Morris and Repatriation Commission

[2006] AATA 30

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 30

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/652

VETERANS' APPEALS DIVISION		)
Re		JOHN RAYMOND MORRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date17 January 2006

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that the Applicant’s post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 9 June 2002.

The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.  

...................[Sgd]...........................

SC Fisher
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – defence service with the Royal Australian Air Force – post traumatic stress disorder (PTSD) – application of Statement of Principles – condition defence-caused –

Veterans’ Entitlements Act 1986 ss 69A, 70, 120(4), 120A, 120B, 174 -176, 180A, 196B

Secretary, Department of Social Security v Murphy (1998) FCA 809

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21

Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Schmidt v Repatriation Commission [2004] FCA 1158
Smith v Repatriation Commission (1987) 74 ALR 537
Re Buckham and Repatriation Commission [2000] AATA 174
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Haughey and Repatriation Commission [2005] AATA 189
Repatriation Commission v Deledio (1998) 83 FCR 82
Williamson and Repatriation Commission [2004] AATA 1185
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609
Hillier v Repatriation Commission [2004] AATA 897
Palmer and Repatriation Commission [2005] AATA 2
Beurskeus and Repatriation Commission [2005] AATA 601
Re Hackett and Repatriation Commission [2004] AATA 1347
Re Ballantyne and Repatriation Commission [2003] AATA 1186
Re Martin and Repatriation Commission [2003] AATA 1228
Repatriation Commission and Gosewinkel (1999) 59 ALD 690
Woodward v Repatriation Commission (2003) 200 ALR 332
Secretary, Department of Social Security v Jordan (1998) 49 ALD 504
White v Repatriation Commission [2004] FCA 633
Jones v Dunkel (1959) 101 CLR 298
Stoddart v Repatriation Commission [2003] FCA 334; 197 ALR 283
Delahunty v Repatriation Commission [2004] FCA 309

REASONS FOR DECISION

17  January 2006 Mr SC Fisher, Member       

Introduction And Background

1.      Mr John Raymond Morris (the Applicant) was born on 10 April 1949.  The applicant served in the Royal Australian Air Force from 11 January 1966 to 14 March 1986.  The only eligible service of the applicant was defence service from 7 December 1972 to 14 March 1986.  The applicant was posted to RAAF Base, Butterworth, Malaysia as a Radio Technician (Ground) from June 1975 to December 1977.  The Applicant claims that two events took place during his defence service that caused him to suffer post traumatic stress disorder for which the Repatriation Commission (the Respondent) is liable to pay him compensation.

Jurisdiction

2.      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 the provisions of the Act unless the context indicates otherwise.

The Decision under Review

3.      The decision under review is a decision made by the Respondent dated 18 December 2003 which determined that the condition of post traumatic stress disorder is not related to service.  On 11 June 2004, the Veteran's Review Board affirmed 18 December 2003 decision.  From the 11 December 2003 decision, the Applicant appealed to this Tribunal on 16 August 2004.

The Role of the Tribunal

4. 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) FCA 809. The Tribunal is guided by the norm that it should reach the correct and 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.

The Material Before the Tribunal

5.      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 2Statement by Mr John Raymond Morris dated 16 December 2004.

Exhibit 3Statement by Mrs Susan Phyllis Morris dated 23 July 2004.

Exhibit 4Statement by Mr Anthony Edgar Conrad Pereira dated 20 September 2005.

Exhibit 5Report of Sharon Daniels dated 17 November 2003.

Exhibit 6Letter of Anthony Morris dated 4 October 2004.

Exhibit 7Statement by Anthony Wade dated 2 August 2005.

Exhibit 8Statement of Robert MacDonnell dated 27 June 2005.

Exhibit 9Comcare file of the Applicant.

Exhibit 10Medical Report by Dr David Alcorn, Psychiatrist, dated 1 March 2005.

Exhibit 11Medical Report by Dr David Alcorn, Psychiatrist, dated 17 June 2005.

Exhibit 12Extracts from the Applicant's Department of Defence Personal File.

Exhibit 13Report by Mr Max Brennan of Writeway Research dated 18 March 2005.

Exhibit 14Report by Mr Max Brennan of Writeway Research dated 23 July 2005.

Exhibit 15Letter dated 14 July 2005 from the Respondent to the Solicitor for the Applicant.

6.      The Applicant was represented by Mr AC Harding of counsel who was instructed by Gilshenan & Luton.  Exhibits 1 – 8 were lodged on behalf of the Applicant.  The Applicant lodged a Statement of Facts and Contentions with the Tribunal.

7. 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 7.  Exhibits 9 – 15 were lodged on behalf of the Respondent.

8.      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.

9.      The parties lodged an outline of submissions with the Tribunal after the conclusion of the hearing.  The Tribunal considered carefully all of the documentary and oral evidence before it.

Issues

10. The issue before the Tribunal is whether the Applicant’s conditions of post traumatic stress disorder and alcohol abuse/dependence are defence-caused within section 70 of the Act. It is common ground that if the Applicant is successful in his claim, the date of effect would be 11 May 2003.

Evidence

11.     The Applicant gave evidence in person.  In addition, the following people gave evidence on behalf of the Applicant: Mrs Susan Morris, Mr Rex Gresham, Ms Sharon Daniels, Psychologist, Mr Anthony Pereira, Mr Anthony Morris and Mr Robert MacDonnell.

Evidence of the Applicant

12.     The Applicant gave evidence in person and also in statement form, Exhibit 2 having been filed on his behalf.  The gist of the evidence provided by the Applicant in person and in statement form can be summarised as follows:

A.The Applicant described his deployment as a Corporal Radio Technician to Butterworth, Malaysia between June 1975 and December 1977.

B.The Applicant said that in the briefing he received before he was posted to Malaysia, as described as a desirable posting, it was a good place to go, exotic.  There were some rumours to the effect that it was the sort of place where marriages broke up.  The Applicant said that on arrival in Malaysia, he and his wife received an induction briefing, which covered some of the practicalities of a posting to Malaysia together with information about the security situation in Malaysia.

C.The Applicant said that on certain occasions because of his radio communication skills he was required to go alone at night into the air base at Butterworth, which was unlit but fenced in a protected area patrolled by Malaysian  armed forces with a company of Australian regular soldiers also in the vicinity.  The Applicant said that on some 7 occasions, Malaysians soldiers approached him in an aggressive manner waving their weapons in his face.  The Applicant said that he felt terribly, terribly helpless in as much that it would only take one small shot and they would have shot him (Exhibit 2, paragraph 14).  The Applicant said that this happened both going into the remote radio compound and also leaving it, when a different set of Malaysian troops would repeat the exercise of confronting him.

D.The Applicant also described an incident relating to the compound where the remote receiver station was located.  The Applicant described how he was locked in a small compound at the receiver station overnight.  That receiver station was in a quite isolated and unprotected area.  The Applicant looked through a peephole and saw that there were 4 people who were coming into the compound area.  The Applicant contacted the RAAF police who gave him instructions to go out and find that what was happening.  The Applicant rejected this suggestion as he feared for his life.  The police said that they would send a team of people to investigate.  When they did not come after awhile, the Applicant telephoned the police again, only to be told this time that they would not come and get him, that he was to stay in his location and that if he was alive in the morning, then they would come and get him.

E.The Applicant said that he felt isolated and vulnerable and terrified by the whole of the circumstances.  The Applicant said that he felt abandoned.  The Applicant said that he did not sleep during the rest of that night, and that in the morning vehicles did arrive to relieve him.  The Applicant said that he thought that the four people who had entered the compound area were Communist Terrorists (CTs).

F.The Applicant said that after the incident involving the remote receiver compound, the next time that he was rostered on for that compound, he was so "pent up" that he went drinking with a fellow airmen, got drunk, and was arrested for inebriation and spent the night in the police cells.  The Applicant said that he was disciplined for this infringement.  The Applicant said that he never received another posting to the remote receiver compound.

G.The Applicant said that after these two incidents, he became far more irritable, flew off the handle more easily, became angrier and started to drink alcohol to excess.  The Applicant said that after his posting to Malaysia, he was posted to Melbourne where his relationship with his wife was affected adversely, due in part to his excessive alcohol consumption.  The Applicant said that the same pattern of drinking happened when he was posted to Darwin with his family.

H.The Applicant left the Air Force in March 1986, and he then had five separate jobs in nine years, including two periods totalling 10 months where he did not work.

I.The Applicant said that during 2001 he started to experience very vivid nightmares which involve detailed memories of incidents have happened to him while he was in Malaysia.

J.In cross-examination, the Applicant admitted that he had felt depressed from 1995 with certain events that had happened to him in the civilian workplace.  This coincided with a family inheritance quarrel.  Later in June 1997, the Applicant was diagnosed by Dr Denny as suffering from a nervous breakdown, which coincided with the temporary separation from his wife.  The Applicant was in receipt of the fortnightly workers compensation payments associated with psychiatric responses to events in the civilian workforce.

K.In cross-examination, the Applicant admitted that when he saw Dr Rigano, Psychiatrist, he did not mention the incident involving the Malaysian troops, although he did mention the napalming by the Malaysians of Communist Terrorists and incidents on the Thai border (which did not involve the Applicant personally), which caused him to feel some unpleasantness.

Evidence of Mrs Susan Morris

13.     Mrs Susan Morris is the wife of the Applicant. The evidence that Mrs Morris gave to the Tribunal is summarised in the following account:

1. Mrs Morris provided a written statement dated 23 July 2004 in these proceedings (Exhibit 3).
2. In her oral evidence, Mrs Morris reiterated paragraph 7 from her written statement in these terms:

Its difficult to define an exact date, but Ray changed substatianally while in Malaysia.  He became withdrawn, very irritable, aggressive verbally and also became violent toward me to the extent I sought medical assistance.

3. Mrs Morris described how her husband started to drink excessively, including arriving late from work.
4. Mrs Morris said that after the Applicant left the Air Force, he was not settled in work and that he had held a lot of jobs, but that he couldn't cope with the pressure of them.
5. In cross-examination, Mrs Morris said that the Applicant had nightmares beginning in the 1980s, but that he would never tell her what they were about.

Evidence of Mr Rex Gresham

14.     Mr Rex Streeter Gresham gave evidence by telephone on behalf of the Applicant during the hearing.  Mr Gresham provided a written statement dated 20 January 2003 (Exhibit 1, Folio 12). Mr Gresham's evidence to the Tribunal was in the following terms:

1. Mr Gresham served in Malaysia at Butterworth from January 1975 until July 1978, including work in the Receiving Station which was outside the confines of the Airbase.
2. Mr Gresham described one incident during one  of his night shifts in the Receiver Station where he looked outside of the peephole, and saw a Communist flag which had been hung on the gate to the Receiving Station.
3. Mr Gresham described another incident where a policeman stopped him in Penang whilst driving and shoved a machine-gun in his face and demanded to see his identification.  Mr Gresham noticed that the safety catch on the gun was off and that the finger of the policeman was on the trigger.

Evidence of Ms Sharon Daniels, Psychologist

15.     The only medical evidence called by the Applicant came from Ms Sharon Daniels.  An earlier report dated 17 March 1998 appeared in Exhibit 9. (the Comcare file, folio 240).  Ms Daniels provided a short report, addressed to the Applicant, which is dated 17 November 2003, and which became Exhibit 5 these proceedings.  Ms Daniels gave evidence to the Tribunal by telephone.  A summary of what Ms Daniels said to the Tribunal in the course of her evidence is set out next:

1. Ms Daniels provided a report dated 17 March 1998 to Comcare relating to issues from work the Applicant was experiencing Exhibit 9 (the Comcare file, folio 240).
2. Ms Daniels diagnosed the Applicant as suffering from anxiety and depression. Ms Daniels said that she was mindful of the possibility that the Applicant had PTSD from his time in Malaysia
3. Ms Daniels also suggested in her 17 March 1998 report that the Applicant was suffering from post traumatic stress disorder, but that there were insufficient symptoms for a complete diagnosis, and that the mild nature of the symptoms appear to be quite unrelated to the anxiety and depression caused by his employment situation.
4. In cross-examination, Ms Daniels admitted that the Applicant mentioned Malaysia infrequently during the course of her consultations with the Applicant, and that the focus of her intervention with the Applicant was on employment issues, not on the other potential causes of psychological disorder involving the Applicant.

E.The only medical evidence called by the Applicant came from Ms Sharon Daniels.  An earlier report dated 17 March 1998 appeared in Exhibit 9 (the Comcare file, folio 240).  Ms Daniels provided a short report, addressed to the Applicant, which is dated 17 November 2003, and which became Exhibit 5 in these proceedings.

F.Ms Daniels' 17 November 2003 report recounted an extract from her clinical notes dealing with the occasion when the Applicant first consulted her on 3 September 1997.

Evidence of Mr Anthony Pereira

16.     Mr Anthony Pereira gave telephone evidence on behalf of the Applicant in this hearing, as well as a written witness statement dated 18 July 2005 (Exhibit 4).  The effect of Mr Pereira's evidence is as follows:

A.Mr Pereira was stationed in Butterworth from 17 December 1974 until 10 June 1977.

B.Mr Pereira recalled an incident where the Applicant turned up at the "Jumbo Bar" one night and talked about the incident at the remote receiver station.  Mr Pereira said that he recalled that the Applicant was agitated in talking about this incident.  In his oral evidence, Mr Pereira said that the Applicant was "excited".

Evidence of Mr Anthony Morris

17.     Mr Anthony Morris provided a letter dated 4 October 2004, which became Exhibit 6 in these proceedings.  Mr Anthony Morris gave evidence by telephone to the Tribunal.  A summary of what Mr Anthony Morris told the Tribunal is set out next:

A.Mr Anthony Morris said that he is the brother of the Applicant.

B.Mr Anthony Morris said in his written statement that "when Ray returned from his posting to Malaysia in 1977 his personality had changed enormously."  In his oral evidence, Mr Anthony Morris said that the Applicant was "cranky all the time... grumpy" and that he would react excessively to normal kids' behaviour at family gatherings.

Evidence of Mr Robert MacDonnell

18.     Mr Robert Charles MacDonnell provided a witness statement dated 27 June 2005, which became Exhibit 8 in these proceedings.  Mr MacDonnell gave evidence by telephone to the Tribunal.  A summary of what Mr MacDonnell told the Tribunal is set out next:

A.Mr MacDonnell was stationed at Butterworth in the late 1970s.

B.Mr MacDonnell said that he recalled an incident involving the Applicant where he was charged for being absent from his place of duty.  Mr MacDonnell said that the Applicant left the remote receiving station and went to an establishment where he began drinking.  The Applicant was charged for this absence from duty.

Evidence for the Respondent

19.     The people who gave evidence on behalf of the Respondent were Dr David Alcorn, Psychiatrist, Mr Brendan Smith and Mr Maxwell Brennan.

Medical Evidence of Dr David Alcorn, Psychiatrist

20.     Dr David Alcorn, Psychiatrist, provided 2 medical reports, the first dated 1 March 2005 and the second dated 10 June 2005.

21.     In his medical report of 1 March 2005 (Exhibit 10), Dr Alcorn provided the following summary in relation to the Applicant:

“The subject is a 55 year old former public servant and Defence Force member.  He was evaluated following his application for a disability pension as a result of service in Butterworth in the 1970s.

From June 1975 until December 1977, the subject was posted to Butterworth Malaysia as a radio technician with the RAAF.  He reports that during this period the Malaysian Air Force were conducting hostile actions against the communist terrorist forces located in the highlands along the Malay/Thai border.

In his role as a radio technician, he had to travel alone by vehicle to a remote radar outpost and was frequently stopped and searched by Malaysian police with automatic weapons.

He described an incident when he was manning a remote outpost in a fenced compound when he saw four Asian men climbing over a barbed wire fence to enter the compound; however, when he called for back-up from the RAAF police, he was informed that they could not arrive until morning.  Despite no further incident and the arrival of the police in the morning, he reports that this incident has proven to be “severely stressful” for him.

The subject currently reports that his psychological difficulties were due to Butterworth and not Cairns; with problems existing since Butterworth; however, were not recognised.  He attributes all of his psychological problems including dreams, flashbacks, re-living etc as being related to Butterworth.

Summary of specialist reports

Psychiatrist, Dr Maxwell Katz, in December 2003: he reported that the subject appeared to have symptoms consistent with the diagnosis of Post-traumatic Stress Disorder with “very significant stressors of the past few years predating the nervous symptoms” which appear to have now debilitated him to a level excluding gainful employment.  Dr Katz reported being unable to separate the subject’s Malaysian experiences and his experiences at HMAS Cairns, and considered that both of these periods had contributed significantly to the development of the subject’s nervous disturbances.  Dr Katz assigned a GARP of 30.

Diagnosis

At present, the subject appears to suffer from a Post-Traumatic Stress Disorder.  The subject’s claim for compensation is that he received psychiatric injury as a result of two types of incidents:

1.being stopped by Malaysian police at checkpoints with a gun barrel held against his throat on multiple occasions, and

2. observing armed intruders inside a service compound which he was staffing alone, at night.

Features of the putative Post-Traumatic Stress Disorder include re-experiencing of the Butterworth checkpoint armed confrontations and the Butterworth remote receiving station intrusion by Asian youths.  He also describes features of anxious hyperarousal, defensive avoidance, hypervigilance, reduced sense of his own future and pervasive irritability.  There has been some secondary alcohol use.

In an earlier evaluation dated 7 December 1999 symptoms of marked psychomotor agitation, depressed mood, somatic symptoms associated with anxiety, sleep disturbance and anger were described as “Adjustment Disorder with Depressed Anxious Mood (in near remission)”.  He was also noted to be non-compliant with medication which he (likely) INCORRECTLY reported that he had taken.  There was also a possibility of excess alcohol use at that time.  It remains my opinion that the subject did NOT suffer from Post Traumatic Stress Disorder at the time of that evaluation.  Indeed, it was noted in that report pursuant to the subject’s Commonwealth workers compensation claim:

“In particular, he did not describe any armed services-related disability or illness”.

However, the anxiety symptoms present in 1999, were of a much lower intensity than the reported anxiety in the last 2-3 years.

Absence of Evidence

The subject’s contentions rest on a number of matters for which there is NO objective evidence.  These include:

His report of disciplinary charges in 1977 (reportedly as a result of avoiding         the receiving station),

That his service records have been covertly “sanitised”,

His inference that the absence of inspections by senior officers (based on the      subject’s report only) was a direct consequence of the areas in which he     worked being “potentially too dangerous”,

Negative Orientation to Evaluation of His Reported Stressors

The subject appeared to be negatively oriented to the current evaluation, despite repeated explanations that the examination was requested as a consequence of his own claim for service-related compensation.

Moreover, he was provided with exhaustive opportunities to present further data supporting his contentions concerning his military service.  He was sometimes unable to provide data which might have lent support to his contentions.

Additionally, his numerous angry remarks concerning the examiner’s past and present examinations were not directly confronted in order to optimise detail of the history which he provided.  (Later, at the end of the evaluation he was overly solicitous toward the examiner).

Despite being provided with ample opportunities to detail his symptoms, the subject indicated that there were matters touching upon his mental state in the last year which he did NOT wish to discuss (e.g. confrontation at his son’s home in October 2004).

Acknowledgement of likely Deception

It is also of note that the subject has acknowledged a previous act of deception:

He acknowledged that he has previously “probably lied” about service-related                 experiences when making a workers compensation claim in relation to his                    civilian Commonwealth employment,

Reference Made to Vietnam Conflict (Where the Subject did NOT Serve)

It was curious that when asked to describe the individuals that he had seen at the receiving station incident in Malaysia, the subject made reference to Viet Cong:

“They certainly weren’t wearing the black pajama thing they should have been      if they were Vietcong – they were just dressed like Asian youths”.

He also used an unusual (American) expression to describe a Department of Veterans Affairs facility, stating to his psychiatrist:

“I think he recommended one of the VA hospitals” (sic)”.

Minimisation, Obfuscation and Inability/Unwillingness to Elaborate History

The subject’s admission of probable deception during an earlier independent psychiatric examination is noteworthy.  This is likely to have obfuscated the conclusions previously reached, if the subject’s current account of past deception is accepted.

However, the subject’s admission of past deception itself raises a question of whether deception has occurred in relation to the current evaluation.

Leaving aside the question of deception and whether deception has occurred at the current evaluation, it is noteworthy that the subject engaged in other behaviours which had the effect of limiting the history provided.

For example, when asked to elaborate symptoms he appeared unwilling to do so and stated that he had signed security undertakings decades ago.  (Although signing security undertakings is relatively routine, the unwillingness to provide relevant history related to the service-related stressors is clinically unusual, and certainly not cited routinely by other service personnel undergoing examination).

Also, midway through the evaluation when the subject was asked to provide service-related examples of his (nominated) symptom of fears of Asian people:

“I can just barely hear you speaking”.

(The subject was immediately asked to request for repetition of any question or part question that he did not hear.  He indicated his understanding of this direction.  He did NOT subsequently make such a request).

At other times, when asked to provide an approximate date for the onset of his attributed service-related symptom complaints (i.e. dislike of crowded places), he changed the discussion to his current functional status.

Symptoms as Presented

Even having regard to the subject’s symptoms as presented, it was evident that the onset of symptoms of which the subject was overtly aware occurred generally only in the last “couple of years”.  For example, the subject cited fears of the public and dislike of crowded places.

He also recounted being unable to “handle” confrontation and said his symptom occurred “a couple of times” in 1983 or 1985.  However, it appeared that the symptom represented irritability and verbal aggression in response to him being displeased (rather than any anxiety-related phenomena).

For the reasons noted above it is my firm opinion that the subject’s self-report should NOT be uncritically accepted without recourse to external objective data.

Using the Diagnostic and Statistical Manual – Fourth Edition, Text Revision, Multiaxial Classificatory System of the American Psychiatric Association, I would accord the following diagnoses:

Axis I             Post-Traumatic Stress Disorder

Alcohol Abuse (in apparent remission)

Axis II            No frank personality disorder diagnosis

Possible narcissistic interpersonal attitudes and behaviours

Axis III           Musculoskeletal complaints

Axis IV           Ongoing attempts to obtain military compensation pension

Axis V            The subject describes himself in terms suggesting a moderate level of                impairment (Global Assessment of Functioning Scale Score = 51-60).

Causation

The subject reportedly rendered military service whilst in Butterworth, an operational area.  Considerations arise as to whether the subject’s condition has been caused by his operational service.  The subject’s Post-Traumatic Stress Disorder is presumed to be caused by operational service sunless it is shown that there is no sufficient ground for making that presumption, beyond reasonable doubt.

However, the reasonableness of the hypothesis that the subject’s Post-Traumatic Stress Disorder arose from operational service must be determined by reference to the relevant Statement of Principles.

It is my opinion, to a standard of reasonable satisfaction, that the subject does suffer from a psychiatric condition, Post-Traumatic Stress Disorder.

The history supplied by the subject (and some collateral materials) would normally raise a reasonable hypothesis connecting the two classes of Butterworth events with the Post-Traumatic Stress Disorder, albeit with delayed onset.  However, the reasonableness of this hypothesised connection rests predominantly upon the accuracy of the subject’s self-report.

Also, a reasonable hypothesis cannot be raised unless the subject has experienced a severe stressor prior to the clinical onset of his Post-Traumatic Stress Disorder.  The subject reported being confronted with Butterworth events that involved threat of serious injury or death or threat to his physical integrity.  However, the subject also alluded to a number of documentary deficits which do not support his self-report.  If either of the two classes of events occurred as stated by the subject, it is my medical opinion that they would objectively be consistent with a severe stressor.  The reported consequent feelings of anxiety, fear and distress subjectively experienced by the subject would also be consistent with exposure to a severe stressor.

However, in the absence of the reported service-related events, no severe stressor consistent with the Statement of Principles would arise and therefore a hypothesis of operational service-caused injury would not be reasonable.

In summary, I am satisfied that if the stressors occurred as reported by the subject these would amount to severe psychological stressors and a reasonable hypothesis arises connecting the operational service with the subject’s condition of Post-Traumatic Stress Disorder.

It is for an administrative or judicial fact-finder to make a determination as to the events which did (or did not) occur in Malaysia in relation to the subject’s contentions.

Because of the subject’s likely unreliability of self-report, no medical conclusions can be made at this time as to the service-related causation (or otherwise) of his Post-Traumatic Stress Disorder.

In my opinion, a service-related causation hypothesis is NOT reasonable in the absence of objective data confirming the subject’s self-report for the reasons noted above in “Formulation & Opinion – Summary”.

Following review of the materials noted in “Materials Recommended for Further Evaluation” further consideration of the service-related causation hypothesis will take place.

Likely Course of Disorder

It appears unlikely that the subject’s Post-Traumatic Stress Disorder will remit spontaneously.

The subject manifests the following impairments:

Psychiatric Impairments

Class of Impairment (Examples Only)

Self-care and personal hygiene

Class 2: Mild impairment; able to live independently, looks after self adequately, although may look unkempt occasionally, sometimes misses a meal or relies on take-away food.

Social and recreational activities

Class 3: Moderate impairment: Rarely goes to social events, and mostly when prompted by family or close friend.  Will not go out without a support person.  Not actively involved, remains quiet and withdrawn.

Travel

Class 2: Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Social functioning

Class 3 Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence.  Spouse, relatives or community looking after children.

Concentration, persistence and pace

Class 3 Moderate impairment: Unable to read more than newspaper articles.  Finds it difficult to follow complex instructions, eg operating manuals, building plans, make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

Adaptation

Whole person impairment

Class 5 Totally impaired.  Cannot work at all.  The subject manifests a moderate (to mild) whole personal impairment due to Post-Traumatic Stress Disorder.

Further Medical Treatment Recommended

The subject requires antidepressant treatment.  This will have the effect of diminishing his night-time wakefulness and diminishing his irritability.  The subject’s ambivalence towards psychiatric treatment is noteworthy, especially in view of the reported level of symptoms he complained of.

Also, the subject has taken only a “fragment” of his prescribed medication.

He also requires cognitive behaviour therapy the type that his previously received in north Queensland from Ms Sharon Daniels, in order to reduce his anxiety-related concerns.

Further Vocational Rehabilitation Recommended

At the current time the subject is not suitable for work.  His negative orientation toward his former work places and his strong belief in a service-related causation of his current illness make unlikely that he would seek work in future.”

22.     In his second report of 17 June 2005 (Exhibit 11), Dr Alcorn said, in response to questions posed by the Department Veterans' Affairs, as follows:

“Sources of Information

Medical Evaluations

1.01/03/2005 – Report, Dr David Alcorn, Specialist Medical Practitioner in Psychiatry, and sources of information therein.

2. 09/12/1999 – Report, Dr David Alcorn, Specialist Medical Practitioner in Psychiatry, and sources of information therein.

Other Information and Evaluations

1. 18/03/2005, MJ Brennan, Writeway Research Service Pty Ltd (and attach documents).

Answers to Department of Veterans Affairs Questions

1.In the light of this report, do you still stand by your diagnosis of PTSD, or is an

alternate diagnosis more appropriate?

It remains my opinion that on the balance of probabilities, the subject is suffering from an anxiety disorder.  For example, when seen earlier on 7 December 1999 for a different purpose, he was noted to be suffering from a psychiatric disorder with an anxiety component.

However, the cautionary comments regarding the post-traumatic stress disorder (PTSD) diagnosis noted in the report of 1 March 2005 are again reiterated.

If the additional materials provided by the research service were accepted as a matter of fact by an administrative or judicial decision maker and it was concluded that the subject’s report concerning his Malaysia service-related stressors was incorrect, it would be reasonable to conclude that the subject did not suffer from post-traumatic stress disorder.

2. In any case, what is the relationship (if any) between his current psychiatric disorder and the disorder present in 1998-1999, given the testimony of his wife and brother that his personality changed while in Malaysia?

If the subject’s account of his Malaysia experiences was accepted as being correct by an administrative or judicial decision maker, it would be reasonable to conclude that a “personality” change occurred as a result of the development of the post-traumatic stress disorder arising from the service-related events he has previously reported.

However, if the additional materials provided by the research service were accepted as a matter of fact by an administrative or judicial decision maker and it was concluded that the subject’s report concerning the Malaysia service-related stressors was incorrect, it would be reasonable to conclude that the subject’s wife and brother’s accounts of his personality change in Malaysia arose from increased alcohol consumption.  It was noted in the report of 1 March 2005 that alcohol use was associated with domestic violence on one occasion.

His anxiety disorder would have arisen in the context of mood and behavioural disturbance associated with excess alcohol use or in the later the civilian work-related events noted in the 1999 report and been perpetuated by the psychosocial stressors associated with his current veterans affairs claim and his dissatisfaction with his current financial and life circumstances.

Conclusions

The additional materials reinforce the importance of not uncritically accepting the subject’s self-report without recourse to objective external data.  The conclusions of the report of 1 March 2005 are otherwise unchanged.”

23.     In his oral evidence to the Tribunal, Dr Alcorn (who appeared in person) said the following:

1. Dr Alcorn said that after the first interview he had with the Applicant 1999, his overall impression was that the Applicant had a work-related adjustment disorder.
2. Dr Alcorn said that the Applicant did not volunteer any symptoms relating to post-traumatic stress disorder when he first interviewed the Applicant.
3. Dr Alcorn said that on the second interview with the Applicant four years after the first, he would have not had any difficulty concluding that Mr Morris had PTSD.
4. Dr Alcorn said that at the end of the 1999 interview, the Applicant did not suffer from PTSD.  Dr Alcorn conceded that delayed-onset PTSD can take place in people, but that it is usually triggered by events that are reminiscent of the original trauma.  Dr Alcorn said that the results from the Trauma Symptom Inventory conducted in 2005 were more elevated than for the test conducted in 1999.
5. In cross-examination, Dr Alcorn conceded that the first interview of the Applicant in 1999 was for Comcare purposes, not veterans' compensation, so that the focus of the interview was not on the military experience of the Applicant but rather on the workplace issues that he presented with.
6. In response to a question from the Tribunal, Dr Alcorn said that the trigger for the change in his medical opinions between 1999 and 2005 was that the Applicant presented with a different set of symptoms.

Evidence of Mr Brendan Smith

24.     Mr Brendan John Smith gave evidence for the Respondent by telephone.

25.     Mr Smith wrote an undated statement for Writeway Research Service Pty Ltd, which became an appendix to Exhibit 13.  Salient extracts from the statement are set out next:

“TO WHOM IT MAY CONCERN

I am a former RAAF Officer of the Police and Security Category and I retired after almost 27 years service the rank of Squadron Leader.  For almost 20 of those years I was employed within my field of expertise, Field Security.  RAAF Police Field Security is the RAAF equivalent of the civilian Police Special Branch.  The Section’s primary role was to conduct covert enquiries and investigations that effected RAAF interests, and gather and assess information for possible counter measures.  It encompassed RAAF Operation, RAAF property and its valuable assets, and RAAF personnel.

I made two tours of RAAF Butterworth, 1970 - 1972 and 1975 – 1978, and, for the latter tour, I held the rank of Warrant Officer.  For both tours, I was employed on Field Security duties...

On my second posting to Butterworth (1975 – 1978) the physical security had changed.  The Royal Malaysian Air Force (RMAF) had accepted ownership of the Air Base and as such, employed its own RMAF Police and Security Guards to maintain the physical security.  The RAF Auxiliary Police was then disbanded.  The RAAF maintained Security Guards and their Police Dogs for ‘flight line’ security and the RAAF Police for internal security concerning RAAF property and assets and RAAF personnel and their dependents.  A contingent of Australian Army personnel was also maintained within the Air Base for added protection of RAAF property and to act as a Ready Reaction Force (RRF) in the advent of any security infraction which required a rapid armed response.  Should the occasion arise whereby the security of the Air Base was under threat, an area known as the RAAF Ground Defence Operations Centre (GDOC) would be activated and all subsequent security threat operations pertaining to the RAAF, were directed from this centre.

During this time I was in charge of Field Security Section.  In order to remain ‘current’ on subversive and security matters affecting the RAAF, I maintained continuous contact with the Malaysian Police Special Branch at Penang Police Headquarters.  I attended regular security briefings and received information from the Police Special Branch, applicable to the RAAF’s interests, which I then passed on to my immediate superior, the APM.  From time to time and when necessary, I also briefed the RAAF Intelligence Officers employed at the Air Base.  Because of the Official Secrets Act I am unable to disclose the topics of information I was given by the Special Branch Police; suffice to say that it sometimes included Communist Terrorist (CT) activities, which at the time, was restricted to an area near the Malaysian/Thailand border.  The information in no way affected the security of the Air Base.

A number of incidents are claimed by a former RAAF airman to have occurred during this period of time when I was also at the Air Base.  I will respond to them separately.

RMAF aircraft dropped napalm on CT forces just 70 kilometres from the Air base and further, the CT forces were so close to the Air Base that they cut in RAAF airspace.

I know nothing of these incidents nor were these incidents the subject of security awareness, particularly by those who would have been privy to such information.  The RAAF would have been briefed on the RMAF missions, on a ‘need to know basis’, prior to any such operation.  I can only surmise these incidents were part of the rumour culture that existed in the small community of Australians living in Butterworth.  I exhausted many hours of investigative time in determining the authenticity of the countless rumours that were brought to my attention.

He was aggressively stopped and his vehicle searched while he was under threat with loaded weapons held against neck and head.

The Australian Defence Forces and their dependents based in Malaysia were subject to Malaysian common law.  However, in accordance with an agreement between the Australian and Malaysian Governments, Australian miliary vehicles and its occupants were exempt to any form of search by Malaysian Police or by its Defence Forces, without the presence of RAAF Police.  The Australian Defence personnel were not considered a threat to Malaysian security.  The incident, as claimed, would have brought an immediate official response by Defence authorities.  I was not made aware of the incident nor am I aware that the incident was reported to RAAF authorities, either at Section, Unit or Headquarters level.

The Malaysian Special Police Forces regularly conducted night operations in areas close to the Air Base.  I understand these operations were directed at those criminal elements that impacted on the security of the area concerned.  The operations by these forces had little or not impact on Australians living in Butterworth at the time.  I was always made aware by the Police Special Branch beforehand of those operations and advised the Assistant Provost Marshal accordingly.

While on night duty he saw Asian men climbing over the perimeter fence into the Receiver Station and reported the incident to RAAF Police.

I am familiar with the area the former RAAF airman claims the incident occurred.  The security of this area was the responsibility of armed RMAF Police and Security personnel and nearby, by the RAAF Security Guards and Police Dogs.  An incident of this kind would have been regarded as a breach of ‘high alert’ security and the response would have been overwhelming.  On receipt of the alleged telephone call, the RAAF Police control centre would have alerted the Ready Reaction Force who would have been activated and essential personnel would have been placed on ‘standby’.  I am not aware of what the RMAF response would have been.  In any event, with an incident of this magnitude, I was on the list of those personnel who was to be contacted immediately by the RAAF Police and I would have commenced liaison with the appropriate Malaysian Police authorities.  More importantly, the Air Base would have been ‘shut down’ to all but essential personnel.  I know nothing of these claims and nor am I aware that there is any documentation (RAAF Police Control Room logbook entries, security incident reports, or any reports at Unit and Headquarters level) that support the claims.  An incident such as this would have been brought to my attention and would certainly have been the subject of follow up action and investigation by my section.

By tradition, RAAF Police are not held in great esteem with fellow RAAF members by the very nature of their duties.  It would be reasonable to assume the former RAAF airman would have mentioned the above incident to his Section workmates and of the fact that RAAF Police did not pursue the matter as he reported it.

I cannot confirm any of the claims alleged and I was certainly in a position to have first hand knowledge.  Nor am I able to confirm the former airman reported any of the incidents to the proper RAAF authorities.  However, I can confirm that I have never been in receipt of any information on any activities of a security nature affecting the Air Base at Butterworth Malaysia as claimed by the former airman.

Signed

Brendan Smith.”

26.     The oral evidence of Mr Smith to the Tribunal was to the following effect:

1. Mr Smith said that during his second tour of duty (from 1975 to 1978) there was no CT activity in the State of Perak (where the base was located), but there was some in the next State further north (near the Malaysia -- Thailand border).
2. Mr Smith denied that there were Royal Malaysia Air Force planes bombing CT forces 70 km away during his time, and that if it had, and the Air Force would have been told about it or otherwise know about such activity, and that he would have expected to have been briefed about this because it would have been integral to his role as a RAAF policeman.
3. Mr Smith said that it would have been highly unusual for Malaysian forces to have put a weapon to the side of the head of the Applicant, and that no such incident was reported to him during his second tour of duty.
4. Mr Smith said that for the confrontation with the Malay troops to have happened seven times was just "pure fantasy".  Mr Smith said that if the Applicant had reported the incident to his superior the first time it happened, it would have been taken up through the normal military channels between Australia and Malaysia and the incident would not have been repeated.
5. Mr Smith said that in relation to the incident involving four intruders, the Applicant should have used the emergency telephone number (000) instead of the RAAF police.  If the police had been contacted, they would have responded to the emergency and arranged for the ready reaction force to be deployed.
6. Mr Smith denied any knowledge of an incident where a Communist flag had been draped over the gate to the remote receiver compound.
7. Mr Smith denied any knowledge of the Malaysian police or Malaysian armed forces using a "shoot first and ask questions second" policy.
8. Mr Smith denied any knowledge of reports of aggressive troops confronting Australian radio operators.  Mr Smith said that if this did happen, and if it was reported, news of this event would have been passed on to him as was important to the discharge of his own duties as a RAAF policeman.

Evidence of Dr Maxwell Katz

27.     Dr Maxwell Katz, Psychiatrist, did not give evidence in person, but a report from Dr Katz dated 15 December 2003 formed part of Exhibit 1 (Folios 18 – 22).  Dr Katz was commissioned by the Department of Veterans' Affairs.  The Tribunal draws no adverse Jones v Dunkel (1959) 101 CLR 298 inference from the failure of Dr Katz to give evidence on behalf of the Respondent.

28.     The finding that Dr Katz made was that the Applicant appears to have symptoms consistent with a diagnosis of PTSD but that there were very significant stresses of the past few years predating the later symptoms which have now debilitated the Applicant to a level where he could not be gainfully employed in the workforce for more than eight hours a week.  Dr Katz concluded that the Applicant has symptoms consistent with PTSD according to DSM–IV.  Dr Katz reported being unable to separate the Applicant's Malaysian experiences and his experiences at HMAS Cairns, and considered that both of these periods had contributed significantly to the development of the subject’s nervous disturbances.

Evidence of Ms Sharon Daniels

29.     The only medical evidence called by the Applicant came from Ms Sharon Daniels.  An earlier report dated 17 March 1998 appeared in Exhibit 9 (the Comcare file, folio 240).  Ms Daniels provided a short report, addressed to the Applicant, which is dated 17 November 2003, and which became Exhibit 5 these proceedings.

30.     Ms Daniels' 17 November 2003 report recounted an extract from her clinical notes dealing with the occasion when the Applicant first consulted her on 3 September 1997.

31.     In her oral evidence to the Tribunal, Ms Daniels said that the primary focus of the consultations the Applicant had with her was for employment-related issues.  Ms Daniels said that she was mindful of the possibility that the Applicant had PTSD from his time in Malaysia.  Ms Daniels said in cross-examination that the Applicant mentioned Malaysia "infrequently" during the course of the consultations with the Applicant.

Discussion of the medical evidence

32.     The only medical evidence called by the Applicant came from Ms Sharon Daniels (whose evidence has been extracted above).  Ms Daniels' later report (Exhibit 5) touches more directly on the Malaysian experiences of the Applicant than the earlier report (found within Exhibit 9, Folio 240).  Even so, Ms Daniels was treating the Applicant in relation to employment-related issues and did not explore any treatment options for PTSD.  The Tribunal found Ms Daniels' evidence to be of little assistance.

33.     Dr Alcorn (called on behalf of the Respondent) was inclined to a diagnosis of anxiety disorder.  In his earlier 7 December 1999 report, Dr Alcorn noted symptoms of marked psychomotor agitation, depressed mood, somatic symptoms associated with anxiety, sleep disturbance and anger, which were described as “Adjustment Disorder with Depressed Anxious Mood (in near remission)”.  In his 1 March 2005 report, Dr Alcorn made a diagnosis of "PTSD, albeit with delayed onset".  In his supplementary 17 June 2005 report, Dr Alcorn made, in effect, a differential diagnosis.  The first limb of this differential diagnosis was that if an administrative or judicial decision maker did not accept the claims of the Applicant that he experienced the 2 stressors in Malaysia as alleged, then Dr Alcorn said it would be reasonable to conclude that the Applicant did not suffer from PTSD.  Secondly, Dr Alcorn said the Applicant was suffering from anxiety disorder if the Malaysian experiences were not accepted as factually based and that his personality changes arose from increased alcohol consumption which coincided with the military service of the Applicant and the events that took place in relation to the Applicant in his post military, civilian workplace experience.  Thirdly, if it was accepted that the 2 Malaysian incidents occurred as alleged by the Applicant, then it would be reasonable to conclude that a personality change occurred in the Applicant as a result of the development of PTSD arising from the service-related events the Applicant reported previously.

34.     Dr Katz diagnosed PTSD, but was not able to separate the Malaysian experiences of the Applicant from his adverse civilian experiences.  Dr Katz could assume only that both of these periods of the life of the Applicant contributed significantly to the development of his nervous disturbances.

35.     Of the two medical experts, the evidence of Dr Alcorn is to be preferred to that of Dr Katz for the following reasons.  First, it is evident from the very detailed reports that Dr Alcorn has furnished that Dr Alcorn has made a more thorough medico-legal investigation and report whereas the report and investigation of Dr Katz is much less detailed and thorough (from both qualitative and quantitative perspectives).  Secondly, Dr Alcorn was subjected to cross-examination whereas Dr Katz was not called as a witness (indeed it is unknown whether Dr Katz is still in private practice or not).  Thirdly, Dr Katz was not able to separate the probable causes of the psychiatric conditions of the Applicant from service and non-service related elements whereas Dr Alcorn was able to.

Evidence of Mr Max Brennan

36.     Mr Max Brennan of Writeway Research Pty Ltd provided 2 reports, the first dated 18 March 2005 (Exhibit 13) and the second dated 23 July 2005 (Exhibit 14).

37.     People Mr Brennan interviewed (who are named in Exhibit 13) did not have any knowledge of any armed attack on the base during their service there, but could recall occasions of criminal activities directed against the base.  None of the interviewees recall aggressive behaviour by Malaysian police or security forces being directed against Australians, and none regarded Butterworth as a dangerous place.

38.     In connection with the second incident raised by the Applicant (the break-in at the receiver station), Mr Brennan reported that none of the former RAAF personnel whom he contacted could recall an incident where there was a break-into the compound of the receiving station at Butterworth and of the non-attendance of RAAF police to a reported break-in.

39.     In his oral evidence to the Tribunal, Mr Brennan said the following.  The people he interviewed reported that the security situation at Butterworth was "benign".  Mr Brennan said that in his documentary research, he could find no record of an incident involving anyone at a receiving station, but that even if the event had been reported, it would not necessarily have been recorded.  In cross-examination, Mr Brennan conceded that he did not speak to any of the people who provided statements on behalf of the Applicant.

Discussion of Non-medical Evidence

40.     Mr Anthony Wade provided a written statement dated 2 August 2005 to assist the Applicant (Exhibit 7).  Mr Wade was not called to give evidence, and so he was not cross-examined on his witness statement.   The Tribunal did read this witness statement but gave it comparatively little weight as critical parts of that statement were vague in terms of its bearing upon the ultimate issue in dispute and had not been subject to forensic testing in the arena of the Tribunal.  The Tribunal draws no adverse Jones v Dunkel (1959) 101 CLR 298 inference from the failure of Mr Wade to give evidence on behalf of the Applicant.

41. With the exception of Mr Brendan Smith (whose evidence has been recounted above), none of the other people whom Mr Brennan interviewed gave evidence to the Tribunal, and the evidence of those interviewees is accordingly hearsay and should be given less weight. This body of evidence has also not been tested forensically in the hearing of this appeal. While the rules of evidence (including the rules relevant to the admissibility and weight to be given to hearsay evidence) do not bind the Tribunal because of section 33(1)(c) of the Administrative Appeals Tribunal Act 1975, it is still necessary for evidence to be relevant (as relevance is understood in the law of the evidence: compare analogically section 56 of the Evidence Act 1995[1]) if evidence relevant to the ultimate fact in issue is to be received by this Tribunal: Secretary, Department of Social Security v Jordan (1998) 49 ALD 496 at 504 per Hill J.

[1]  See the discussion of relevance in A Ligertwood, Australian Evidence (Fourth Edition, Lexus Nexus Butterworths, Australia, 2004), paragraphs [2.16] -- [2.24].

42.     The central factual issue in these proceedings is whether the Tribunal accepts that either or both of the 2 Malaysian incidents occurred.

43.     The evidence of Mr Pereira corroborates the evidence of the Applicant in relation to the remote receiver station incident.  More precisely, this evidence relates to the aftermath of the incident as reported to Mr Pereira by the Applicant.  The response of the Applicant, as noted by Mr Pereira and recounted in his evidence, is consistent with an event causing the Applicant stress.  Against this, however, must be placed the fact that official military channels and sources have no record of the incident.  The evidence of Mr Smith indicates that if the event had been reported to it would have been acted upon by the deployment of the ready reaction force.  Mr Brennan's research and interviews did not encompass those persons who gave evidence or reports favourable to the Applicant, and those persons were known to Mr Brennan.  The Tribunal accepts the evidence of Mr Gresham about the placement of a Communist flag on the gate of the remote receiver station.  This is indicative of CT activity (whether or not involving CT operatives or persons sympathetic to the Communist cause) affecting the remote receiver station.  On balance, the Tribunal accepts that the incident recounted by the Applicant involving the four intruders did take place.

44.     In connection with the confrontation with armed Malaysia Security Forces whilst in transit to and from the remote receiver station as alleged by the Applicant, the evidence of Mr Gresham recounted an incident where a policeman in Penang stopped him while driving and put the barrel of a sub-machine gun in his face and demanded to see identification.  On balance, the Tribunal accepts that the Applicant was confronted with Malaysian security forces pointing weapons at him whilst he was in transit to and from the remote receiver station.

Applicant’s Submissions

45.     The Applicant's written submissions (made after the conclusion of the hearing) were as follows:

1.In this case the relevant stressors relied upon by the applicant are, in essence:

(a)   Being stopped by Malaysian military personnel with a gun being pointed to his throat/neck/head on multiple occasions;

(b)   Observing armed intruders inside a remote service compound which he was staffing alone, at night, when no assistance was provided to him.

2.The Federal Court’s decision in Stoddart v Repatriation Commission [2003] FCA 334 outlines the correct approach to the question of what events satisfy the definition of “severe stressor”. There Mansfield J said at paragraph 51:

“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.

(and at paragraph 55)

“the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.” (emphasis added)

3.This formulation was approved by the Full Court in Woodward v Repatriation Commission (2003) 200 ALR 332 (“Woodward”) at [139] in the following terms:

“[139] Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SoPs by requiring there to be actual threat, judged objectively and with full knowledge of all the circumstances.  In his Honour’s opinion, 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 a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did not convey, the risk of death or serious injury.  In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.”

4.In Woodward, the Full Court pointed out at [77] that the “experience” had to be based on an “event” and that a figment of the imagination such as might arise thought “paranoid ideation” would not be sufficient to meet this requirement. The Court noted further that it was Mr Woodward’s “experience” which had to be the focus of the AAT deliberations, a point which the AAT appeared not to have appreciated in that case.

5.Therefore, the critical principles emerging from the leading authorities are as follows:-

(a)   The definition does not require there to be an actual threat judged objectively and with full knowledge of all the circumstances;

(b)   There nevertheless needs to be an “event”; a figment of the imagination, albeit a threatening one, does not suffice;

(c)   The particular applicant’s “experience” has to be the focus of the AAT’s deliberations.  In this case, this can broadly be summed up by noting that the AAT must focus on the events which Mr Morris experienced bearing in mind all of the circumstances peculiar to him, namely his position, age, knowledge, previous experiences and state of mind and emotions and further that it is impermissible to examine the events through the prism of the knowledge and experiences of any other individual, for example, the witness Brendan Smith.

6.The latter proposition was expanded upon by Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 where his Honour said at paragraphs 27-28:

“27. The term ‘stressor’ denotes something which leads to stress.  It is inherent in the notion of ‘stress’ that here is a perception on behalf of an individual.  The existence or extent of the stress will depend on each particular personality.  This concept injects a subjective element into the determination.  What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers.  As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account.  It is clearly not a purely objective construct such as is applied in negligence cases.  It is not a case of deciding how ‘the man on the Chapham omnibus’ might react.  There is more.  The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions.  While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances.  This indicates that the definition must be approached in a manner which is not unduly restrictive.

28. There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so.  In other cases, one person may find something stressful that other persons do not find stressful at all.  Considerable latitude must be extended when considering whether a person has experienced a severe stressor.”

Respondent’s Submissions

46.     The Respondent’s written submissions (made after the conclusion of the hearing) were as follows:

1.  Before a diagnosis can be made, the full diagnostic indicia must be present.  The presence of only some of the indicia is not sufficient: Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 702 ff. In the present case, the diagnostic criteria for PTSD, as set out in the SoP, are the same as in DSM-IV, and contain five sections. Some of these symptoms overlap those of generalised anxiety disorder, the differential diagnosis. However, section B requires re-experiencing symptoms, and the evidence was clear that these commenced in 2001. As section B is essential to the diagnosis, PTSD – assuming the diagnosis is accepted – could not be said to be present prior to 2001. If a diagnosis of delayed onset PTSD is accepted, the question must be raised as to its relationship to the severe psychiatric symptoms present 1995 – 2000. Oral submissions have already been made on this issue.

2.  Furthermore, section A requires a “traumatic event”, and if the Tribunal is not satisfied that the incidents relied upon amount to a traumatic event, then the diagnosis cannot be made: Re Martin and Repatriation Commission [2003] AATA 1228 at [41] to [49].

3.  The diagnosis and causation of PTSD are intimately linked but, fortunately, in this case, covered by the same standard of proof.  A “traumatic event” is defined in the same words as “severe stressor”, except that there are also a number of examples illustrating the latter.

4.  The interpretation of “threat” in the definition was dealt with in Stoddart v Repatriation Commission (2003) 197 ALR 283. The background of the case was that Stoddart claimed that, when actions stations were called while he was working in the bowels of a ship, he believed the ship was under attack – something which would arguably be frightening if honestly believed. The Tribunal found, in effect, that because the ship was never, in fact, under attack, he had not objectively experienced a “threat”.

5.  Mansfield J, on the other hand, pointed out at [42]: “It is clearly a threat to be confronted with a person holding a loaded cocked gun and who is threatening to shoot.  But what it, unknown to the person experiencing the circumstances, the gun is unloaded? Or is a replica only? …”

6.  In the judge’s opinion, “if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity” (paragraph [55]).  “[I]diosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause” are not included (paragraph [50]).  This was upheld in Woodward v Repatriation Commission (2003) 200 ALR 332.

7.  The case of Delahunty v Repatriation Commission [2004] FCA 309 did not deal with the issue of threat so much as with witnessing. The judge ruled that the witness’s interpretation of the event, provided it was rational, must be taken into account. The actual error of law was in determining his reaction to be merely a “paranoid ideation” or “fanciful” figment of his imagination (paragraphs [30]) – [31]).

8.  Two points must now be made.  By invoking any of these three decisions, an applicant is essentially conceding that his experience would not have been a severe stressor if interpreted objectively.  Secondly, the decisions deal only with perceptions, or rather misperceptions, not severity.  To cite the example given in Stoddart, a person would be understandable terrified if he did not know that the gun pointed at his head was not loaded, but only because it would represent a real and imminent danger if it were in fact loaded.  It is easy to think of situations which one misinterpret as dangerous, but only a remote danger.

9.  The issue of severity was, however, addressed in White v Repatriation Commission [2004] FCA 633. Here the issue was the definition of “severe psychosocial stressor”, which included a number of examples. On these, Spender J commented at [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.”

10.  In addition, at [32], the judge said: “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’ [sic], means that the examples given in the definition of ‘severe psychosocial stressor’ would be not only irrelevant and devoid of utility, but positively misleading.

11.  Although White dealt with “severe psychosocial stressor”, the logic is applicable to the present case.  The Statement of Principles no 4 of 1999 for post traumatic stress disorder, as amended by Instrument no. 55 of 1999, requires a “severe stressor”.  It replaced Instruments no. 16 of 1994 and no. 226 of 1995, which required merely a “stressor”.  Furthermore, the definition of “severe stressor” included examples ie

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

(i)         Threat of serious injury or death; or

(ii)      Engagement with the enemy; or

(iii)     Witnessing casualties or participation in or observation of                  casualty clearance, atrocities or abusive violence.

13.  The changes were presumably made for a purpose ie to rule out weak cases.  The examples are not exclusive, but they do serve as benchmarks.  Any event which counts as a “severe stressor” must be at least as severe as the examples cited, even after the applicant’s subjective interpretation is taken into account.  This was accepted in Re Hackett and Repatriation Commission [2004] AATA 1347 at [71] to [72]. Re Ballantyne and Repatriation Commission [2003] AATA 1186 also dealt with incidents comparable to, but arguably more severe than, those contended by Mr Morris. See paragraphs [11] to [17], and the Tribunal’s findings in paragraph [57].

14.  Under these circumstances, applicant’s representatives attempt to water down example (i), because “threat” is an elastic term.  These days, even an unattended suitcase can be considered a threat, but no-one would suggest it is as bad as, for example, being involved in the Voyager disaster.  It would be contrary to the spirit of the Statement of Principles to permit example (i) to allow low levels of threat while examples (ii) and (iii) are clearly very severe.

15.  It is the respondent’s position that the incidents alleged by Mr Morris have been subjected to embellishment and exaggeration, but would not have amounted to “severe stressors” even if accurately described.  Detailed reasons were given in my oral submission.

Findings of Fact

47.     Based upon the evidence before it, the Tribunal makes the following findings of fact:

1. Mr John Raymond Morris (the Applicant) was born on 10 April 1949.
2. The Applicant served in the Royal Australian Air Force from 11 January 1966 to 14 March 1986.
3. The only eligible service of the Applicant was defence service from 7 December 1972 to 14 March 1986.
4. The Applicant was posted to RAAF Base, Butterworth, Malaysia as a Radio Technician (Ground) from June 1975 to December 1977.
5. During his Malaysian posting, the Applicant was confronted with armed Malaysian security forces pointing weapons at him whilst he was driving the course of official duties.
6. During his Malaysian posting, the Applicant saw four intruders in the compound in which the remote receiver station was based.

Legislative framework

48. It was common ground between the parties that the Applicant had rendered defence service. In this case, the Applicant has not rendered any hazardous service within section 69A. The veteran's injury or disease is taken to have been "defence-caused" if it meets one of the criteria specified in section 70. In this case, the circumstances are such that it is only sections 70(1), 70(5)(a) and 70(5)(d) which are relevant, and these provisions read:

“70Eligibility for pension under this Part

(1)       Where:

(a)the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or

(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;

the Commonwealth is, subject to this Act, liable to pay:

(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or

(d)in the case of the incapacity of the member—pension by way of compensation to the member;

in accordance with this Act.

…

(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:

(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

...

(d)       the injury or disease from which the member died, or is incapacitated:

(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;”

49.     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:

“[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 s. 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.”

50.     The standard of proof to be followed by the Tribunal in relation to the claim of the Applicant is governed by section 120(4), which states:

“120 Standard of proof

(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note:   This subsection is affected by section 120B.”

51.     The Note to section 120(4) provides a signpost to section 120B, which reads:

“120BReasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

(1)This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;

(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

Note 1: Subsection 120(4) is relevant to these claims.

Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).

(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.

(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:

(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)       there is in force:

(i)a Statement of Principles determined under subsection 196B(3) or (12); or

(ii)       a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)       the kind of injury suffered by the person; or

(b)       the kind of disease contracted by the person; or

(c)       the kind of death met by the person;

as the case may be.”

52.     In following the pathway signified by sections 120(4) and 120B(3) with reference to the reasonable satisfaction of the decision-maker, Beaumont J of the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537 at 547 said that a decision-maker (including this Tribunal):

"...  should have asked itself whether, on the facts of the case, it was persuaded on the civil standard.   There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777 and; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”

53.     This particular passage and its mode of analysis were followed by this Tribunal in Re Buckham and Repatriation Commission [2000] AATA 174 at [55].

54. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of post traumatic stress disorder pursuant to section 196B(2) of the Act. Section 120A 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: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. There were no determinations of the Repatriation Commission under subsection 180A(2) that are relevant to this case, and the parties did not contend to that effect.

55.     Section 196B(14) sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:

“196B   Functions of authority

(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.”

56.     In relation to any part of the Applicant’s claim for any condition that is said to relate to defence service (as distinct from operational service), the Deledio “reasonable hypothesis” [from Repatriation Commission v Deledio (1998) 83 FCR 82] approach is not followed – instead the Tribunal must simply test the Applicant’s claim against the factors of the relevant SoP. For the Applicant to be successful, the Tribunal must accept his or her claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185. The Tribunal must be satisfied (to a standard of reasonable satisfaction) that the Applicant suffers from a medical condition. The Tribunal considered this aspect next.

Diagnosis

57.     The first issue for the Tribunal is that of diagnosis.  The question of whether a veteran suffers from a particular medical condition is required to be determined to the reasonable satisfaction of the Tribunal: section 120(4).  Dr Alcorn contemplated that if the two Malaysian events alleged by the Applicant did in fact take place, then he preferred a diagnosis of PTSD instead of anxiety disorder.  On the basis of the medical opinions before the Tribunal (discussed earlier in these Reasons for Decision), the Tribunal is satisfied that the Applicant suffers from post traumatic stress disorder.  This finding, however, does not conclude the matter as there must exist the relevant connection between the Applicant's medical condition and his defence service.

Tribunal’s Reasons

58.     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 military service (in this case, defence 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)).  The relationship to service must be one of the relationships prescribed in section 196B(14): Haughey and Repatriation Commission [2005] AATA 189 at [63].

59.     In coming to a decision, the Tribunal must form an opinion whether the contention raised by the Applicant fits within or is consistent with a factor set out in the SoP.  If the contention fails to fit within the template, the claim will fail: Haughey and Repatriation Commission [2005] AATA 189 at [64].

60.     Potentially, there are two SoPs that are relevant in the circumstances of this appeal, the first being SoP No 4 of 1999 which was amended by SoP No 55 of 1999.  In accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. Accordingly, the Tribunal considers SoP No 4 of 1999 which was amended by SoP No 55 of 1999 the correct Statement of Principles to apply, which was in any event agreed between the parties.

61.     Adapting what this Tribunal said in Beurskens and Repatriation Commission [2005] AATA 601 at para [53]:

“Clause 4 of the SoP [No 4 of 1999] requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran....  The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of [No 4 of 1999] 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.”

62.     Following Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42], it is proper to read into the language of the SoP the language of section 196B(14).

63.     In Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9], the Federal Court said that section 196B(14)

“explains what is meant by the requirement to set out the factors that must be related to service rendered by a person.   It does that by enumerating a number of alternate meanings of the phrase “related to service”.

That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present.

64.     In this case, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, corresponds to paragraph (a) of section 196B(14).  In this case, the Tribunal finds that the confrontation incident and the remote receiver station incident each constitute an "occurrence" within the meaning of section 196B(14)(a).

65.     In these Reasons for Decision, it is not necessary for the Tribunal to extract the meaning of "post traumatic stress disorder" as it appears in SoP No 4 of 1999.   Relevantly, however, clause 5 reads:

“Factors

5.The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of a person’s relevant service are:

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

(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c)inability to obtain appropriate clinical management for post traumatic stress disorder.”

66.     As well, in clause 8 of SoP No 4 of 1999:

“‘relevant service’ means:

(a)       eligible war service (other than operational service); or

(b)       defence service (other than hazardous service);”

67.     In the circumstances of this case, it was common ground that the Applicant has rendered defence service, has not rendered hazardous service and that clause 6 of SoP No 4 of 1999 is not relevant.

68.     The Tribunal then considered the meaning of "experiencing a severe stressor" as it is used in clause 8 of SoP No 4 of 1999, as amended by clause 1 of SoP No 55 of 1999:

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

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

(i)        threat of serious injury or death; or

(ii)       engagement with the enemy; or

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

69.     The Applicant contended, and Dr Alcorn (called by the Respondent) conceded (properly, in the opinion of the Tribunal) that the confrontation incident and the remote receiver station incident were events that involved actual or threat of death or serious injury to the Applicant.  Delahunty v Repatriation Commission [2004] FCA 309 at [27] -- [28] underscores the need to take into account the idiosyncrasies of the veteran in deciding whether or not a particular event is a “stressor" (while at the same time recognising that subjective considerations are not wholly decisive so that stressors must also be evaluated objectively). Accordingly, the Tribunal is satisfied that the Applicant experienced a severe stressor within the meaning of SoP No 4 of 1999, as amended by SoP No 55 of 1999. Dr Alcorn conceded that PTSD was an appropriate alternative diagnosis if the Tribunal accepted that the confrontation incident and the remote receiver station incident did take place. This leads on to the next step, namely the conclusion that the confrontation incident and the remote receiver station incident are related to service within the meaning of section 196B(14), especially paragraph (a), as understood in terms of the reasoning of the Federal Court in Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9]. This then leads on to section 70 to ground the resolution of the ultimate issue that the Applicant has become incapacitated by a defence-caused injury or a defence-caused disease for which the Respondent is liable to pay a pension to the Applicant in accordance with the Act.

70.     To summarise: the medical and other evidence before the Tribunal (identified earlier in this Reasons for Decision), which the Tribunal accepts, is to the effect that the confrontation incident and the remote receiver station incident triggered post traumatic stress disorder in relation to the Applicant.  The requisite relationship between the defence service of the Applicant and this condition of post-traumatic stress disorder within SoP No 4 of 1999, as amended by clause 1 of SoP No 55 of 1999 (read against the backdrop of section 196B(14)) is satisfied.  Accordingly, the Tribunal concludes that the post traumatic stress disorder of the Applicant is related to his defence service.

Tribunal’s Conclusion

71.     Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct or preferable decision in this case is that the Applicant’s condition of post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986.

Tribunal’s Decision

72.     The Tribunal sets aside the decision under review and substitutes the decision that the Applicant's post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 11 May 2003.

73.     The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member

Signed:         Jan Lauriston   
                  Administrative Officer

Dates of Hearing  27 September 2005 and 7 October 2005
Date of Decision  17 January 2006
Counsel for the Applicant         Mr AC Harding
Solicitor for the Applicant          Gilshenan & Luton
For the Respondent                  Mr M Smith, Departmental Advocate