Peter Besson and Repatriation Commission
[2012] AATA 377
•22 June 2012
[2012] AATA 377
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1057
Re
Peter Besson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 22 June 2012 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member Bernard J McCabe
CATCHWORDS
APPLICATION FOR SERVICE PENSION – post traumatic stress disorder – experiencing a severe stressor – definition of a life threatening event – aggravation of an existing condition – application of the objective test – decision affirmed.
SECONDARY MATERIALS
Statement of Principles concerning posttraumatic stress disorder No. 4 of 1999
Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008
REASONS FOR DECISION
Senior Member Bernard J McCabe
22 June 2012
The outcome of this case turns on whether I am satisfied the applicant, Peter Besson, experienced a “life-threatening event” in the course of his operational service as a crew member on HMAS Sydney in 1964 while that ship was steaming through Indonesian waters.
The expression “life-threatening event” is found in the statement of principles relating to post-traumatic stress disorder (PTSD) (SoP No 5 of 2008). Mr Besson says he developed PTSD and a number of other conditions that are related to his service as a result of what occurred aboard HMAS Sydney during an incident on 15 June 1964.
The Repatriation Commission acknowledges the applicant’s claim in respect of the other conditions will succeed if his claim in respect of PTSD is successful. The Commission accepts the applicant suffers from all of those conditions, including PTSD; it merely disputes whether they are connected to the circumstances of the applicant’s service because it says the event Mr Besson relies upon for the purposes of the PTSD claim cannot properly be described as a life-threatening event in the relevant sense.
I think the Commission is right. While I accept Mr Besson genuinely believed his life was in danger on that occasion in 1964, the facts do not answer the description of a life threatening event in the relevant statement of principles. It follows his application is unsuccessful. I explain my reasons below.
BACKGROUND TO THE CLAIM
Mr Besson joined the Navy in 1964. He was just over 16 years of age on enlistment. He trained at HMAS Leeuwin and HMAS Watson. He was drafted to serve on HMAS Queenborough and HMAS Diamantina for brief periods. Those ships were used for training purposes. In each case, the postings were short, although the experience on Queenborough in particular was eventful: during his oral evidence, Mr Besson recounted his involvement in an exercise where he tracked an Australian submarine on the anti-submarine radar right up to the point where the submarine collided with the Queenborough. In fact, the submarine hit the Queenborough twice during the course of this incident. No lives were lost, it seems, but there was extensive damage to the vessels. I understand there is no doubt this incident occurred. Mr Besson said the incident helped to emphasise to him the dangerous nature of service on a naval vessel. That lesson was reinforced in early 1964 when HMAS Melbourne collided with (and sunk) HMAS Voyager. Mr Besson was not involved in that incident but he said he lost at least three friends who were crew members on the Voyager. He also described another incident off the Great Barrier Reef in which five lives were lost in a training accident. He said in his statement that he formed part of the search party on that occasion but it is unclear whether he actually came across any of the bodies. In any event, he said the experience confirmed the dangers that attended naval life. I accept at least some of these events may have answered the description “experiencing a life threatening event”, although they did not occur during operational service.
The applicant was subsequently posted to HMAS Sydney. The Sydney was a World War II-vintage aircraft carrier that was converted into a troop carrier. It would subsequently become known as the “Vung Tau ferry” during the Vietnam conflict because it was used to transport men and material to that country on a regular basis in support of the Australian task force.
Mr Besson was an ordinary seaman, and he described a hard-scrabble existence on the Sydney. It was an old ship and it had few comforts. He was expected to sleep in a hammock slung in the mess desk with other junior sailors. He was assigned a range of duties, including painting. He said he enjoyed a good reputation as a sailor. He was conscientious and hard-working. He claims that, as a result, he was not harassed or bullied by other sailors. He was also tasked with preparing the ornamental rope that attached to the ship’s bell. I was told that was a singular honour and reflected well on his competence and efficiency.
But all was not well. Mr Besson said he was increasingly apprehensive about his service in the Navy. He decided to seek a discharge on compassionate grounds. He told his superiors his father needed his assistance at home, but the real reason was his increasing fearfulness. His discharge request had not been dealt with before he was required to leave aboard the Sydney for a deployment in May 1964. The Sydney was bound for Malaysia on that voyage. It was carrying troops, equipment and stores to assist the Malaysian Federation which was engaged in a confrontation with Indonesia.
Mr Besson learned his application for a discharge was successful before he arrived in Singapore. He was told he would have to travel with the ship on the return voyage to Australia; he was not permitted to leave the ship in Singapore and fly home. He continued to be fearful of what might happen to him on board the ship as it travelled through potentially hostile waters on the return voyage. That fearfulness was apparent in his sleeping arrangements. Mr Besson gave evidence that he was reluctant to sleep below decks. He preferred to sleep on the weather deck on his hammock so he could swim away from the ship if it were attacked. That was not allowed, but he said he managed to sneak up the ladder from the deck with his hammock (which he would spread out on the ground, as he did not enjoy the sensation of being cocooned in a hammock strung from a structure). The applicant said other sailors were not aware of his practice of sleeping on the deck, and he admitted he would have been in trouble if he had been caught. He said the risk was preferable to the perceived dangers of sleeping below deck.
Sydney sailed from Singapore with an escort vessel on 15 June 1964. The applicant was working on deck that day when an Indonesian gunboat was sighted in the distance. The vessel was lying off the tip of a nearby island approximately a mile from the Sydney. It was about the size of a World War II-era patrol-torpedo boat. Mr Besson said everyone saw the boat as the Sydney passed by, and it brought home to him the risk of confrontation in those waters.
That evening, when the applicant was off-watch, he prepared for bed. He collected his hammock from the locker on the mess deck in preparation for a furtive departure for the weather deck where he would spend the night as usual. While other junior sailors were in the mess area, he made his way unseen to an access ladder. There was a hatch at the top of the ladder. Just before he reached the ladder, he said “all hell broke loose” as he heard an urgent announcement over the public address system. A voice summoned all hands to action stations and directed that all hatches be closed. He said he ran for the ladder so he could get on deck before the hatch was sealed but he was too late: the hatch slammed shut above his head. He said he remained “cowering” at the bottom of the ladder until the “all clear” was given and he was able to access the weather deck through the hatch.
The applicant said he felt the ship was at action stations for a long time, but accepted it may have been for no more than 7-15 minutes. He agreed there was no klaxon or alarm sounding after the initial urgent announcement. He could not see what other crew members were doing, and he agreed there were no obvious signs of panic or unexpected noises or sensations. But he said he assumed the crew were all about to die because the ship must have been under attack. He said the Sydney was an old ship and would almost certainly be sunk. He said he knew the call to action stations was not an exercise because the alarm would have been accompanied by an announcement that the alarm was “for exercise”. He said in his oral evidence at the hearing that he could physically open the hatch but he would not dare to do so, although he desperately wanted to get on deck so he could swim away. He said he was terrified throughout the incident.
The alarm was sounded because the Sydney became aware of a merchant vessel behaving erratically nearby. The Sydney went to action stations and required that water-tight hatches be closed because of the danger of a collision. This was not explained at the time, however. The applicant said he did not discover the reason for the alarm until afterwards. The detailed explanation for what occurred is probably irrelevant anyway: the real issue for present purposes is what the applicant experienced.
DIAGNOSIS
I have already explained the Commission concedes the applicant now suffers from PTSD and a range of other conditions. The real dispute is over whether there is a causal link between the applicant’s operational service and the PTSD condition. The Commission, for its part, says there is no link: it says the applicant’s PTSD has been caused by some other event. While I have difficulty with the applicant’s claim, I will accept for the purposes of the analysis that there is material that supports the hypothesis that there is a link – namely, evidence about an incident that might satisfy the relevant statement of principles.
At the hearing, we discussed the possibility that the applicant’s PTSD had already taken hold by the time of the incident on the Sydney in 1964. I accept it is possible his condition might have been caused by some of the events I have already described that occurred during the course of his training. That possibility would certainly account for his fearful behaviour that manifested itself in the unusual sleeping arrangements aboard the ship, for example. But the applicant might still succeed if he were able to establish his existing PTSD condition was aggravated (or ‘clinically worsened”, to use the language of the statement of principles) by what occurred in 1964. I note the parties conceded the medical evidence does not directly support that conclusion. It follows there is no material pointing to that hypothesis.
THE STATEMENT OF PRINCIPLES
I am required to apply the PTSD statement of principles. I note the applicant argued there was an accrued right in this case which meant he was entitled to have his claim considered under an earlier statement of principles if he were unsuccessful having regard to statement of principles No 5 of 2008, the current statement of principles relating to PTSD claims arising out of operational service. The Commission says there is no accrued right in this case. I agree, but I do not think it matters for present purposes as the applicant would not satisfy the earlier statements of principles, which refer to “experiencing a severe stressor”. While there are differences in the wording and structure of the definitions of “experiencing a severe stressor” (the form of words used in No. 54 of 1999) and “experiencing a life threatening event” (the formulation in No. 5 of 2008), the definitions are sufficiently similar that one will satisfy both, or neither.
Clause 6 of the current statement of principles refers to an individual who experiences a category 1A or 1B stressor before the onset of the condition. I will say at once there is no evidence that the applicant experienced a category 1B stressor while he was aboard the Sydney during operational service – although there is evidence he may have experienced such an event at an earlier point in his naval service (when he was involved in the search for bodies following the accident off the Great Barrier Reef, for example). In this claim, he must rely on the events he described meeting the definition of a category 1A event. In particular, he must satisfy the first limb of the definition which refers to “experiencing a life threatening event”.
I have to be satisfied the applicant’s story as it was told to me “fits” the definition. In making that assessment, I am required to apply what is inelegantly referred to as a “subjective/objective” test – that is, a test which refers to a person (the objective component) in the applicant’s circumstances, which include his age, experience and some other matters.
The applicant was a young recruit with limited experience – although this was not his first voyage. He had already been exposed to the dangers of naval service (through his own experience, and through the experiences of people he knew, like those who had perished on the Voyager). I accept a person in the applicant’s position would probably experience a degree of apprehension about the dangers that might lurk when a ship goes to action stations. I can even accept a sailor might feel more apprehensive when aboard an ageing vessel like the Sydney. They were cruising through potentially hostile waters, and potentially hostile vessels had been sighted in relatively close proximity earlier the same day. Even so, I am not persuaded a person in the applicant’s position could be expected to react to an alarm as the applicant did. He seems to have leaped to the conclusion that the alarm meant the ship was likely to be sunk. There was no reason for him to form that view, and other sailors of his age or experience would merely have been anxious at what might eventuate rather than terrorised by their imaginings of a particular and dire outcome.
If the applicant already had PTSD at the time of the incident, that might be relevant to my assessment of the nature of the event. But the evidence does not clearly point to a pre-existing condition, as I have explained.
CONCLUSION
I am satisfied the applicant has PTSD but that it cannot be linked to his operational service because it does not meet the definition of a category 1A event in statement of principles No 5 of 2008. While I do not think it is necessary for me to consider the question, I am also of the view that the events he described would not meet the definition of “severe stressor” in the earlier statements of principles. It follows that his claim for a service pension in respect of PTSD and the other conditions which are effectively secondary to it must fail.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 22 June 2012
Date(s) of hearing 17 May 2012 Counsel for the Applicant Ms Frizelle Advocate for the Applicant Mr Payne Advocate for the Respondent Mr Rudge
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