MICHAEL TRIGGE and REPATRIATION COMMISSION
[2012] AATA 176
•23 March 2012
[2012] AATA 176
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2020
Re
MICHAEL TRIGGE
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 March 2012 Place Brisbane The Tribunal sets aside the decision under review in relation to PTSD and alcohol dependence; substitutes its decision that those conditions are war-caused under the Act; determines that pension is payable for incapacity from those conditions with effect from 10 May 2009; and remits the matter of assessment of pension to the Repatriation Commission.
...........[Sgd]......................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – diagnosis of posttraumatic stress disorder (PTSD) and alcohol dependence – clinical onset of alcohol dependence – a reasonable hypothesis of relevant relationship to service raised for PTSD and alcohol dependence – not satisfied beyond reasonable doubt that PTSD and alcohol dependence not attributable to eligible war-service – PTSD and alcohol dependence war-caused – decision under review set aside – matter of assessment remitted to Repatriation Commission
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A, 177
CASES
Border and Repatriation Commission [2010] FCA 1430
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Mann and Repatriation Commission [2008] AATA 163
Newton and Repatriation Commission [2009] AATA 485
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Stoddart (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 75 ALD 420SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 1 of 2009
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 March 2012
BACKGROUND
Michael Trigge served with the Royal Australian Navy (“the RAN”) from 6 July 1964 until 19 February 1971. On 10 August 2009, he lodged a claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission (“the respondent”) for a disability pension for “anxiety disorder” and “alcohol dependence” which he contended were related to his RAN service. His application form also included a reference by his general practitioner from Kingaroy Family Care[1] to posttraumatic stress disorder (“PTSD").
[1] This appeared to be signed by Dr Akshay Wadegasnkar.
On 25 August 2009, the respondent determined that the claimed conditions were not related to Mr Trigge’s service. On 1 March 2011, the Veterans’ Review Board affirmed the decision, determining that no diagnosis of PTSD was open on the evidence before it and that the diagnosed conditions of generalised anxiety disorder and alcohol dependence were not related to Mr Trigge’s service. The matter came before the Tribunal where it is was common ground between the parties that the conditions for determination were PTSD and alcohol dependence.
ISSUES AND SERVICE
Mr Trigge completed a period of eligible war service in the form of operational service as provided for in ss 7 and 6C of the Act, respectively, from 6 July 1970 until 9 October 1970. This was on the gun line off the coast of South Vietnam on HMAS Hobart (“the Hobart”) on which he served as a stoker.
Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered”. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined to the decision-maker’s reasonable satisfaction.[2] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
[2] This means that matters are determined on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
The application of that provision is affected by the terms of ss 120(3) and 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (“RMA”).
EVIDENCE
Mr Trigge
Mr Trigge was born on 8 October 1948. At 15 years of age he followed a family tradition of enlisting in the RAN. This was for a period of 12 years although he served for only six and a half years. He trained initially at HMAS Leeuwin (“Leeuwin”), and then on HMAS Derwent (“Derwent”), which was in dry dock, before further training at sea on HMAS Anzac (“Anzac”). He then completed training as an engineer at HMAS Cerberus (“Cerberus”) before being posted to HMAS Melbourne (“Melbourne”) from March 1967 to April 1968 where he served as a stoker and voyaged to and from Japan, Hong Kong and Singapore. He travelled to the United States of America to join the new vessel HMAS Brisbane (“Brisbane”) as part of the crew working it up for deployment in the RAN. This posting lasted almost 12 months and included three months of on-shore training, sea trials and the return voyage to Australia. He was posted to HMAS Albatross (“Albatross”) from January to February 1969 where he completed driver training. He was then posted to HMAS Penguin (“Penguin”) as a driver until 3 July 1970, during which period he was married on 6 June 1970. On Friday 3 July 1970, he was posted to the Hobart and, after a flight from Australia, joined the ship in Subic Bay on Monday 6 July 1970. Mr Trigge described his transfer to the Hobart as being “crash posted” because of the short notice with which it occurred.
The Hobart proceeded to sea on Tuesday 7 July 1970 for passage to South Vietnam and, at 1454 hours on Saturday 11 July 1970, anchored off the coast to carry out firings at on-shore targets. The ship was closed up at Operation Awkward State 2 employing full anti-swimmer precautionary measures including the periodic dropping overboard of scare charges. Mr Trigge served as a stoker on the Hobart but, when at action stations, he was a communications number located with another seaman in a communication post, a cabin some eight feet long by two feet wide. His task was to carry out damage control watch by listening, using ear phones, to any reports of damage which he was then required to pass on to another post on the Hobart. The communication cabin was towards the rear of the ship, immediately adjacent to the exterior hull, and Mr Trigge’s evidence was that it was at about or just below the water-line.
On 11 July 1970, Mr Trigge was sitting at a desk in the communication cabin when he heard a “huge explosion” right beside him. His immediate feeling was that the ship had been hit by enemy fire and his reaction was to leave the communication cabin as soon as possible. The other seaman was lying on the floor asleep at the time and Mr Trigge could not recall if he woke him or whether the noise of the explosion did so. Mr Trigge recalled his training in the USA which included being in a section of a ship’s hull which was immersed in a large water tank. As part of a training exercise, he and others had been required to prevent it from flooding after valves were opened allowing water to enter the hull. Mr Trigge learned at that time that there was no way to stop the water and, on the Hobart, he feared that damage to the hull would allow water to flood the communication cabin and that he would drown. He feared for his life. He stepped out of the cabin but was unable to close the hatch to make the cabin watertight because the other seaman was lying across the hatchway. Within a short time, the other seaman laughed and told him that the source of the noise was a scare charge.
Mr Trigge said that he had no previous knowledge or understanding of scare charges and had not been made aware of the practices associated with Operation Awkward. He denied that he had undergone any training in relation to the use of scare charges or had received any information about the use of scare charges at any time during his RAN service. He said that the incident in the communication cabin on 11 July 1970 had been the first occasion where he had experienced the detonation of such a device.
Mr Trigge said that he kept to himself and had not, at any time before or after the scare charge incident, discussed any aspect of any activity in a war zone with any of the sailors he served with on any vessel. He also said that he had very limited recall of most aspects of his service on the Hobart in Vietnamese waters. The scare charge incident was one of few exceptions to this.
In a statement, dated 22 September 2011, Mr Trigge said that he first consumed alcohol at age 16 at Leeuwin after it was supplied by his basketball coach. It made him sick and he did not consume further alcohol until he was aged 18 years when he would have six or seven beers, once a week, while on shore leave. No alcohol was permitted while he was in the USA and he limited his intake until after the scare charge incident. On the subsequent shore leave in Singapore, he drank alcohol in order to get drunk, beginning with beer and then changing to rum. He also took marijuana then for the first time. That pattern continued on all subsequent shore leave and also after returning to Australia in November 1970 and until the mid 1970s when he ceased for 12 months in an endeavour to save his marriage. In that, he was not successful and his heavy alcohol consumption remained a feature of his life until he attended a drug and alcohol course around 2003 and 2010.
In his evidence, Mr Trigge described himself as a “social drinker” before he joined the Hobart. However, he also said that, while on shore leave from the Melbourne, he would attend bars for three to four hours and admitted that he would become intoxicated but not “blind drunk” on those occasions. He said that he drank more heavily after the scare charge incident in order to forget what had happened, usually drinking by himself in bars, and would stagger back to the ship when he was on shore.
Mr Trigge said that the effect of the scare charge incident also made him fearful of going back to sea. He refused to return to sea because he felt that he couldn’t do it anymore. This led to difficulties with RAN authorities. Mr Trigge declined any shore-based duty and was discharged from the RAN after serving only a little more than half of his 12 year enlistment.
Writeway Research Service
The respondent utilised Writeway Research Service to obtain background information about the incident referred to by Mr Trigge. This resulted in a report from John C Macdonald (Captain RAN Rtd). The report was taken into evidence. It is dated 10 December 2003 and was obtained by the respondent in relation to a previous claim made by Mr Trigge which was heard by the Board on 31 March 2003 and the Tribunal on 27 October 2004.
In preparing his report, Mr Macdonald examined the Records of Proceedings of the Hobart for July 1970 and spoke with RAN officers who served on the Hobart. He confirmed that Mr Trigge had been appointed on short notice to the Hobart at the time. He also confirmed that the Hobart arrived in South Vietnamese waters on 10 July 1970 and assumed Operation Awkward on the following day when scare charges were utilised. His opinion was that it would be reasonable to assume that Mr Trigge would have heard a scare charge explosion during his pre-Hobart service, particularly on the Melbourne or Brisbane, or at least have been introduced to the notion of Operation Awkward procedures. He described scare charges as normally entering the water about six to ten metres from the ship’s side and the sound of the detonation presenting inside the ship as a “short, sharp ‘thud’ or ‘thump’” which would be “startling when unexpected but not a ‘huge explosion’ as expressed by the Veteran”.
Mr Macdonald wrote that, as Mr Trigge was new to the ship, it would seem reasonable that he may not have been fully aware of what might occur when Operation Awkward was initially ordered on 11 July 1970 and was “not prepared for the first scare charge explosion he experienced”. His opinion was :
In these circumstances he may have been more anxious than those operationally experienced personnel around him and the explosion may have sounded ‘huge’ and more unnerving than normal……….
In the circumstances, which already would have been relatively tense for a ‘novice’, the explosion may have sounded ‘huge’ and more unnerving than normal.
Mr Macdonald wrote that the normal procedure on the Hobart was to broadcast a warning to the ship’s company whenever scare charges were about to be released from the ship. Annexed to his report was a statement signed by David H Blazey who was a Lieutenant and Senior Engineering Officer on the Hobart in July 1970. Mr Blazey recalled the use of scare charges during the major deployment and wrote that, on every occasion the ship’s company would be advised over the intercom and broadcast by the bridge with the warning: “standby scare charge”. He also noted that, at times, the charges were dropped fairly close to the ship’s side causing some concern for minor damage. However, Mr Macdonald wrote that it was not always possible to anticipate the precise moment of the explosion and that personnel could still be ‘startled’ by the explosion. His opinion was that any uncertainty in Mr Trigge would have usually been allayed by other seaman.
Medical Evidence
In evidence were reports from psychiatrists Dr Ivan Holm, dated 18 May 2001; Dr Janis Carter, dated 23 January 2002; Dr Jonathon Hargreaves, dated 8 November 2010; and Dr Paul Pun, dated 6 December 2011. The reports of Dr Carter and Dr Holm were obtained for the previous Board and Tribunal proceedings relating to Mr Trigge.[3]
[3] See para 14 (above).
Dr Holm assessed Mr Trigge over several sessions after referral from his general practitioner. He noted the scare charge experience of Mr Trigge in the following terms:
On the Hobart he did periods of up to 30 days on the gun line. During this period he describes intense fear and anxiety at times. He said his station was down in the engine room well under the water and he was terrified by the sound of scare charges being dropped around the ship not knowing whether the ship was under attack or not.
In addition, Dr Holm recorded a "particular incident" involving a boiler blacking out thereby creating an emergency situation. He noted that Mr Trigge experienced fear of an explosion at that time. Dr Holm diagnosed PTSD on the basis of the traumatic events described by Mr Trigge and concluded that all of the DSM IV criteria for that condition were satisfied.
Dr Carter described Mr Trigge’s position on the Hobart during action stations as being in the communication cabin as a communications number. She described this as a position of “heavy responsibility and stress” and recorded that, in that position, he was privy to a range of communications including “kill reports”. Her reference to scare charges was brief in that she noted that Mr Trigge’s “ship dropped scare charges”. Dr Carter noted the diagnosis entered by Dr Holm and disagreed that Mr Trigge suffered from PTSD because of the absence of a stressor to cause that condition. She diagnosed generalised anxiety disorder based on his working in the enclosed communication cabin receiving information about what was occurring in the general area.
Dr Hargreaves described the scare charge incident in the manner given by Mr Trigge in his evidence, noting that Mr Trigge considered it was “the most stressful event that had occurred during his military service”. He also described bullying and harassment during Mr Trigge’s basic training at Leeuwin. He noted that Mr Trigge described himself as drinking to inebriation in the first port of call by the Hobart after serving on the gun line in 1970. Dr Hargreaves noted Mr Trigge’s assertions that he had no training or prior information of scare charges before 11 July 1970. Dr Hargreaves detailed the pre-Hobart service of Mr Trigge as including the USA period with the Brisbane, courses in truck driving and a shore based term at Penguin. No reference is made to his service on other vessels. Dr Hargreaves wrote that, within two weeks of the scare charge incident, Mr Trigge was getting headaches. Dr Hargreaves noted RAN records of headache complaint by Mr Trigge on 16 July 1970 and 27 July 1970. He also noted an entry on 20 July 1970 where a 12 month history of headaches is referred to. He noted that Mr Trigge had also been traumatised by the death toll inflicted on Vietnamese civilians by the Hobart’s guns. Dr Hargreaves’s opinion was that those matters combined with his experience in Leeuwin, appeared to have combined with his scare charge experience to precipitate into a fairly significant psychiatric condition. He diagnosed posttraumatic stress disorder.
Dr Pun referred to the full service history of Mr Trigge prior to joining the Hobart and noted the assertions of bastardisation and abuse at Leeuwin by him. Dr Pun also noted the contents of the Writeway report as noted above. He noted a complete absence of forewarning to Mr Trigge of the use of scare charges as well as his reactions, in particular to his feeling that the ship had been hit by an explosive device and that he was going to die. He was advised by Mr Trigge that these feelings lasted for about five seconds before the other seaman in the cabin informed him of the scare charge. Dr Pun wrote that Mr Trigge recalled very little of the remainder of his service except that he changed from a relatively light drinker to binge drinking to intoxication as often as he could. Dr Pun’s opinion was that Mr Trigge satisfied the diagnostic criteria for PTSD because of the scare charge incident and he also had alcohol dependence as a sequel of the posttraumatic stress disorder. Dr Pun wrote that, in his opinion, Mr Trigge experienced a severe stressor which involved a perception of death and that it was less relevant that the threat was not actual. As for alcohol dependence, he considered that this had its onset immediately after the incident in July 1970.
Also in evidence were Mr Trigge’s RAN medical records. Records of Hobart on 16 July 1970 refer to tension headache. The notation reads:
Dizziness on standing up from a crouching position, O/E: Story very vague & indefinite. I feel he knows there’s damn all wrong. Admits headaches go away if he relaxes, main problem is that it’s been keeping him awake at night.
On 27 July 1970, it was noted that Mr Trigge’s headaches were “less constant now” and were associated with “sudden movement”, especially standing but “they settle quickly”. On 7 December 1970, Mr Trigge complained of otitis in his right ear as well as “painful headaches for 12/12 ? tension headaches ? muscle imbalance”.
SUBMISSIONS
As noted above, Mr Harding, for Mr Trigge, and Mr Kelly, for the respondent, agreed that the conditions for consideration were PTSD and alcohol dependence and that the acceptance of alcohol dependence as being related to service was dependent on the acceptance of PTSD as being so related. They also agreed that the relevant Statements of Principles were Instrument No 5 of 2008 for PTSD (“SoP No 5 of 2008”) and Instrument No 1 of 2009 for alcohol dependence (“SoP No 1 of 2009”).
In relation to PTSD, Mr Harding submitted that, on the balance of probabilities, the diagnostic criteria listed in clause 3 of the SoP for PTSD and the perceptions of death experienced by Mr Trigge in the scare charge incident were sufficient to raise a reasonable hypothesis of a relationship between that condition and Mr Trigge’s service. He submitted that the matter was to be determined in accordance with the principles set out in Border v Repatriation Commission (No 2). [4]
[4] [2010] FCA 1430.
Mr Kelly submitted that Mr Trigge was an experienced seaman by the time he joined the Hobart and that it was not credible that he had not gained some insight into the aspects of Operation Awkward either from direct experience or from accounts given by other seamen over his five and a half years of service. He submitted that there were inconsistencies in his evidence including his need to awaken the seaman sleeping in the cabin with him after such a loud explosion as he described. He also referred to the differing accounts given to medical practitioners about the incident. In particular, he referred to the absence of any account of concern about scare charges to Dr Carter. He also referred to the unlikelihood of such an incident he described as one about which he advised no one after the incident.
DIAGNOSED CONDITIONS
For posttraumatic stress disorder, SoP No 5 of 2008 lists six criteria, all of which must be met before a diagnosis of PTSD can be made.[5] The Statement of Principles is not, in itself, a diagnostic instrument, but it was not in dispute that the six criteria reflect those that are found in the relevant diagnostic instrument, being the DSM IV for posttraumatic stress disorder. The first of those, criterion A, reads:
(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...
[5] See subclause 3(b).
The issue under the Act is not whether Mr Trigge suffers from PTSD but, rather, whether he does so in relation to a service-related event which meets the requirement above. Even where a medical practitioner diagnoses post-traumatic stress disorder, I must, nevertheless, be reasonably satisfied[6] that the factual basis on which any such diagnosis is made meets the requirements of criterion A.
[6] See para 4 (above).
Mr Harding submitted that, with the scare charge incident, Mr Trigge experienced a threat to his physical integrity to which his response involved intense fear. He conceded that the scare charge incident did not, in an objective sense, constitute an actual threat to Mr Trigge. However, he submitted that the concept of “threat” was partially subjective and that it was sufficient if Mr Trigge had a perception of threat. In that regard, he relied on Border v Repatriation Commission (No 2).[7] In Re Newton and Repatriation Commission,[8] I determined that criterion A in SoP No 5 of 2008 for PTSD may be interpreted in the manner contended by Mr Harding.[9] I accept Mr Harding’s submission that this is consistent with Border v Repatriation Commission (No 2)[10] even though the court in that case was concerned with issues of causation in SoP No 5 of 2008 and not the diagnostic criteria for PTSD.
[7] See note 4 (above).
[8] [2009] AATA 485.
[9] At paras 43-46; in reliance on Woodward v Repatriation Commission (2003) 75 ALD 420 and Repatriation Commission v Stoddart (2003) 38 AAR 176.
[10] See note 4 (above).
As submitted by Mr Kelly, there are some inconsistencies in Mr Trigge’s evidence. He gave varied accounts of his alcohol consumption prior to the scare charge incident. However, his evidence for his consumption were given consistently. There was also some inconsistency in the small amount of evidence concerning his headaches. I have some concerns about Mr Trigge’s evidence concerning the scare charge incident. In her report in 2002, Dr Carter mentioned Mr Trigge’s position in the communications cabin. She also referred to the detonation of scare charges but not as a relevant stressor causally associated with his psychiatric state. Dr Holm, in 2001, noted that Mr Trigge had been fearful of an explosion of a boiler or a magazine with which he was in close proximity at times. However, he also referred to Mr Trigge being terrified by the sound of scare charges although not in the context of a detonation while he was in the communication cabin. Rather, his report placed Mr Trigge “in the engine room well under the water” where he was “terrified by the sound of scare charges being dropped….”. Dr Holm’s report pre-dates that of Dr Carter. Both Dr Hargreaves and Dr Pun described the scare charge incident in the manner given by Mr Trigge in his evidence. Mr Trigge gave his evidence in a forthright manner and he was not cross-examined in relation to the differing accounts given to the psychiatrists. Neither Dr Carter nor Dr Pun was called to give evidence. On the material before me, I am reasonably satisfied that, in the scare charge incident, Mr Trigge experienced an event which, although not an actual threat to Mr Trigge, was one which was perceived by him to be a personal threat. I am also reasonably satisfied that his immediate reaction was one of fear for his life.
Criterion A is an essential threshold element of the diagnostic criteria for PTSD in clause 3 of SoP No 5 of 2008. Five other criteria are also listed. I am reasonably satisfied that the existence of these criteria is confirmed in the reports of Dr Holm, Dr Pun and Dr Hargreaves. It follows that I accept the diagnosis of PTSD in Mr Trigge. There is no dispute about the diagnosis of his alcohol dependence and I am also reasonably satisfied that Mr Trigge suffers from this condition. Accordingly, the issue for determination is whether Mr Trigge’s PTSD and/or alcohol abuse “arose out of or [are] attributable to” Mr Trigge’s eligible war service under s 9(1)(b) of the Act.
PRINCIPLES OF CAUSATION
The Federal Court, in Repatriation Commission v Deledio,[11] has set out a four-step procedure for determining issues of causation in relation to operational service. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that the scare charge incident meets that requirement for Mr Trigge’s PTSD and alcohol dependence.
[11] (1998) 83 FCR 82 at 92.
The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. For PTSD, this is Instrument No 5 of 2008; for alcohol dependence, it is Instrument No 1 of 2009.
The third Deledio step does not involve fact-finding but requires a consideration of the hypothesis advanced to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles.
For PTSD, this is “experiencing a category 1A stressor before the clinical onset of [PTSD]”. The associated definition reads:
"a category 1A stressor" means one or more of the following severe traumatic events:
a)experiencing a life-threatening event;
b)being subject to a serious physical attack or assault including rape and sexual molestation; or
c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
For alcohol dependence, the relevant factor and associated definition read:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse;
"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
It is not in dispute that PTSD is a clinically significant psychiatric condition as defined. If the hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
REASONABLENESS OF HYPOTHESES
For PTSD, a “category 1A stressor” is defined to mean “experiencing a life-threatening event”. As I read the definition, the event must be pointed to by the material in order for a reasonable hypothesis for a category 1A stressor to be raised. The material points to the scare charge incident as an event but it is common ground that the scare charge incident was not, in fact, life-threatening. However, both objective and subjective considerations are relevant.[12] In Border v Repatriation Commission (No 2),[13] Reeves J examined the various authorities and posed the following question: “How, and to what extent, should the Tribunal examine the feelings evoked in the veteran experiencing that event, to determine whether the event was life-threatening within that?”. His Honour’s response reads:[14]
It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, Judged [sic] objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
[12] See Woodward v Repatriation Commission (2003) 75 ALD 420 at 445, Repatriation Commission v Stoddart (2003) 38 AAR 176 and Mann and Repatriation Commission [2008] AATA 163 at [58].
[13] See note 4 (above).
[14] [2010] FCA 1430 at [67].
The evidence in relation to PTSD points to Mr Trigg’s perception of the scare charge incident as one which posed a threat of death. There is material before me which points to that perception as being a reasonable one. This is in the form of his evidence that he had no prior knowledge of Operation Awkward or of scare charges, that he had been on the Hobart for a matter of a few days and that he had experienced a training incident in the USA where he was in a flooding cabin. In that context, his reaction can be seen as not being totally irrational or baseless and the incident as being one which might give rise to his claimed perception of threat to his life. Having regard to the requirement that the test is not to be applied in an unduly restrictive manner, I am satisfied that the evidence, putting it at its highest from Mr Trigge’s perspective, points to the template of the SoP for PTSD and, accordingly, to the hypothesis being a reasonable one.
Mr Trigge’s evidence of his alcohol consumption is that it increased dramatically shortly after the scare charge incident. The factor in SoP No 1 of 2009 requires that Mr Trigge’s PTSD be present at the time of the clinical onset of alcohol dependence. The term “clinical onset” has not been defined by the RMA but the requirement will be pointed to if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time.[15] Medical evidence points to Mr Trigge’s PTSD having its onset at the time of the scare charge incident and to his alcohol dependence as having its onset shortly thereafter. That material is consistent with the factor, noted above, in the SoP for alcohol dependence and, accordingly, the hypothesis of its relationship to PTSD is a reasonable one.
[15] See Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750.
As reasonable hypotheses of a relationship to service have been raised in relation to both PTSD and alcohol dependence, those conditions will be war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.[16]
[16] See s 120(1) of the Act and para 4 (above).
Mr Trigge’s declared lack of knowledge prior to 11 July 1970 of scare charges is pivotal to acceptance of his claimed condition. I have expressed some concern about Mr Trigge’s evidence concerning the incident. In the normal course of five and a half years’ service, which included voyages on the Anzac, the Melbourne and the Brisbane, one might expect that a person in Mr Trigge’s situation would have gained some insight into procedures relating to Operation Awkward and the use of scare charges. While that is the inference to be drawn from Mr Macdonald’s report, I note that he places significant qualifications on that view. Mr Macdonald wrote that, as Mr Trigge was new to the Hobart, it would seem reasonable that he may not have been fully aware of what might occur when Operation Awkward was initially ordered on 11 July 1970. He conceded that Mr Trigge may not have been prepared for the first scare charge explosion he experienced. His opinion was that, in those circumstances, he may have been more anxious than experienced seamen around him and that the explosion may have sounded ‘huge’ and more unnerving than normal. Mr Macdonald referred to warning broadcasts on the Hobart about scare charges. However, Mr Macdonald wrote that it was not always possible to anticipate the precise moment of the explosion and that personnel could still be startled by the explosion. He also noted that, at times, the charges were dropped fairly close to the ship’s side causing some concern for minor damage. Mr Macdonald’s opinion that Mr Trigge’s uncertainty would have been allayed by other seaman is clearly a reference to behaviour after the event and after the perception of fear experienced by Mr Trigge. Accounts by Mr Trigge to Dr Carter and Dr Holm of scare charges is less dramatic than those recorded by Dr Pun and Dr Hargreaves. Nonetheless, he did refer the matter of scare charges to all of those psychiatrists. As I have noted above, Mr Trigge gave his evidence in a forthright manner and was not cross-examined in relation to the differing accounts given to the psychiatrists. There were some inconsistencies in the evidence that Mr Trigge gave in relation to his alcohol consumption prior to the scare charge incident, but not thereafter.
On the material before me I am not satisfied beyond reasonable doubt that the scare charge incident did not occur in the manner or with the consequences to Mr Trigge as described by him in his evidence. These included his fearful reaction and his subsequent increase in his alcohol consumption. Further, I am not satisfied beyond reasonable doubt that his alcohol dependence did not develop after the clinical onset of his PTSD. It follows that both PTSD and alcohol are war-caused in accordance with s 9(1)(b) of the Act.
Mr Trigge is entitled to receive a pension for incapacity in relation to those conditions with effect from 10 May 2009, a date three months before his initial claim was lodged with the respondent and the earliest date that can be set under the Act.[17]
[17] See s 177 of the Act. This date was agreed to by the parties.
DECISION
The Tribunal sets aside the decision under review in relation to PTSD and alcohol dependence; substitutes its decision that those conditions are war-caused under the Act; determines that pension is payable for incapacity from those conditions with effect from 10 May 2009; and remits the matter of assessment of pension to the Repatriation Commission.
I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
...........[Sgd]...................................................
Associate
Dated 23 March 2012
Date(s) of hearing 6 March 2012 Counsel for the applicant Anthony Harding
Solicitor for the applicant Matthew Woods
Counsel for the respondent Jeff Kelly, Departmental Advocate
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