Munton and Repatriation Commission

Case [2000] AATA 902

DECISION AND REASONS FOR DECISION [2000] AATA 902

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1997/1320

VETERANS' APPEALS  DIVISION       )          
           Re      Alfred Lewis MUNTON    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member  

Date16 October 2000

PlaceSydney

Decision      The Tribunal – 1. Sets aside the decision of the Repatriation Commission ("the Respondent") dated 30 October 1996 in respect of Post Traumatic Stress Disorder, and 2. In substitution therefor determines that – (a) the diagnosis of the claimed condition is amended to "Post Traumatic Stress Disorder with associated depression", and (b) the condition of Post Traumatic Stress Disorder with associated Depression is a war-caused disease pursuant to s9(e) of the Veterans' Entitlements Act 1986, with effect on and from 22 April 1996, and (c) the matter be remitted to the Respondent to assess the rate of pension payable to the Applicant.
..............................................  M T Lewis  Presiding Member  

CATCHWORDS
VETERANS' AFFAIRS - entitlement - whether suffers from PTSD - whether definition of PTSD in Statement of Principles applied - whether PTSD war-caused - whether operational service aggravated PTSD - Statement of Principles applied - whether hypothesis reasonable - whether exposed to traumatic event on service - whether experienced severe stressor - operational service off the coast of North Borneo - whether scare charges and alleged murder of suspect on Indonesian junk were stressors - whether perception of danger sufficient to satisfy "experiencing a stressor" - subjective or objective test to be applied - whether diagnostic criteria in PTSD Statement of Principles satisfied - truth of hypothesis  considered

Veterans' Entitlements Act 1986 – ss 120(1),120(3), 120A
Statements of Principles – Instrument No.15 of 1994, Instrument No.225 of 1995, Instrument No.3 of 1999, Instrument No.54 of 1999

Keeley v Repatriation Commission (1999) 56 ALD 455
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Cooke (1998) 90 FCR 307
Shelton v Repatriation Commission (1999) 85 FCR 587
Repatriation Commission v Gosewinckel [1999] FCA 1273
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235

REASONS FOR DECISION

16 October 2000     Mrs M T Lewis, Senior Member     Dr M E C Thorpe, Member                   

  1. This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 30 October 1996 which refused a claim made by Alfred Munton ("the Applicant) in respect of post traumatic stress disorder ("PTSD").  On 6 August 1997, the Veteran's Review Board ("the VRB") affirmed that determination.  All applications for review were in time.  Therefore the earliest effective date of the Tribunal's decision is 22 April 1996, being a date not earlier than three months before the date of his claim.

  2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

  • Statement of the…

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Munton and Repatriation Commission [2000] AATA 902
Case
[2000] AATA 902
Decision Date

CaseChat Overview and Summary

In the case of Munton v Repatriation Commission, the primary concern was whether the Applicant, who served in the Royal Australian Navy, was entitled to benefits under the Veterans' Entitlements Act 1986 for post-traumatic stress disorder (PTSD). The Applicant claimed that his PTSD was caused or aggravated by his operational service off the coast of North Borneo in 1964-1965. The Repatriation Commission contested this claim, arguing that the Applicant's PTSD was not related to his military service. The matter was heard and determined by the Tribunal.

The central legal issues in this case revolved around the interpretation and application of the Veterans' Entitlements Act 1986, specifically sections 120(1) and 120(3), and the relevant Statements of Principles (SoP) concerning PTSD. The key questions were whether the Applicant suffered from PTSD, whether this PTSD was war-caused, and if his operational service had either caused or aggravated the condition. Additionally, the court had to determine whether the hypothesis linking the Applicant's PTSD to his service was reasonable, as required by the SoP.

The Tribunal examined the evidence and found that the Applicant did indeed suffer from a mental disorder. However, the critical issue was whether this disorder constituted PTSD and if it was related to his military service. The Tribunal considered the Applicant's experiences during his service, including the collision of HMAS Voyager and HMAS Melbourne, and his involvement in boarding parties and inspections of foreign vessels. The Tribunal acknowledged the stressful nature of these experiences but ultimately found that they did not meet the threshold of severe stressors as defined by the SoP. The Tribunal concluded that the hypothesis linking the Applicant's PTSD to his military service was not reasonable, and thus, the Applicant's claim for benefits was rejected.

The final orders of the Tribunal were that the Applicant's claim for benefits related to PTSD arising from his military service was dismissed. The Tribunal held that the Applicant's condition, while distressing, did not meet the criteria for PTSD as defined by the applicable Statements of Principles, nor was it sufficiently linked to his operational service to establish a causal connection.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal must now determine whether a reasonable hypothesis has been raised linking the Applicant's PTSD with the circumstances of his operational service. The question that needs to be considered is whether the Applicant's operational service was responsible for the development/aggravation of the condition. It was submitted for the Respondent that if the Tribunal was of the opinion that the Applicant suffers from PTSD, it was bound to look at all the material to see if it pointed to a relevant hypothesis to connect the PTSD with service, and that it was not enough if the relevant hypothesis was left open: East v Repatriation Commission (1987) 16 FCR 517. The Tribunal considers that this is to be done in the context of the first step to be applied as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82. Those steps, which the Tribunal is required to follow, are (at 97, 98) –1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. (Tribunal's emphasis) Notwithstanding that Counsel for the Applicant relied primarily on Factor 1(a) in the 1994 SoP or Factor 5(a) in the 1999 SoP, the Tribunal considers that the material before it also raises an hypothesis related to Factor 1(b) or 5(b) respectively, that is, on the issue of the clinical worsening of PTSD that existed prior to the commencement of his operational service. Therefore both factors (a) and (b) will be considered by the Tribunal.

Evidence

Evidence Before The Court

It is not in dispute that the Applicant suffers from a mental disorder; the question is whether he suffers from PTSD and if he does, whether it is war-caused. It was the Respondent's case that the Applicant does not suffer from PTSD as he did not experience any severe stressors on service and that his current condition can be explained by other events outside his operational service. evidenceApplicant The Applicant served in the Royal Australian Navy from 20 February 1959 until 11 November 1965. The relevant period of his service for the purpose of these proceedings is his posting on HMAS Derwent from 15 December 1964 to 11 January 1965 in North Borneo. Prior to that the Applicant served on various other ships including HMAS Gascoigne, HMAS Melbourne and HMAS Stewart. The Applicant said that prior to his service in the Navy, he was never anxious or distressed. In his oral evidence, the Applicant recalled the collision of the HMAS Voyager and HMAS Melbourne during his time aboard HMAS Stewart. He did not witness the incident as he was in the boiler room at the time. He recalled going on deck and observing ships' remains in the sea. He lost one of his friends with whom he had served for 2 years (not a close friend) on the Voyager. The next day he was required to deflate several rafts and clean up the area. The Applicant said that he could not recall any changes in his behaviour after this incident. The Applicant was seen by a psychiatrist, Dr McGeorge, about 10 months after joining the Navy on the basis that he could not perform the task assigned to him, which was, to climb into a water tank on a boiler to conduct a "water clean". Dr McGeorge suggested the reason for this was that the Applicant had experienced something in his childhood that he could not recall. The only incident the Applicant could recall was when he was trapped in a wardrobe playing hide and seek for about five minutes. Although the Applicant considered that it did not distress him, Dr McGeorge thought to the contrary. The Applicant met his wife in about 1963 after joining the Navy but before his trip to North Borneo. The Applicant worked mostly in the boiler and engine rooms during his posting on HMAS Derwent. He also assisted with boarding parties and trained for loading mortars, damage control system assistance, refuelling and other general maintenance. He said the boiler room was well below the water line mid ship and it consisted of four boilers and various other pumps and machinery. It was a very noisy work environment. The compartment was large, but because he worked in the front of the boiler, movement was restricted. Access to the boiler room was by climbing down a ladder from the hatch to the top plate of the catwalk that led into the compartment. During an admission to St John of God Hospital the Applicant made some handwritten notes about the nature of the boarding parties and procedures adopted, viz. (exhibit B) -... our duties consisted of intercepting, boarding foreign vessels (Junk type craft) and inspecting them for any contraband (small arms, ammunition etc) also we shell shore installations.During the boarding parties the ship was in a state of action which was known as Z1, the ship was closed up in a damage control state, During this state there was an alertness where engine room and boiler room staff were in a tense atmosphere due to the fact of the ship being stopped and were very vulnerable & susceptible to enemy divers placing mines on the ship's hull. Although the ship was darkened and guns manned this does not deter divers to place mines on the ships hull, so percussion grenades would be dropped by our gunnery staff over the side to deter any divers from placing mines on the ships hull. The noise from these charges exploded near Boiler and Engine rooms was extremely unnerving and we didn't know if it was incoming enemy fire, mines going off or our own percussion grenades.…We had on board Malayan military peope [sic] also the English S.A.S who we use to put ashore so they could locate enemy instalations [sic] and camps via spotter planes.We would drop them off at a pre determined area and recover them at different day intervals….The fear the engineering staff had to contend with on board HMAS Derwent during contact with these craft when we stopped to search them was the not knowing just what was going on for we were never informed why we were stopped.The effect this had on me was great fear of the unknown which lead to anxiety & stress, we all had a permanent knot in our stomach which made sleep impossible …

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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