born on 28 July 1973 and is presently 31 years of age.  In May 2000 when he claimed, he was 27 years of age.  The relevant period of service occurred in East Timor in 1999.  Accordingly his claim was made within 12 months of the period of service which is alleged to have given rise to his claim and the review in this Tribunal occurred approximately four years after that period of service.  Unlike many other applications heard by us in the Veterans’ division of this Tribunal, this application is – in our opinion – unaffected by the passage of time which often causes memories to be poor or distorted, where witnesses are difficult to locate (or have died) and, or, historical documents and other data are unable to be located.

5.       The T‑documents confirm that Mr Malady enlisted in the Australian Army in January 1998.  He entered East Timor on 20 September 1999 (refer page 107) and was discharged from service as medically unfit on 10 September 2000.

6.       On 19 May 1999, Mr Malady completed a medical examination where his “emotional stability” and “mental capacity” was recorded as being “normal”.  The medical officer recorded that he did drink alcohol and either did “use or have experimented with marijuana or with drugs”.  Specifically it was recorded that he consumed “20/25 drinks/week” and smoked “20 cigs/day”.  Also it was recorded that he “tried marijuana several times 9-10 years ago” (refer pages 5, 6 and 7).

7.       The date of the applicant’s return to Australia from East Timor is not apparent to us from the T‑documents.  There is some evidence of Mr Malady having served in East Timor for one week (Transcript, page 5).  There are other references to him either completing his service in East Timor on 6 October 1999 (T‑documents, page 1) or on 12 October 1999 (Transcript, page 5).  It would appear in any event that the period of service in East Timor was relatively short.

8.       It appears that Mr Malady suffered from Shigella dysentery in East Timor and was evacuated to Townsville.  Whilst that appears to have been successfully treated, he also commenced treatment for emotional injuries variously diagnosed as either post-traumatic stress disorder (“PTSD”) or major depression.

9.       There is an entry in the medical records of 2 June 2000 (page 14) where the examining doctor obtained a history of “gradual worsening of anxiety, anger, depressed since return from E Timor; constant fear of death; TNI weapons on him yet he wouldn’t point at them”.  The claim for acceptance of the condition of “major depression” is dated 3 August 2000 (pages 41 and 42) where the applicant’s treating psychiatrist (Dr Green of Mundingburra in Queensland) diagnosed “PTSD followed by major depressive disorder”.  The date of onset is recorded as “110/99”.  In clinical notes of the same date (page 54), Dr Green recorded “no eye contact.  Soft voice.  Flat depressed affect.  Says little.  Symptoms of MDD which probably developed from PTSD due to Timor”.  The applicant recorded he first became aware of the condition of “major depression” on 10 May 2000 (we can find no reference to any event or occurrence on that date, although a chronology in the applicant’s personnel file, on 10 May 2000 has the recording at T‑documents, page 3.

PES 10MAY00 CL3R 7 2 7 2 1/0 1/0 2 2 cp=normal Restrict=YES Review 10MAY03   343 – 1=RFN GDE 1

10.     On 27 June 2000, Dr Green diagnosed “MDD and PTSD” (page 22).  On 14 July 2000, Mr Malady was found to be “unfit for military service” (T‑documents page 8).  His “emotional stability” was found to be “abnormal” (yet his “mental capacity” was found to be “normal”).  PTSD was noted as a diagnosis.  It was also noted that the applicant then had an ankle injury, a fracture of one of the fingers of his right hand and bursitis of his left shoulder.  It is not apparent from the Medical Board examination whether those physical injuries arose out of service.

11.     On 24 July 2000, Dr Green reported that the applicant continued to have symptoms of PTSD with “marked avoidance behaviour” and additionally recorded, “has been in contact with VVA which I encourage”.

12.     It appears that the applicant was later admitted to inpatient care and on 11 August 2000 he was diagnosed with “PTSD; major depressive disorder” where the treating doctors recorded “symptoms of major depressive disorder which probably developed from PTSD due to service in East Timor” (refer pages 25 and 26).

13.     Mr Malady was again examined on 22 August 2000 where the examining doctor recorded that he had made a claim for PTSD and did have a “major depressive illness which has been seen as secondary to PTSD” (refer pages 28, 29 and 30).  On the same date it was again found that Mr Malady was unfit for military service.

14.     Between 12 and 30 June 2001 and 3 and 17 September 2001, Mr Malady was an inpatient of Ward 17 at the Veterans’ Psychiatric Unit annexed to the Austin and Repatriation Medical Centre.  The diagnoses then made were of PTSD, poly-substance abuse; antisocial personality traits and substance induced mood disorder (refer pages 96 to 98).

15.     The above summary from some of the medical data is recorded at this stage of these reasons to explain that a significant issue in this application was whether Mr Malady suffered any injury or illness arising out of his service and if he did, what is the diagnosis.  Mrs Black, of De Marchi and Associates, who appeared on behalf of Mr Malady submitted at the outset that the applicant suffered from PTSD which arose out of his service.  Mr Purcell of Counsel who appeared on behalf of the respondent submitted that the applicant suffered from a personality disorder.  However, in written submissions lodged subsequent to the completion of the hearing, it was submitted that the appropriate diagnosis was borderline personality disorder, depressive disorder, alcohol abuse and drug abuse.  It was not conceded that those conditions arose out of service.

michael patrick malady

16.     Mr Malady said that he was an Infantryman in East Timor and said that he was “number 3 on the gun”.  He said that his responsibility was to “look out for the rear as we patrolled” and said that he was “for want of a better term, arse-end Arnold”.  He said that he was armed with a machine gun and there were a number of events in Timor that caused him distress.

17.     Mr Malady recalled that within 15 minutes of arrival in East Timor and whilst his rifle had been stripped and was being cleaned, a shot was unlawfully discharged by another member of his platoon which scared and startled him.  At or about that time, he said he also observed TNI soldiers walking through the airport.  Mr Malady said that he then felt vulnerable.

18.     On another occasions not long after arriving in East Timor, Mr Malady said that he was patrolling around Dili when he noticed a local person, at a distance of approximately 200 metres, walking and carrying an object which he thought may have been a rifle.  He said that he and other members of his platoon were ordered to open fire if they felt threatened.  He said he did not break eye contact with this person and spoke to another member of his platoon to have that person advise a Commanding Officer that the person he was observing could be armed.  He said that his safety catch had been released and his finger was on the trigger of his rifle and he was ready to shoot in the event that the person he was observing appeared to take aim with what was understood to be a weapon.  Mr Malady said that the other person moved away but he said he was shaken and felt ill because “his life was in my hands”.

19.     On another occasion he said that he entered into what was formerly a domestic residence and said that he could smell blood.  He was confident of that belief having previously worked in abattoirs.  He said he did not observe blood, but said “the floor felt sticky and – like, the smell was pretty strong”.  On another occasion he recalled that a vehicle in which he was a passenger passed another vehicle containing TNI soldiers who were carrying rifles.  He said he did not know then whether those persons were ready to fire their weapons.  He said “they are just resting them on the side and as they are going past there is the rifle just pointing at us and all it takes is a little bump or something.  That made me – that made me quite nervous”.  He acknowledged that the weapons of the TNI soldiers were not being pointed at him or members of his platoon intentionally, but he said “weapons were pointed at us”.  On another occasions he said that whilst at a vehicle checkpoint he observed a blood stain on a roadway. 

20.     Thereafter Mr Malady said that he did not “feel like sleeping” because other members were sleeping on picket and coupled with the episodes involving the observing of blood, having smelt blood and having observe a person carry what he believed could have been a weapon, the events in combination were “playing” on his mind.  He said he did not have flashbacks but he could not then stop himself from thinking of those incidents.  He said “it was a constant”.  When he eventually returned to Australia he said that his sleep was interrupted, that he had nightmares and described some nightmares as similar to the beginning of James Bond films where he was looking down the barrel of a gun and he observed a bullet coming towards him which he said was “razor sharp and I would get this – just a feeling with my whole body, just getting cut to pieces and then I would then wake up.  I had that for – for quite some time”.

21.     After returning to Australia Mr Malady had treatment in Townsville.  He said that he was very ill and “with all the stuff that I was dealing with in my head and with that it just – I just, sort of, snapped and started having angry outbursts”.  Whilst acknowledging that he had consumed alcohol prior to enlistment, he said that after he returned to Townsville he started to drink heavily.  He eventually had treatment for anxiety and PTSD at Lavarack Barracks in Queensland and was referred to a psychiatrist – Dr Green for treatment.  Later Mr Malady returned to Warrnambool in Victoria and was treated by Dr Ridley, a psychiatrist, and Dr Kingsley, a psychologist.  He said that he had been told that he was diagnosed with “post-traumatic stress” and “a major depressive disorder” and “anxiety disorder”.  He smoked marijuana – which he acknowledged he had used as a teenager – but resumed its use because it had a “dulling effect” and his dreams were not “as vivid”.

22.     Mr Malady said that he is not a member of the RSL and avoids Anzac Day marches.  He said “I don’t do anything that has got to do with the Army”.  He does not watch war films or documentaries and uniforms and guns are a “big trigger”.

23.     Mr Malady said that he was a “troublesome youngster” but he put his “head down” and started work and eventually gained employment as a meat processor.  He said from the age of 16 or 17 he had ambitions of joining the Army.  Prior to service in Dili, Mr Malady married and had children but he separated approximately two years ago.  He recalled that he was smoking marijuana and using amphetamines, he was avoiding sleep and he attributed his behaviour with these substances as being responsible for the breakdown of his marriage.

24.     In cross-examination Mr Malady agreed with extracts from a report written by an officer of Writeway Research Service that the Army records indicated that he served in East Timor between 20 and 28 September 1999, was evacuated to Darwin and then transferred to Townsville on 6 October.  It followed – and Mr Malady agreed – that he served in East Timor for eight days.

25.     The applicant was then examined upon events in service and his reactions.  Initially he was taken to a diary he completed and which is found in the T‑documents.  Mr Malady said that he kept a diary which he could later give to his wife because he would not have to talk about his experiences in service.  He agreed that his entry on 20 September 1999 “when we got off the plane I wasn’t scared to the point of nervous breakdown but I was nervous as hell” was an accurate recording of his feeling on that day.  He agreed that he had been briefed prior to departure to East Timor and was aware of “wholesale destruction that had been taking place in August of 1999”.  However he disagreed that it was that information that caused him to be nervous.  Rather he was aware from his own knowledge from television and other reports that a militia leader had been reported as having said that Australian persons captured would “have their heart eaten”.  Additionally Mr Malady said that he did not feel that he was adequately prepared prior to evacuation to East Timor despite prior briefings.  He said that he had been briefed with respect to local customs and some words of language but said that he was still in training when he and others landed in East Timor.  He acknowledged that there were some rules of engagement that had been the subject of briefings which included being permitted to open fire if he had a feeling of being in danger, as opposed to being permitted to use force for protection against a hostile act.  He acknowledged that there had been training with respect to disarming persons in close contact but he was not trained to disarm persons at 200 yards from him when he was of the belief that the person may have been carrying a weapon.  Whilst acknowledging that he had learnt some words in Bahasa and Teten which were in the nature of “halt or I will shoot”, Mr Malady said he did not use that expression when he observed a person carrying what he believed to be a rifle because there might have been other persons in the vicinity and he was unsure whether he would have been heard.

26.     The applicant was then questioned with respect to the event where there was an authorised discharge of a rifle at the Dili Airport.  Mr Malady described that occasion as a worrying event and disputed the suggestion put to him in cross-examination that he was not troubled by it.  He said he did not know at the time whether the apparent sound of a rifle being discharged was from a TNI soldier or whether the rifle – irrespective of the country of origin of the person possessing the rifle – had been pointed at him.

27.     The applicant agreed that the briefings prior to travelling to East Timor suggested that there would not be any hostility between the Interfed Armed Forces and the TNI.  He also agreed that he had been briefed that TNI forces were voluntarily withdrawing from East Timor and were being replaced by Interfed Forces.  Nonetheless he said that he had been told that TNI forces should not be trusted and he had not seen TNI forces being shipped out of East Timor.

28.     The applicant was then taken to those parts of his evidence where he referred to smelling blood in a domestic residence and observing blood on a roadway.  Mr Malady agreed that animals had wandered throughout East Timor and the blood on the roadway could have been the result of an animal being struck by a vehicle.  Mr Malady also agreed that some residences had animals but he could not imagine an animal being struck by a car inside a domestic residence.  He also agreed that some animals had been slaughtered at domestic premises and the blood that he said he smelt at the residence could have been animal in origin.  Nonetheless he said the smell was “overpowering”.

29.     The applicant was examined with respect to his reaction to service in East Timor and his feelings at that time.  He said the unauthorised discharge of a weapon was not a single event occurring at the Dili Airport shortly after arrival but said that such events occurred frequently.  He said persons were carrying their rifles with magazines attached.  He was referred to an entry in his diary where he recorded “realised some dickhead had a UD which is scary” and he agreed that he was scared.  When he was challenged as to why he would be scared if such an event occurred frequently, Mr Malady said that he had been “expecting to get shot”.  Additionally Mr Malady said that he was scared because persons on picket duty were frequently falling asleep which caused him and others to be “edgy” which in turn caused him to be unable to sleep.

30.     The applicant was examined concerning his drinking habits and acknowledged that he did drink alcohol heavily after he returned to Australia from East Timor.  He also agreed that he had alcohol related convictions as a youth but denied that he was a “heavy drinker”.  He said that his father was an alcoholic and he had no intention of “turning out like him”.

31.     Mr Malady also acknowledged that he had some convictions as a youth for driving related offences but said that loss of his motor car licence in 1989 was not associated with alcohol but rather was the result of a number of unpaid fines and other offences associated with riding a motor cycle.  There was a conviction in 1987 for wilful damage which Mr Malady agreed was associated with the consumption of alcohol.  He said that he was then drunk and had damaged some trees when he attempted to jump over them.  He denied that he did not disclose his prior offences to the Army personnel agency upon enlistment.  He said he disclosed the offences that he could recall but also said that he completed forms which gave the Army permission to access any police files held over him.  Mr Malady denied that he had ‘serious problems with alcohol abuse and violence” before enlistment because he said there were two convictions only in a period of ten years.

32.     The applicant was then challenged concerning prior alcohol consumption with reference to comments found within his psychiatric file at the Austin Hospital.  It was suggested that the history then taken pointed to Mr Malady consuming alcohol whilst he was a member of the Army Reserve and consuming greater quantities of alcohol after he enlisted.  He agreed that he did have between 20 and 25 drinks per week at May 1999 when a medical questionnaire was completed but said that after he engaged in serious training in the Army he reduced his alcohol consumption.

33.     The applicant was then taken to a history taken by Dr Strauss a medico-legal consultant engaged by the respondent concerning his consumption of drugs.  Mr Malady agreed that he did smoke cannabis prior to enlistment but said that he did not ever inject drugs whilst he was stationed at Townsville.  He said he first injected drugs after he returned to Warrnambool upon discharge from service – having learnt how to inject by a patient at the Austin Repatriation Hospital – because he had then decided to avoid sleeping.  He said the only drugs he ever consumed before he first injected were marijuana and alcohol.

34.     The applicant denied the history taken by Dr Strauss where it was suggested that alcohol was consumed resulting in conviction, avoidance of his home and as a reaction to a relationship that his mother had with another person.  Mr Malady said that he had not ever been charged with underage drinking, the relationship with his mother was irrelevant, and he had been expelled from two schools (but not for matters associated with alcohol consumption).  He did agree that there were occasions when he did consume alcohol “to take my mind off things”.  He disagreed with the history of Dr Strauss that alcohol had been consumed in binges from the age of 13 or 14 and he denied the history that he had been “out of control” and also denied the history of his parents being unable to control his drinking because he said at that time he had one parent only.

35.     The applicant was further challenged with respect to his alcohol consumption prior to enlistment and it was suggested that he was convicted in 1995 – at the age of 22 years – for driving without a licence.  Mr Malady agreed and said that he had driven a car whilst unlicensed and he had been caught.  He also agreed that he was charged with assault with a weapon in 1995 but said that charge arose out of an allegation that he had swerved at another person whilst driving a motor car.  He said “it didn’t happen.  I was convicted.  Yes.  But it didn’t happen”.

36.     In conclusion of the cross-examination, Mr Malady agreed that he was very ill after he returned from East Timor, that he did have a sense of failure having been withdrawn from East Timor and he had felt as if he had let down his section.  He said that he had aimed to have a career in the permanent Army for as long as he could remember.  He disagreed that he took drugs heavily whilst at Townsville but did agree that he did consume alcohol to excess.  He said that he had not been debriefed when he returned to Australia.

37.     In answer to some questions from us, Mr Malady said that his physical health eventually improved but his mental health became worse.  He said that he was unable to communicate with his wife or children and he became verbally – but never violently – abusive.

edward cole

38.     Dr Cole is a psychiatrist who was engaged by the applicant’s solicitors to provide a medico-legal opinion.  Dr Cole consulted with Mr Malady on 9 October 2003 and provided a report which was received into evidence.

39.     Dr Cole said that he diagnosed the applicant as suffering from PTSD by reason of his service in East Timor (page 49).  He acknowledged that Dr Strauss had laid “emphasis on personality difficulties” and whilst acknowledging that the applicant may have had some “psychological problems” before enlistment, he was of the belief that “if the Army accepts him after he has passed a medical examination they have to take him as they find him”.  He said the applicant was vulnerable to the effects of stress, more so than a person who would have had a stable emotional background.

40.     Dr Cole referred to the episode where the applicant observed another person 200 metres from him carrying an object which was believed to be a weapon.  He said that upon the history that he had obtained, Mr Malady was “ready to shoot that person if he had shown any signs of aggression towards him”.  In those circumstances, he said it was reasonable to infer that Mr Malady was prepared to shoot the person because he had been genuinely in fear of his life.  He said that episode formed a substantial part of nightmares subsequently suffered.

41.     In cross-examination Dr Cole said that the only document he had with respect to the applicant’s pre-enlistment history at the time of consultation was a report completed by Dr Ridley dated 6 August 2001.  Dr Cole acknowledged that he did not have a full history of Mr Malady and whilst acknowledging that a medico-legal opinion should have regard to a comprehensive history of the patient, Dr Cole said that he was limited in a medico-legal examination to the “depth one can explore certain issues”.  He said that he spent 1 hour and 15 minutes with Mr Malady which he said was “fairly generous” but said “if people are anxious for me to spend several hours and they are prepared to pay me, I will certainly do so”.

42.     Dr Cole said that he did obtain a history with respect to the applicant’s family and past medical history but compared to the history obtained by Dr Strauss, he acknowledged that he had limited information with respect to the applicant’s behaviour and pre-enlistment consumption of alcohol and drugs and convictions.

43.     Dr Cole acknowledged that he did not obtain a history from Mr Malady of how he had been trained to deal with stressful situations in service and acknowledged that he did not obtain a history from Mr Malady as to his reaction when he observed another person 200 metres away but rather he had expressed his earlier opinions by way of inference.  Dr Cole agreed that the applicant did not “fit the template” of the PTSD Statements of Principles and said that “people do react with symptoms suggestive of post-traumatic stress disorder if they are subjected to prolonged stress even though the stress might not be acute or severe or immediately life threatening”.  Dr Cole said his opinion was based on the “environment of threats” rather than a specific episode.  He said the applicant was exposed to a “succession of episodes”, yet agreed the factors within the SOP for PTSD suggested a specific episode would “trigger” PTSD (pages 54 and 55).

44.     Dr Cole agreed in a “technical sense” with an opinion expressed by Dr Strauss (page 58) that Mr Malady was not suffering from PTSD by reason of to a stressor exposure in East Timor, that he had “long standing psychological problems which pre-date his time in the Army” and he subsequently felt a sense of failure and desolation after he returned to Australia.  Dr Cole did not agree with an opinion expressed by Dr Strauss that the applicant’s psychological injuries were aggravated by his inability to continue his service in Timor but did acknowledge that the applicant’s early evacuation did leave him with a sense of guilt.

45.     In answer to some questions from the Tribunal, Dr Cole acknowledged that he was aware that Dr Strauss who provided a medico-legal opinion for the respondent had diagnosed the applicant as having a “borderline personality disorder”.  Dr Cole said that he did not regard that diagnosis as “very satisfactory” because it is applied to “a patient whose psychiatrist doesn’t approve of him”.  He said it was a diagnosis that was referrable to a person’s behaviour in terms of the way that a person would relate to another person or their degree of self control.  He said it was more likely to be a diagnosis applicable to long standing personality characteristics rather than a specific event.  He thought it would be a diagnosis in addition to PTSD, although Dr Cole reaffirmed his opinion that PTSD was a more appropriate diagnosis, having regard to the applicant’s symptoms.

46.     In response to some questions on this issue from Mr Purcell, Dr Cole said that a borderline personality disorder is a diagnosis applied when a person’s “conduct doesn’t fit established norms”.  He said that the diagnosis had “over tones of moral disapproval”.  He said he was sceptical about the diagnosis and said that in his opinion persons were more inclined to be critical of the patient rather than ignoring other circumstances or having a history that would suggest or point to a more appropriate diagnosis.  Nonetheless Dr Cole did acknowledge that he did not have a detailed history of the events in the applicant’s life prior to enlistment.

nigel strauss

47.     Dr Strauss is a medico-legal psychiatrist who examined the applicant at the request of the respondent on 7 May 2004 and provided a report dated 8 May 2004.

48.     In evidence Dr Strauss agreed that he referred to a number of documents in the compilation of his report particularly two volumes of files from the Austin Repatriation Hospital.  He said that he considered the contents of those files in the compilation of his report but did not refer the applicant to that material or ask him to comment upon it at the time of interview.

49.     At the conclusion of his interview, and upon preparation of his report, Dr Strauss formed the opinion that the appropriate diagnosis was of borderline personality disorder.  He also thought that the applicant suffered from major depression and substance abuse disorder.  He was aware of the report written by Dr Cole and of the opinion there expressed of PTSD but said that he disagreed with the diagnosis.

50.     Dr Strauss said that he was reassured about his opinion as to diagnosis because he took account of the applicant’s pre-enlistment history which so far as he was aware had not been considered by Dr Cole or by Dr Ridley.  He said that a diagnosis of personality disorder is associated with problems functioning occupationally and socially.  He said it was a diagnosis applied to persons who have inadequate personality development and exists also in persons who abuse substances.  All of these features, he said, applied to Mr Malady.

51.     Additionally, Dr Strauss said that the applicant suffered from depressive disorder which he said was associated with his experience in East Timor.  More precisely, he said the diagnosis was of “major depressive disorder recurrent”.  He said this was a diagnosis separate and distinct from personality disorder, characterised by suicidal and agitated behaviour.

52.     Dr Strauss was informed that there were two SOPs with respect to personality disorder, namely, No 1435 of 1995 and No 13 of 1997.  He was asked to peruse the definition of that condition as contained in each Instrument in order to advise whether his opinion was consistent with that definition (which apparently derives from DSM IV).  Dr Strauss said that he agreed with the definition as recorded and said it was consistent with his opinion as to diagnosis.  He noted that personality disorder as defined included “borderline personality disorder”.

53.     Nonetheless it was Dr Strauss’ opinion that the qualifying criteria for personality disorder as defined was not achieved in the case of Mr Malady because upon the history that he obtained of service in East Timor, Mr Malady did not suffer “a catastrophic experience that immediately preceded an enduring personality change to the level of disorder” (refer Instrument No. 143 of 1995, paragraph 1 (a)).

54.     In concluding his evidence-in-chief, Dr Strauss adopted the opinions expressed in the final summary of his report which are reproduced as follows:

2.   I believe that this man has long standing psychological problems which predate his time in the Army.  He has significant problems with attachment and I believe that after he got back from Timor he felt a sense of failure and desolation and he felt as if he had let the Army down.  This impacted upon his self esteem and he is a vulnerable man who did not cope well.  In my opinion to explain the psychological consequences of his time in the Army he has used the idea of a post traumatic stress disorder to justify his behaviour in recent years.  However in my opinion his psychological problems were aggravated by the fact that he could not continue in Timor rather than by his exposure to stressors while in that country.  If this man would have continued his time in Timor or could have returned to Timor his psychological decompensation possibility would not have been so significant.  It was the fact that this man felt that his association with the Army had somehow changed after his time in Timor that brought about a worsening in his underlying psychological difficulties.  He began to reabuse substances and his marital situation deteriorated.  His behaviour was subsequently impacted upon and he has continued to suffer from significant psychiatric problems since then.

55.     In cross-examination, Dr Strauss said that it was not his opinion that the applicant suffered PTSD because, although acknowledging that he did suffer from some stressors in East Timor, they “were not sufficient enough to cause this man to suffer from a post-traumatic stress disorder” (Transcript, page 77).  He did concede that the applicant did suffer from depression, which was a separate diagnosis to personality disorder and that this condition did have an association with service in East Timor.  He also agreed that the depression of the applicant had an association with drug abuse, which he also agreed was associated with service in East Timor.

submissions

56.     Both representatives lodged written submissions subsequent to the hearing.

57.     Mr De Marchi summarised the history of the application subsequent to delivery of the decision under review in these proceedings. 

58.     In his summary of the medical documents lodged it was submitted that a diagnosis of major depressive episode was made on 5 June 2000 but on 13 July 2000 the condition of PTSD was diagnosed at a Medical Board examination.  The applicant was subsequently diagnosed by Dr Ridley, a consulting psychiatrist in Warrnambool, with major depression with some element of PTSD and significant alcohol and cannabis abuse.  Subsequently Dr Ridley wrote a report to the applicant’s advocate at the VRB that by reason of the duration of the symptoms, a diagnosis of PTSD could safely be made.  Two doctors at the Austin Repatriation Medical Centre diagnosed the applicant with PTSD.  It was also noted that Dr Green, a psychiatrist who treated the applicant shortly after he returned from East Timor, diagnosed PTSD as did Dr Kingsley, a psychologist in Warrnambool.  It was noted that Dr Cole, a medico-legal witness, also diagnosed PTSD.

59.     With respect to the events in service it was noted that within half an hour of arriving in East Timor the applicant was exposed to a stray bullet from a colleague’s gun.  Subsequently the applicant noted the presence of a person who appeared to be carrying a rifle.  A few days later the applicant entered what had been a domestic residence and smelt blood.  He was also a member of a platoon where persons fell asleep when on picket duty, he suffered recurring dreams and poor sleep and observed a large pool of dried blood on a roadway.

60.     Subsequent to discharge from service, the applicant was upset at his early discharge and felt that he had let down his colleagues.  He commenced drinking heavily and had been improperly debriefed.  The applicant commenced consumption of anti-depressant medication and resumed smoking cannabis which he had smoked as a teenager but had ceased prior to enlistment.

61.     It was submitted that there should be a finding of the applicant having suffered exposure to a traumatic event consistent with the DSM IV diagnosis of PTSD.  It was noted that only Dr Strauss found that the applicant did not suffer from PTSD but rather preferred a diagnosis of personality disorder.

62.     It was submitted that upon the applicant’s evidence, the applicant was in danger and at risk of death or serious injury during his service in East Timor.  It was submitted that SOPs No 3 and 54 of 1999 were satisfied because upon the applicant’s evidence he did experience a severe stressor as defined.

63.     Additionally, it was submitted that the applicant satisfied the SOP with respect to alcohol and drug abuse.

64.     On balance it was submitted that the applicant attracts sufficient points under the Guide to the Assessment of Repatriation Pensions (“GARP”) to qualify for a general rate pension in excess of 70 per cent.  On that basis there should be a finding that the applicant is entitled to pension at the special rate.

65.     Mr Purcell, on behalf of the respondent, lodged comprehensive written submissions.  He submitted that there were three issues principally for determination, namely, whether the applicant suffers from major depression or some other psychiatric disease; the date of clinical onset of any psychiatric disease and whether any psychiatric disease was causally related to operational service in East Timor between 20 and 28 September 1999.

66.     Mr Purcell summarised the medical records and whilst noting that there were diagnoses made of PTSD, he submitted that such a diagnosis was inconsistent with the symptoms expressed by the applicant and inconsistent also with his pre-enlistment history.

67.     It was submitted that the evidence and diagnosis of Dr Strauss should be preferred because he alone had regard to the applicant’s history of significant emotional disturbances and problems prior to enlistment.  Additionally it was submitted that the opinions of Dr Green and Dr Ridley should be discounted because although they did diagnose PTSD they were also of the opinion that the events to which the applicant was exposed in service did not constitute him having experienced a severe stressor within the meaning of the SOP.

68.     With respect to the clinical onset of any diagnosed psychiatric disorder it was submitted that upon the evidence of Dr Strauss the applicant’s borderline personality disorder was of long standing and related to or emerged from the applicant’s youth.  It therefore followed that the clinical onset of that condition together with the onset of substance abuse must have preceded the applicant’s service.  It was submitted that the date of clinical onset of depressive disorder was unclear but if there was a finding of a recurrent depressive disorder it is implied that such a condition existed prior to service.  In the event that PTSD was found as the appropriate diagnosis, it was submitted that the clinical onset was in June 2000 this being at or about the time the applicant commenced to have panic attacks and the time he was referred to Army psychologists and subsequently to Dr Green for treatment.

69.     With respect to applicable SOPs (if any) it was submitted that the applicant could not satisfy the SOPs with respect to borderline personality disorder because he could not demonstrate that he suffered a “catastrophic experience that immediately preceded an enduring personality change to the level of disorder” being a factor within the Instrument with respect to that condition.

70.     Additionally it was submitted that the applicant could not establish that he experienced a severe psychosocial stressor as defined by the SOP with respect to depressive disorder because he did not experience any “identifiable occurrence”, being the expression that is used and referred to in the definition of “severe psychosocial stressor”.

71.     Further to the above it was submitted that the applicant could not satisfy the PTSD Instrument because he did not experience a severe stressor as defined.  Nor could he satisfy applicable Instruments with respect to substance abuse because the applicant did not suffer from a psychiatric disorder at the time of clinical onset of alcohol or drug dependence nor did he experience a severe stressor.  In this latter regard it was submitted that the applicant had a prior history of alcohol and drug dependence and it could not in the circumstances be found that there was any onset of such a condition by reason of service.

72.     Accordingly it was submitted that no reasonable hypothesis could be found connecting any of the suggested diagnoses with the events in service.

73.     In his written reply Mr De Marchi submitted that a finding should be made of PTSD consistent with the diagnosis expressed by Dr Ridley, Dr Green and Dr Cole.  It was submitted that Dr Strauss did not support the diagnosis of PTSD because in his opinion the applicant was not exposed to a stressor permitting such a diagnosis.  It was submitted that Dr Strauss in evidence had said that if there was a finding of the applicant having suffered a stressful event in East Timor then a PTSD diagnosis would be met.

74.     On balance it was submitted that the evidence of Dr Strauss should be rejected and the submissions of the respondent should not apply because the basis for rejecting the diagnosis of PTSD was erroneous in law.  It was submitted that the Full Court in Benjamin v Repatriation Commission (2001) 34 AAR 270 (“Benjamin”) found that a diagnosis should be made on the balance of probabilities and not by reference to satisfaction of a SOP.

75.     In conclusion it was submitted that the “concomitant” diagnosis of depressive disorder and substance abuse were “part and parcel of the PTSD”, that the applicant’s evidence could not be disproved by the respondent and there should be a finding of PTSD having its connection with the service in East Timor.

other medical evidence

76.     Only doctors Cole and Strauss were called to give evidence in these proceedings.  The applicant, however, had been treated by a number of practitioners none of whom where called.  The following is a brief summary from the clinical notes and/or medical reports supplied by Dr Ridley, the applicant’s treating psychiatrist, and Mr Kingsley, the applicant’s treating psychologist.  The clinical file of the Austin and Repatriation Medical Centre will also be referred to.

77.     In a report of 19 September 2000 addressed to the applicant’s general practitioner, Dr Ridley reported a history of the applicant having been in East Timor during “October 1999 for a period of one month”.  He noted the applicant had returned to Australia because of shigella dysentery but had subsequently been “plagued by anxiety, irritability, temper outbursts, volatility, hyper vigilance, nightmares, poor concentration and dysphoric mood”.  It was also noted that the applicant had poor sleep, flashbacks and nightmares.  He made a diagnosis then of “major depression complicated by very significant elements of post-traumatic stress disorder”.

78.     In a report of 3 October 2000 addressed to an officer within the Military Compensation Rehabilitation Service of the Department of Veterans’ Affairs (“DVA”), Dr Ridley reported that he had then consulted with the applicant on two occasions and in his opinion the applicant suffered from PTSD which was “complicated by elements of major depression and by abuse of both alcohol and cannabis”.

79.     On 1 December 2000, Dr Ridley wrote to an officer at DVA.  At that stage he had consulted with the applicant on four occasions.  Dr Ridley reported that the appropriate diagnosis then was major depression which was “complicated by elements of post traumatic stress disorder”.  He also made a “co-morbid clinical diagnosis” of abuse of both alcohol and cannabis which he thought was an attempt to reduce hyper-arousal.  Dr Ridley thought that the consumption and abuse of alcohol and cannabis was then “escalating” and was the applicant’s “most immediate and pressing problem”.

80.     Dr Ridley concluded that upon the history that he had obtained, the applicant had not had any “previous problems with his psychological health until he joined the Army and was in active service in East Timor”.  He reported that a history of that type had been confirmed by the applicant’s wife on two occasions.  He also reported that the history obtained was of heavy use of alcohol and cannabis only after the applicant returned from East Timor and a denial by the applicant of “any such difficulties before his posting”.  Dr Ridley concluded that it was reasonable to find ‑

A direct etiological role in precipitating his current psychological difficulties.  It does also however seem to me extremely likely that Michael Malady was predisposed for development of such conditions by what appears to be a naturally fairly isolative and potentially hostile personality.

81.     In a report of 6 August 2001 addressed to the applicant’s advocate before the VRB, Dr Ridley reported that he understood that a claim for major depression, PTSD and alcohol and drug abuse had been rejected by the respondent because a decision had been made that he had not suffered a “stressor”.  He reported that he also understood that Mr Malady had given a history of being isolated from his wife and children, contracting Shigella dysentery, and a sense of having let down his comrades as being the stressors which had contributed to PTSD.  Dr Ridley reported that whilst DSM IV provided a “working definition” of the criteria for a PTSD diagnosis, previous editions of the DSM had included experiencing events beyond normal everyday experience as also being a feature of a PTSD diagnosis.  Dr Ridley concluded, upon the applicant’s history of being isolated from his family, experiencing Shigella dysentery and a sense of having let down his comrades, that his view and “Within the profession”, that it would be unreasonable to conclude that those factors “alone” represented a “stressor severe or specific enough to precipitate a post-traumatic stress disorder”.

82.     Dr Ridley concluded in the following terms:

It is however also of significance in my opinion that Michael Malady has perhaps experienced other stressors which may be of greater significance and it is entirely plausible that his failure to specifically identify these is indeed a component of a subsequent avoidance syndrome which is by no means uncommon amongst veterans.  During my initial interview with him, Michael Malady told me that although he actually served in East Timor for only a very short time and that he did not personally see any active service that he did experience a constant sense of fear, dread and alertness to the presence of imminent danger more or less from the time of his arrival there.  Such vicarious exposure to trauma of a more or less persistent and chronic nature is well recognised as a potential causative agent for Post Traumatic Stress Disorder even though it may not strictly meet the operationalised criteria set up strictly for research purposes in the Diagnostic and Statistical Manual of mental disorders.  In my experience such exposures are much more common amongst veterans than the actual direct exposure to a specific event or chain of events which the DSM requires.  It was on the basis of this kind of exposure that I confirmed the diagnosis of Post Traumatic Stress Disorder on a clinical basis when I initially examined Michael Malady and which in my opinion supports this diagnosis for any other purpose as well.

It seems to me most important in making a diagnosis to take into account all relevant factors rather than one or two fairly specific ones.  In this context the timing and sequencing of Michael Malady’s subsequent development of symptoms seems to me to be particularly relevant, regardless of whether there were one or two specific events precipitating his problems.  It seems fairly clear from the history that Michael Malady’s sense of helplessness and fear in the light of his vicarious exposure to threats in East Timor was followed on his discharge from the army by a gradually escalating sense of helplessness together with re-experiencing of traumatic memories and increase in his social avoidance and increase in attempts to reduce his psychological arousal by using increasing and excessive amounts of alcohol and cannabis.  The duration of Michael Malady’s symptoms and the degree of functional impairment he has experienced as a consequence of it are certainly enough to confirm a diagnosis of Post Traumatic Stress Disorder and it is in this light again that I made this diagnosis when I originally saw him and for which I albeit fairly unsuccessfully attempted to treat him.

In my view therefore I would certainly support the presence of this diagnosis for Michael Malady and believe that the appeal he is intending to lodge is warranted on these grounds.

83.     Mr Kingsley is the applicant’s treating psychologist.  He did not provide a report but arranged to have his handwritten notes typed.  The notes confirm a first consultation on 8 May 2001 and the last recorded consultation was 4 September 2002.

84.     In the first consultation Mr Kingsley obtained a history (relevantly) in the following terms:

The highlights of my service in 2RAR were mateship.  After a couple of months the battalion was sent to Timor.  I arrived in Dili East Timor in Sept 1999.  I feel really bad about my time there.  I feel like I f…ed up and let my mates down.

SAS went in first and we were next.  After about a week in Dili I got crook, mostly dehydrated.  We had to wear these stupid flack jackets and people were being seriously affected by the heat.  We spent most of the time patrolling around Dili.  It was hard to tell who was who.  People were coming down from the hills to the town and they would give us the peace sign and big grin, but sometimes it felt like I could smell blood.  In one particular house the smell was real bad.  Maybe it was blood.  We would go into houses overnight to bed down to keep an eye on our part of the town.  After about 3 weeks I was picket one night and went to wake my relief and started spewing.  I then started shivering and the medic tried to keep me out of my sleeping bag but it was not [sic] use.  At dawn I was still shaking so I staggered down to the medics billeted in a stable like building down the street.  I was assessed and sent down to the field hospital at the airport.  I was treated there for two days.  My temperature was over 40 degrees so I was pretty much out of it.  I remember waking up in a Hercules and being told I was going to Darwin.

85.     In a consultation in the following week (17 May) the history then recorded was of “death, nightmares, I get killed, see coffins” and “number 3 gun, tail end Charlie, arse-end Arnold, major concern with what is behind our Unit, always swinging out backward well, presently swinging around all the time feeling like there is danger behind me”.

86.     Thereafter the notes record many references to the applicant expressing to Mr Kingsley his circumstances of avoidance of persons in uniform, difficulty sleeping and concentrating and a sense of hyper-vigilance.  In June 2001 there is a history obtained of having been charged by the police with assault.  The applicant’s circumstances apparently had deteriorated to the extent that Mr Kingsley contacted the Austin and Repatriation Medical Centre because Mr Malady had “smashed up the car in anger with the family inside”.  He also noted that Mr Malady was then “doing speed and heaps of marijuana”.  Later it was noted that the applicant had discharged himself from the Austin and Repatriation Medical Centre, had been denied entry at his home because of violence and was “in a very bad way with drugs”.  Later that year there are continuing references to heavy consumption of illegal drugs.  In August 2001, Mr Kingsley has recorded that he engaged the applicant in a “crisis consultation” at the Warrnambool police cells because he had been “charged with false imprisonment”.  Mr Kingsley appeared in the Magistrates’ Court on behalf of Mr Malady on 30 August.  On 18 September it was noted that the applicant, upon presentation, was then “brighter… still has the burn mark around the neck from trying to hang self last Wed. in the Repat”.

87.     Mr Kingsley qualified the provision of his notes – which he described as “rough notes”, as capable only of being interpreted by him and “are not suitable for information for a third party”.  The purpose of recording a summary of the above notes and a summary of the reports of Dr Ridley is to glean as much information concerning the applicant’s circumstances and his subsequent treatment to assist in the decision-making process of making findings with respect to diagnosis and the connection between service and any diagnosed illness, injury or disease.  In making the above summaries, we acknowledge that neither Dr Ridley nor Mr Kingsley was called to give evidence, nor were they cross-examined.

conclusion and reasons for decision

88.     In this application, having heard Doctors Cole and Strauss and having read their reports and the other medical documentation lodged, there remained a significant issue between the parties as to the diagnosis of the applicant’s illness.

89.     There would not appear to be a dispute that the applicant suffers from major depressive disorder recurrent, drug dependence or drug abuse and/or psychoactive alcohol abuse or dependence.  There is a dispute between the doctors as to whether the applicant also suffers from PTSD or from personality disorder.

90.     A finding as to diagnosis is not to be made by reference to a SOP.  In Benjamin the Full Federal Court decided (paragraph 41):

41 . . . The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis.

91. A finding as to whether a veteran suffers from a particular injury or disease is to be decided upon the basis of reasonable satisfaction pursuant to s120 (4) of the Veterans’ Entitlements Act 1986 (“the Act”) (refer Repatriation Commission v Budworth [2001] FCA 1421 (“Budworth”)).  In Benjamin the Court also decided as paragraph 55:

55 . . . The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.

92.     His Honour Ryan J followed the above analysis in Repatriation Commission v Codd [2005] FCA 888, 30 June 2005 (refer paragraph 28).

93.     Additionally, Ryan J decided at paragraph 29 the following:

29 Before anything else, the Tribunal must find to its "reasonable satisfaction" that a disease exists; Repatriation Commission v Budworth (2001) 116 FCR 200 at [14]-[15]. It is not confined to considering only those diseases or conditions contended for by one or other party before it, and should not test the existence of a postulated disease by reference to any SoP while conducting this first inquiry; see Benjamin at [41] and [48]-[50]. At this first stage it is necessary to determine whether the veteran has a "collection of relevant symptoms", and not the "nomenclature or ... traditional medical label" that may be used to describe them; Budworth at [19]. (After the symptoms from which a veteran suffers or suffered have been identified, it might be necessary to have regard, in a general and preliminary way, to various SoPs to determine into which of them the identified symptoms fit. That may occur in taking the second step described in Deledio which is discussed below.)

94.     Dr Strauss was the only medical witness or the author of any report lodged who diagnosed the applicant with borderline personality disorder.  He provided a comprehensive report and examined the applicant’s medical history (so far as it may be gleaned from the two volumes of files made available from the Austin and Repatriation Medical Centre).  Dr Strauss is a well credentialed and experienced psychiatrist who gave his opinion within the ambit of his expertise.  His diagnosis was the subject of criticism from Dr Cole who thought that it was a diagnosis made by a doctor who does not approve of the patient and it was, in his opinion, a diagnosis that had “overtones of moral disapproval”.  We think that that criticism is unfair and unwarranted.  The diagnosis of borderline personality disorder attracts ICD Code 301.83 and is found within the chapter of Personality Disorders at pages 629‑673 of DSM IV as published by the American Psychiatric Association, July 1994.  Having observed Dr Strauss give his evidence and respond to cross-examination, having read his reports and having examined the sub-chapter on borderline personality disorders found at pages 651‑654, we are satisfied on the balance of probabilities that such a diagnosis is warranted.  We note in concluding the analysis of this illness, that Dr Cole was of the opinion that borderline personality disorder could be a diagnosis additional to PTSD.

95.     Dr Cole was of the opinion that the applicant suffered from PTSD, however, we thought that his evidence was superficial and unsatisfactory.  He did not obtain an adequate or thorough history and did not have, or seek recourse to any other medical data or clinical information.  We do think that the applicant does suffer PTSD on the balance of probabilities having regard to the opinions expressed by Doctors Ridley and Green and the other clinicians who examined and treated the applicant shortly after his return to Australia from East Timor and subsequently when he was an inpatient at the Austin and Repatriation Medical Centre.  None of the Doctors or clinicians who expressed the belief that the applicant had PTSD (other than Dr Cole) gave evidence and our finding of this diagnosis is upon the reports which have been lodged in these proceedings and which have been referred to earlier in these reasons.

96.     Dr Ridley is an eminent practising psychiatrist in Warrnambool who has given evidence in other veterans’ applications.  He is well credentialed and experienced and, in this case, he treated the applicant.  We do not know, nor have we observed Dr Green or the clinicians from the Austin Repatriation Medical Centre but we have no reason to doubt their competence or expertise.  That the diagnosis of PTSD has been made by so many suitably qualified persons – all of whom have treated the applicant – satisfies us that it is a diagnosis appropriately made and should be found as a fact to exist.

97.     The diagnosis of major depressive disorder was common to all of the doctors in these proceedings.  Reference was first made to that diagnosis in the inpatient notes of 11 August 2000 (T‑documents, pages 25 and 26).  Dr Strauss was of the opinion that such a diagnosis was appropriate and would exist in addition to personality disorder.  Dr Ridley was of the opinion that major depression was “complicated” by PTSD (refer report 19 September 2000).  In his report of 3 October 2000, he said that PTSD was “complicated by elements of major depression”.  Irrespective of those opinions, major depression does exist.  We also note that the examining doctors of the applicant, when he was an inpatient in August 2000, found that the applicant then suffered from a “major depressive illness” which was thought to be secondary to PTSD (refer T‑documents, pages 28, 29 and 30).

98.     On balance therefore we are satisfied that it would be appropriate to find as a fact that the applicant also suffers from major depressive disorder.

99.     All of the doctors in both their oral and written evidence – being doctors who provided medico-legal opinions and treating doctors – reported that the applicant has consumed alcohol to excessive quantities and has used and consumed drugs and other substances in high quantities and with frequency.  Opinions have been expressed in various terms referring to self abuse by alcohol and drugs variously as a “substance abuse disorder” (refer Dr Strauss), “a co-morbid clinical diagnosis of abuse of both alcohol and cannabis”, refer Dr Ridley (report 1 December 2000) and the many references to the consumption (and identification) of illegal substances by Mr Kingsley.  In these circumstances we think that it is appropriate to diagnose and find that the applicant also suffers from drug dependence or drug abuse together with alcohol dependence or alcohol abuse.

100.   Having made findings with respect to the diagnosis of illnesses, diseases or injuries suffered by Mr Malady, an inquiry is then to be made as to whether any reasonable hypothesis exists connecting such illness, disease or injury with service.

101.   The Full Federal Court in Repatriation Commission v Deledio (1988) 49 ALD 193 (“Deledio”) at 206 decided that there was a four stage process of finding whether a hypothesis was reasonable. Those four stages are reproduced as follows:

1.   The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.   If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.        The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

102.   The process of finding whether a hypothesis is reasonable was also summarised by Wilcox J in Meehan v Repatriation Commission [2001] FCA 597 (“MeehanI”) at paragraph 48 which is reproduced in the following terms:

48 What the Tribunal should have done, first, was to consider whether the material before it pointed to a hypothesis or hypotheses connecting Mr Meehan's psychological symptoms (whatever their clinical label) with his operational service. This should have included consideration of the question whether the material suggested those symptoms were aggravated by his operational service. If the answer to that was in the affirmative, the Tribunal ought to have identified (as it did) all the Statements of Principles that were possibly relevant to the hypothesis or hypotheses. The Tribunal should then have examined the consistency between the hypothesis, or hypotheses, and the various Statements of Principle, making no findings of fact at that stage. Finally, the Tribunal should have asked itself the s 120(1) question: whether it was satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that any disease by which Mr Meehan was incapacitated was a war-caused disease. In resolving that question, the Tribunal was entitled (and required) to make findings in relation to the facts of the case and to relate those findings to any relevant Statement of Principles: see s 120A(3) of the Act. At that point, it was material to determine whether, as a matter of fact as distinct from hypothesis, Mr Meehan's case fell within the terms of the Statement of Principles pertaining to generalised anxiety disorder.

103.   With respect to the five diagnosed conditions referred to earlier, they all, in our view, amount to a hypothesis of connection with service.  There are SOPs with respect to all of the five conditions.  The hypothesis, upon the evidence of the applicant and his witnesses and some of the doctors with respect to each of the diagnosed conditions is consistent with the template of the applicable SOP.  The hypothesis is therefore reasonable.  Each respective hypothesis as raised, contains one or more of the factors within the applicable SOP which the RMA has determined must exist as a minimum.

104.   The main focus in this and other applications involving the analysis of the four stages in Deledio is upon the fourth stage.  That is whether there was no sufficient ground to determine that the illness, disease or injury was war-caused.  It is at this stage only that findings of fact are to be made and then related back to the relevant SOP.  As His Honour decided in Meehan it is at this stage that we are required to determine whether there is “material to determine whether, as a matter of fact as distinct from hypothesis, . . . within the terms of the Statement of Principles”.

105.   With respect to the condition of personality disorder there were two SOPs during the assessment period being No 143 of 1995 and No 13 of 1997.  The latter Instrument is of no practical consequence because it does no more than amend the definition of personality disorder for the purposes of the SOP.

106.   The earlier Instrument contains factors which must exist as a minimum before a reasonable hypothesis can be said to have been raised connecting personality disorder with service.  The relevant factor relied upon in this proceeding was 1 (a) namely “suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder”.

107.   The expression “enduring personality change” is defined at paragraph 4 of that Instrument in the following terms:

“enduring personality change” means a psychiatric condition that is present for at least two years immediately following exposure to catastrophic stress; where

(a)the catastrophic stress must be so extreme that it is not necessary to consider personal vulnerability in order to explain its profound effect on the personality; and

(b)the personality change is characterised by a hostile or distrustful attitude towards the world, social withdrawal, feelings of emptiness or hopelessness, a chronic feeling of “being on edge” as if constantly threatened, and estrangement;

Note: Post-traumatic stress disorder may precede this type of personality change.

108.   The expression “catastrophic experience” and “catastrophic stress” is not defined.

109.   “Catastrophe” is defined in the Macquarie Dictionary as:

1.  a sudden and wide spread disaster.

2.  a final event or conclusion usu. an unfortunate one; a disastrous end.

3.(in a drama) the point at which the circumstances overcome the central motive, introducing the close or conclusion; the denouement.

4.a sudden violent disturbance, . .

A similar definition is found within the Shorter Oxford English Dictionary.

110.   In the present application the circumstances of service in East Timor as relayed to us by the applicant, involved exposure to an unauthorised discharge of a weapon shortly after arrival in Dili, observing an indigenous person carrying what was thought to be a weapon and a fear by the applicant that his own rifle would have discharged, entering domestic premises where the applicant smelt blood and where the floor was “sticky”, observing a pool of blood on a roadway, passing TNI soldiers who were carrying weapons and generally being in fear to the extent that he was reluctant to sleep and was aware that members of his squadron did sleep whilst they were on picket duty.  None of those circumstances in our view give rise to a “catastrophic event” or constitute a “catastrophic experience”.  We understand the factor refers to a singular event as being “a catastrophic experience”, as opposed to a number of events constituting that phenomena.  We would also suggest that a “catastrophe” is a description of an unexpected, overwhelming event, for e.g. a tsunami, an earthquake or volcanic eruption or observing or confronting human casualties following a bombing or battle.  Such events would be in the nature of causing actual or threatened loss of lives.  As the dictionary definition suggests, it would be a “disaster”.  Additionally, when regard is had to the definition of “enduring personality change”, the words “so extreme” and “profound effect” point to “catastrophe” which, in our view, the applicant did not experience.  Both parts of the definition of “enduring personality change” must be satisfied as evident by the conjunctive “and” at the end of sub-paragraph (a) which, for the preceding reasons, is not satisfied.

111.   We are therefore satisfied beyond reasonable doubt that there is no sufficient ground to determine that the condition of borderline personality disorder is war-caused.  The claim for acceptance of that condition must therefore fail.

112.   The condition of PTSD is the subject of two SOPs during the assessment period being Instruments No 3 and 54 of 1999.  The latter Instrument is of no consequence because it corrects a gramatical error in the first Instrument (the word “Entitlements” is substituted for the word “Entitlement”) as appearing in the definition of “experiencing a severe stressor”.

113.   In the present case the applicable factor is found at 5 (a) being –

experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or

We have not considered 5 (b) which applies with respect to the clinical worsening of PTSD.  Paragraph 6 of the Instrument provides that factor 5 (b) will only apply if PTSD was suffered or contracted before or during (but not arising out of) relevant service.  There was no material that points to this.

114.   The expression “experiencing a severe stressor” is defined at paragraph 8 in the following terms:

“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:

(i)threat of serious injury or death; or

(ii)engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;

115.   In Repatriation Commission v Stoddart [2003] FCAFC 300, the Full Federal Court heard an appeal against a decision of a single Judge in Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334. At first instance His Honour examined the above factor and definition and discussed the objective and subjective elements of “experiencing” a severe stressor.  At paragraph 47 His Honour decided that a SOP did not distinguish between events that actually involved the threat of death or serious injury and events which were reasonably perceived as involving the threat of death or serious injury.  More particularly at paragraph 50 His Honour concluded as follows:

[50] In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause “that involved actual or threat of death or serious injury …” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word “threat” a range of circumstances, some of which are referred to above, which common sense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of “sound medical-scientific evidence” in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted.

116.   In the present circumstance, upon the evidence heard and read, we are not satisfied, and find as a fact, that there was no event or events that involved the actual or threat of death or serious injury to the applicant or to another person’s physical integrity.  Additionally we do not find that the applicant experienced, witnessed or confronted any event that objectively could reasonably be perceived as the actual or threat of death or serious injury as decided above in Stoddart.  On balance we are satisfied that the circumstances of the applicant’s service of eight days in East Timor constitute “personal perceptions of events which judged objectively do not in fact fall within the adjectival clause”.

117.   Dr Ridley in his report of 6 August 2001 expressed an opinion, which has been expressed by other psychiatrists in other proceedings in this Tribunal, that the DSM IV definition of PTSD is not to be applied in a rigid manner.  It is also consistent with decisions of other Tribunals and Federal Courts on Appeal that the PTSD definition within DSM IV is not to be regarded as a legal document or to be interpreted as if it were legislation.  However, Dr Ridley does refer to other events which did constitute stressors and which contributed to PTSD, being his separation from his wife and children whilst in East Timor, the contracting of Shigella dysentery and a feeling of having let his comrades down.  Save for Shigella dysentery, the other two circumstances could not be found to have arisen out of his war-service and the Shigella dysentery appears to have been successfully treated within a relatively short time of arrival in Townsville.  Additionally, Dr Ridley refers to the applicant having a “vicarious exposure to trauma” which he acknowledged did not fit within the DSM IV criteria for the definition of PTSD.  Additionally, we note that in the present application the applicant did not confront TNI forces except on one occasion when a vehicle in which he was a passenger passed another vehicle containing TNI soldiers.  It was at that time and during the applicant’s eight days in Dili that TNI forces were withdrawing.  Additionally the applicant did not participate in, witness or observe “casualty clearance, atrocities or abusive violence” or other phenomena of that type as referred to in the definition of “experiencing a severe stressor”.  On balance therefore we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that PTSD is a war-caused disease.

118.   We previously found that the applicant suffered from depressive disorder for which there was one SOP only during the assessment period being No 58 of 1998.  The SOP with respect to this condition includes “major depressive disorder” being conditions found by Doctors Strauss, Ridley and the treating practitioners following return to Australia and also includes major depressive disorder as a “recurrent” episode, which is also consistent with the evidence of Dr Strauss.

119.   The applicable factor in this Instrument is 5 (b) being:

experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

120.   The expression “severe psychosocial stressor” is defined at paragraph 8 of the Instrument in the following terms:

“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;

121.   It is our view that this definition is of a lesser intensity than the qualifying factors under the PTSD Instrument and we are satisfied for reasons which follow that the applicant did experience a “severe psychosocial stressor or stressors” during his service in East Timor.

122.   Upon the evidence heard we are satisfied that there were “identifiable occurrences” that in fact did “evoke feelings of substantial distress” in the applicant as he described them to us in his evidence and as we have perceived and understood his reactions from reading the vast medical information made available to us including extensive clinical data.

123.   The applicant was very concerned and distressed shortly after arriving in Dili.  He was then exposed to an unauthorised discharge from a rifle of a colleague.  On the occasion when he observed an indigenous person carrying what could have been a weapon he was fearful that he may have either shot that person or shot other persons in the vicinity.  The applicant told us of his distress when he smelt blood in a domestic residence that had been evacuated and described walking across the floor of those premises where there was a presence of a sticky substance.  He also told us of his observation of dried blood on a roadway.  Later, the application became concerned that members of his unit who were on picket duty were not providing sufficient protection to him and others because they were asleep on duty.  The applicant reached the stage where he himself did not sleep because he knew that adequate protection was not being provided by persons engaged in picket duty.

124.   Spender J considered this definition in White v Repatriation Commission [2004] FCA 633 where His Honour concluded as follows:

27 On the conclusion by the Tribunal as to the absence of a "severe psychosocial stressor", I accept the submissions on behalf of the respondent that the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements.

28 The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at par 90, where the Tribunal stated that the examples given in the SoP are "examples of what is meant by ‘substantial distress’". In my opinion, the ordinary language of the definition makes it clear that the examples given are of the "identifiable occurrences" contemplated, not of "substantial distress". The examples are of "occurrences", not emotions.

29 The reference to "experiencing" a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase "experiencing a severe stressor" in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase "experiencing a severe stressor".

30 In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.

31 The Tribunal determined that the events relied on did not meet the objective requirements of an identifiable occurrence contemplated by the definition of "severe psychosocial stressor". Since both elements of the definition were necessary for there to be a severe psychosocial stressor, the Tribunal concluded that there was no "severe psychosocial stressor".

32 In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition of "severe psychosocial stressor" would be not only irrelevant and devoid of utility, but positively misleading.

125.   His Honour did refer to the examples of the “occurrences” which might evoke feelings of substantial distress as contained within the definition of “severe psychosocial stressor”.  In our view it is important to note that the occurrences as recorded are examples and are not definitive.  Consistent also with His Honour’s conclusions the occurrences as recorded by way of example do not constitute the “emotions”.

126.   We are satisfied upon observing the applicant in evidence and having read the clinical data that he did experience a “severe psychosocial stressor”, as defined.  It is our view that the applicant was exposed to events (refer earlier), which constitute objective “identifiable occurrences”, which subjectively, did evoke distress, which we regard as being substantial.

127.   Clearly the applicant was distressed at the potential of him having to shoot at another person and thereby putting other persons in the vicinity at risk.  He was also upset at the presence and smell of blood in what was formerly a domestic residence where, having regard to previous atrocities, it would have been reasonable in our view for him to infer that the blood was from other persons.  Equally in our view it was reasonable for him to infer that the presence of dried blood on a roadway was from other persons who had been injured or wounded.  All of those events in our view constitute occurrences, which clearly are identifiable, and which did evoke feelings of substantial distress in Mr Malady.  We are therefore satisfied that he did experience “severe psychosocial stressors” by reason of his service in East Timor.  We are satisfied that the condition of depressive disorder – first found within the clinical notes of August 2000 – clearly permits a finding that the experience of the “severe psychosocial stressors” did occur within two years before the clinical onset of the major depressive disorder.

128.   It is our view therefore that we are not satisfied beyond reasonable doubt that the condition of major depressive disorder is not war-caused.  That is to say we are satisfied beyond reasonable doubt that there is sufficient ground to determine that this condition is war-caused.

129.   The remaining two conditions as previously found by us as existing by way of diagnosis are alcohol dependence or abuse and drug dependence or abuse.  The condition of alcohol dependence or abuse is the subject of Instrument No 76 of 1998 which has existed throughout the assessment period.  The condition of drug dependence or abuse is the subject of Instrument No 78 of 1998 which has also existed throughout the assessment period.

130.   Both Instruments contain virtually identical factors which in this case are either factors 5 (a) and (b).  Factor 5 (b) in both cases does not apply because it refers to the “experiencing of a severe stressor”.  As we have found earlier in the analysis of the PTSD Instrument, we are not satisfied that the applicant did experience a severe stressor.  We note for the purposes of this part of the analysis that the definition of that phenomena in both of these Instruments is the same as the definition in the PTSD Instrument.

131.   However in both of these remaining Instruments the alternative factor applicable in our view is 5 (a) which is:

Suffering from a psychiatric disorder at the time of the clinical onset of . . .

alcohol dependence or abuse or drug dependence or drug abuse respectively.

132.   The definition of “psychiatric disorder” in both Instruments is identical being:

Any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV.

133.   The DSM IV publication that we have referred to earlier summarises Axis 1 and Axis 2 disorders at pages 26 and 27 respectively.  We note that major depressive disorder (which we have found earlier to exist) attracts a ICD Code 296 and depressive disorder attracts a ICD Code 311.  Those ICD Codes are referred to in paragraph 2 of the SOP with respect to the condition of depressive disorder.  Because the condition of major depressive disorder constitutes a “mood disorder”, it is an Axis 1 disorder of mental health and does attract a diagnosis under DSM IV.  (Dr Ridley supports our interpretation of DSM IV and the Axis 1 criteria by reporting on 1 December 2000 that major depression is an Axis 1 disorder – T‑documents, page 63).  It follows that the applicant suffers from a psychiatric disorder as defined under each of the Instruments with respect to alcohol dependence and drug dependence.

134.   Having regard to the clinical notes from the Austin and Repatriation Medical Centre, the reports of Dr Ridley and the notes of Dr Kingsley, together with the evidence of the applicant himself, there is much to suggest that the applicant was suffering a depressive disorder (being the “psychiatric disorder”) at the time of the clinical onset of his alcohol dependence and drug dependence.

135.   The applicant did consume alcohol prior to enlistment but on his own evidence he significantly reduced his consumption prior to travelling to East Timor and during his training immediately prior to his deployment.  He has subsequently consumed alcohol in enormous quantities where reference was made in the clinical notes to having spent, on one occasion, $150 upon alcohol in a binge session.  In his reports, Dr Ridley has consistently referred to the applicant’s abuse of alcohol.  Indeed in his report of 1 December 2000 to DVA, he obtained a history at first consultation of the applicant drinking 15 stubbies of full strength beer on each day of a weekend and drinking during the week.  Dr Ridley reported on 1 December 2000 that the applicant should enter a program to assist his cessation from consuming alcohol and cannabis.  At T‑documents, p63 he reported:

Michael Malady also has a co-morbid clinical diagnosis of abuse of both alcohol and cannabis and in my opinion this persistent and escalating abuse is at this stage his most immediate and pressing problem and is making the planning and the implementation of any psychological and medical strategies to assist him almost impossible to carry out.

136.   With respect to the SOP concerning drug dependence it would appear from the documented evidence of Doctors Ridley and Kingsley that the frequency, quantity and type of drugs consumed by the applicant over many years permits us to find that the applicant had in fact been drug dependent.

137.   Consistent with evidence of Dr Strauss the substance abuse (which for this analysis we interpret to mean both alcohol and drugs) is related to the major depression which for reasons found above we are satisfied has a connection with service (refer Transcript, page 78).

138.   Accordingly we are not satisfied beyond reasonable doubt that alcohol dependence and drug dependence are not war-caused.  Put in the alternative, we are satisfied beyond reasonable doubt that there is sufficient ground to determine that alcohol dependence or abuse, together with drug dependence or abuse, are war-caused.

139.   In the circumstances the decision under review should be set aside and in substitution the conditions of major depressive disorder, alcohol dependence or abuse and drug dependence or abuse are war-caused.  The application should be remitted to the respondent with the direction that pension be assessed in accordance with these findings.

I certify that the 139 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Mr E Fice, Member and
Associate Professor J H Maynard, Member

Signed:          Alice Beattie
  Associate

Dates of Hearing  27 October 2004
Date of Decision  28 July 2005
Counsel for the Applicant          Nil
Solicitor for the Applicant           Mr D De Marchi
Counsel for the Respondent     Mr G Purcell
Solicitor for the Respondent     Nil