PETER KEAREY and REPATRIATION COMMISSION

[2009] AATA 181

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 181

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0152

VETERANS' APPEALS DIVISION		)
Re		PETER KEAREY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC; Associate Professor J B Morley RFD

Date18 March 2009

PlaceBrisbane

Decision The Tribunal sets aside the decision under review, substitutes a decision that the condition of depressive disorder was war-caused and remits the matter to the Commission for the determination of entitlements.

...............Signed.................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – claim for pension for incapacity – depressive disorder –– wife attempted and later died of suicide in Malaya while accompanying applicant on transfer – attempted suicide of spouse reasonably capable of being regarded as a major deterioration in (mental) health - evidence of clinical onset of disorder following attempted suicide by wife – material to suggest spouse was extremely lonely and  isolated because of transfer to foreign land – sufficient connection to applicant’s service – decision under review set aside – substitute decision that disorder war caused – remit matter to Commission for determination of entitlements.

Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 13(1), 120, 120(3) 120A(3), 120A 120A(3), 196B(14)

Bull v Repatriation Commission (2001) 188 ALR 756

East v Repatriation Commission (1987) 16 FCR 517

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Gorton (2000) 98 FCR 108

Repatriation Commission v Law (1981) 147 CLR 635

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

18 March 2009 Deputy President P E Hack SC, Associate Professor J B Morley RFD           

Introduction

1.The applicant, Mr Peter Kearey, served in the Royal Australian Air Force between September 1961 and September 1973.  He rendered “operational service”, as that term is used in the Veterans’ Entitlements Act 1986 (Cth), in Malaya between August 1965 and August 1966.

2.Mr Kearey suffers from a depressive disorder.  He says that that condition is related to his operational service in Malaya.  The Repatriation Commission determined on 8 February 2006 that the depressive disorder was not related to Mr Kearey’s operational service.  That decision was affirmed by the Veterans’ Review Board in November 2007[1].

[1]A number of claims, including the claim for depressive disorder, were considered by the Veterans’ Review Board on 30 March 2007. On that date the Board adjourned the hearing of the claim for depressive disorder for further investigation. It is only the claim for depressive disorder that is the subject of this application.

3.Mr Kearey seeks a review of the decision.

the legislation

4.By virtue of s 13(1) of the Act, the Commonwealth is liable to pay a pension to a veteran who is incapacitated from a war-caused injury or a war-caused disease.  Disease, which is relevant here, is defined by s 5D of the Act as meaning, relevantly, any mental ailment, disorder, defect or morbid condition.  Section 9(1) provides that subject to ss 9 and 9A of the Act, for the purposes of the Act, a disease contracted by a veteran shall be taken to be war-caused if:

“(a)the … disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the … disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…”

5.The method and standard of proof for determining whether a disease was war-caused is set out in ss 120 and 120A of the Act.  It will suffice for present purposes to note that where a claim is made for incapacity from a disease that relates to operational service, the Commission (and hence the Tribunal) is required to determine that the disease was a war-caused disease unless satisfied beyond reasonable doubt that there is no sufficient ground for so determining.[2]  And, by virtue of s 120(3) of the Act, the Commission may be satisfied beyond reasonable doubt that there is no sufficient ground for determining that a disease was war-caused if, after considering all of the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service.  Section 120A(3) of the Act has the effect that a hypothesis connecting disease with service is reasonable if, relevantly, a Statement of Principles determined under s 196B(2) of the Act upholds the hypothesis.

[2]See s 120(1) of the Act

6.It is unnecessary to consider the mechanism by which Statements of Principle are propounded.  It is sufficient to note that, by virtue of s 196B(2) of the Act, a Statement of Principles must set out the factors that must, as a minimum, exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death with the circumstances of that service.

7.The notion of “related to service” is dealt with by s 196B(14) of the Act in these terms:

“(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.”

8.There is currently in force Statement of Principles No. 27 of 2008 dealing with depressive disorder.  It revoked the earlier Statement of Principles No. 17 of 2007 which had in turn revoked Statement of Principles No. 58 of 1998 which was in force at the time that Mr Kearey made his claim. The parties are agreed that if the current Statement of Principles does not uphold Mr Kearey’s hypothesis it needs to be tested by reference to the Statement of Principles in force as at the time the claim was made[3].

[3]See Repatriation Commission v Gorton (2000) 98 FCR 108.

9.Paragraph 6 of the Statement of Principles No. 27 of 2008 lists the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis exists connecting depressive disorder with the circumstances of operational service.  Mr Kearey relies upon the factor in paragraph 6(a)(vi):

“experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder”.

The expression “a category 2 stressor” means, relevantly for present purposes, “one or more of a series of negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry”.  The event relied upon by Mr Clutterbuck, counsel for Mr Kearey, was that in paragraph (f): 

“having a family member or significant other experience a major deterioration in their health”.

10.Statement of Principles No. 58 of 1998, in force at the time the claim was made, similarly identifies factors that must exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder and operational service.  Mr Kearey relied upon paragraph 5(b):

“experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.

A “severe psychosocial stressor” is defined as meaning “an identifiable occurrence that evokes feelings of substantial distress in an individual”.  Examples are given including “serious injury of a … relative”. Whether considered under Statement of Principles No. 27 of 2008 or Statement of Principles No. 58 of 1998 the factor relied upon must be related to the operational service rendered by the person.[4]

[4]Paragraph 5, Statement of Principles No. 27 of 2008; Paragraph 4, Statement of Principles No. 58 of 1998.

factual background

11.What follows is not controversial and it taken from Mr Kearey’s evidence.  He was born in September 1942.  In September 1961, he joined the RAAF.  Because of his earlier employment in a technical position with what was then the Postmaster-General’s Department he was posted to a technical position with Headquarters Support Command in Melbourne.  Mr Kearey married in 1964.  Mr Kearey and his then wife had a child in 1964 or 1965.  In August 1965, and at a time when his wife was pregnant with their second child, Mr Kearey was transferred to the RAAF base at Butterworth.  He and his wife lived on the west side of Penang Island and Mr Kearey travelled about 1½ hours each way to his work with the radar unit to which he was attached.

12.The accommodation there was excellent but, Mr Kearey said, the “community” was non-existent.  With the exception of an Australian family living next door the neighbourhood was populated by people of Malay origins.  After about six months Mr Kearey and his family moved to different accommodation, this time to a Chinese neighbourhood.  Mr Kearey’s wife had domestic assistance in both locations and would occupy her days caring for her family and watching television.  Mr Kearey spoke of occasions when they were in the company of others when Mrs Kearey would get drunk and angry and speak of wanting to go home.

13.In about May or June 1966[5] Mrs Kearey attempted suicide by cutting her wrists in the bath when Mr Kearey was at work.  When he returned, she jumped out of the bath and ran to the bedroom.  Eventually, he was able to calm her down.  The following day she was seen by an Australian doctor who examined the wounds and dressed them.  Mr Kearey was quite shocked at the doctor’s dismissive manner.

[5]Exhibit 7, transcript VRB 30 March 2007 at p. 12.

14.Thereafter, Mrs Kearey was very morose and did not want to communicate with him.  Mr Kearey described her as being ashamed.  He worried about her when he was at work.  On another occasion when she had been drinking she again threatened to commit suicide.  These matters affected Mr Kearey’s work.  He found he could not sleep, he had anxiety attacks, he did not want to talk to friends and he commenced drinking more heavily.

15.In April 1967, whilst the family was still in Malaya but after the end of Mr Kearey’s period of operational service, Mrs Kearey died by suicide.  It is unnecessary to recount the detail of that.

16.Mr Kearey and his children returned to Australia.  It is not clear from the material when that was but Mr Kearey returned to work.  In January 1968, Mr Kearey presented to the No. 3 RAAF Hospital, Richmond “with a fit of depression”.  He was admitted to the Northside Clinic, a psychiatric hospital, the following day and remained an in-patient for the ensuing month.  From that time, Mr Kearey has received intermittent psychiatric treatment.  He left the RAAF in 1973 and was thereafter employed in a variety of occupations.

diagnosis

17.Ms Pendle, the solicitor for the Commission, accepted that the correct diagnosis was one of depressive disorder as that condition is described in the Statements of Principles.

causation

18.Mr Clutterbuck, counsel for Mr Kearey, propounded the hypothesis that Mr Kearey, whilst on operational service in Malaya in about May/June 1966, experienced a category 2 stressor, being his wife’s attempted suicide, which occured within the period of one year prior to the clinical onset of depressive disorder.  This hypothesis, he contended, fitted the template of Statement of Principles No. 27 of 2008.  Alternatively, he contended, the attempted suicide was a severe psychosocial stressor within the two years prior to the clinical onset of depressive disorder and thus satisfied Statement of Principles No. 58 of 1998.

19.Clinical onset, in the present context, occurs:

“… either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of a disease being present at that time”.[6]

[6]Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [23]; see also Lees v Repatriation Commission (2002) 125 FCR 331 at [13] – [16].

20.There is undoubtedly material that demonstrates clinical onset within two years of the suicide attempt and that is the attendance at the No. 3 RAAF Hospital in January 1968 and subsequent in-patient treatment.  And there is material in the report of Professor Jones, consultant psychiatrist, that Mr Kearey was “depressed after his first wife’s suicide attempt”.  That material is consistent with clinical onset occurring within the period of 12 months after the suicide attempt and thus we are satisfied that this aspect of the hypothesis is reasonable, regardless of which Statement of Principles is applied.

21.It thus becomes necessary to consider whether the hypothesis is otherwise consistent with Paragraph 6(a)(vi) of Statement of Principles No. 27 of 2008 or Paragraph 6(b) of Statement of Principles No. 58 of 1998.  There are two critical aspects where the reasonableness of the hypothesis needs to be considered – the character of the attempted suicide as a stressor and the connection with Mr Kearey’s operational service.

22.In our view the attempted suicide of a spouse is reasonably capable of being regarded as a major deterioration in health, not, in the present case, physical health but rather as evidencing a major deterioration in the mental health of Mrs Kearey. Similarly, it is capable of being regarded as a “serious injury” to Mrs Kearey which, on Mr Kearey’s evidence, evoked feelings of substantial distress.

23.It remains necessary to consider whether there is evidence which points to a sufficient connection between the attempted suicide and Mr Kearey’s service.  The connection with service must be causal rather than merely temporal[7].  Mrs Kearney was in Malaya as a consequence of Mr Kearney’s service but the question is whether there is material before us that establishes the necessary connection with service.  Unfortunately the case presented on behalf of Mr Kearey seemed never to come to grips with the need to identify the relationship between the stressor event (howsoever described) and Mr Kearey’s service in Malaya.  Despite that, it seems to us that the hypothesis that relates the experiencing of the stressor to the circumstances of Mr Kearey’s operational service must be one that postulates that Mrs Kearey became depressed as a consequence of the posting to Malaya and the circumstances of that posting and that that depression caused her suicide attempt.

[7]        Repatriation Commission v Law (1981) 147 CLR 635 at 649.

24.But even making the allowances required by s 119(1)(h) of the Act, it is necessary for the hypothesis to be reasonable.  For a hypothesis to be reasonable it must be more than a mere possibility, not fanciful, and consistent with the known facts.[8]  And, as Emmett and Allsop JJ said of East in Bull v Repatriation Commission:[9]

“The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.”

[8]        East v Repatriation Commission (1987) 16 FCR 517, 533.

[9] (2001) 188 ALR 756, 761 at [18].

25.We are, of course, not presently concerned to find facts and are concerned merely to identify facts that fit, or are consistent with, the templates in the Statements of Principles.  In that regard there are some pieces of evidence that might be regarded as answering that description.

26.First, there is the evidence of Mr Kearey that on occasions when they were in company of others Mrs Kearey would drink too much, get angry and say that she wanted to go home.  There is, as well, Mr Kearey’s evidence of the circumstances of his wife’s life in Malaya, in particular the isolation and loneliness.  We need not detail that evidence as it recited in the reports of the psychiatrists that we deal with below.

27.Next there is the history given to Professor Jones on 15 April 2008 where Professor Jones says of Mr Kearey’s psychiatric history:

“This history started in about ’66 or ’67, while in the Air Force, stationed in Malaysia, after his wife’s first suicide attempt, when she was found in a bath, having cut herself intentionally. He took her to hospital and she recovered. He found this particularly stressful and evidently suicidal threats continued, culminating in her death about two years later, after the birth of her second child, by an overdose of Chloroquine. He believes that she was depressed after the first child but the causes of her depression were complex, interalia they were concerned with home sickness and an inability to adjust to life in an overseas placement.” [Emphasis added].

28.Subsequently Mr Kearey saw Dr Larder on 30 June 2008.  Dr Larder has set out as an appendix to his report details of the history given to him in the form of a transcript of the interview with Mr Kearey.  There are a number of references in that document that seem to us to touch upon this question.  Mr Kearey described the move to Malaya and his wife’s reaction to it in these terms in his discussions with Dr Larder[10]:

"[The eldest is only one and then she finds out she is having another one.  She then finds out she has to go to Malaysia as a pregnant woman.] ‘We talked it over and the exciting thing was there was more money involved and we could save for things’…[Did you pressure her to go?] ‘Probably a little bit.  I convinced her it was a good idea.’ [Did she ever get hostile and say 'You bastard, I don't want to be here?’]. ’Sometimes, when she'd been drinking, yes.’"

[10]Dr Larder’s questions are recorded in parenthesis.

29.Dr Larder asked Mr Kearey about his wife’s mental health after the birth of the second child. After making reference to the increased drinking and arguments Mr Kearey said: “I suspected that she was suffering from postnatal but I didn’t know anything about that in those days.”  Mr Kearey was reported as telling Dr Larder on his wife’s loneliness and isolation when he was away at work, sometime all night when he was on a 24 hour shift and to the fact that she had very few friends.  Subsequently Mr Kearey made reference to his wife missing her siblings.  As we said, his evidence before us was to similar effect.  Dr Larder also was told of Mrs Kearey’s attendance at the civilian doctor at the RAAF Hostel on the day following the suicide attempt and the dismissive comment made to her.  Dr Larder recorded the following:

“[You're telling me that it is notable after this event your wife didn't receive any proper medical or specialist help?] ‘Yes.  She appeared to be very deeply embarrassed and became more inwards to herself, wasn't really happy but she used to drink.  When she drank sometimes we'd argue a lot and then she might threaten to commit suicide.  I'd go to work and be all upset because I didn't know what was happening at home.  Sometimes I'd be away for 24 hours because I was a shift worker so she'd be on her own.  The Amah went home to her place so my wife would just have the two kids. I was pretty well disturbed for quite a while and then they moved us over to the mainland closer to the Base....  She seemed to get a little bit better then to me because she was much closer to other Australians and we'd take turns in going to other people's houses."

30.        The quality of the treatment available to Mrs Kearey following the suicide attempt was also mentioned in the report of Dr De Leacey who saw Mr Kearey in July 2007. He said:

"... it appears that the attempted suicide by Mr Kearey's wife was in its own right a significant stressor to Mr Kearey.  He told me that this became a significant stressor because of the way it was handled, and this is over and above the fact that his wife actually attempted to commit suicide.  He said that the way she was dismissed by the medical officer at the RAAF hostel in 1966 was sub-optimal care.  He said that she was told that she had been silly and there was no follow up...."

31.In our view, and having regard, in particular, to the material in paragraphs [26] to [30] above, the material points to a reasonable hypothesis linking the attempted suicide to the circumstances of Mr Kearey’s operational service.  The material points to external factors, the death of Mrs Kearey’s mother, a pregnancy, and perhaps excessive drinking, that might be thought to pre-dispose Mrs Kearey to attempt suicide.  But as well there is material that suggests that she was lonely and isolated from family and friends, leading to depression, after her second child was born; that she was missing her family as a consequence of the posting to Malaya; that there were no neighbours such as other RAAF personnel; that she had no one to talk to apart from Mr Kearey; and Mr Kearey sometimes was away all night on 24 hour shifts at work.  It is reasonable, we consider, to postulate that this loneliness and isolation, together with the circumstances of the posting to a foreign land, led to her becoming sufficiently depressed to attempt suicide. It probably also is relevant that Mr Kearey found that she had made her suicide attempt when he was at work.  She developed this loneliness and depression even although she had some limited social contact at weekend parties or barbecues.  In our view, on these grounds, Mr Kearey's operational service can be regarded as having a sufficient causal relationship to the attempted suicide. The sub-optimal treatment, immediately following the suicide attempt and the absence of any medical follow-up is likely to have compounded Mrs Kearey’s condition.  The events and circumstances leading up to, and following, the suicide attempt have, in our view, a sufficient connection to Mr Kearey’s service.  That is, we do not regard the hypothesis as too remote or too tenuous or fanciful.

32.We are thus satisfied that the material points to an hypothesis that is consistent with the factor in clause 6(a)(vi) of Statement of Principles No. 27[11] of 2008 and which is related to Mr Kearey’s operational service.

[11]Were it necessary to do so, we would be satisfied that it is consistent with the factor in paragraph 6(b) of Statement of Principles No. 58 of 1998.

33.In these circumstances we need then to consider whether we are satisfied beyond reasonable doubt that Mr Kearey’s condition is not war-caused.  We observe immediately that we regarded Mr Kearey as a reliable witness and we have no reason to doubt the accuracy of what he has told us and the doctors that he has seen.  We observe also that Mr Kearey’s credit was put in issue in the Commission’s Statement of Facts and Contentions in which it was suggested that Mr Kearey “had tailored his evidence”.  It was said that Mr Kearey’s reliance upon the suicide attempt as a stressful event was a “patently self-serving recent invention”.  

34.We do not accept those criticisms of Mr Kearey.  The suicide attempt cannot amount to a recent invention in the strict sense of that expression given that reference is made to it in the clinical notes from Dr Ellard in January 1968 and on a number of occasions since then.  The Commission’s criticism seems to be based on the proposition that in his dealings with psychiatrists Mr Kearey has given the greatest prominence to his wife’s suicide rather than the attempt and that he “tailored” his evidence once he became aware in the course of the hearing in the Veterans’ Review Board that “a claim for pension … based on the suicide event would not succeed”. There are at least two reasons why we reject that submission.  First, it is the case that Mr Kearey has consistently referred to the fact of the suicide attempt over the years.  Moreover, the submission seems to assume that Mr Kearey needs to advance a case that his depressive disorder dates from the suicide attempt.  That is not so.  The hypothesis advanced is that there was clinical onset within a particular period after the experiencing of an event, not that there was clinical onset as a consequence of the event.  There is no doubt that the articulation of Mr Kearey’s case has altered from that presented by a lay advocate to the Veterans’ Review Board.  But that is to be expected once responsibility for the preparation and presentation of his case was undertaken by trained and experienced lawyers.

35.The Commission submits that we ought be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Kearey’s condition is war-caused. It submits that the medical evidence supports a finding that the clinical onset of depressive disorder followed the death of Mrs Kearey. It points to:

·the first treatment for depression in January 1968;

·Dr Larder’s reference to a history of depression dating from 1968 “which could be linked to the death of his wife while posted overseas”;

·Dr Larder’s treatment of the suicide as a “more significant stressor” than the attempt;

·Professor Jones’ conclusion that there was no evidence of a psychiatric illness prior to the death of Mrs Kearey;

·the conclusion of Dr De Leacey that Mr Kearey’s depression may not have developed without the suicide.

36.Additionally, the Commission points to various statements by Mr Kearey attributing his depression to other events but not to his wife’s attempted suicide. This evidence, it is said, demonstrates that the hypothesis “is factually not true” and that the claim must fail. We do not agree.

37.The submission assumes, contrary to the template in the Statement of Principles and to common sense, that it is possible to attribute depressive disorder to a particular event to the exclusion of other events. And it assumes as well that patients are capable of determining what event caused depressive disorder. As it seems to us, it is enough for us to conclude, as we have, that the hypothesis advanced is reasonable.

conclusion

38.As we accept the evidence that Mr Kearey has given we are unable to reject the hypothesis based upon those facts, or any constituent element of it, beyond reasonable doubt. It follows that we would set aside the decision under review, substitute a decision that the condition of depressive disorder was war-caused and remit the matter to the Commission for the determination of entitlements.

I certify that the 38 preceding paragraphs are a true copy of the reasons for decision of Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member
Signed:         ......................Signed….........................................

Melissa Hamblin, Associate

Date of Hearing  19 February 2009

Date of Decision  18 March 2009              

Counsel for the Applicant         Mr R Clutterbuck
Solicitors for the Applicant        Haney Lawyers
Solicitors for the Respondent    Australian Government Solicitor