Meaker and Repatriation Commission
[2005] AATA 1146
•18 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/146
VETERANS' APPEALS DIVISION )
Re RAY MEAKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date18 November 2005
PlaceBrisbane
Decision The Tribunal decides to affirm the decision under review.
........[Sgd].........
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s Entitlement Act – operational service in Vietnam – Deledio applied – war caused injury - anxiety disorder severe psychosocial stressor – decision affirmed.
Veterans’ Entitlements Act 1986 ss 119, 120, 120A, 196B
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Secretary, Department of Social Security v Murphy [1998] 809 FCA
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
White v Repatriation Commission [2004] FCA 633
Lees v Repatriation Commission [2002] AATA 98
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 200 ALR 332
Morgan v Repatriation Commission [2005] AATA 458
Repatriation Commission v Turner [2004] FCA 1184
Repatriation Commission v Stoddart [2003] FCAFC 300
Sparks v Repatriation Commission [2005] AATA 319
Schmidt v Repatriation Commission [2004] FCA 1158
Repatriation Commission v Crane [2004] FCAFC 86
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Gosewickel (1999) 59 ALD 690
Bull v Repatriation Commission [2001] FCA 1832
Fenner v Repatriation Commission [2005] FCA 27
Hill v Repatriation Commission [2005] FCAFC 23
Hardman v Repatriation Commission [2005] FCAFC 83
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Bey (1997) 79 FCR 364
Parnell-Schoneveld v Repatriation Commission [2003] FCA 153
Grundman v Repatriation Commission [2001] FCA 892
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Woodward v Repatriation Commission [2003] FCAFC 160
Haughey anc Repatriation Commission [2005] AATA 189
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 35
Sparks and Repatriation Commission [2005] AATA 319
Williamson and Repatriation Commission [2004] AATA 1185Stonehouse and Repatriaion Commission [2004] AATA 707
REASONS FOR DECISION
18 November 2005 Mr S C Fisher, Member Introduction and background
1. Mr Raymond Maxwell Meaker (the Applicant) served in the Royal Australian Navy from 7 July 1967 to 14 July 1977, including 4 periods of operational service in South Vietnam comprising the following periods:
- 8 – 30 May 1969;
- 17 November -- 5 December 1969;
- 16 February – 5 March 1970; and
- 21 October -- 12 November 1970.
2. The Applicant lodged a claim for "anxiety disorder" on 9 September 2004 with the Repatriation Commission (the Respondent). The Respondent made a determination on 8 October 2004 that the anxiety disorder of the Applicant was not war-caused. The Applicant appealed the 8 October 2004 decision to the Veterans' Review Board, which on 3 February 2005 affirmed the decision under review.
3. The Applicant appealed to this Tribunal on the Veterans' Review Board on 8 March 2005.
Jurisdiction
4. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA.. The Tribunal is guided by the norm that it should reach the correct or preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
6. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pensions and related entitlements.
The Material Before the Tribunal
7. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2First and Second Statements of the Applicant, both dated 16 May 2005.
Exhibit 3Undated Statement of the Applicant received 14 July 2005 by the Tribunal.
8. The Applicant was represented by Ms Bernadette Carter Nicoll of counsel. Ms Carter Nicoll was instructed by Streeting Haney Lawyers. Exhibits 2 and 3 were lodged on behalf of the Applicant.
9. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1.
10. The Respondent was represented by Mr Malcolm Smith a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
11. The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence for the Applicant
12. The Applicant gave evidence in person. In addition the Applicant called evidence from Dr Janis Carter, Psychiatrist, and Mr Alan James Murgatroyd.
Evidence of the Applicant
13. There were two events or incidents that the Applicant was involved in that were said to provide the link between the anxiety disorder of the Applicant and his operational service, namely, the first being the beach landing incident (which took place in Vung Tau Harbour on his first trip to South Vietnam between 8-30 May 1969 whilst the Applicant was on board the HMAS Sydney) and the second being the destruction of classified waste incident.
(1)Evidence of the Applicant relating to the beach landing incident
14. In one of the witness statements tendered by the Applicant to the Tribunal (Exhibit 2), the Applicant said the following in relation to the beach landing incident:
“ In my own words, I will explain why I feel that my anxiety is attributed to my war service.
I joint HMAS Sydney on Friday and the following Monday, sailed for Vietnam. During the voyage I was under training whilst doing watch keeping duties in the BWO (Bridge Wireless Office). A day before arriving at Vung Tau, I was instructed by RS Murgatroyd that I would be the going ashore on the first LCM to set up a position on the beach and act as the shore Radio Operator. I was required to be armed, so I was given a brief pistol training session aft of the flight deck, where I had difficulty with cocking and firing the pistol.
On arrival in Vung Tau, and after completing my watch keeping duties, I was given details by RS Murgatroyd of what was expected of me and where to set up my location on the beach as he was familiar with the area ashore.
I boarded the initial LCM with 6 RAR troops at around 0800 and disembarked at the jetty ashore. I then positioned myself about 50 mtrs away from the jetty on the beach area.
The LCM was loaded with returning 4 RAR troops and returned to the Sydney which was anchored offshore about 2 kms.
I was left alone on the beach during the exchange periods which I can recall lasted for about 4 hours in total. I had no provision, just a small water canister.
I can remember getting back on board Sydney just after lunch time and I was hungry. As described in my incident report, I was extremely distressed and terrified during the whole ordeal.
To be left in a vulnerable position on the beach alone as an immature and inexperienced 17 years old, I felt I was at risk and in danger. I kept asking myself, “what am I doing here, and what have I done to deserve to be left in a position like this. I was also thinking “what the hell am I supposed to do if there is an attack or if I’m not sure who’s who in the area – take a shot at them with the pistol?”
Even though there were soldiers disembarking and embarking at the pier about 50 metres away from where I was on the beach, they were probably not aware of my presence and would not interested in me and be of no help if a situation arose (eg if someone attacked me from behind).
With all the activity and noise being made from helicopters flying around (Chinooks coming and going from the Sydney and Hueys flying around the area) as well as fixed wing aircraft in the distance. I could hear what sounded like bombing and see smoke rising in the distant hills. I was scared stiff and panicking and at times just didn’t know what I was doing. There were periods when I wasn’t able to communicate with the operators on the ship due to my anxiety. My anxiety was further raised with the Radio Supervisor on the Sydney yelling at me on the voice circuit, saying that if I didn’t get my act together, I would be in big trouble and charged. I was shaking and became ill. I cried and I felt like running away from the whole situation, but there was nowhere to go until I could finally return back to the ship on the last LCM.
(signed)
16/5/2005
Clarification of statement made on Application for Qualifying Service.
The letter was sent with my Application for Qualifying Service form to DVA answering a question, what was my involvement with the war zone? I gave an overall big picture of the beach landing party and to give credibility to the statement, included being accompanied by the “beach patrol officer” who I think was either a midshipman or sub-lieutenant and I did not mention my positioning on the beach. The letter was not well constructed and inaccurately says a 38mm pistol instead of a 9mm pistol and LCH (Landing Craft Heavy) instead of LCM (Landing Craft Mechanical). I can recall the officer being stationed at the After Ladder Bay on the Sydney, directing operations for the LCM loading. I cannot remember if the officer actually came aboard the LCM and went ashore. If he did, he certainly was not with me on the beach. I think there may have been, but cannot say for sure if an Army Officer was with the soldiers aboard the LCM. On landing, I was stationed by myself (alone/isolated) on the beach, about 50 metres from the Pier where the soldiers were being transferred to and from the LCM’s. I received my instructions from the ship’s radio operators and supervisor only and had no further contact with the beach patrol officer.
(signed)
16/5/2005”
15. This account relating to the beach landing incident was supplemented by the following oral evidence of the Applicant:
- The Applicant said that he didn't cope with training relating to the use of the 9 mm pistol.
- The Applicant said that he had no training regarding beach landing.
- The Applicant said that he broke down and lost his voice whilst alone on the beach. The Applicant said that he felt sick in the stomach and later vomited.
16. In cross-examination, the Applicant agreed that the conflict was "miles away". In re-examination, the Applicant said that there were people on the beach, but that they were 50 m away and had no interest in him. The Applicant said that during his recruit training, he was not made aware that he would be required to operate radio equipment on beaches adjacent to disembarkation points for troops.
(2) Evidence of the Applicant relating to the destruction of classified waste
17. In connection with the destruction of classified waste incident (which took place on the second trip of the Applicant to South Vietnam between 17 November -- 5 December 1969), a document prepared by the Applicant tendered to the Veterans' Review Board hearing included the following excerpt relating to this incident:
“ 2. Confined Spaces – Classified Waste Burning
On my second trip to Vietnam on HMAS Sydney in November 1969, I was assigned as the communications operator responsible for the destruction of all classified waste. This waste was paper generated from signals received on teletypewriters in the Bridge Wireless Office and from signals duplicated in the Main Signals Office.
The method of destruction used during the operational voyage, was to take large paper bags containing the signals down to the Boiler Room and then burn them by feeding the paper waste directly into the fire of the open boiler. I was required to enter the boiler room through airtight doors and then climb down a number of ladders during heavy weather whilst struggling with the bags of waste to reach the boilers. At one stage I slipped off a ladder and fell onto the boiler room deck with the contents of a bag spreading everywhere.
Due to a combination of extreme heat and the danger associated with the operation, I was unable complete the full task of destroying about 20 bags of the classified waste. I was edgy and frightened in the confined space and became extremely distressed until eventually I had to be evacuated from the Boiler Room.
My Radio Supervisor was informed of the problem and he agreed that the operation was too stressful and dangerous for me to continue. The remainder of the classified waste and future waste was stored in TR2 Lower (Transmitting Room) and taken ashore for disposal on return to Garden Island, Sydney.”
18. The oral evidence of the Applicant on the destruction of classified waste incident was consistent with the documentary evidence of the Applicant.
19. The Applicant said that he did not seek any counselling from the Navy after these incidents. The Applicant said that he suppressed his emotions, because he was afraid to harm his promotion prospects.
Evidence of Mr Murgatroyd
20. Mr Alan James Murgatroyd provided both a written witness statement and gave evidence to the Tribunal. Mr Murgatroyd was the supervising senior radio operator to whom the Applicant reported. The written statement of Mr Murgatroyd was to the following effect (it formed part of Exhibit 1):
“To Whom It May Concern
I would like to confirm that the statements made by Raymond Meaker about his service onboard HMAS Sydney during the Vietnam war are correct.
I was his Supervisor during the periods he mentions and I remember the incidents he describes. What he said happened, did happen.
I further state that I am not particularly proud of the way I handled the situation with Ray, I had gone ashore to the disembarkation area on a previous voyage, and it came back to haunt me some time later – and it still does.
Yours sincerely,
(signed)
Alan Murgatroyd
Ex CPORS p/n R54478
PO Box 525 Airlie Beach Qld 4802
Tel 0407006685
2nd November 2004
The statements in paragraph one are specifically-
1… Beach Landing Party
2… Confined Spaces, Classified Waste Disposal”.
21. In his oral evidence, Mr Murgatroyd said the following:
- The Applicant was "twitchy" before the beach landing incident. Mr Murgatroyd said that he noticed that the Applicant experienced trepidation before he went ashore. The Applicant told Mr Murgatroyd that he was "not real happy about going" ashore to do the radio operations work from the beach.
- Mr Murgatroyd said that after the boiler room incident involving the destruction of classified waste, procedures were changed to prevent a repetition of what had happened to the Applicant.
- In response to a question from the Tribunal, Mr Murgatroyd said that the Applicant did relay to Mr Murgatroyd personally the effect that the beach landing incident had on him.
Evidence of Dr Carter
22. Dr Janis Carter, Psychiatrist, provided evidence on behalf of the Applicant by means of her report dated 28 September 2004 and also gave evidence in person. Some of the key analysis and findings of Dr Carter from her 20 September 2004 report are as follows.
“The stressors already described in terms of 5(a)(ii) I believe were severe psychosocial stressors that occurred within the two years immediately before the clinical onset of his anxiety disorder. The anxiety disorder from which he suffers, in my opinion, is generalised anxiety disorder, where:
A. He has excessive anxiety and worry, with apprehensive expectation, which occur on more days than not, over a continuous period of more than six months. It dates back to during the time of his service in Vietnam, and started at the time he was learning to use a pistol on board and couldn’t master it in enough time, and then was sent alone from the ship to be in the beach landing party, and felt abandoned during that time.
B. He has found his worry difficult to control since then. He doesn’t have the same amount of worry all the time every day, but when he’s under pressure he gets extremely worried. He gets particularly worried when he feels he’s asked to do something that he may not be able to mast as quickly as other people can.
C. His anxiety and worry is associated with the following symptoms:
(1). He feels restless and keyed up and on edge. This happens all the time when he feels under pressure, and happens in many life situations.
(2). He finds that since the time in Vietnam he becomes easily tired. He doesn’t seem to be able to take as much pressure as he did beforehand, and needs to rest and recoup his strength before he can go back into the stressful situation.
(3). If he feels under pressure he has difficulty concentrating, and at times his mind even goes blank, and there’s ample evidence of this occurring, when he was trying to learn too fast how to use a pistol and when he showed other concomitants of anxiety such as stuttering, losing his voice, and his mind going blank as well.
(4). If too much pressure is put on him, he can become quite irritable. He has a couple of staff under him at work. He is the purchasing and stores officer in the maintenance section at the University of Queensland, and when he feels under too much pressure he jumps down the throat of his subordinates, which he certainly wishes he didn’t do.
(5). He has muscle tension. He feels that in the upper fibres of trapezius and in his neck, and also up the back of his head. Occasionally this even goes so far as to cause him to have a tension contraction headache from the constant tension in those muscles. At this interview he is extremely tense, and he has pain in the middle of his back, which just from his appearance seems to be due to the tension he feels in the performance of this interview to do the report.
(6). When he is very anxious he has difficulty falling asleep, and has restless, unsatisfying sleep. He describes this from the early days after that beach landing party, and for the period when he returned to Darwin. It has been a constant. It seemed a though his capacity to cope with stress was taken beyond its limit when he was in Vietnam at that landing party, and the antecedents of that.
D. The focus of his anxiety and worry is not confined to the features of any other Axis I disorder.
E. The anxiety, worry and physical symptoms cause him clinically significant distress and impairment in his social, occupational and other important areas of functioning.
F. The anxiety and worry are not due to the direct physiological effects of a substance or of a general medical condition, and they do not occur exclusively during a mood disorder, although at times he does become depressed if he’s been worrying too hard for too long, or a psychotic disorder, or a pervasive developmental disorder.”
23. Other pertinent portions from Dr Carter's evidence are set out below:
- Dr Carter said that the Applicant suffered a panic attack during the beach landing. Dr Carter attributed this episode to the anxiety of the Applicant experienced because of his apprehensiveness about being involved in a war zone and at being placed as a radio operator on the beach for the purposes of the disembarkation of troops.
- Dr Carter said that after the Applicant completed his service on the HMAS Sydney in December 1970, he was posted to HMAS Coonawarra in Darwin. During that time, he had severely impaired sleep and woke frequently, and had recurrent nightmares of his experience on the beach at Vung Tau Harbour.
- Dr Carter noted that during the destruction of the classified waste incident, the Applicant reported that he found the incident too stressful and that he had to be evacuated from the boiler room.
- Dr Carter discounted post traumatic stress disorder because the Applicant did not satisfy Criterion A.
- Dr Carter said that by nature the Applicant is a very serious, industrious and a perfectionist type of person.
- Dr Carter stated that the Applicant experienced a severe psychosocial stressor that occurred within the two years immediately before the clinical onset of his anxiety disorder (referring to clause 5(a)(ii) of the SoP for Anxiety Disorder (Instrument No 1 of 2000)).
- Dr Carter concluded her 28 September 2004 report in these terms:
“This veteran presents with one major stressor, when he was alone on the beach in Vung Tau as part of the landing party. This was the anointing of his anxiety disorder, and he’s had it ever since that time. It was brought about by feelings of failure, inability to be able to respond and react quickly enough, machinery not operating, feelings of abandonment and loss, associated events like stuttering and losing his voice, and not being able to contact his ship, as well as being abandoned in between ship movements, and also the associated stressors of hearing bombing in the distance, and helicopters and fixed wing aircraft flying around, and felling alone in a very exposed area with just a pistol to save him, and he wasn’t sure he could operate the pistol.”
24. In her oral evidence, Dr Carter stressed that the Applicant was very young when the beach landing incident occurred (17 years of age). Dr Carter said that the onset of the generalised anxiety disorder the Applicant suffered from could be traced back to the beach landing incident. Dr Carter said that the boiler room incident came after the beach landing incident, and that the Applicant was then experiencing anxiety. Dr Carter said that before the beach landing incident: the Applicant experienced performance anxiety because of the challenge presented by tasks assigned to him.
Evidence for the Respondent
25. The Respondent did not call any evidence.
Issue
26. The central issue in this case is whether the Applicant's condition of "anxiety disorder" is war-caused or not.
Applicant’s Submissions
27. The Applicant relied principally on factor 5(a)(ii) (and to a lesser extent on factor 5(a)(v)) of the SoP for Anxiety Disorder (Instrument No 1 of 2000). Relevant excerpts from the written submissions of the Applicant are extracted next.
28. The Applicant contends that the events described above were severe psychological stressors within the meaning of the Statement of principles. The definition under section 8 of the Statement of Principle for Anxiety Disorder states: “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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
29. In White v Repatriation Commission [2004] FCA 633 where Justice Spender describes “severe psychosocial stressor” he states at para 27-28, 30: “On the conclusion of the Tribunal as to the absence of a “severe psychosocial stressor”, I accept the submission on behalf of the respondent that the concept of “experiencing” a “severe psychosocial stressor” in the SoP embodies both objective and subjective elements.
30. The reference to “an identifiable occurrence” is objective. The examples given in the definition are of the kind of “identifiable occurrence” that are contemplated. Counsel for the applicant Mr Darren Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at para 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 are of the “identifiable occurrences” contemplated, not of the “substantial distress”. The examples are of occurrence and not of emotions.
31. The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 per Mansfield J, in relation to the phrase “experiencing a severe psychosocial 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….
32. In Morgan v Repatriation Commission [2005] AATA 458 at [37]-[41], especially at [40] and [41].
33. The facts of this case are similar to Morgan. He was only 17 when placed on the beach alone with a 9mm pistol which he had trouble learning to use in the brief course he had been given on the ship. Although there were other troops marching up and down the beach and landing they were not concerned or given any formal duty to protect the communications officer. He was legally only a child at 17 and even in today’s terms would still only be considered a boy since the legal age of an adult now is 18 but then was 21. If he was in the Army or Airforce he would not have been allowed to go to war and the Navy near the end of the Vietnam war stopped sending boys who were 17 to war. He had little training and his first posting after his initial training was to the HMAS Sydney were within three days he was sent to war. There is evidence that he could not cope with this mission and was even threatened with disciplinary action because he was so nervous and began to stutter. He was on the beach without any other communication’s person for a period of 4 hours.
34. The second incident which occurred within 6 months of the first incident he was just 18 and asked to go into a hot confined space and dispose of 20 large paper bags full of paper communication data. He slipped and fell in the hot confined space and needed to be retrieved. We argue that the first incident caused him the anxiety disorder and being alone on the beach and that this incident within 6 months aggravated the existing anxiety disorder. Factor 5(a)(v) of SoP.
35. He was not offered any counselling or treatment for the anxiety after either incident where he had symptoms of bad sleep and nervousness and under 5(c) he had an inability to obtain appropriate clinical management for anxiety disorder. The Federal Court have recently examined an inability to obtain appropriate clinical management in Repatriation Commission v Turner[2004] FCA 1184. The AAT and then the Federal Court took into account the cultural barriers in the Navy for seeking clinical management as well as the Psychiatric condition.
36. The subjective and objective tests were discussed in the case of Stoddart v Repatriation Commission [2003] FCA 334 with respect to severe stressor: “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.
37. In the Full Federal Court decision of Repatriation Commission v Stoddart [2003] FCAFC 300 the court examined the objective test. This case is in relation to the SoP for Post Traumatic Stress Disorder. Woodward v Repatriation Commissionwas applied where it was found that the definition did not require there to be an actual threat judged objectively and with full knowledge. “the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
38. The Applicant had two stressful events which the applicant states caused his diagnosed anxiety disorder. The first was being sent at 17 to man a communications posts on a beach without anyone else there and after having trouble with his training on a 9mm pistol which was on ship. The second incident was within 6 months he fell down a ladder in a boiler and had to evacuate. He was already suffering an anxiety disorder at this time of falling over in the boiler room. No medical or debriefing was offered. It is submitted that he has satisfied the SoP for Anxiety Disorder No.1 of 2000.
Respondent’s Submissions
39. In his oral address, the advocate for the Respondent made the following submissions:
- The Respondent contended that Repatriation Commission v Stoddart [2003] FCAFC 300 was not applicable to the case in point. The Respondent argued, in effect, that Stoddart stood for the proposition that the notion of a threat possesses both objective and subjective elements, and that both of these elements are necessary. The Respondent contended that however much subjectively the Applicant felt that he was under threat in the sense of experiencing a severe psychosocial stressor, nevertheless the objective circumstances pointed away from the experience of a severe psychosocial stressor.
- The Respondent argued that White v Repatriation Commission[2004] FCA 633 at [30] supported the necessity for the conjunction of both subjective and objective elements to support the application of the definition of "severe psychosocial stressor". The Respondent argued further that White v Repatriation Commissionat [32] required the Tribunal to discard from the ambit of an "identifiable occurrence" any event which is trivial or innocuous when viewed objectively. The Respondent contended that both the beach landing incident and the destruction of classified waste incident were both trivial or innocuous. The Respondent contended further that White v Repatriation Commission was a case where the incidents which affected the veteran in that case were more serious than the events and incidents which happened to the Applicant in this case.
- The Respondent referred also to a decision of this Tribunal in Sparks and Repatriation Commission [2005] AATA 319 at [25] [“At no time was the Applicant under any personal attack or threat. The Applicant did not experience an event of the severity of the events mentioned in the definition [of "severe psychosocial stressor" within SoP No 1 of 2000]. Those events are such as to severely compromise a person’s health or social and financial supports.”) The Respondent contended that the present case was analogous to Sparks and Repatriation Commission, and that the Tribunal should similarly find that the Applicant did not experience a severe psychosocial stressor.
- The Respondent sought to distinguish the reliance by the Applicant on Morgan and Repatriation Commission [2005] AATA 458, and in particular the factual similarities about being confined in a gun turret (Morgan and Repatriation Commission) with the boiler room incident in the present case. The Respondent argued that Morgan and Repatriation Commission presented a very weak analogy or comparison to the present case.
The Legislation
40. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts (the summary of the Full Court of the Federal Court in Repatriation Commission v Crane [2004] FCAFC 86 at [15] is similar):
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
41. The standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is “war-caused” where a claim relates to operational service is found in sections 120(1) and (3) of the Act.
42. In Repatriation Commission v Stoddart [2003] FCAFC 300 the Court clarified the operation of these sections, after referring to the decision of the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564. The Full Court in Stoddart said at [12]:
“In substance, the appellant is required to find that a disease is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. It is directed to be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the operational service of the Applicant.”
43. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant Statements of Principles (SoPs) devised by the Repatriation Medical Authority.
44. In cases such as the present, the approach for decision makers is guided by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio approach, it must be satisfied (to a standard of reasonable satisfaction) the Applicant suffers from a medical condition.
45. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder pursuant to section 196B(2) of the Act. Section 120A of the Act says the reasonableness of the hypotheses must be assessed against the relevant SoPs. A SoP is brought into existence in order to comply with section 196B of the Act: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. There were no determinations of the Repatriation Commission under subsection 180A(2) of the Act that are relevant to this case, and the parties did not contend to that effect.
46. Section 196B(14) of the Act sets out the relationships to service contemplated by the SoPs, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
Tribunal’s Reasons
47. The Tribunal proceeded as follows.
Diagnosis
48. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act and Fogarty v Repatriation Commission [2003] FCAFC 136 at [34] per Kenny J (Spender and Tamberlin JJ concurring); citing Benjamin v Repatriation Commission (2001) 70 ALD 622 (“Benjamin”), at 634 (Moore, Emmett and Allsop JJ); Repatriation Commission v Cooke (1998) 90 FCR 307, at 310-311 (French, Drummond and Carr JJ); Repatriation Commission v Budworth (2001) 116 FCR 200, at 204-205 (Ryan, Marshall and Conti JJ); Repatriation Commission v Hill (2002) 69 ALD 581 (“Hill”), at 598-599 (Black CJ, Drummond and Kenny JJ); and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at 700-702 per Weinberg J. On the basis of the medical evidence before the Tribunal (refer to the medical evidence provided by Dr Janis Carter), the Tribunal is satisfied the Applicant suffers from generalised anxiety disorder.
The Deledio steps
49. In Delediothe Full Federal Court summarised (at 97-98) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“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 a 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.”
50. The Full Court of the Federal Court made a correction to the second sentence of the above formulation in Bull v Repatriation Commission [2001] FCA 1832 at [14]; (2001) 34 AAR 326 at 330: see Fenner v Repatriation Commission [2005] FCA 27 at [13]. This correction is not material to the present appeal.
51. Despite the occasional deviation (see Hill v Repatriation Commission [2005] FCAFC 23 and Hardman v Repatriation Commission [2005] FCAFC 83 at [32]) the four step Deledio template continues to be normative in veterans’ jurisprudence, and it will be followed in this case consistently with the well-known stream of authority in this domain. The Tribunal noted that the four step Deledio template is cumulative, that is to say it is necessary to satisfy each of the four steps if a veteran's claim is to be accepted as war-caused within the meaning of the Act.
The Mines Preliminary Step
52. In Mines v Repatriation Commission [2004] FCA 1331, Gray J made these important observations about the Deledioreasoning process:
“[37] …The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
53. Gray J went on to say -
“[38] …Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” …
54. This concludes the preliminary or antecedent investigation before the first Deledio step is applied.
55. Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission [2004] FCA 1331 at [37]. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the Applicant has a medical condition in the nature of a mental ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely generalised anxiety disorder. The Tribunal is satisfied also that the Applicant rendered operational service in an operational area and indeed this was common ground between the parties.
Application Of The Law To The Injury Alleged To Be War-caused
The first Deledio step
56. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the injury to the service rendered. The Applicant's contention is that his generalised anxiety disorder is related to service.
57. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g) (see also Fenner v Repatriation Commission [2005] FCA 27 at [26] – [ 29], citing Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153 at [46]; (2003) 74 ALD 37 at 43 per Jacobsen J. and Grundman v Repatriation Commission [2001] FCA 892 at [33]; (2001) 66 ALD 125 at 135 per Gray J). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
58. Based upon the evidence before the Tribunal, the Tribunal is satisfied that there is a hypothesis linking the Applicant’s generalised anxiety disorder with his operational service. In particular, the hypothesis arises from the service-related onset of the anxiety disorder. The evidence discloses that the initial symptoms of anxiety disorder, including nightmares and diarrhoea, began shortly after the beach landing incident. The symptoms of the Applicant continued after his South Vietnamese service ended. This hypothesis was not really challenged by the Respondent. The Tribunal notes that the present case is not one of those cases where the anxiety disorder of the Applicant was due to a general medical condition. In other words, the anxiety disorder is of the type known as an anxiety disorder not otherwise specified.
The Second Deledio Step
59. The second Delediostep is to determine the relevant SoP. In this case, the relevant SoPs is: Anxiety Disorder (Instrument No 1 of 2000). Again, this was common ground between the parties.
The Third Deledio Step
60. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 36. The Tribunal cannot make findings of fact at this point. Consistently with what the Full Court of the Federal Court said in Hardman v Repatriation Commission [2005] FCAFC 83 at [32], the Tribunal should not be diverted into convoluted hypothetical reasoning by their mechanical an application of the Delediosteps in this case.
61. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b) of the Act). The relationship to service must be one of the relationships prescribed in section 196B(14) of the Act: Haughey and Repatriation Commission [2005] AATA 189 at [63].
62. Relevant excerpts from the SoP for Anxiety Disorder (Instrument No 1 of 2000) (“SoP No 1 of 2000”) are set out next:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, “anxiety disorder” is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder;…
Other definitions
8. For the purposes of this Statement of Principles:
“anxiety disorder not otherwise specified” means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood”;
“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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
63. The parties did not contend that any other factor as mentioned in Clause 5 of SoP No 1 of 2000 was relevant. For itself, the Tribunal is not satisfied that the evidence triggered the application of any of the other factors laid out in Clause 5.
64. Clause 4 of SoP No 1 of 2000 requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the meaning of clause 8 of SoP No 1 of 2000. What is disputed (as was argued in effect by the Respondent) is whether the Applicant developed generalised anxiety disorder because of his operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of SoP No 1 of 2000 does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.
65. As the forensic debate in this case unfolded during the hearing, it was clear to the Tribunal that the critical issue in terms of applying the third Deledio step is whether the evidence before the Tribunal raises a reasonable hypothesis connecting the generalised anxiety disorder of the Applicant with his operational service. In order for the hypothesis to "fit" the template provided in the SoP, it has to be consistent with it in the sense that section 196B prescribes.
66. The chain of reasoning from SoP No 1 of 2000 is as follows. First, the veteran must suffer from generalised anxiety disorder. In this case, the Applicant clearly does (and the Tribunal noted that the Respondent did not call any medical evidence to act as a counterweight to the evidence presented on behalf of the Applicant). Secondly, the generalised anxiety disorder must stem from one of the Clause 5 factors. In this case, the parties were agreed that Clause 5(a)(ii) is relevant, and the Tribunal is satisfied that this was correct and, moreover, that none of the other factors mentioned in Clause 5 were relevant on the evidence before it.[1] The Tribunal examines this matter more closely below. Thirdly, at least one of the Clause 5 factors must be related to any relevant service of the Applicant (see Clauses 4 and 6).
[1] Clause 5(a)(v) was mentioned in closing submissions by the Applicant, but this was given little forensic attention by the parties.
67. The Tribunal turns to examine Clause 5(a)(ii) more closely as foreshadowed above.[2] One of the leading decisions on whether a person suffers a severe psychosocial stressor is White v Repatriation Commission [2004] FCA 633. This was a decision on the application of the very same SoP that is at issue in this case.
[2] The temporal requirement of two years between experiencing the severe psychosocial stressor and the clinical onset of anxiety disorder was not in dispute in this case.
68. In White v Repatriation Commission, Spender J reasoned 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.
….
[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.”
69. The two events that are said to be causative of the generalised anxiety disorder suffered by the Applicant are the beach landing incident and the destruction of classified waste incident. The Tribunal noted that in her evidence, Dr Carter emphasised the former incident.
70. Using the objective/subjective frame of reference mandated by White v Repatriation Commissionproduces the following reasoning. The Tribunal finds that the beach landing incident and the destruction of classified waste incident did in fact cause substantial distress in the Applicant. But this is not enough. White v Repatriation Commissionalso requires that objectively, these two incidents individually must amount to an identifiable occurrence which is capable of causing or inducing substantial distress (see [30]). Another way of looking at the same issue is to examine its nature (which reasoning in terms of a hybrid objective/subjective frame of reference does in its essence). Objectively speaking, the nature of the beach landing incident is that the Applicant was placed about 50m away from infantry troops that were disembarking from landing craft in order to operate radio equipment. Nothing happened to the Applicant that caused him substantial distress that is analogous to the occurrences described in the definition of ‘severe psychosocial stressor” in the SoP. The Applicant was fearful about the potential for personal danger (which is understandable, given his young age at the time (17) and his relative inexperience in military service). This Tribunal repeats what was said in Sparks and Repatriation Commission [2005] AATA 319 at [26]:
“In this respect it has been recently held by this Tribunal that ongoing fear about what may possibly occur is not “an identifiable occurrence” within the meaning of the definition of severe psychosocial stressor : see Williamson and Repatriation Commission [2004] AATA 1185.”
71. This is not an identifiable occurrence, but rather the absence of an identifiable occurrence. The beach landing incident did not expose the Applicant to any event which severely compromised his health. The potentiality for this is another matter, and in any case it is irrelevant (see Sparks and Repatriation Commission [2005] AATA 319 at [26] and Williamson and Repatriation Commission [2004] AATA 1185 at [54]).
72. Using the words of Spender J in White v Repatriation Commission, an event that is, objectively, trivial or innocuous cannot amount to a severe psychosocial stressor because otherwise this would, in effect, empty the definition of much of its meaning and purpose and elevate any identifiable occurrence to the status of a severe psychosocial stressor (so long as it induced or produced severe distress in an individual). This would also rob the definition of the quality or attribute of severity denoted by that adjective or qualifier, and give the subjective element a far greater weight than the objective element which the Federal Court has ruled is embedded implicitly in the definition.
73. While the examples of identifiable occurrences in the definition of "severe psychosocial stressor" are just that, examples (which are not exhaustive but illustrative: Morgan and Repatriation Commission [2005] AATA 458 at [41]), the common thread to those identifiable occurrences is that they represent objectively significant or major events which evoke feelings of substantial distress in an individual. What this Tribunal said in Sparks and Repatriation Commission [2005] AATA 319 at [25] is equally true the present case: "Those events are such as to severely compromise a person’s health or social and financial supports."
74. In the opinion of the Tribunal, the beach landing incident lacks the necessary quality or attribute of an objectively-determined identifiable occurrence of sufficient severity as to place the Applicant in a position where his physical or mental health was compromised. The beach landing incident, standing alone, does not qualify as a severe psychosocial stressor within the meaning of SoP No 1 of 2000. Accordingly, this incident does not raise a reasonable hypothesis connecting the generalised anxiety disorder suffered by the Applicant with his operational service, and so the requirements of section 120A of the Act have not been satisfied.
75. In relation to the destruction of classified waste incident, the Applicant relied strongly on the factual analogies between the present case and Morgan and Repatriation Commission [2005] AATA 458 (especially at paragraphs [37] -- [41]) in support of the contention that the destruction of classified waste incident was a "severe psychosocial stressor", and so provided the necessary nexus between the operational service of the Applicant and his war-caused injury or disease. In his evidence, the Applicant relied on the extreme heat in the boiler room where the classified waste was to be taken by him for destruction by burning and of the danger associated with that operation. The Applicant said that this was very similar to Morgan where the veteran in that case was locked in a very hot, confined space (see [40]).
76. In Stonehouse and Repatriation Commission [2004] AATA 707 at [17] -- [19], this Tribunal emphasised that a severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature, and causes the requisite level of distress in an individual (see especially [19]). In that case, the Tribunal emphasised that the psychosocial dimension distinguished these types of stressors from other types of stressors that are not psychosocial in orientation or nature. In this case, the Tribunal notes that to emphasise the psychosocial dimension in the anxiety disorder SoP is not inconsistent with the hybrid objective/subjective understanding of a severe psychosocial stressor laid down authoritatively in White v Repatriation Commission.[3] What the Federal Court was dealing with in White was a contention that whether a person experiences a severe psychosocial stressor or not is to be determined subjectively, not objectively. The Court was not exhaustively determining the meaning and reach of the phrase "severe psychosocial stressor".
[3] In White v Repatriation Commission [2004] FCA 633, Giles J said at [30] “In my judgement, the definition of severe psycho-social 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.”
77. The Tribunal considers that Morgan and Repatriation Commission [2005] AATA 458 is a decision that should be confined to its own particular factual matrix. The veteran in that case was working in a gun turret for a period of nine months, and a gun turret is a space that is much more confined than the boiler room on the HMAS Sydney. The Tribunal is not satisfied that Morgan and Repatriation Commission is a sufficiently persuasive analogous case to the present case.
78. The Tribunal accepts that the destruction of classified waste incident evoked substantial distress in the Applicant such that he had to be evacuated from the boiler room without completing the task which he had been assigned to carry out. Is this enough to characterise this event as a "severe psychosocial stressor"? The examples of occurrences in the definition relate to events which affect the psychosocial domain an individual experiences or operates within. In Stonehouse and Repatriation Commission [2004] AATA 707 at [19], the Tribunal reasoned "[t]o satisfy the SoP the individual must have experienced an identifiable [occurrence – sic] which has social factors that affected his or her mind or behaviour, causing the requisite level of distress" (emphasis in original).
79. White underscores the need for an objectively-determined severe event which produces or evokes feelings of substantial distress in an individual. It is not enough that the event evokes substantial distress in the Applicant. The same case also emphasises that it is necessary to discard any trivial or innocuous or similar circumstances because occurrences of such a nature are not sufficiently serious as to be capable of causing substantial distress in an individual. What is required is that objectively speaking, the event (or identifiable occurrence, to use the language of the SoP) by its nature is capable of evoking substantially distressing emotions in the Applicant. What has happened to the Applicant in this case in the shape of the destruction of classified waste incident does not satisfy the objective element of the definition because this incident or occurrence by its nature is not amenable to causing substantial distress to an individual. Accordingly, the reasonable hypothesis of a connection between the generalised anxiety disorder of the Applicant and his operational service is not made out. Nothing in section 119 can be relied upon by the Applicant to alter this conclusion.
80. To sum up on the third Deledio step: the Tribunal is satisfied that in relation to the Applicant, based on the evidence before the Tribunal, it is not possible to fit or accommodate the circumstances of the Applicant to the template presented by the applicable SoP. Accordingly, the Tribunal is not reasonably satisfied that the hypothesis linking the condition of generalised anxiety disorder to operational service can be made out.
The Fourth Deledio Step: Findings of Fact
81. The Tribunal has determined that the condition of generalised anxiety disorder does not “fit” or is not consistent with the relevant SoP. Where the Tribunal is not satisfied beyond reasonable doubt that the incapacity or injury of the veteran was not war-caused, then the fourth Deledio step requires the Tribunal 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. In this case, the Tribunal is satisfied beyond reasonable doubt that the incapacity or injury of the Applicant is not war-caused; accordingly, the Tribunal does not proceed to make findings of fact in application of the fourth Deledio step.
Tribunal’s Conclusion
82. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct or preferable decision is that the generalised anxiety disorder condition of the Applicant is not war-caused within the meaning of the Veterans’ Entitlements Act 1986.
Tribunal’s Decision
83. The Tribunal decides to affirm the decision under review.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 10 August 2005
Date of Decision 18 November 2005
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr M Smith, Departmental Advocate
0
37
0