McCarthy and Repatriation Commission - [2000] AATA 897

DECISION AND REASONS FOR DECISION [2000] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1737

VETERANS' APPEALS DIVISION )

Re Joyce Lillian McCARTHY
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date13 October 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review, being the decision of the Repatriation Commission dated 15 February 1996. In substitution therefor the Tribunal decides that the death of Leslie McCarthy was war caused, and that war widow's pension is payable to his widow, Joyce Lillian McCarthy, with effect on and from 6 August 1995.

..............................................
M T Lewis,
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war-widow's pension - whether cause of death was suicide – whether veteran suffered from depressive illness – whether veteran suffered from PTSD

Veterans' Entitlement Act 1986 ss 120(1), 120(3), 120A
Statement of Principles, Instrument No. 3 of 1994; Instrument No.15 of 1994; Instrument No.225 of 1995; Instrument No. 71 of 1996; Instrument No 177 of 1996; Instrument No. 58 of 1998

Repatriation Commission v Keeley (2000) 31 AAR 150
Thompson v Repatriation Commission [2000] FCA 939 (19 July 2000)
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

13 October 2000 Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 15 February 1996 that determined that the death of Leslie McCarthy ("the Veteran") was not related to his service. The Veterans' Review Board affirmed that decision on 17 September 1998. On 2 December 1998 Joyce Lillian McCarthy ("the Applicant") lodged an application for review by this Tribunal. All applications for review are in time, and therefore the earliest effective date is 6 August 1995, being not more than three months before the Applicant lodged her claim for war widows' pension.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal 1975. The following documents were lodged on behalf of the Applicant –

Statement of Joyce McCarthy dated 28 May 1999 (exhibit A)
Statement of Fred Menneke dated 9 June 1999 (exhibit B)
Statement of Dr Ben Haneman, MB, BS, FRACP, undated (exhibit C)
Report of Dr Michael D McGrath, psychiatrist, dated 28 October (exhibit D)

A report from Dr Maxine Walden, psychiatrist, dated 27 October 1999 (exhibit 1) was tendered as evidence on behalf of the Respondent. Dr Walden also gave oral evidence at the hearing. The Applicant, Dr Haneman and Mr Menneke on behalf of the Applicant gave oral evidence.
background
The Veteran was born on 2 January 1923. He served in the Australian Army from 5 February 1942 to 29 November 1945, including operational service in New Guinea.
After discharge from the Army the Veteran worked as a production manager in a plastics factory. It was the Applicant's evidence that for about two years before his death in October 1952 the Veteran experienced a marked personality change. The Applicant said that the Veteran became increasingly concerned about events of the Korean War, which was under way during the months before he died. He exhibited fear and apprehension that he might be required to serve in the Army. Following his death he was found on the railway line, having apparently been run over by a train.
the legislation and statements of principles
This application falls for consideration pursuant to s120(1) and (3) and s120A of the Veterans' Entitlements Act 1986 ("the Act"). Sub-sections 120(1) and (3) require the Tribunal to determine that the Veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his death with the circumstances of his service. Section 120A provides that where a claim is made on or after 1 June 1994, for the purposes of s120(3) a hypothesis connecting the Veteran's death with his war service is reasonable only if there is in force a Statement of Principles that upholds the hypothesis. Pursuant to s120A(2), if the Repatriation Medical Authority ("the RMA") has given notice under s196G that it intends to carry out an investigation in respect of a particular injury, disease or death, the claim must not be determined unless the Statement of Principles has been determined or the RMA has declared that it does not propose to make such a Statement of Principles.
The Tribunal notes that at the time the Respondent made its primary decision on 15 February 1996 there was no Statement of Principles for suicide. The first, Instrument 71 of 1996, was dated 21 May 1996. At the hearing on 21 January 2000 submissions were made on the basis of the decision of the Federal Court of Heerey J in Keeley v Repatriation Commission (1999) 30 AAR 48. On 28 April 2000 the Full Federal Court determined that matter on appeal in Repatriation Commission v Keeley 31 AAR 150. Subsequently, the Federal Court in Thompson v Repatriation Commission [2000] FCA 939 determined a related issue in a decision on 19 July 2000 which is now on appeal to the Full Court. The majority (Lee and Cooper JJ) of the Full Court held in Keeley at 165 –
Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: see Esber at 440-441; 255-256 per Mason CJ, Deane, Toohey, Gaudron JJ.

However, Kiefel J took a more cautious approach in his judgment in Keeley, saying at 173 –

I have not found it necessary, in applying s50 of the AIA, to consider the nature of Mrs Keeley's rights to review as "rights" which had "accrued" for the purposes of that provision. …
If Esber holds that a right of review is not to be regarded as affected by the alteration to a statutory provision relating to something which is the subject of a grant; or that the right of review is to be taken to encapsulate the claim to, or request for, that grant, then Mrs Keeley's case finds additional support…. It would appear that his Honour also took Esber necessarily to say that the right was one to a review according to the prior claim to redemption (at 515-516; 363-364). No finding of accrued right was however made in Esber, and any relationship between the matter applied for and the review is not explained in detail. ….The right in question under the AIA provision is of course that which accrued under the provision which is repealed or amended. The statutory change in Esber was to the provision relating to the claim for redemption, not to the right to review.
…
His Honour the primary judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree.

Then in Thompson the Federal Court held that –
The Act is…. "silent about the effect upon an accrued right to have the determination reviewed" when that determination was unaffected by an existing SoP,
…
In my view, it is "least likely to work or cause unfairness" (in the language of the majority in Keeley) if an intention is imputed to Parliament that, after a veteran (or his or her dependent) has made a claim on one legally relevant set of criteria and embarked on the exercise of a right of review of a claim so based, the substantive rules governing the claim should not be changed to the claimant's disadvantage.
The Statement of Principles for Suicide did not come into effect until after the primary decision of the Respondent on 15 February 1996. Thus when applying Thompson to the facts in this case, the Tribunal is not bound to apply that Statement in making its decision.
At the hearing of this matter, which was prior to both the decisions of the Full Court in Keeley, and Madgwick J in Thompson, the Applicant sought to rely on her accrued rights where they were to her advantage. The difficulty was that one of the Statements of Principles submitted to be relevant, viz Depression, that was in place at the time the primary decision was made, was not to the Applicant's advantage, and therefore, presumably, she would not seek to rely on it. Indeed, to avoid this position, but without articulating the reason, the Applicant sought to rely on the hypothesis that the Veteran suffered from post-traumatic stress disorder ("PTSD").
The Tribunal has decided to take a cautious and all inclusive approach to this matter, to avoid the possible continuing inconclusiveness of the case law and to avoid further delays in handing down its decision. The Tribunal will thus consider two alternative applications of the law. We shall firstly apply the Statements of Principle that appear to apply, as held by the Full Court in Keeley. Secondly, the Tribunal will consider the effect of Thompson, namely that the Suicide Statement of Principles does not apply in this case because it had not been determined at the time of the primary decision. Therefore the Tribunal will also determine the matter without using the Statement of Principles as a template in deciding whether the raised hypothesis is reasonable.
The Coroner's Report
The Coroner's report (T16) took into account a range of evidence including a statement from the Applicant and one from Sergeant Thomas. The Coroner left open whether the Veteran's death was "accidental or otherwise". He determined that death was the result of injuries caused by being struck by a moving electric train.
When the Veteran's body was found about 6 am on the railway track between Hurstville and Allawah stations, Sergeant Thomas noted that from the apparent point of impact the Veteran had been carried and then dragged by the train over a distance of some 120 feet. It was noted that the Veteran lived on the western side of the railway line and his father lived on the eastern side. He was able to go through the adjacent brickyards in the vicinity of where he was found, then to cross the railway line and get to his father's house.
The Applicant's evidence to the Coroner was that the Veteran had gone to bed about 9 pm on 12 October 1952. He had appeared "very worried". He then got out of bed and returned just before 10 pm. She did not hear him get up after that time. However, when she was woken about 3.30 am by her baby she found he had discarded his pyjamas and had dressed. She made some inquiries regarding his whereabouts about 7 am. She noted that during the previous week he was "run down and very nervous" and had difficulty sleeping. He had been nervous "for some time". He had attempted to visit his father the previous Saturday and appeared very upset that he was not at home. She thought the Veteran might have wanted to see his father. She said that Arthur Bruce visited the Veteran later on the Saturday morning and had "a long yarn" and after that the Veteran appeared to be more settled "in some ways". She stated that if he had walked along Forest Road he would have come to the brickyards, but she could not say why he would be walking along the railway line.
The Tribunal notes that chemical analysis of the Veteran's blood after his death showed that he had no alcohol in his blood.
The Applicant's evidence
The Applicant said in her written statement (exhibit A) that at the time of the Veteran's death they were managing quite well financially. After he returned from the war he returned to his old employment, and subsequently he was promoted to a managerial position. He was earning a good salary and they had been able to pay extra on the mortgage on their home. She said "when he wasn't in one of his moods, my husband was a loving husband and father". She said -
My husband had come home from work on the Thursday prior to his death complaining of severe headache. He was vague and withdrawn – not taking any notice of the children and wandering about the house seeming very agitated. At one time he closed all the windows and doors saying "they" were out there trying to get in. I assured him that there was no one there but he was still concerned. I was worried about his odd behaviour, but as I had a one month old baby and other children to attend to my attention was distracted. He made a token effort to eat his dinner and then retired to bed.
On the following day, my husband said that he wasn't well enough to go to work, and I rang his assistant at work to inform them that he wasn't coming in. My husband often complained of headaches and he had a dependency on Bex headache powders. My mother came to visit later and my husband again retired to bed. Because of our concern for my husband's wellbeing my father came to visit on Sunday.
On the night of his death, my husband asked me to read the 23rd Psalm. I was surprised at this request because he was not interested in religion and I did not think that he was familiar with the Psalm.
To my knowledge, he never took off his wedding ring, which he removed on the night of his death. His behaviour over the weekend seemed to be fatalistic, as though he thought that he was going to die or had to die. When I kissed him "goodnight" expressing the hope that he would be better the next day, he said, "Ah Joycie, what have I done to you and the kids". I tried to reassure him but apparently failed.
After my husband's death, that night after being hit by a train, I remember quite clearly the police sergeant saying to my mother in law and me that they will "fix things up". This was done I believe at the time to protect me and our children and avoid problems with any stigma associated with suicide.
Mr Arthur Bruce, my husband's work colleague and witness who identified his body, told me after my husband's death that he had had to remonstrate with my husband about his drinking habits.
Mr Arthur Bruce died in the 1970's. ….
The Applicant also made a written statement in support of her claim (T5). In it she noted that the Veteran served in an advance supply depot in Port Moresby, Buna, Kokoda and Lae. She noted that his letters contained terms such as "they were over again today" which she assumed to be a reference to enemy planes overhead. She noted that although the Veteran did not drink on discharge, he soon developed a dependency on alcohol. It was not until after his death that she was told by a workmate about the hours the men spent at the pub whereas the Applicant thought he was working overtime. She noted that he often worked on Saturdays and went to the pub afterwards. She noted that at times "we all walked warily so as not to upset him and cause an outburst of temper". She said that he was not physically violent but he was verbally aggressive which distressed the family and caused her family and friends to visit only when he was not at home.
The Applicant noted that during the weekend before the Veteran's death his behaviour was "most unusual". She said he "just sat about the house or retired to his bed". She said that when her father visited he commented on the Veteran's "withdrawn and morose manner" and suggested she should call a doctor. She explained in her oral evidence that this was not done because it was hard to get a doctor do house calls during the weekend. She said in her statement that on Monday when she woke to find his bed empty she had "assumed he had decided to go to work early to catch up after his absence on the Friday". In her oral evidence she corrected that and said "I didn't really assume that he decided to go to work early, I was hoping that he had … I was looking for excuses of why he wasn't there".
The Applicant said that when they visited the Veteran's parents they never walked. She said that the idea of the Veteran walking across the railway line to visit his father "was a suggestion that they made in order that people wouldn't think it was suicide". Normally they caught a bus to his parents' place, and if not, they walked through the subway, which was the most direct way.
In her oral evidence the Applicant provided details about the Veteran's heavy drinking and the verbal aggression that followed. This occurred two or three times a week. She noted that as well as drinking at the pub he drank at home on his own. She said that about 1948 or 1949 he ceased having his friends visit at home. He drank regularly at the pub after work from 4.45 to 6 pm in a group of six or seven, and each had to have a "shout". She was told by a work colleague after the Veteran's death that when it was his "shout" he consumed an extra beer at the counter while he was waiting for the rest to be poured. They drank schooners, and from this she estimated the amount he consumed. She said she doubted in retrospect that he worked on a Saturday. She now believes that he used this as a ploy to go to the pub. He was then away for three or four hours.
The Applicant recalled receiving a letter from the Veteran while he was still in the Army saying he took Bex "so he didn't get the headaches that he thought he was going to get". She considered that he developed a dependency on Bex, and he used the excuse "because I might get a headache".
The Applicant said that before the Veteran went into the Army he was "the life of the party", and he was "a very outgoing, jolly, entertaining person". She noticed his personality change in the three or four years before his death, but at another point in her evidence she thought the change started the year after his discharge from the Army. He stopped playing tennis in 1948 or 1949 because "he wasn't interested", whereas previously he had been a good player and played every weekend in summer. Similarly, about 1949 he stopped going fishing, swimming, visiting the beach or having picnics. Indeed he gradually ceased socialising and apart from attending work the only other thing he did was "potter around in the garden". After having dinner in the evenings he would go straight to bed. She thought that the alcohol he had consumed helped him to get off to sleep. He also got up early in the mornings, but she did not know how early. She said that sometimes he used to wake during the night and walk around the house.
The Applicant said that for about a year prior to the Veteran's death he had become quite agitated and upset about the Korean War and he feared that it would lead to World War III. She said he had discussed joining the Police Force so he would not be called up. She also said he rarely talked about the future. However in the period just before his death he said when he died he expected that she would marry again. Indeed, he had said that on more than one occasion. He had spoken about his dying since about 1949 and he had raised it about half a dozen times.

The Applicant said that sometimes if an aeroplane flew low over their house the Veteran would rush outside believing that it was going to crash.
The Applicant was not aware that the Veteran had consulted Dr Haneman. However she recalled that Dr Haneman had made a house call to see her daughter who had been ill at about the time of the Veteran's death. Dr Haneman had also treated the Veteran's father. The Veteran had a lot of faith Dr Haneman's skills. However he was not their regular GP.
Frederick Menneke
Mr Menneke was the Veteran's cousin. In his statement (exhibit B) he said that sometimes he went out socially with the Veteran after the War. He also said –
Although my cousin did not speak very much about his war experiences, he did mention to me that he served in an Advance Ordinance Supply Unit in New Guinea, and that his Unit followed the Japanese as they were being driven back.
Because of my cousin's proximity to the Japanese, and the fact that his Unit was handling ammunitions (which he suspected the Japanese had knowledge of), he said to me on a number of occasions, "We were subjected to frequent bombing raids at that time".

He said that these discussions occurred about 1950, but the Tribunal notes that he had significant difficulty in recalling the date, and at one point in his evidence he said it was about 1955, that is, after the Veteran's death. He said that he saw the Veteran on about three occasions after the War, and the Veteran spoke about his War experiences on only one of these occasions when they were having a few drinks at an hotel. He said that the Veteran told him about an evening while on service when "they did cop a fair bit of bombs because they were in this ammunition factory and they concentrated on that". The Veteran had told him that it was "pretty frightening". He also understood from the Veteran that they "copped so much of it, … it was so consistent, … so often".

Mr Menneke described the Veteran as "happy go lucky" and "great company" before the War. He knew him well before the war and saw more of him then than afterwards. He did not consider that the Veteran changed much after the War.
Dr Haneman
Dr Haneman's evidence was that he was in general medical practice in Carlton in 1952. He came to know the Veteran because he treated the Veteran's father and then the Applicant following the birth of her third child a few months before the Veteran died. He said that at the time of the Veteran's father's illness in 1952 the Veteran was "uptight and worried". In his written statement (exhibit C) he explained that –
This was during the time of the Korean War, and Leslie McCarthy had become convinced that he would be called up again. His previous experiences in the Army resulted in him becoming terribly depressed at his perceived prospect of fighting and life risking again…..
Vividly I recall how saddened I was about Leslie McCarthy's death, and of being sceptical of the account of his accidental death. All of the evidence pointed to depression and suicide – consultation of train timetables, he leaving his bed late at night to walk onto the line (he never normally walked across the line), and having his wife recite for him the 23rd Psalm. The Coroner's report suggested that he walked across the track rather than down the track and towards the train. In my opinion, however, suicide with prior depression was the most likely cause of death.
In his oral evidence Dr Haneman said that he had no clinical records of consultations with the Veteran and that he had left the practice in 1960. He said that he could not recall much about the Veteran's manner at the times he saw him, but he recalls vividly when he heard about his death. He said –
"it's a bit of a blot on any doctor's escutcheon to have a patient suicide, and naturally I sort of – it went through my mind whether there'd been any clues at the time. He seemed worried and upset and going on about the Korean War….

During the consultation Dr Haneman recalled there had been an issue about how much he disliked war and the danger of going to war and having to go through all that. Dr Haneman said he thought the Veteran's fears about the Korean war were unreasonable. He said that he satisfied himself at the time that there were "no very good markers" of depression in the Veteran at the time, but subsequently he realised that the Veteran must have been depressed. He said that the Veteran seemed to him to be "more anxious, troubled, perhaps a bit despondent about the future". He could not recall precisely why the Veteran had consulted him but he was sure that it was a formal consultation, only a few days or weeks before his death. He thought now that perhaps he had not taken an adequate history. He learned only later that the Veteran had been sleeping very badly and noted that was a marker for depression.

Dr Haneman recalled that the Veteran probably served in New Guinea and was "really in it". However he acknowledged that he had no knowledge of the Veteran's service experience.
Dr Michael McGrath
Dr McGrath, psychiatrist, provided a report dated 28 October 1999 (exhibit D). He concluded on the history obtained from the Applicant and the documents provided to him which appear to be the documents also before the Tribunal, that the evidence points to a finding of suicide as a culmination of a major depressive illness associated with PTSD and psychoactive substance abuse.
Dr Maxine Walden
Dr Walden, in her report dated 27 October 1999 (exhibit 1) did not consider there was sufficient evidence in the history to diagnose PTSD. The Tribunal notes that the history she took was consistent with the evidence before the Tribunal although the Tribunal has a more detailed history. Nor was Dr Walden able to determine on the history whether the Veteran suffered from alcohol dependence or alcohol abuse. Dr Walden noted that the Applicant did not specifically attribute the Veteran's crankiness towards her as being related to his alcohol use. However, that is not consistent with the evidence before the Tribunal. The Applicant noted the Veteran's increased irritability when he had been drinking. Dr Walden said there was no clear history that the Veteran experienced recurrent intrusive thoughts or nightmares about war experiences, nor that he persistently avoided stimuli associated with some traumatic war experience. She noted that only on one occasion he thought that an aeroplane was going to crash over their house. She said that sleep disturbance and irritability, whilst part of PTSD, are not specific to that condition.
Dr Walden considered that the description given to the Tribunal of the Veteran's behaviour in the few days prior to his death was consistent with acute depression. She said it was possible there was a persecutory delusion about people getting into their house, but this was not certain. She considered it "possible" that he had a depressive illness, but it was impossible to make an accurate diagnosis some 47 years later on the evidence available. Dr Walden said that she could not "state with any certainty" that the Veteran suffered from a definite psychiatric illness prior to his death or that his death was from suicide. She also said that even if he did have an acute depressive illness there was no evidence to relate that condition to his war service. Later, after becoming aware of further evidence before the Tribunal from the Applicant which she had not obtained in her history, Dr Walden considered it was more likely than not that the Veteran suffered a depressive illness just prior to his death.
In her oral evidence Dr Walden said she was unable to diagnose the Veteran having PTSD or a depressive disorder using the relevant Statements of Principles. She summarised her opinion about his condition vis a viz. the PTSD Statement of Principles by saying –
… if you look at the symptoms that are essentially in the first cluster which are about re-experiencing there's no clear history. If you look at the second cluster which essentially are about avoidance there was no clear history and if you look at the third cluster which is about arousal, essentially, then there are some symptoms but overall if you take all three clusters there's insufficient evidence to support the diagnosis.
However Dr Walden was not particularly concerned about the lack of identification of a specific stressor. She noted that the Veteran had served in an "arena of war" that was "a pretty difficult area". She added "I wouldn't particularly dispute the potential seriousness of some stresses. When she was advised of the evidence before the Tribunal about the nature of the Veteran's service in New Guinea in the ammunition depot and that he had experienced bombing of his unit she agreed that would have been a sufficient trauma to constitute a life threatening stressor in a diagnosis of PTSD.
In cross-examination Dr Walden conceded that she did not know when the Veteran first had sleeping problems. She acknowledged that the aeroplane incident a short time before his death was an instance of stimuli that reminded the Veteran of a war experience. She said that if there were other occasions when he was distressed by aeroplanes going over their house it was "a long bow to draw" but it was not inconsistent with being reminded of painful stimuli. She considered that there were many other reasons why one may be distressed by aeroplanes flying overhead. However she was not aware of any other reasons in this case. She conceded that when the Veteran became disoriented and closed the doors and windows of the house this was possible paranoid behaviour. However she considered that disorientation or delusional beliefs were inconsistent with PTSD. She said that distress was a "rare" cause of delusion. She agreed that his failure to eat for the few days before his death was "possibly" a symptom of psychic distress. She agreed that his symptoms had a "physiological/psychological basis". She also agreed that his confession to his wife about his previous girlfriend, and his wanting to have his wife read the 23rd Psalm, were actions to indicate that he could have been "existentially troubled" but not necessarily suicidal.
Dr Walden said that the history that the Veteran consumed alcohol and then went to sleep, and woke later in the night, is consistent with a depressive illness, but it could also reflect a sleeping habit. She said there is no specific pattern of sleep disorder associated with PTSD, but drinking is often associated with PTSD. Dr Walden said one sees irritability in cases of substance abuse, PTSD, anxiety disorders, depressive disorders and, indeed, a range of psychological conditions.
Dr Walden admitted during detailed cross-examination that she had not sought to explore a number of issues with as much detail as was necessary in order to be more definitive about a range of criteria listed in the Statements of Principles that might have been relevant in this matter.
Dr Walden said that if it were found that the Veteran had suicided, that would be a factor to consider in whether he had a depressive illness. She also agreed that although depression was not the only diagnosis on the evidence, if there were only two choices, then she considered it more likely that he suffered from depression than from no psychiatric illness. Other choices would be an organic condition, delirium secondary to a physical illness, a paranoid disorder – although she did not think there was strong evidence of a primary psychotic disorder. Dr Walden then said that a depressive condition was "quite possible". She also considered that Dr Haneman's oral evidence to the Tribunal about his consultation with the Veteran before his death added weight to the diagnosis of depression. Ultimately she said it was "more probable" rather than merely "possible" that the Veteran suffered from depression. Dr Walden also admitted that in coming to a diagnosis when writing her report she was referring to a standard of proof more of the order of "scientific proof". She clarified that it was unlikely that the Veteran had suffered from PTSD, and more likely than not that he suffered a depressive illness in the short period before his death.
submissions
It was submitted for the Applicant that there was an abundance of evidence that the Veteran suffered from a depressive disorder around the time of his death. Dr Haneman, the Veteran's general medical practitioner, considered, on reflecting on the presentation of the Veteran before he died, that he had been depressed and that his death was from suicide. It was submitted that a finding of suicide was not critical in this case, but that a finding of death from suicide was open on the evidence. In relation to the Coroner's findings, it was submitted that in the 1950s a finding of suicide would have been adverse to the family.
It was submitted for the Applicant that the Veteran had been exhibiting progressive unsociability for several years, together with a breakdown in normal social functioning. He exhibited discreet and short-term inability to cope with daily life and exhibited unusual behaviour – not going to work, being "out of sorts " with Mr Bruce who visited on the Saturday, and being upset at not being able to see his father. It was submitted that this caused the Veteran's nocturnal perambulations at the time of his death that took him out of the course of any possible destination that reasonably could be assumed. The Veteran's conduct at around the time of his death was bizarre and a reasonable hypothesis is the existence of a psychiatric disorder, and in particular that he suffered from PTSD, overlayed by a depressive disorder.
It was submitted that a depressive disorder is a route by which the Veteran could have come to his death, but it could also represent a cul-de-sac in terms of any liability under the Act, as it rests and falls on the existence of PTSD as set out in the Statement of Principles; that is, the depressive disorder arose as a complication of PTSD. Whether the Veteran met his death by suicide or not is irrelevant.
Counsel for the Applicant agreed with the comments made by Dr Walden in relation to the Statement of Principles for PTSD - namely that the evidence should not be approached in a piecemeal fashion so as to break the diagnosis down into components. However, there is still a need to meet the Statement of Principles. Dr Walden did not place too much weight on the stressor "either way", and she was prepared to infer that a man in the Veteran's position would have been subjected to a stressor although she did not elicit the relevant evidence from the Applicant. On that point the Tribunal is in a better position than Dr Walden because of the evidence before it. Both the Tribunal and Dr McGrath have had the benefit of the evidence of Mr Menneke who recalled the Veteran talking to him about bombers flying overhead all the time and that being "pretty frightening". It was submitted that the Tribunal should accept this as a stressor that meets the Statement of Principles.
It was submitted that Dr Walden asserted a hierarchy of symptoms of PTSD that cannot be found in the Statement of Principles. She did not specifically seek a history regarding the Veteran's alcohol habit, and therefore her evidence should be put to the side on that issue. Some of the evidence about symptoms was not considered by Dr Walden to be pathological, and as a result she was less inclined to come to a global view about the constellation of factors present.
It was submitted that the Veteran exhibited disturbed behaviour since 1949, and over the previous year or two behavioural changes were observed. Over a period of some four years there was a pattern of destabilised family functioning where previously family functioning was satisfactory, the Veteran's circle of friends decreased and were left feeling they were not welcome, and the Veteran demonstrated a general withdrawal of social functioning. The Veteran suffered from sleeping problems and symptoms of arousal consistent with PTSD. All these factors were considered by Dr McGrath to be significant in coming to his assessment. Some of these symptoms were ones that Dr Walden had not elicited in taking her history. Dr McGrath has taken a fuller history and had other relevant documentary evidence available to him.
It was submitted that there was no evidence that anything else was going on in the Veteran's life that could have caused him any problems at about the time he died.
It was submitted for the Respondent that the issue is whether the Statement of Principles for PTSD has been met and whether there was an underlying connection with the Veteran's war service. Relying on the evidence of Dr Walden, it was submitted that there is not enough evidence to sustain a diagnosis of PTSD. While Mr Menneke's evidence might satisfy that the Veteran had a personal experience of a frightening or stressful event that involved a threat to his life, the evidence did not satisfy the Statement of Principles. In particular the requirement that the Veteran's response involved a feeling of intense fear, helplessness or horror arising from the stressful event. Without evidence of such a response, behavioural traits that indicate the possibility of PTSD are irrelevant. It was submitted that finding the experiences "pretty frightening" was different to experiencing intense fear, helplessness or horror. It was also noted that one then had to re-experience that traumatic event in one or more of the ways set out in factors (i) to (v) in the Statement of Principles. It was Dr Walden's opinion that none of those factors were satisfied in this case. It was submitted for the Respondent that the Veteran's reaction to the aeroplane flying over his house was a one-off occasion when he was greatly distressed; indeed, he chose to live under a flight path and apparently did so satisfactorily except for that one occasion. This was therefore not an incidence when he was reliving a traumatic event. It was submitted for the Applicant in reply that his house was not under a flight path initially and therefore he did not choose to live under a flight path.
It was submitted for the Respondent that although the Applicant was critical of the history taken by Dr Walden, the evidence before the Tribunal does not vary greatly from that obtained by Dr Walden. Dr Walden was prepared to concede that persons in the Veteran's situation must have experienced relevant stressors. The Tribunal was urged to accept Dr Walden's evidence that the Veteran had not suffered from PTSD.
consideration of evidence and findings of fact
The Tribunal notes the geographical location of the Veteran's house vis a viz the railway line between Hurstville and Allawah, where his body was found, and the geographical location of Carlton where the Veterans' parents lived at the time. The Tribunal finds that this information does not support the suggestion to the Coroner that the Veteran might have been walking to visit his father at the time of his death. If he had been going to visit his father then the route he took was very indirect and would have necessitated him "doubling back", in the words of the Applicant, to reach that destination. The Applicant could not think of any reason why he would have gone to the railway line between Allawah and Hurstville, and admitted that the suggestion that he was attempting to visit his father was merely "clutching at straws". The Tribunal notes that the Veteran was killed just after 1 am.
The Tribunal notes the "open" finding of the Coroner in 1952 and the social stigma associated with suicide at that time. The Tribunal finds that there is considerable evidence before it that "points to" the Veteran's death being from suicide: in particular: his removing his wedding ring, requesting the reading of the 23rd Psalm, his discussions with his wife about his expectations that she would remarry in the event of his death, his morbid reference to the future, and his disturbed and apparently irrational and incoherent state of mind. There was little evidence before the Tribunal to suggest an alternative reason for the Veteran walking on the railway line between Hurstville and Allawah. In addition the Tribunal notes the Applicant's evidence that when Sergeant Thomas visited her to inform her of the Veteran's death he asked whether they had had a "row". This question by Sergeant Thomas, coupled with his reassurance to the Applicant that they would "fix things up" indicates to the Tribunal that Sergeant Thomas also considered that the Veteran may have died as a result of suicide.

Although other accidental causes of death have not been excluded completely, the Tribunal is reasonably satisfied that the Veteran's death was by suicide: Repatriation Commissionv Cooke (1998) 160 ALR 17. The Full Federal Court in Cooke held that the language of s120(1) and (3) supported the conclusion that the issue of whether a disease or injury existed was to be decided on the reasonable satisfaction standard of proof, as the evidence was far more readily available on that issue. By contrast, the more liberal standard of proof provided in s120(1) and (3) was appropriately applied to the "causation issue" since that involved events which, in many cases, occurred a long time previously. It was also held that s120(1) and (3) assumed the existence of a relevant disease or injury. The function of s120(1) and (3) was to specify the standard of proof for the determination of whether a disease or injury related to the operational service of the Veteran, that is, the causal connection issue. Applying Cooke to the matter now before the Tribunal, the standard of proof to determine the nature of the Veteran's death is the balance of probabilities.
The Tribunal notes that in Cooke there was no suggestion that the Tribunal should apply the relevant Statement of Principles in determining whether the disease exists. The Court held that s120(1) and (3) (and therefore, by implication, the application of s120A and the Statement of Principles) applies only [Tribunal's emphasis] to a "determination" that the disease is war-caused. In the matter now before the Tribunal, the only issue to be determined to the Tribunal's reasonable satisfaction, was the cause of the Veteran's death. The Tribunal finds that it was suicide. The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 sets out four steps to be taken in making a determination pursuant to s120(1) and (3) of the Act, applying the relevant Statements of Principles. Those steps, which the Tribunal is required to follow, are –
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). 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. (Tribunal's emphasis)
An hypothesis is raised on the evidence before the Tribunal that the Veteran's death resulted from suicide because of his distressed and depressed state of mind arising from his war service. At issue is whether the Veteran suffered from PTSD with associated depression, or alternatively from a depressive disorder, and whether they were due to his war service.
The Full Federal Court in McKenna v Repatriation Commission (1999) 86 FCR 144 has determined that, in the case of a complex hypothesis, for it to be "upheld" by a relevant Statement of Principles, each of its subhypotheses "would have to be so upheld". In McKenna, the claimed conditions were ischaemic heart disease and atherosclerotic peripheral vascular disease, each of which identified hypertension as a factor. In that case the Statement of Principles in respect of hypertension had to be met.
Applying McKenna to the matter now before the Tribunal, any diagnosable psychiatric illness suffered by the Veteran for which a Statement of Principles has been determined, which is part of the hypothesis about his death from suicide, must also be met in order for the hypothesis to be found to be reasonable.
The Applicant sought to rely on her accrued right in respect of that part of the hypothesis relating to the Veteran suffering from PTSD arising from his war service. Thus the Applicant sought to rely on the Statements of Principles in respect of PTSD, being Instrument No.15 of 1994, as amended by Instrument No.225 of 1995 (which has no material affect on the matter before the Tribunal). Instrument No 15 of 1994 defines "experiencing a stressor" and "post traumatic stress disorder" respectively (at paragraph 4) –
"experiencing a stressor" means the following (derived from DSM-IV):
(a)       the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)       the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a)       the person has been exposed to a traumatic event in which:
(i)        the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)       the person's response involved intense fear, helplessness, or horror; and
(b)       the traumatic event is persistently re-experienced in one or more of the following ways:
(i)        recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)       recurrent distressing dreams of the event;
(iii)       acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)      intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)       physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c)       persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)        efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)       efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)      inability to recall an important aspect of the trauma;
(iv)      markedly diminished interest or participation in significant activities;
(v)       feeling of detachment or estrangement from others;
(vi)       restricted range of affect (eg, unable to have loving feelings);
(vii)      sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d)       persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)        difficulty falling or staying asleep;
(ii)       irritability or outbursts of anger;
(iii)       difficulty concentrating;
(iv)       hypervigilance;
(v)        exaggerated startle response; and
(e)       duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f)     the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
It was noted for the Applicant that the Statement of Principles for Depressive Disorder (Instrument No. 3 of 1994) that was applicable at the time of the primary decision, was less favourable to the Applicant than the later Statement of Principles being Instrument No. 58 of 1998. It is therefore at issue whether the Applicant must rely on the Statement of Principles applicable at the time of the primary decision especially when that instrument is not favourable to her. Because of the difficulties that this presents the Tribunal will first consider the issue of PTSD in order to discern whether it is at all necessary to consider the alternative diagnosis of depressive disorder in the raised hypothesis.
The Statements of Principles in respect of Suicide or Attempted Suicide (Instrument No 71 of 1996, amended by Instrument No 177 of 1996) were not determined until 21 May 1996 and 9 December 1996 respectively, that is, after the date of the primary decision. Moreover, the Repatriation Medical Authority did not notify its intention to investigate this type of death in advance of making its determination. As noted already, the Tribunal will proceed to consider the evidence against the Statement of Principles in respect of Suicide and Attempted Suicide, without at this stage taking into account the Applicant's accrued rights. That instrument provides for the following factors –
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide or attempted suicide or death from suicide or attempted suicide with the circumstances of a person's relevant service are:
(a) being a prisoner-of-war before suicide or attempted suicide; or
(b)suffering from depression at the time of suicide or attempted suicide; or
(c)suffering from post-traumatic stress disorder at the time of suicide or attempted suicide; or
(d)suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide; or
(e)suffering from schizophrenia at the time of suicide or attempted suicide; or
(f)suffering from borderline personality disorder at the time of suicide or attempted suicide; or
(g)having experienced, witnessed, or been confronted with a traumatic event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or other, within the two years immediately before suicide or attempted suicide; or
(h)experiencing a severe psychosocial stressor or stressors within the two years immediately before the suicide or attempted suicide.
The suicide Statement of Principles defined "depression" as –
…any psychiatric disorder with depressive features, such as the following disorders as defined in DSM-IV:
(i)Major depressive disorder, ICD CODE 296.2 OR 296.3:
(ii)Dysthymic Disorder, ICD code 300.4;
(iii)Bipolar I Disorder, ICD code 296.5, 296.6 or 296.7;
(iv)Bipolar II Disorder, ICD code 296.89;
(v)Cyclothymic disorder; ICD code 301.13;
(vi)Mood disorder due to a general medical condition, ICD code 293.83
(vii)Substance-induced mood disorder, ICD code 291.8 or 292.84;
(viii)Adjustment disorder with depressed mood, ICD code309.0, 309.1, 309.4 or 309.28;
(ix)Premenstrual dysphoric disorder, ICD code 311;
(x)Minor depressive disorder, ICD code 311;
(xi)Recurrent brief depressive disorder, ICD code 311;
(xii)Depressive disorder not otherwise specified, ICD code 311; and
(xiii)Schizo-affective disorder, ICD code 295.7;
In the Statement of Principles on Suicide, PTSD was defined as –
…a psychiatric condition meeting the following description (derived from DSM-IV):
(a)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(b)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and instrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
"Severe psychosocial stressor" in the Statement of Principle on Suicide is defined as –
an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in 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.

In effect, the Suicide Statement of Principles has had the factors in the PTSD Statement of Principles built into it. The Tribunal will now consider those factors in relation to the raised hypothesis.

The Respondent has conceded that the Veteran was exposed to traumatic and life threatening events on service in New Guinea. The evidence of Mr Menneke was that the Veteran had told him these events were "pretty frightening". This evidence points to, rather than leaves open, the possibility that the Veteran reacted to these events with "intense fear" thus meeting the requirements of section A of the Statement of Principles. Before the Veteran's death he had a clear episode of an illusion of enemy aircraft flying overhead and needing to lock the doors and windows to keep the enemy out of his house, meeting the minimum conditions in section B of the Statement of Principles. In respect of section C the evidence pointed to the Veteran having avoided thoughts, feelings or conversations associated with his war service, avoided activities, places or people that arouse recollections of his war service, and that he demonstrated markedly diminished interest or participation in significant activities, eg. recreational activities previously pursued and socialising with his wife's family and friends. In respect of section D he had difficulty in sleeping and problems of irritability and outbursts of anger. He had suffered these symptoms for more than one month and they caused clinically significant distress and impairment in his social functioning. The evidence therefore meets the factors that as a minimum must exist in order to meet the PTSD Statement of Principles and the Suicide Statement of Principles.
In addition, the Tribunal notes that although depression is not a symptom of PTSD it is frequently associated with PTSD. The Veteran probably suffered from a depressive disorder, on the evidence of Dr Walden. That depression appeared on the evidence to become quite pronounced when the Veteran feared that the Korean war might escalate to World War III and that he might again be required to undertake war service. This evidence points to an hypothesis that because of the Veteran's distress about his traumatic experiences during his war service, he became concerned and depressed, albeit irrationally, that he would be subjected to further war service. The Tribunal notes that the term "depression" in the Suicide Statement of Principles, is defined as "any psychiatric disorder with depressive features" [Tribunal's emphasis]. A number of types of depressive conditions are then listed, by way of example, including "depressive disorder not otherwise specified". The Veteran's condition during the period just before his death meets factor 5(b) of the Suicide Statement of Principles, ie "suffering from depression at the time of suicide or attempted suicide". The Tribunal interprets that because of the way "depression" is defined in the Suicide Statement of Principles, while having regard to the Federal Court decision in McKenna, it is not essential in this case that any of the Statements of Principles in relation to depressive conditions must be met. It is sufficient that the Veteran was suffering from an unspecified depressive disorder. The link with his war service is through his PTSD, in that the depression occurred some time after the onset of PTSD. While it is possible that depression could merely have co-existed with PTSD without being associated with it, there is evidence that links the conditions. This includes: the Veteran's social behaviour, irritability and verbal abusiveness, particularly towards his wife and family, which distressed him just before his death, and his deep concern about the implications of the Korean war.
In applying the steps set out in Deledio (supra), pursuant to s120(3) the Tribunal determines that a reasonable hypothesis has been raised.
It is now necessary to move to the test in s120(1), where the Tribunal is required to find facts from the material before it. In so doing, the Tribunal must consider whether it is satisfied beyond reasonable doubt that the Veteran's death was not war caused. The Tribunal gives limited weight to the evidence of Mr Menneke, which had some inconsistencies. There was no suggestion that he was fabricating his evidence, but it was significantly limited by his inability to be articulate. However, the general thrust of his evidence was consistent with the rest of the evidence, and the Tribunal cannot be satisfied beyond reasonable doubt that the Veteran did not experience persistent air raids while on service in New Guinea, which he found to be intensely frightening.
The evidence of Dr Walden was provided by the Respondent to disprove the hypothesis that the Veteran had suffered from a war-caused psychiatric condition. However, the Tribunal finds that her diagnosis was hampered by her failure to take an adequate history from the Applicant and her use of a standard of proof more akin to scientific proof. In her oral evidence, Dr Walden modified her diagnosis. The evidence of Dr Walden does not disprove the raised hypothesis. It merely provided a conflict of medical opinion and raised other alternative hypotheses.

Considering all the evidence, the Tribunal is not satisfied beyond reasonable doubt that the Veteran's death was not war-caused. Therefore the decision under review is set aside, and in substitution therefor the Tribunal determines that the Veteran's death was war caused, and that the effective date for payment of war widow's pension to the Applicant is 6 August 1995.
In the alternative, the Tribunal will apply the decision of the Federal Court in Thompson, that the Applicant has an accrued right to have her matter decided without reference to the Suicide Statement of Principles that had not been determined at the time of the primary decision. The Tribunal finds that the evidence points to a reasonable hypothesis that is not fanciful or absurd, that the Veteran suffered from traumatic experiences during his operational service. Within a few years after he returned to Australia changes in his personality evolved, including a pattern of heavy drinking, irritability and verbally abusive behaviour, and markedly decreased sociability. Then, after the commencement of the Korean war the Veteran became depressed and agitated that it would escalate to World War III and he feared he would be involved in further war service. Within the last few weeks before his death he developed markedly irrational behaviour, with apparent preparation for his death by suicide. On the evidence before the Tribunal that reasonable hypothesis has not been disproved beyond reasonable doubt.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr P D Lynch, Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 January 2000
Date of Decision  13 October 2000
Counsel for the Applicant        Mr Vincent
Solicitor for the Applicant         Mr S Lurie
  Dibbs, Crowther & Osborne Solicitors
Solicitor for the Respondent    Mr J Sylvestre
  Department of Veterans' Affairs