Phillip Skinner and Repatriation Commission
[2013] AATA 751
[2013] AATA 751
Division VETERANS' APPEALS DIVISION File Number
2011/2238
Re
Phillip Skinner
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 22 October 2013 Place Brisbane The Tribunal affirms the decision under review.
.................[Sgd].......................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Defence service with Royal Australian Navy – Collision at sea – Statements of Principles for posttraumatic stress disorder – Diagnostic criteria for respect of posttraumatic stress disorder not met – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5, 14, 70, 120, 120B
CASES
O’Dowd v Repatriation Commission [2013] FCA 991
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Stoddart (2003) 77 ALD 67
Repatriation Commission v Warren (2007) 95 ALD 606
White v Repatriation Commission [2004] FCA 633Woodward v Repatriation Commission (2003) 131 FCR 473
SECONDARY MATERIALS
Statement of Principles concerning posttraumatic stress disorder No. 6 of 2008
REASONS FOR DECISION
Mr R G Kenny, Senior Member
22 October 2013
BACKGROUND
On 23 February 2010, Phillip Skinner (“the applicant”) lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (“the Act”) for a pension alleging that certain conditions, including posttraumatic stress disorder, were related, in accordance with s 70 of the Act, to his Royal Australian Navy (“RAN”) service. The claim for posttraumatic stress disorder was rejected by the Repatriation Commission (“the respondent”) on 10 May 2010 and by the Veterans’ Review Board on 28 March 2011.
SERVICE
The applicant’s RAN service was from 8 October 1967 until 27 August 1976 and from
8 February 1977 until 20 March 1988. His service on and after 7 December 1972 comprised defence service in accordance with s 70 of the Act.
CAUSATION
Subsection 70(1) of the Act provides that, where a member of the forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition. The criteria of causation are set out in
s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of the applicant.
Where defence service was rendered, the standard of proof applicable to the determination is set out in s 120(4) of the Act which requires that the matters are to be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The application of that provision is affected by the terms of s 120B(3) of the Act which reads:
[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
(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.
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
The condition claimed by the applicant to be service-related is posttraumatic stress disorder. The issue for the Tribunal to determine is whether that condition arose out of, or is attributable to, any defence service rendered by him.
CONTENTIONS
Mr Brian O’Neill
For the applicant, Mr O’Neill submitted that the applicant experienced a stressor while he was serving on HMAS Yarra (“the Yarra”) in 1984. This occurred when HMAS Sydney (“the Sydney”) collided with the Yarra during preparation for a jackstay transfer as part of a Replenishment at Sea (“RAS”) exercise between the vessels. An order was given to the crew of the Yarra which required the closing of various water-tight hatches which, once closed, were unable to be opened from below 2 deck. This meant that men in the crew quarters on 3 deck became trapped. The applicant heard the sound of the contact between the vessels which resulted in minor port side damage to the Yarra. The applicant also heard the distressed calling and banging on the hatches by the trapped sailors. Mr O’Neill submitted that the applicant experienced intense fear, helplessness and horror. Mr O’Neill challenged the accuracy of the Yarra’s records in relation to the timing of aspects of the event (“the Sydney incident”). He submitted that it satisfied the diagnostic criteria for posttraumatic stress disorder and the requirements of a 1A and/or a 1B stressor in the Statement of Principles for that condition. He submitted that posttraumatic stress disorder was defence-caused and that the decision under review ought be set aside.
Mr Bruce Williams
For the respondent, Mr Williams acknowledged that the collision between the Sydney and the Yarra occurred and that an alarm had been given on the Yarra to which the applicant responded by moving towards the bow of the Yarra to close various openings. He submitted that, in the centre of each of the hatches on 2 deck, there was a manhole which was able to be opened from below 2 deck when the hatch was closed and that, therefore, none of the men on 3 deck had been trapped. He submitted that the manholes were an essential component of the hatches as they enabled crew members to move through the ship as and when required whenever the hatches were closed. He noted that only 12 seconds elapsed between the sounding of the alarm and the collision and that the all clear signal was sounded about two minutes later. Mr Williams submitted that the applicant had not observed the collision and had only a brief glimpse through a porthole of the Sydney and that his substantial RAN experience had been sufficient to enable the applicant to complete his duties responsibly, including the immediate resumption thereof afterwards. He submitted that the incident did not satisfy the Statement of Principles for posttraumatic stress disorder and that the decision under review ought be affirmed.
EVIDENCE
The applicant
The applicant completed a detailed statement of the Sydney incident[2]. In his evidence, he said that, when he did so, his memory of the incident was “very foggy”.
[2] Exhibit 1, T-Document 5, pp. 105-107.
At the time of the Sydney incident, the applicant held the rank of Petty Officer on the Yarra with a range of responsibilities including machinery maintenance and ship husbandry. When the alarm sounded, he had just completed a four hour watch and was standing outside the galley in the main passageway which runs fore and aft through the vessel on 2 deck. He was waiting for the six members of his watch crew to have breakfast in the adjacent canteen and was speaking with a Petty Officer who was to relieve him. He was about midway between the bow and stern and was aware that a jackstay transfer was to occur. This involved the Sydney approaching the Yarra from astern, drawing parallel with and about 100 feet from the Yarra which was to maintain a steady course, matching speed with the Yarra and then discharging gun-lines across to the Yarra. These lines were then used to enable more substantial connections to be made between the vessels for the purposes of transferring personnel, supplies or equipment from vessel to vessel. The applicant had been involved with this jackstay transfer manoeuvre on many occasions. While speaking with the Petty Officer, he observed through a glass scuttle[3] in the Yarra’s galley that the Sydney was progressing alongside the Yarra but closer than was usual. “Within a split second”, he said, an alarm was sounded through the speaker system in terms:[4]
Hands to emergency stations. Close all red openings. Brace for shock - Collision midships.
[3] Also referred to as a porthole.
[4] Exhibit 1, T-Document 5, p. 105.
In that situation, the applicant and his crew were responsible for securing the watertight openings in the forward part of the vessel. The applicant entered the sailors’ mess to summon his crew and they commenced a forward move down the passageway closing water-tight doors as they progressed through them and closing various hatches which led down to 3 deck. Some of the crew descended onto 3 deck to secure additional hatches at that level. The applicant continued on towards the gun bay, closing hatches as he went. To make them watertight, the hatches had to be “dogged down” which involved them being latched after being closed but the applicant left that part of the operation to his crew. By the time he advanced to the gun bay, he was alone with his crew still engaged with hatches along the passageway. He advanced forward of the gun bay where two more hatches were located. These led directly below to 3 deck where the crew’s sleeping spaces were located. He closed those hatches which he described as very heavy, usually requiring the attention of two men to manage the task. He described the hatches as single units which were unable to be opened from below and which did not have an escape manhole built into them.
The applicant was aware that crew members were still in the sleeping quarters below the hatches when he closed them. He heard the men below the hatch calling out and banging on the hatch for assistance. He was unsure of how many men were involved but thought that it may have been from two to five. His focus was on the obligation to secure the integrity of the forward part of the ship because he was aware that this part of the vessel was usually the part which sank first in the event that it was broken away from the rest of the vessel and was not secured.
When his crew caught up with him, the applicant allocated various tasks to them. In part, this was to keep the men calm. These included checking to ensure that the ship’s generators and water pumps were operating, running out lengths of fire hose and donning breathing apparatus. The applicant said that things went very quiet at that stage, apart from the noises of the men trapped in the mess decks. In his statement, he estimated that this lasted for “several minutes”. At that time, he felt the ship being “violently manoeuvred” which was followed by a loud crunching sound of metal on metal which, as it was revealed, was the sound of the collision between the bow of Sydney and the side of the Yarra. Shortly afterwards, the crew were ordered over the main broadcast to fall out from emergency stations and to “revert back to Damage Control State 3 Yankee”. The applicant then directed his crew to reopen the forward section of the vessel, including the two hatches leading to the mess decks. He noted that the trapped sailors were visibly upset and he requested, using the telephone, that the sick bay Petty Officer attend to them. The applicant made his way aft with his crew and undertook a complete round of all compartments looking for for damage. This comprised only superficial damage to the hull and side railings. Subsequently, the applicant learned that the forward section had been closed down in 58 seconds which was much faster than the usual time for completing the task.
In his statement, the applicant wrote that he had thought that he and his men would be crushed because of the speed and weight of the Sydney. He felt helpless in being unable to assist the men trapped below but was aware that the Standing Operating Procedures required him to take the action that he did. He said that, even though his training “kicked in”, his fear was heightened by his position forward, which was above the magazine and because he did not know what was happening. Also, he recalled other incidents involving collisions of other naval vessels including those relating to the USS Frank E Evans and HMAS Voyager and the resultant fate of crew members. He thought he would die “as HMAS Sydney was heading right for us”. He wrote that he believed that he had experienced a life-threatening event and that his response involved intense fear, helplessness and horror. He estimated that the incident lasted some 2 to 3 minutes before the all clear was given
The applicant wrote that, at the next port of call after the Sydney incident, he and other senior sailors from the Yarra became heavily intoxicated. He described nightmares about the incident over the succeeding 12 months. In 2004, he had breathing problems and was found to have an asbestos related lung condition which has been accepted as being related to his RAN service. While recalling aspects of his service on the Yarra in relation to a claim for that condition, he began to re-experience the circumstances of the Sydney incident.
Crew evidence
The applicant called evidence from a range of former RAN members including some who served on the Yarra at the time of the Sydney incident and others who served on the Yarra at other times. Those serving on Yarra at the time of the incident were Raymond Vidler, Marsat Ketchell, Kenneth Hanna, Geoffrey Vidal, Darren Halliday, Tony Brown, Walter Birch and Hans Kannengiesser. David Simpson served on HMAS Torrens (“the Torrens”), a sister ship to the Yarra[5].
[5] As described in Exhibits 2 and 8.
Mr Vidler was descending a ladder from the bridge when he heard the alarm. He closed the hatch on 1 deck leading to the passageway below in that part of the Yarra. He recalled that sailors were shut down below and that they were screaming at him to raise the hatch.[6] Mr Ketchell witnessed the collision and felt that he was in fear of his life.[7] Mr Hanna was in the aft section of the Yarra but he recollected that the forward watertight hatches did not have escape manholes.[8] Mr Vidal, the Executive Officer on the Yarra throughout 1984, was on the bridge when the Sydney incident occurred. In his statement, he wrote that the hatches on 2 deck leading to the mess decks did not have an escape manhole fitted to them.[9] He also completed a “Report on Collision 20 August 1984”.[10] Mr Halliday had a clothing store on 3 deck forward of the gun bay. His access to 2 deck was through the hatch forward of the gun bay on 2 deck and he confirmed that the hatch did not incorporate an escape manhole.[11] Mr Halliday was in the Yarra’s cold room on 4 deck when the collision occurred and, by the time he exited the refrigerator, the hatch above him had been closed and dogged down and he remained trapped there for two hours. Mr Brown heard the alarm sounding and went to close a hatch leading to the stokers’ mess, allowing one sailor to ascend through the hatch before he closed it leaving other sailors below.[12]
[6] Exhibit 14.
[7] Exhibit 13.
[8] Exhibit 15.
[9] Exhibit 17.
[10] Exhibit 4, Attachment 3.
[11] Exhibit 16.
[12] Exhibit 12.
Mr Kannengiesser was a Chief Petty Officer Coxswain during the Sydney incident. He recalled that the Yarra would have been at State 2 Condition Yankee at the time. He said that, with the order to close red openings, the hatches leading from 2 deck to 3 deck would have been dogged down which meant that those below could not get out. Mr Kannengiesser believed that the applicant would have been able to see the Sydney approaching through a scuttle and that he would have had “plenty of time” to make his way forward to close several of the hatches, knowing that the men below were unable to escape.[13] Mr Birch was in the Yarra’s Electrical Workshop, below the waterline, when he heard the alarm. The hatch above him was closed and dogged down, despite his screams, and he was trapped there at the time of the collision. On learning that the applicant had closed the hatch, Mr Birch confronted him afterwards and the applicant apologised to him.[14]
[13] Exhibit 10.
[14] Exhibit 20.
Those who served on the Yarra at other times were Mark Dwyer and Cornelius Wolzac. Mr Dwyer served on the Yarra in 1982. His mess deck was on the starboard side of the Yarra below one of the hatches closed by the applicant. He said that when the hatch was closed from above, the only means of exiting the area was through the escape scuttle in the hull of the vessel leading to the water. He believed that the equivalent area of the Yarra on the port side was not allocated to sleeping quarters but was part of the ship’s armoury. It was separated by a bulkhead that ran fore and aft down the centre line of the vessel and which did not allow access from side to side. He denied that there was any access between the starboard and port sides but said that he had never entered that part of the vessel.[15]Mr Wolzac was the supply officer on the Yarra from 1982 until January 1984. His cabin was located on 2 deck. On a daily basis, he passed the watertight hatches which gave access from 2 deck to 3 deck. He was certain that the hatches he was required to use well forward of the gun bay had no escape manholes. As for the two hatches immediately forward of the gun bay, he said that, to the best of his recollection, they also were not furnished with escape manholes.[16] He was aware of the escape scuttles between decks 2 and 3 as well as those in the hull but had never seen them used. He estimated that the distance from the galley to the hatches forward of the gun bay was about 53 metres. He also said that there was no dividing bulkhead in the mess area on 3 deck as it stretched across the width of the ship.
[15] Exhibit 5.
[16] Exhibit 9.
Mr Simpson was a Warrant Officer on the Torrens from 1975 to 1977. In his statement, he wrote that the hatches with access to mess decks below 2 deck remained open for ease of entry and exit when the ship was in Damage Control State 3 but were closed down for Damage Control State 2 Yankee. His recollection was that the hatches did not have manholes.[17]
[17] Exhibit 23.
Writeway reports
The respondent utilised Writeway Research Service Pty Ltd to provide reports in relation to the Sydney incident. These were prepared by Philip Mulcare, retired RAN Commander. He completed reports on 21 October 2011, 10 June 2012, 28 July 2012 and 12 September 2012. Mr Mulcare served on several RAN ships including, in the 1960s, the Yarra. He referred to the Yarra’s Log and Report of Proceedings and detailed the circumstances relating to jackstay transfers and the Sydney incident including the Record of Working of Main Engines, the Yarra’s Collision Reports and aspects of the vessel’s construction. He also included extracts from BR 1938 Naval Ratings Handbook[18] which applied to the Yarra. These related to “Watertight Integrity” and “Conditions and Control Markings”.
[18] MOD UK, January 1965.
Mr Mulcare described watertight integrity as being managed by a system of risk and control markings on doors and hatches which denote the risk to the ship if left open. In the “red zone”, all openings are deemed, if left open, an immediate risk to watertight integrity. All such openings have a red mark and are known as red openings. In an emergency, these are shut following an order to “close all red openings”. Mr Mulcare described watertight conditions which are grades of control necessary to maintain watertight integrity under varying circumstances while allowing maintenance, habitability, reasonable access and traffic flow to occur. He wrote that doors and hatches are opened or closed in differing conditions according to the control letter, “X” for X-ray, “Y” for Yankee or “Z” for Zulu which have the following meanings:[19]
·X-ray openings are those near or below the waterline which pose an immediate risk of flooding in the event of damage. These are only opened with permission. Condition X-ray is the normal condition for a vessel in peace time, in harbour or when cruising. Mr Mulcare said that all of the hatches on 3 deck were X-ray hatches and were red openings.
·Yankee openings are those above the waterline where a threat to watertight integrity might arise in the event of damage. These can remain open in condition X-ray. In Condition Yankee, all X and Y openings are shut. Condition Yankee is the usual mode in war-time and in undefended harbours. In peace time, Condition Yankee is adopted in dangerous circumstances such as during an RAS exercise or entering harbour. Mr Mulcare described all of the hatches on 2 deck as Yankee hatches and red openings.
·Zulu hatches are higher in the ship. These can remain open in Conditions X-ray and Yankee.
[19] Exhibit 19, p. 4.
Mr Mulcare said that the watertight conditions were combined with one of the following States of Readiness:[20]
·State 1: Attack imminent. This is the highest state of readiness and all positions are manned.
·State 2: Attack possible (wartime), dangerous activities or navigational hazards (any time). State 2 was the normal seagoing state in war time.
·State 3: Attack unlikely without adequate warning (war time). The normal state of the ship in a defended harbour in war and for normal cruising in peace time.
·State 4: Normal peace time routine in harbour.
[20] Exhibit 19, p. 4.
Mr Mulcare said that the Yarra’s Log shows that the ship closed to Damage Control State 3, Condition Yankee at 0815 hours on 20 August 1984. His recollection was that, in that state, all of the hatches from 2 deck to 3 deck would have been closed but that escape manholes in them were designated as Zulu openings so that they could remain openable when the ship was in Condition Yankee to facilitate the movement of personnel to and from the mess decks. He noted that the crew’s toilet and washing facilities were located on 2 deck. He said that the escape manholes were designated as red openings. They were closed when an order to close red openings was made. However, they could always be opened from below unless someone physically prevented this by holding the clips on the escape manhole.[21]
[21] Exhibit 19, pp. 5-6.
Mr Mulcare concluded that only 12 seconds elapsed between the time of the order to close all red openings and brace for shock to the moment of the collision. This was from 0912 and 8 seconds to 0912 and 20 seconds.[22] The order that red openings could again be used was timed at 0914 hours. He noted that the time declared by the applicant for the completion of the lock down was 58 seconds and he concluded that the process must have continued after the collision. He accepted that, before the alarm was sounded, the applicant may have been able to view the Sydney through a galley scuttle as it manoeuvred close to the Yarra.
[22] Ibid.
Mr Mulcare referred to the hatches which gave access from 2 deck to the mess decks below. He provided an illustration of these which depicted a small inner hatch, described as an “escape manhole”.[23] He explained that these enabled crew to exit the mess deck without having to open the hatch. In his evidence, he explained that an absence of these escape manholes would have made life on board very difficult. It would have prevented free movement through the vessel for changes of watch and access by crew in the sleeping spaces on 3 deck to toilets which were on 2 deck.
[23] Exhibit 4, p. 6.
Mr Mulcare provided a plan of the Yarra’s decks[24] and agreed that some Yankee hatches were depicted as a rectangular unit while others were also depicted in that way but with a circular unit within the rectangle. He agreed that this would represent an escape manhole in the hatch but he described the plan as being a general drawing only, not to scale and not accurate in its detail. A more detailed plan of 2 and 3 decks was provided by Mr Mulcare which did not include a circled manhole in any of the hatches on 2 deck.[25]
[24] Exhibit 4, Attachment 7.
[25] Exhibit 7, Attachment 1.
From his own observations, Mr Mulcare confirmed that the two hatches leading to the mess decks below 2 deck had escape manholes even though there were not shown in the plan. He said the escape manholes were red zone hatches which would have been closed pursuant to the order at 0912 hours.
Mr Mulcare examined the statements of Mr Vidler, Mr Birch, Mr Halliday and
Mr Dwyer before completing his report on 12 September 2012. He wrote that the hatch closed by Mr Vidler was on 1 deck, two decks above the waterline and not a red but a Zulu opening to be closed only when the ship was at Damage Control State 1 Condition Zulu. Mr Mulcare reported that the Electrical Workshop and the cold room where Mr Birch and Mr Halliday, respectively, were stationed were on 4 deck, below the waterline. He described the hatch leading to the Electrical Workshop as able to be opened from above and below but agreed that the hatch to the cold room was accessible only from 3 deck.
Mr Mulcare confirmed that escape scuttles also provided access from 3 deck to 2 deck via a rope ladder. On 2 deck, these were located in the passageway and he recalled walking across them on many occasions. They were flush with the deck and were designed to be opened from below. These were not used for routine crew movements but provided emergency access to 2 deck.[26] Mr Mulcare consulted several former RAN personnel including retired Captain J K Perrett and retired Commander J A Worstencroft who provided statements dated 16 July 2012 and 17 July 2012, respectively. Mr Worstencroft served on the Yarra as a Marine Engineering Officer and retired as a Commander. He recalled that the Yankee hatches on the Yarra were to be closed during Condition Yankee. However, he wrote that the Yankee hatches were fitted with an escape manhole which would be closed if Condition Zulu was ordered. However, he said that, for Condition Yankee, the escape manhole was accessible by those on 3 deck thereby enabling crew to move about the ship with a minimum of inconvenience.[27]
[26] Exhibit 18, p. 1.
[27] Exhibit 18, Attachment 3.
Mr Perrett served, from 1968 to 1970, as the Marine Engineering and Damage Control Officer on HMAS Derwent, a sister ship to the Yarra.[28] He recalled that all the hatches from 2 deck to the mess decks on 3 deck were Yankee hatches. They each had an escape manhole which was marked Zulu, allowing them to be left open in Condition Yankee. He described this as an essential safety precaution because the larger Yankee hatches were too heavy to be easily opened by one man. Further, it was necessary that crew in the 3 deck messes were able to exit to 2 deck because that was where the toilets were located. He said that, if the manholes were not there, it would be an impossible situation for a single person to unscrew the clips on the hatch and lift it. He described it as a “two person lift” though he agreed that a very strong person might achieve it. He noted that there were also escape scuttles elsewhere in each mess with a rope ladder for emergency evacuations.
[28] As described in Exhibits 2 and 8.
RAN records
In evidence were entries from the Yarra’s records setting out the “sequence of events” in the Sydney collision. A signal providing a summary reads:[29]
0911: Gunlines across midships and FX. Sydney 60 feet off. CO indicated by hand movements for Sydney to move out.
0912.04: Sydney closed further. CO Sydney shouted something across gap and although not heard, some urgency was evident.
0912.08: Ordered slow ahead and then stbd 15 to parallel Sydney as she sounded six short blasts, started to swing to stbd. Close all red openings ordered in Yarra.
0912.12: As Sydney dropped rapidly astern (about 10 degrees bow in) ordered full ahead and port wheel as Sydney bow was about 5 feet off port beam in attempt to swing Yarra away from Sydney bow.
0912.20: Sydney struck Yarra port quarter (Frames 62-72) before swing away of Yarras stern (and nudge from Sydney) opened the gap to about 5 feet until stern was clear.
0912.45: Yarra clear of Sydney who was still swinging slowly to stbd. Ordered half ahead then slow and came back to course 020.
[29] Exhibit 4, Attachment 1.
The Yarra’s Log gives the timing of events as follows:[30]
0815: …RAS SSD Close up Ship remain in DC State 3 Condition Yankee.
0908: Sydney commenced RAS approach…
0911: First Line HMAS Sydney.
0912: Brace for shock. Close all red openings.
0912½: Sydney collided with Yarra port side midships/aft. Clear all lines. midships/aft. Clear all lines.
0912½: Sydney approached Yarra within 60’. Indicated machinery failure when alongside Yarra full ahead both engines and manoeuvred to avoid collision Sydney’s bow swung to Stbd striking Yarra causing superficial upper deck damage to guard rails and 0.5”cal mount.
…
0914: Hands fall out from brace for shock. Red openings may now be used
[30] Exhibit 4, Attachment 3.
The diary note of the Officer of the Watch is difficult to read but appears to refer to the collision and the Sydney approach at 091
32½ hours.[31] The reference to “13” has been crossed out and “12½” substituted.[31] Ibid.
The Commanding officer of the Yarra was Commander J C Macdonald. His Report of Collision was in evidence.[32] That report repeated the matters listed above. It also noted that the Yarra was in “DC State 3 Condition Y” before the Sydney incident. Mr McDonald noted that the ship’s crew had reacted quickly to the order to close up the Yarra. The Yarra’s records described the damage as being limited to the bending of guardrail stanchions, two large dents in contour plates and minor lacerations to the ship’s side steel. The Sydney’s records describe minor damage compromising minor plate indentation and distortion of a longitudinal beam in the bow.
[32] Ibid.
Entries in the Sydney’s Log include:[33]
0912 - steering failure - stop engine
0913 – scraped Yarra as Yarra pulled away
[33] Exhibit 4, Attachment 4.
Also in evidence were reports of the collision completed by officers who were serving on the Yarra at the time of the Sydney incident. These were the Executive Officer, Mr Vidal, and the Navigation Officer, Mr M J Spruce. They confirm the details noted above. Also in evidence was the “Record of Working of Main Engine”.[34] It gives the timing of various changes to the Yarra’s speed at 0912.08 to slow ahead (SH), at 0912.12 to full ahead (FH), at 0912.36 to half ahead (HH) and at 0913.12 to SH again.[35]
[34] Ibid at Attachment 3.
[35] Mr Mulcare provided interpretation of the terms “SH”, “ FH” and “HH”.
Medical evidence
Psychiatrist, Dr Ian Hayes, has treated the applicant since he first saw him in 2010, shortly before the applicant lodged his claim with the respondent. He completed reports dated 1 February 2010, 15 March 2010, 28 February 2011, 28 June 2011 and 11 August 2011. He reported that the applicant had experienced nightmares which were related to the Sydney incident in 1984 and over the nine months prior to seeing him. Dr Hayes noted that, in closing the Yarra down prior to collision, the applicant recalled “slamming hatches shut, trapping screaming sailors below the waterline”[36]. He also noted that the applicant described having “the fear of God” in him at the time associated with trapped sailors and the sound of the collision and as being able to get through his problems in 2004 by involving himself in work for 20 hours per day.[37] Dr Hayes diagnosed the applicant as having posttraumatic stress disorder as a result of the Sydney incident and, in his third report, noted that the applicant had been “extremely fearful” at hearing the screams of the trapped sailors because “he could see the frigate Sydney approaching them through the portholes and anticipated a collision”.[38] Dr Hayes’ opinion was that the applicant had experienced a life-threatening event at that time.
[36] Exhibit 1, T-Document 2, pp. 22, 43.
[37] Exhibit 1, T-Document 2, p. 22.
[38] Exhibit 1, T-Document 5, pp. 101-102.
Dr Jonathon Lichter, psychiatrist, completed a report on 21 November 2011.[39] He detailed the circumstances of the Sydney incident noting that the applicant had been aware that two sailors had been trapped, below the waterline, in the mess decks when the hatches were closed. He wrote that the applicant had advised of being fearful for his own life and those of the trapped sailors at the time and was aware of the threat posed by the Sydney which was a much larger vessel than the Yarra. Dr Lichter also noted that the applicant had been aware of the situation of the Evans and the Voyager. He detailed the actions of the applicant in allocating functions to his crew including running out fire hoses, accessing breathing apparatus, checking the generators and monitoring the fresh water pumps and told Dr Lichter that his job was to keep his junior sailors calm. He also recorded the applicant stating that, apart from the shouts of the trapped men, the ship had gone quiet “for a couple of minutes” before the hatches could be opened. Dr Lichter’s opinion was that the applicant suffered from posttraumatic stress disorder as a result of the Sydney incident. He described the applicant as suffering from flashbacks and nightmares of the incident, prolonged alcohol abuse, avoidance phenomena, mood instability and mild cognitive impairment.
[39] Exhibit 24.
STATEMENT OF PRINCIPLES
The Statement of Principles relevant to the applicant’s claim, factors relied upon and associated definitions are:
Statement of Principles concerning posttraumatic stress disorder No. 6 of 2008
Diagnostic criteria 3(b): For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
Factor 6(a): experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;Factor 6(b): experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eye witness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
CONSIDERATION
The Statement of Principles advises that the diagnostic criteria for posttraumatic stress disorder are derived from DSM-IV-TR.[40] As was noted in Repatriation Commission v Warren,[41] the introduction to that document refers to the ‘Use of Clinical Judgment’ in the following terms:
DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.
[40] DSM-IV-TR which is defined in in cl 9 to mean “the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”.
[41] (2007) 95 ALD 606 per Kiefel J at 611 [13]; see also O’Dowd v Repatriation Commission [2013] FCA 991 at [27].
In that case, Kiefel J made the following comment in relation to the diagnostic process:
[27] It may be inferred that the SoP were written upon an assumption that if a veteran was found to be suffering from a condition classified by DSM-IV, a diagnosis in accordance with that Manual would have been made. It was intended that the SoP apply where such a diagnosis was made. This assumption, of correspondence, might suggest the application of the SoP criteria in relation to the finding of the existence of the condition. There is however one difficulty with that approach. It is DSM-IV as a whole which will inform a clinical diagnosis, upon which a finding will be based. The Manual itself explains that there is more to a diagnosis than the application of the criteria in a ‘cookbook’ fashion. A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition. DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience. In some cases the SoP criteria may not therefore be met.
[28] It cannot be inferred that the SoP were drawn on the basis of some misunderstanding as to the application of DSM-IV. They were drawn by reference to it. It could not therefore have been intended that the strict application of the criteria summarised in the SoP definition was to be a requirement of, or a substitute for, a proper clinical diagnosis. The threshold question in each case will be whether the diagnosis was one properly made, having regard to DSM-IV. Because clinical judgment is involved, differences of opinion may arise. They will need to be resolved by the Tribunal on the materials before it.
While noting Her Honour’s comment that posttraumatic stress disorder may be diagnosed without all of the criteria in the Statement of Principles being met, I am satisfied that one material criterion which must be met for posttraumatic stress disorder to be diagnosed is criterion A. This is the exposure to a traumatic event. In that regard, the Full Federal Court in Repatriation Commission v Bawden[42] said:
47 …the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. …
The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.48 The point on which the present case turns is not one of insufficient correspondence between the symptoms described in the DSM-IV and those described by Mr Bawden; rather it is concerned with the inability of the decision-maker to be satisfied that Mr Bawden suffered a traumatic stress. A diagnosis of the disorder depends on satisfaction as to the historical fact of a traumatic stress.
[42] (2012) 206 FCR 296 at 307 [47], [48]. It is noted that a different test for causation was applicable in that case because of the characterisation of the veteran’s service (as operational rather than, in the applicant’s case, defence service).
Some aspects of the evidence in this matter are clear. The Sydney scraped the port side of the Yarra on the morning of 20 August 1984 as the ships were engaged in an RAS exercise. The Sydney’s record is that it occurred at 0913 hours. The entries in the Yarra’s documentation provide differing times for the collision. The Yarra’s Log and the diary note of the Officer of the Watch refer to the collision and the Sydney’s approach at 0912½ hours. The latter appeared to read 0913 hours before amendment to accord with the Yarra’s Log. The signal summary is more specific, recording the closure of the Sydney at 0912.04, the alarm at 0912.08 and the collision at 0912.20. Mr O’Neill submitted that the times referred to in the Yarra’s Log i.e.0912 as the time the alarm was sounded and 0912½ as the time of the collision should be accepted as correct. This would extend the elapsed time between the alarm and the collision to 30 seconds rather than the 12 seconds described in the signal summary. I do not accept his submission. The Yarra’s Log and the diary note of the Officer of the Watch give the same time-frame for the Sydney approach as well as the collision i.e 0912½ hours. Both would seem to have occurred in the ½ minute identified. However, obviously, the time for each cannot be the same as the approach of the Sydney must have preceded the collision. That is reflected in the signal summary and I am satisfied that the more specific times referred to in the signal summary, which breaks the incident down to minutes and seconds, should be adopted. The Sydney’s record of the collision occurring at 0913 hours is not explained but there was no evidence led as to the degree of synchronisation between the time‑keeping equipment of the two vessels.
I am satisfied that the collision occurred at 0912.20 hours. At 0912 hours, the applicant had been standing in the passageway outside the galley on 2 deck talking with another crew member. On looking through a glass scuttle on the port side of the Yarra, he saw the Sydney and noted that it was closer to the Yarra than was usual during an RAS exercise. Almost simultaneously, an alarm was broadcast on the Yarra and I accept as correct the Yarra’s record that this occurred at 0912.08 hours. The applicant reacted immediately to implement the closure of red openings forward of his position.
The applicant’s evidence was that he summoned his crew from the mess where they were having breakfast and they followed him down the passageway on 2 deck, closing and, where necessary, dogging down red openings as they proceeded. When he arrived at the hatches from 2 deck to 3 deck, immediately forward of the gun bay, the applicant was alone as his crew had been delayed by their respective closing duties. His evidence was that he closed both hatches and dogged them down despite the presence of crew members on 3 deck who, because they were trapped by the closed hatch, began screaming and banging on the hatches. The applicant told Dr Lichter that it was his job to keep the junior sailors calm and so, when his crew arrived, he allocated tasks to them i.e. checking the ship’s generators and water pumps, running out lengths of fire hose and donning breathing apparatus. That reference to the need to calm the junior sailors was also in his statement. After several minutes when all was quiet, he felt the Yarra being violently manoeuvred and then heard the sound of the collision. He said that he felt intense fear, helplessness and horror and thought he would die as the Sydney “was heading right for us”.
None of the witnesses called by the applicant was part of his watch crew or was amongst those trapped on 3 deck. One member, Mr Birch, stated that he had been dogged down by the applicant but, at the time, he was on 4 deck and the applicant’s evidence was that he remained on 2 deck while complying with the order to close red openings. The applicant’s evidence is not consistent with other evidence given at the hearing. A material issue was whether the two hatches forward of the gun bay had escape manholes which would allow access from below unless the mechanism on top was physically constrained. Several witnesses denied the existence of the escape manholes. However, on the balance of probabilities, I am satisfied that the escape manholes were fitted to those hatches. I am persuaded by the evidence of those witnesses who identified the hatches as having the escape manholes. That finding is not based on the numbers of witnesses for the differing views but by the rationale given for the escape manholes being fitted by, in particular, Mr Mulcare, Mr Perret and Mr Worstencroft. This was that the raising of a hatch from below was a difficult task, usually requiring two persons, and that it was essential that crew be able to move about the ship with a minimum of inconvenience to facilitate the changes in watches and to enable access to the toilet areas of the vessel.
The applicant’s evidence is also inconsistent with the detailed account provided by Mr Mulcare concerning the various measures utilised by the RAN to ensure watertight integrity and states of readiness of its vessels. Mr Mulcare described X-ray, Yankee and Zulu openings; he described red openings; he described Condition Yankee, when all X and Y openings are shut, as that applicable during an RAS exercise; and he also detailed the four States of Readiness including State 3: the normal state of the ship in a defended harbour in war and for normal cruising in peace time. His evidence on those matters was not challenged and I accept it as correct. The Yarra’s Log shows that the ship had closed to Damage Control State 3 Condition Yankee at 0815 hours on the morning before the collision. I note that one of the applicant’s witnesses, Mr Kannengiesser, incorrectly described the Yarra to be at State 2 Condition Yankee.
Mr Mulcare’s evidence was that all of the hatches on 2 deck were Yankee hatches and were red openings. His evidence was that, in State 3 Condition Yankee, all of the hatches on 2 deck and 3 deck would have been closed but that escape manholes in them were designated as Zulu openings so that they could remain openable to facilitate the movement of personnel. On that evidence, I am satisfied that the two hatches on 2 deck forward of the gun bay were closed in accordance with the Yarra’s State of Readiness and that they were fitted with escape manholes. I have noted that one drawing of the Yarra did not depict manholes in those two hatches. However, I accept the evidence of Mr Mulcare that the drawing was not an exact scale representation of the fittings on the vessel.
I am also satisfied that there were escape scuttles in the mess area on 3 deck. Some of these provided an exit through the starboard side hull into the open sea. However, a more attractive option was to utilise either of the two escape scuttles leading to 2 deck. These were identified by Mr Wolzac, Mr Perret and Mr Mulcare as being accessible by rope ladder. They also appear, in the drawings of the Yarra, as circular forms on the port side of 2 deck and 3 deck and are marked as “escape scuttles”.[43] In that regard, I do not accept the evidence of Mr Dwyer that the mess space on 3 deck was divided in the middle by a wall running fore and aft. I am satisfied that the space stretched across the width of the Yarra and that the scuttles on the port side provided emergency escape to 2 deck for anyone in that space. I am satisfied that the presence of the escape scuttles, quite apart from the manholes in the hatches, meant that personnel on 3 deck would not be trapped there.
[43]Exhibit 7, Attachment 1.
It follows that I do not accept the applicant’s account of his actions involving the hatches on 2 deck forward of the gun bay or concerning trapped sailors on 3 deck due to the closing of the hatches. His duty was to close red openings and I accept that this would have involved him and his crew closing the escape manholes. Clearly, this was a much easier task than closing the main hatches, the difficulty of which was explained above. Having to carry out that less difficult task may assist in explaining how, on his evidence, the applicant was able to summon his crew, move through the passageway on 2 deck for a distance of approximately 53 metres while closing red openings, in less than 12 seconds. That was the time which elapsed from the sounding of the alarm until the collision occurred at which time the applicant was already standing forward of the gun bay with his crew, who had caught up to him, and who were allocated various additional tasks by the applicant. The applicant’s evidence was that the forward part of the Yarra was closed down in 58 seconds and, clearly, the applicant and his crew must have continued with their duties in closing red openings for another 46 seconds after the collision occurred.
There are other inconsistencies in the applicant’s evidence. His version of the alarm was:
Hands to emergency stations. Close all red openings. Brace for shock - Collision midships.
The Yarra’s records show that the alarm was in terms:
Brace for shock. Close all red openings.
I am satisfied that the Yarra’s record should be accepted as correct. Unlike the applicant’s version, it makes no direct reference to a collision, to the place of a collision or to emergency stations.
The applicant also advised both Dr Hayes and Dr Lichter that the sailors on 3 deck were trapped “below the waterline”. I do not accept that to be the case. The evidence was that 3 deck was fitted with two escape scuttles in the starboard side of the Yarra’s hull. One of these was depicted in a photograph from inside 3 deck; [44] both of them were depicted in a photograph of the exterior of the vessel.[45] The latter shows clearly that the escape scuttles were well above the waterline, the only location consistent with them being “escape” avenues.
[44] See Exhibit 6.
[45] See Exhibit 2.
I note that, in his evidence, the applicant stated that his memory of the Sydney incident was “very foggy”. Because of the significant inconsistencies in the applicant’s evidence, I am satisfied that he was an unreliable witness.
The element of the alarm which directed the ship’s crew to “brace for shock” was not fully explained in evidence. However, I accept that it could indicate a possible collision. Indeed, a minor collision occurred. But no specific warning of the nature of the shock was communicated to the men on 2 deck. The applicant described the prospect of a collision when he claimed to have felt intense fear, helplessness and horror. In diagnosing posttraumatic stress disorder, Dr Hayes recorded the applicant as telling him that he could see the frigate Sydney approaching them through the portholes which caused the applicant to think about the Voyager and the Evans and to consider the vulnerability from being in the forward part of the ship. He said that he thought he would die as the Sydney “was heading right for us”. That description by the applicant is not in accordance with what actually occurred. At the time, the applicant had no knowledge of the Sydney’s movements. The only sighting that the applicant had of the Sydney was through the galley scuttle before the alarm sounded and he did not recount anything from that sighting except that the Sydney was closer than was usual for an RAS exercise. It was not heading for the Yarra at that point.
In the current Statement of Principles, factor A of the diagnostic criteria for posttraumatic stress disorder requires that the applicant has been exposed to a traumatic event in which:
i.he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
ii.where his response involved intense fear, helplessness, or horror.
Component (i) of that criterion is not materially different to the first part of the definition of “experiencing a severe stressor” which was a causal factor in an earlier Statement of Principles for posttraumatic stress disorder. It requires a consideration of both objective and subjective elements.[46] Also, it is not a requirement that there be an actual threat.[47] In Woodward v Repatriation Commission,[48] the Full Federal Court adopted the following reference by Mansfield J in Repatriation Commission v Stoddart:
..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 convey, the risk of death or serious injury. In other words "experiencing" should be construed as having at least this partially subjective connotation.
[46] See White v Repatriation Commission [2004] FCA 633; Woodward v Repatriation Commission (2003) 131 FCR 473; and Repatriation Commission v Stoddart (2003) 77 ALD 67.
[47] See Stoddart (ibid) at 73-74; and Woodward (ibid) at 496-498.
[48] Ibid at 498.
A collision between two ships in the open sea is a potentially traumatic event and one which may involve a threat of death or serious injury. The evasive action taken by the Yarra removed the actual threat but I accept that a perception thereof may well have been experienced by a person in the applicant’s position. Nonetheless, criterion A for posttraumatic stress disorder also requires that the applicant’s response involved intense fear, helplessness, or horror.
I am satisfied that, after hearing the alarm on the Yarra, the applicant carried out his duties in the professional manner which reflected his rank as a Petty Officer and his considerable experience in the RAN. He brought his crew immediately into action in relation to closing red openings and took charge in the sense that he felt the need to calm the junior sailors in his crew. He did this, consciously, by allocating tasks to them such as inspecting the ship’s generators and water tanks in the forward part of the Yarra. The closing operation was completed in 58 seconds which the applicant declared was much faster than usual. Clearly, given that the collision occurred 12 seconds after the alarm was sounded, the applicant must have continued with the closing down of the forward part of the Yarra for another 46 seconds in order for it to be completed in the time claimed. Also, after the all clear was given at 0914 hours, the applicant immediately conducted an inspection of the aft part of the Yarra to check for damage. While, in his evidence, the applicant claimed to experience fear, helplessness, or horror, only a level of fear was related by him to Dr Hart and Dr Lichter. I accept that hearing the alarm on the Yarra had the capacity to raise the tension levels of the ship’s crew including the applicant. However, I am satisfied that the applicant’s demonstrated capacity to deal efficiently and effectively with the closing operation prior to, at the time of and after the Sydney came into contact with the Yarra was not consistent with a response which involved intense fear, helplessness, or horror. This means that factor A in the diagnostic criteria for posttraumatic stress disorder is not met. I am satisfied, on the balance of probabilities, that a diagnosis of posttraumatic stress disorder, based on the Sydney incident, can not be made.
Both Dr Hayes and Dr Lichter diagnosed the applicant as suffering from posttraumatic stress disorder. They did so on the basis of the Sydney incident as it was described to them. This included references to closing of the hatches knowing that sailors were “trapped” below the waterline on 3 deck with no means of escape; the screaming of the trapped sailors; and knowledge of an imminent collision with Sydney based on his sighting of the Sydney heading towards the Yarra. That description of events and of the applicant’s reactions to them is not in accordance with my findings above. The sailors on 3 deck were not trapped and, in any event, would not have been below the waterline. The applicant was not in a position to see the Sydney approaching the Yarra. As the opinions of Dr Hart and Dr Lichter are based on a version of events that did not occur, their respective diagnoses of posttraumatic stress disorder, based on that version of the Sydney incident, are unreliable.
As I am unable to confirm the criteria for a diagnosis of posttraumatic stress disorder, it is not necessary for the causal factors in the Statement of Principles to be considered.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member...................[Sgd].....................................................
Associate
Dated 22 October 2013
Dates of hearing 29, 30 August 2013, 20 September 2013 Advocate for the Applicant Mr Brian O'Neill Advocate for the Respondent Mr Bruce Williams
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