Pike and Repatriation Commission
[2008] AATA 235
•27 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 235
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/56
VETERANS' APPEALS DIVISION ) Re ALLAN PIKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date27 March 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..............................................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – repealed Statement of Principles – appropriate diagnosis of psychiatric conditions –– anxiety disorder, panic disorder and alcohol dependence diagnosed – severe psychosocial stressor and experiencing a severe stressor – reasonable hypothesis of relevant relationship to service raised – no clinical onset of anxiety disorder, panic disorder or alcohol dependence within two years - conditions not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 14, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136
Repatriation Commission v Smith (1987) 15 FCR 327
Keeley v Repatriation Commission (2001) 60 ALD 401; [2000] FCA 532
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Stoddart (2003) 134 FCR 392; [2003] FCAFC 300
Woodward v Repatriation Commission (2003) 75 ALD 420; [2003] FCAFC 160
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
Youngnickel v Repatriation Commission [2004] FCA 1691
Hardman v Repatriation Commission (2004) 82 ALD 433REASONS FOR DECISION
27 March 2008 Mr RG Kenny, Member Background
1. Allan Pike served in the Royal Australian Navy (RAN) from 4 July 1963 until 7 February 1972. On 19 March 2004, he lodged with the Repatriation Commission, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “general anxiety disorder” which he contended was related to his RAN service. On 26 May 2004, the respondent accepted that Mr Pike suffered from anxiety disorder but determined that the condition was not related to his service. On 1 December 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr Pike seeks further review of the decision by the Administrative Appeals Tribunal (the Tribunal).
Service and Standard of Proof
2. During his RAN service, Mr Pike rendered eligible war service in the form of operational service as provided for in s 7 and s 6C, respectively, of the Act from 25 April 1966 until 6 May 1966, from 30 May 1966 until 9 June 1966 and from 15 September 1969 until 11 April 1970. Of relevance to this matter is the last of those periods when Mr Pike was serving on HMAS Vendetta.
3. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction[1]. That imports the civil standard of proof so that matters must be determined on the balance of probabilities[2]. The standard of proof applicable to issues of causation for operational service is set out in s 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
[1] Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
[2] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
4. The application of that provision is affected by the terms of s 120(3) and by s 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Contentions
5. Mr Clutterbuck submitted that, whilst on the Vendetta in Da Nang Harbour during his last period of operational service, Mr Pike experienced a stressful incident (the turret incident) which constitutes a category 1A stressor as that term is used in the Statements of Principles. This occurred while he was enclosed in one of the vessel’s gun turrets at the commencement of a procedure which was to involve the shelling of targets on the Vietnam mainland. He submitted that this caused Mr Pike to develop post traumatic stress disorder. Alternatively, he submitted that it caused the development of anxiety disorder with the full array of symptoms for that condition developing within two years of the incident. Further, he submitted that the incident caused him to suffer from alcohol abuse within that time-frame. He accepted that there was an absence of treatment for any psychiatric conditions prior to 1997 but submitted that this was because Mr Pike had not previously admitted to them.
6. Mr Smith submitted that Mr Pike did not suffer from any service-related psychiatric conditions but, alternatively, that, if the turret incident had occurred in the manner described by Mr Pike, it may have resulted in panic disorder with agoraphobia, anxiety disorder or alcohol abuse/dependence but not post traumatic stress disorder.
Issues
7. The first issue for determination in this matter is the appropriate diagnoses to apply to Mr Pike’s present psychiatric state. The second issue is whether any such condition is related to his eligible war service.
Evidence
Mr Pike
8. Mr Pike gave the following evidence. He enlisted in the RAN prior to his 16th birthday and completed education requirements for the first 12 months. He then undertook training on HMAS Sydney for 12 months before completing an electrician’s course at Cerberus. He was posted to Vendetta in 1969 as an electrician and was responsible for lighting and maintenance of electrical equipment. He also carried out the duties of a gun layer in one of the vessel's gun turrets. During firing operations, he was one of eight men who occupied the turret which was isolated from the deck by means of a closed steel door.
9. On one occasion, the Vendetta commenced a gunnery exercise in Da Nang Harbour. At around midnight, the crew had taken their positions in the gun turret. Before the operation commenced, there was a loud explosion. This caused great vibration and loss of electrical and hydraulic power to the turret and to the aft part of the vessel where the turret was located. The gun crew were cast into a panic and Mr Pike believed that the vessel had been struck by a mine and was likely to sink. He urinated in his clothing. The door of the turret had been jammed, apparently as a practical joke by another crew member, and this delayed the departure from the turret. Once on deck, the gun crew were advised by the diving officer and the gunnery officer that the explosion had come from the detonation of a "scare charge". He became aware that some of the less experienced sailors had been in such a panic and fear of sinking that that they jumped overboard. The gun-crew were ordered to return to the turret and advised that they would be charged with cowardice unless they did so. After the incident, he suffered from flashbacks and nightmares about it and developed a fear of confined spaces. This caused him to sleep on the upper deck thereafter and to ensure that any work which was undertaken by him below decks was completed in the fastest time possible.
10. Mr Pike had not been a heavy consumer of alcohol before the turret incident. This changed thereafter and he developed a heavy drinking habit. He recalled that he began on his first shore visit in Taiwan after the incident. He continued drinking beer and also began drinking spirits from that time. He described his present daily consumption level as comprising “⅓ to ½ a bottle of home made whisky and a couple of bottles of beer”. In his evidence, Mr Pike agreed that he had told Dr Chalk in 1997 that his alcohol consumption was low at that time and had been for the previous eight years. He agreed, that during that period, his alcohol consumption “wasn’t too bad”. He also agreed that he began to drink up to ½ a bottle of Scotch per day after 1997 as he was retired form work at that time and had nothing to occupy his mind. He said that he was not a binge drinker as he consumed a steady amount on a daily basis. He described difficulty in sleeping more than a couple of hours each night. He also said that he stayed away from places where people congregated such as hotels and that he lacked concentration with the continuation of various tasks.
11. Mr Pike’s wife suffered from psychiatric problems before and after Mr Pike returned from Vietnam. Mr Pike conceded that he spent much of his time caring for her. After Mr Pike left the RAN, he and Mrs Pike lived in Brisbane. Mr Pike tried electrical work for a short period but had difficulty concentrating and took up work as a truck driver. He enjoyed the open-space that this afforded him. He agreed that, although he had frequently changed employers, he was seldom out of work. He ceased work in 1992, on the advice of his doctor, after being diagnosed with Wolff-Parkinson-White Syndrome which caused him to have syncopal episodes.
12. Mr and Mrs Pike have lived in Nanango for about 10 years. They travelled from there by car to Brisbane to attend the hearing. Mr Pike said that he has difficulty in driving a car in heavy traffic because it “terrifies” him. For that reason, he drove the vehicle only as far as Caboolture, a town north of Brisbane where his wife's sister lives. From there, his wife assumed the driving duties as they continued the journey into Brisbane.
13. Mr Pike agreed that his initial claim process for acceptance of a psychiatric condition commenced in 1996 and was encouraged by an advocate from the Returned and Services League of Australia (RSL). The advocate was assisting him at the time with a claim for hearing loss and an orthopaedic condition. The advocate asked him about his service but he had not previously connected any service incident with any psychiatric problem. He spoke to his general practitioner, Dr Iain Corness, about this and was referred to psychiatrist, Dr John Chalk, in 1997.
Carol Pike
14. Mrs Pike gave evidence. She confirmed that she and Mr Pike married in 1967. She described him as unstable after returning from South Vietnam. She was not properly informed about events which occurred to him whilst he was in Vietnam but had overheard snippets of conversations between Mr Pike and other veterans from time to time. She had her own problems with nerves and depression at the time of Mr Pike’s return to Australia but thought that he was a “bit irritable and withdrawn”, “anti-social” and “hard to get along with at the time”. She was unaware of any sleeping difficulties experienced by Mr Pike for quite a few years.
15. Mrs Pike’s statement was in evidence. She wrote that Mr Pike “seemed quite normal at first” on his return to Australia. She “thought he had come through it very well”. She also wrote that, after Mr Pike left the RAN, they moved in with her parents in Brisbane and it was after that when “he started to show an inability to settle.”
16. Mrs Pike said that Mr Pike was not able to deal with crowded situations and, in particular, did not drive in heavy traffic. Nevertheless, she said that, in attending the hearing, he drove their car into the suburb of Salisbury in Brisbane where her sister lives. From there, they travelled to the centre of Brisbane by public transport. She had not driven the car at all.
Dr John Chalk, psychiatrist
17. Dr Chalk completed a report on 9 February 1997 in relation to the earlier claim made by Mr Pike for a psychiatric condition. He also gave evidence. In his report, Dr Chalk referred to the turret incident to which Mr Pike attributed, after discussions with an advocate from the RSL, his psychiatric conditions. Mr Pike’s account to him of the explosion was of “two grenades being dropped over the side of the ship as a prank”. Dr Chalk wrote that Mr Pike’s mental state examination was essentially normal, that he was not depressed or clinically anxious and that there was no evidence of psychosis. He referred to Mr Pike as being a heavy drinker in the past but as only drinking rarely at the time that he saw him and as having drunk little in the previous eight years. Dr Chalk was unable to fit Mr Pike’s symptoms into a diagnostic pattern for any major psychiatric illness. In his evidence, he confirmed that this had been the case when he saw him in 1997.
Dr William Kingswell, psychiatrist
18. Dr Kingswell interviewed Mr Pike on one occasion for two hours and completed reports on 18 April 2007 and 19 July 2007. He also gave evidence. He outlined the turret incident. Mr Pike told him that he believed at the time it had been a prank and that he later learned that it was caused by scare charges dropped into the water to prevent an attack by enemy divers. Dr Kingswell noted that Mr Pike had received no treatment for any psychiatric disorder whilst he was in the RAN or before 1997 when he saw Dr Chalk. Dr Kingswell recorded Mr Pike as suffering from panic attacks, especially in crowded situations such as city shopping centres, which generally subsided after about 15 to 20 minutes, from nightmares about drowning, from poor sleeping patterns, and from thoughts, if he was idle, about the turret incident.
19. Dr Kingswell described Mr Pike as having successive ideas which were linked in a coherent and logical fashion, as not demonstrating any evidence of thought disorder and as having an affect which was reactive and appropriate. He referred to Mr Pike’s nightmares and thoughts and described these as ruminative memories but not flashbacks. He described Mr Pike as being well orientated in time, place and person with preserved immediate recall, short-term and long-term memory, attention and concentration. Dr Kingswell concluded that Mr Pike suffered from anxiety disorder, panic disorder with agoraphobia and alcohol abuse.
20. Dr Kingswell disagreed with Dr Carter’s diagnosis of post traumatic stress disorder and with her assessment of Mr Pike’s level of psychiatric incapacity. His opinion was that the criteria for post traumatic stress disorder were not satisfied. Nevertheless, he conceded that, if the turret incident had occurred in the manner described by Mr Pike, it could be seen by some as constituting a relevant stressor for post traumatic stress disorder.
21. Dr Kingswell had read the 1997 report of Dr Chalk and considered that Mr Pike had not met the diagnostic threshold for anxiety disorder or panic disorder with agoraphobia at that time. He distinguished between subjective reporting by a person about a history of psychiatric symptoms and the objective indicia, gleaned from aspects of the person’s life, of the person’s psychiatric presentation over time. His opinion was that, in Mr Pike’s case, the history that he took of continuous` employment and absence of any treatment did not support the presence of a psychiatric condition, apart from alcohol abuse, before 1997. From the history given to him by Mr Pike, Dr Kingswell accepted that alcohol abuse was probably present shortly after the turret incident. However, Dr Kingswell said that he had not been made aware of the period of eight years when Mr Pike’s alcohol consumption had fallen in the manner described to Dr Chalk and that, in that event, the condition would have been in remission for that time.
Dr Janis Carter, psychiatrist
22. Dr Carter has been involved with the treatment of Mr Pike since November 2003. She completed reports on 31 March 2004, 8 May 2007 and 11 September 2007. She also gave evidence. In her first report, Dr Carter diagnosed generalized anxiety disorder. She attributed this to the turret incident.
23. In her second report, Dr Carter wrote that she had taken the opportunity of obtaining a more detailed history from Mr Pike about his experiences in Vietnam and had also spoken with Mrs Pike about his symptoms. She concluded that the anxiety condition from which he suffered was post traumatic stress disorder. She attributed it to his experiences in Vietnam. In that report, Dr Carter nominated a variety of incidents which could constitute the relevant trauma for post traumatic stress disorder. She referred to Mr Pike as being "under constant combat", to the “misfiring of weapons”, to the “constant fear of being enclosed in the turret firing for long periods over many months”, to “giving fire and at times receiving fire”, to “the witnessing of many sunken ships” and to there being “no lights or no power anywhere on the ship” following the turret incident. She declared that these constituted stressors which meet criterion 1A in the Statement of Principles for post traumatic stress disorder. Dr Carter also made reference to Mr Pike’s alcohol consumption in that report. She diagnosed him as suffering from alcohol dependence with sustained partial remission. She described him as having consumed a lot more alcohol in the period after Vietnam and to his development of a maladaptive pattern of drinking alcohol “over the years”.
24. In the third report, Dr Carter confirmed her previous assessment. In her evidence, Dr Carter described Mr Pike as suffering from panic disorder but considered this to be subsumed in the anxiety disorder from which he suffers, namely, post traumatic stress disorder. She also referred to alcohol dependence and considered this to be a separately diagnosed condition and one which had developed secondary to his anxiety disorder.
25. At the end of her evidence, Dr Carter said that if the diagnostic criteria for post traumatic stress disorder were not met, in particular criterion 1A, she would support the diagnoses of anxiety disorder and panic disorder as well as alcohol dependence.
26. Dr Carter said that she had read the report of Dr Chalk and had spoken with Mr Pike about his interview with him. From what she was told, Mr Pike had reached a high anxiety state whilst waiting to see Dr Chalk and had a dissociative experience in the interview which would have the effect of making him “very wooden” and unable to “show things”.
Other evidence
27. In evidence was a copy of an extract from a letter and an addressed envelope, bearing the date 8 October 1969. This was identified by Mr Pike as a letter he wrote to his wife shortly after the turret incident. There, he wrote that he was “just finishing a shoot” when the explosion occurred. He also wrote that the scare charge had been dropped near the side of the ship by Australian divers and that the officer who spoke with them on the deck had apologised for the incident. He then referred to subsequent shoots in which he was involved. It gives no expression of concern about his continuing in his role in the gun turret.
28. Also in evidence was a medical impairment assessment dated 21 January 1997 in relation to an earlier claim by Mr Pike for acceptance of post traumatic stress disorder. This was completed by his then general practitioner, Dr Iain Corness, who noted that Mr Pike had not received any previous treatment for psychiatric problems because he had not admitted to himself that he had any such problems prior to that time.
29. Mr Pike’s RAN medical records, completed after his last voyage to Vietnam and at the time of his discharge from the RAN, were in evidence. They make no reference to any psychiatric conditions or psychological problems.
30. Mr Pike referred to the log of the Vendetta which he had seen shortly before the hearing and which, for the first time, led him to believe that the explosion had been caused by activities of the crew of an American vessel. The Vendetta’s Report of Proceedings from October 1969 was in evidence. It provides a detailed account of incidents and events which occurred during that time. Mr Pike’s letter to his wife was dated 8 October 1969 and the turret incident was described by him as occurring shortly before that. The Report makes no reference to anything resembling the turret incident or anything as significant as sailors jumping overboard as described by Mr Pike. One of the entries, dated 5 October, refers to the sighting by a sentry of an object in the water which, because there was concern that it may have been a possible enemy diver, caused an evacuation of various parts of the ship and a search of the hull by the ship’s divers. The entry for 12 October includes a reference to an American patrol boat which carried out grenade runs around Vendetta during the night.
Consideration of evidence
31. There are inconsistencies in Mr Pike’s evidence. Not only is this in relation to the events surrounding the turret incident, but also to the means by which he and his wife were conveyed to Brisbane for the hearing. He alleged that his wife drove from Caboolture to Brisbane to relieve him, because of his psychiatric problems, of the difficulty of dealing with heavy traffic. Mrs Pike’s evidence was she did not drive at all and that Mr Pike assumed responsibility for the driving. While that is not associated with the turret incident, it raises concern about his credit as a reliable witness and his evidence about the turret incident.
32. Mr Pike gave differing accounts of matters associated with the turret incident. These include the extent that he was aware of the use of scare charges and his understanding of the cause of the explosion.
33. In evidence, he denied being involved in work-ups with scare charges before the turret incident and said that he had no experience with them before the incident. He also said that he had an idea what a scare charge was because he seen them thrown overboard by sentries on the Vendetta. Further, he said that he had seen the ship’s cutter circling the ship and dropping scare charges at hourly intervals in daylight hours and that duty being performed by an American vessel after sunset.
34. There were also differences in Mr Pike’s descriptions of his understanding of the source of the explosion. In evidence, he first recalled that, when he exited the turret, the gunnery officer said that “there had been an explosion of scare charges”. Subsequently, he denied this and said that he was told only that there had been an explosion and that he did not know it was a scare charge until a week later. He also said that, initially, he had believed it had been a practical joke. In his statement of 15 June 2007, he again described the explosion as being due to a “practical joke committed by persons unknown” and gave further particulars by noting that “persons unknown decided it would be a good joke and taped some scare charges together and dropped them over the side against the hull”. That is what he told Dr Carter. He also advised Dr Chalk and Dr Kingswell that it had been a “prank”. His evidence was that he had always believed that to be the case until his advocate obtained a copy of Vendetta’s log.
35. Another inconsistency in Mr Pike’s description related to the impact of the explosion. Dr Carter recorded Mr Pike as describing complete darkness after the explosion “with no lights and no power anywhere.” In his evidence, he said that he was locked in the turret for about 15 minutes and that the lights came back on about 2 to 3 minutes after leaving the turret. He also said that there was no interruption to the lighting in the forward part of the vessel. The Vendetta’s Report of Proceedings makes no reference to such a significant occurrence as losing power either at all or for a period of some 17 to 18 minutes.
36. Further, Mr Pike advised, in the letter to his wife that the turret incident occurred when the crew were “just finishing a shoot”. In his evidence, he clearly stated that it occurred before the shoot started.
37. Mrs Pike also gave inconsistent accounts of her perception of Mr Pike’s state when he returned from Vietnam. She described as being “a bit irritable and withdrawn” and “anti-social” and “hard to get along with at the time”; but also that “he seemed quite normal at first” and she “thought he had come through it very well”. She was unaware of any sleeping difficulties for “quite a few years” and noted that he started to show an inability to settle” after he left the RAN and they moved in with her parents in Brisbane.
Diagnosis and Statements of Principles
38. The RMA has published the following relevant Statements of Principles:-
·anxiety disorder: Instrument No. 1 of 2000 which was revoked and replaced by Instrument No. 101 of 2007;
·alcohol dependence: Instrument No. 76 of 1998 which was revoked and replaced by Instrument No. 17 of 2008;
·panic disorder: Instrument No. 9 of 1999 (amended by Instrument No. 58 of 1999); and
·post traumatic stress disorder: Instrument No. 3 of 1999 (amended by Instrument No. 54 of 1999) which was revoked and replaced by Instrument No. 5 of 2008.
39. Each of those lists the criteria which must be met in order for the relevant condition to be diagnosed. Where a Statement of Principles has been repealed, the matter is to be considered, initially, under the later Instrument but, in the event that its requirements are not met, it is then to be considered under a repealed Instrument which was in force at the date of the claim[3].
Post traumatic stress disorder
[3] Keeley v Repatriation Commission (2001) 60 ALD 401 at 415, 422.
40. Uniquely, post traumatic stress disorder requires a triggering event for assessing both diagnosis and the causal association of the condition with service. The two Statements of Principles for post traumatic stress disorder list the following criteria for the condition to be diagnosed:
“(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 symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize 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 (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, 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.”
41. Dr Carter was of the opinion that all of those criteria are met. Her report of 8 May 2007 details the symptoms relating to criteria B to F. In the last paragraph of that report, she nominates several stressors as satisfying criterion A. These were being “under constant combat", the “misfiring of weapons”, the “constant fear of being enclosed in the turret firing for long periods over many months”, “giving fire and at times receiving fire” and the “witnessing of many ships that had been sunk around them”. Those matters were not the subject of evidence by Mr Pike or submissions by Mr Clutterbuck. In that report, Dr Carter also referred to the turret incident where “the blast went off and the ship was in darkness and they had to break out of the gun turret”. In her first report, she described scare charges taped together and being detonated “against the hull”. Dr Kingswell, in his evidence, initially considered that criterion A was not met although, with obvious reluctance, he agreed that the turret incident may be sufficient to satisfy criterion A provided the events occurred as described by Mr Pike.
42. While I accept Mr Pike’s evidence that an incident occurred in the gun turret, I am satisfied, on the balance of probabilities, that the turret incident did not occur in the manner understood by Dr Carter. Mr Pike’s ultimate understanding of the source of the explosion was that it was a scare charge dropped by the escorting American vessel. I do not accept that this would have occurred with the proximity to Vendetta’s hull that Dr Carter described or that it had the impact that such a close detonation may have caused. In so finding, I am mindful of the various inconsistencies, described above, in Mr Pike’s evidence and his lack of connection between the incident and psychiatric consequences until the mid 1990s when he spoke with an RSL advocate. I also consider it relevant that there is the absence of any reference to any such incident or to the blacking out of the ship or to the jumping overboard of sailors in Vendetta’s detailed Report of Proceedings. I have noted the reluctant concession by Dr Kingswell about criterion A. However, I also note that he qualified his concession on the basis that the incident occurred as stated by Mr Pike. I am satisfied that it did not occur with the level of severity or the degree of reaction that Mr Pike described.
43. On the balance of probabilities, I am satisfied that criterion A in the diagnostic factors for post traumatic stress disorder is not met and that, as a consequence, that condition, in so far as it is alleged to be based upon the turret incident, can not be related to Mr Pike’s service. While the absence of a diagnosis means that post traumatic stress disorder can not be war-caused under s 9 of the Act, I have, nevertheless, made reference to this below.
Other conditions
44. Dr Kingswell’s opinion is that that Mr Pike suffers from anxiety disorder and panic disorder. The evidence of Dr Carter is supportive of those diagnoses and I am reasonably satisfied that they are appropriate in Mr Pike’s case. Dr Kingswell also diagnosed alcohol abuse while Dr Carter diagnosed alcohol dependence. The criteria for each of those conditions are set out in the Statements of Principles. They are mutually exclusive in that alcohol abuse can not be diagnosed if symptoms ever met those for alcohol dependence. Dr Kingswell was not aware of the complete history of Mr Pike’s alcohol consumption in that he was unaware of the eight year period of reduced consumption described by Mr Pike to Dr Chalk and confirmed by Mr Pike in his evidence. Dr Carter referred to the changing pattern of consumption and, on the balance of probabilities, I am satisfied that the appropriate diagnosis is alcohol dependence.
Principles of Causation
45. The Federal Court, in Repatriation Commission v Deledio, set out a four-step procedure to assist in determining issues of causation in relation to operational service[4]. The first of these requires that there be an hypothesis of connection between a claimed condition and service. From the contentions of Mr Clutterbuck, I accept that hypotheses may be identified through the effects on Mr Pike of an incident on the Vendetta. These are that anxiety disorder, panic disorder with agoraphobia and alcohol dependence resulted directly from that incident or, alternatively, that alcohol dependence developed as a result of one of the other psychiatric conditions, in particular, his anxiety disorder.
[4] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98,
46. The second of the four Deledio steps requires identification of any relevant Statement of Principles as published by the RMA. These are noted above. In so far as relevant to the identified hypotheses, the factors of causation and associated definitions read[5]:
[5] Though I have rejected post traumatic stress disorder at the diagnosis stage, for completeness, I have included the Statement of Principles for that condition.
Anxiety disorder:
Instrument No. 1 of 2000
5(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
Instrument No. 101 of 2007
6(a)(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety 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;
Alcohol dependence:
Instrument No. 76 of 1998
5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;
5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence;
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
Instrument No. 17 of 2008
6(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence;
"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;
Panic disorder:
Instrument No. 9 of 1999 (as amended)
5(a) experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder;
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
Post traumatic stress disorder:
Instrument No. 3 of 1999 (as amended)
5(a) experiencing a severe stressor prior to the clinical onset of posttraumatic stress disorder;
“experiencing a severe stressor” means the person experiences, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or another person’s physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
Instrument No. 5 of 2008
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;
47. The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable in the sense that there is some material which calls for a determination under subsection 120(1) of the Act[6]. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
[6] Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
Reasonableness of Hypotheses
48. A category 1A stressor in the later Statements of Principles for anxiety disorder, alcohol dependence and post traumatic stress disorder is defined to mean “a severe traumatic event” and a series of events which will qualify are particularised. As I read that definition, one of those particularised events must be pointed to by the material in order for a reasonable hypothesis for a category 1A stressor to be raised. The definition of a severe psychosocial stressor in the earlier Statement of Principles for anxiety disorder is in different terms. It requires an identifiable occurrence that evokes feelings of substantial distress and then lists events which will qualify as severe psychosocial stressors. However, these are expressed to be merely examples of such identifiable occurrences. The examples contemplated by the Statement of Principles as psychosocial stressors cover a wide range of types of events suggesting resultant feelings which extend over a time-frame and which thereby have a social dimension to them.
49. The definition of experiencing a severe stressor in the earlier Statements of Principles for alcohol dependence and post traumatic stress disorder and that for panic disorder also provides examples of events that would qualify rather than particularised incidents. Additionally, the relevant stressor for alcohol dependence includes the reference to the event as one which might evoke intense fear, helplessness or horror.
50. The material relating to the turret incident does not point to Mr Pike experiencing a life-threatening event or a serious physical attack or assault or to his being threatened with a weapon, being held captive, being kidnapped, or being tortured as required to meet the template provided in the definition of a category 1A stressor in the later Statements of Principles for anxiety disorder, alcohol dependence or post traumatic stress disorder. Nevertheless, at its highest, Mr Pike’s perception of harm points to the kinds of examples of the relevant stressor in Instrument No. 1 of 2000 for anxiety disorder, Instrument No. 76 of 1998 for alcohol dependence, Instrument No. 9 of 1999 for panic disorder and Instrument No. 3 of 1999 (as amended) for post traumatic stress disorder.
51. Mr Pike’s description of the turret incident can be seen as being of an occurrence which, subjectively, evoked feelings of substantial distress in Mr Pike as well as one which, objectively, would evoke such feelings in a person exposed to that occurrence as relevant for anxiety disorder[7]. In assessing the material in relation to experiencing a severe stressor in the context of alcohol dependence, panic disorder and post traumatic stress disorder, both subjective and objective considerations are also relevant[8]. In Woodward v Repatriation Commission,[9] the Full Federal Court said:
“[T]he 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.”
[7] White v Repatriation Commission [2004] FCA 633
[8] Repatriation Commission v Stoddart (2003) 134 FCR 392 at 399
[9] Woodward v Repatriation Commission (2003) 75 ALD 420 at 445
52. Accordingly, the material before me, taken at its most favourable light from Mr Pike’s perspective, meets the template of the relevant definition in Instrument No. 1 of 2000 for anxiety disorder, Instrument No. 76 of 1998 for alcohol dependence and Instrument No. 9 of 1999 for panic disorder. For completeness, I will assume that it also meets the templated requirements in Instrument No. 3 of 1999 (as amended) for post traumatic stress disorder.
53. In addition to the triggering stressor or psychosocial stressor, the Statements of Principles for anxiety disorder, alcohol dependence and panic disorder requires that there be material which points to the clinical onset of the condition within two years of experiencing the stressor. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time[10]. Also, all of the diagnostic criteria of the disease need to be shown within the two year period[11]. The consideration of clinical onset is not confined to the matters favourable to the applicant[12].
[10] Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750.
[11] Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691
[12] Hardman v Repatriation Commission (2004) 82 ALD 433
54. The evidence of Dr Carter is supportive of a clinical onset of anxiety disorder and alcohol dependence from shortly after the turret incident. In that, she is reliant on a history provided by Mr Pike and his wife. In the absence of other evidence, this may be sufficient to point to a clinical onset within the required time-frame. However, there is other evidence i.e. that of Dr Chalk and Dr Kingswell. Even so, Dr Carter purported to explain the report of Dr Chalk with the belief that Mr Pike was in a dissociated state when he saw Dr Chalk. Without making any findings of fact in that regard, I accept that Dr Carter’s description points to the clinical onset of anxiety disorder within the two year time-frame required by the Statement of Principles. Similarly, the material points to the clinical onset of panic disorder and alcohol dependence within that time-frame.
55. As the material before me points to a reasonable hypothesis of a connection to Mr Pike’s service for anxiety disorder, alcohol dependence and panic disorder consideration must be given to the fourth of the causation steps referred to above. Again, for completeness, I will give consideration to post traumatic stress disorder, for which a clinical onset time-frame is not required. The conditions, or some combination of them, will be war-caused unless I am satisfied beyond reasonable doubt that I cannot accept the factual bases upon which the hypotheses rest or that there is material which contradicts those facts.
Deledio Step 4: Is the Condition War-Caused?
56. I have determined that the turret incident does not meet the description of a traumatic event as that term is used in the diagnostic criteria for post traumatic stress disorder. That analysis was based on the standard of proof in s 120(4) of the Act. The concerns that I expressed about Mr Pike’s evidence and Dr Carter’s understanding of the turret incident also leave me satisfied beyond reasonable doubt that it does not meet the definition of experiencing a severe stressor in Instrument No. 1 of 2000 for anxiety disorder, Instrument No. 76 of 1998 for alcohol dependence, Instrument No. 9 of 1999 for panic disorder or Instrument No. 54 of 1999 for post traumatic stress disorder. That means that I am satisfied beyond reasonable doubt that those conditions are not war-caused.
57. Even if that requirement were met for anxiety disorder and panic disorder I am satisfied beyond reasonable doubt that the two year time-frame in the Statements of Principles for the clinical onset of those conditions has not been met. In particular, I note the opinion of Dr Chalk that, in 1997, no psychiatric condition was present. Dr Carter purported to cast doubt on the report of Dr Chalk because she considered that Mr Pike was in a dissociated state at the time of his interview. I reject that contention. Mr Chalk is a qualified specialist in psychiatry and he had the opportunity of observing Mr Pike several years before Dr Carter saw him. He described Mr Pike’s presentation in a manner which is not supportive of the opinion of Dr Carter. Mr Pike’s general practitioner, Dr Corness, expressed the opinion in December 1996 that Mr Pike had post traumatic stress disorder. However, the considered opinion by a specialist psychiatrist must be preferred to that of Dr Corness. I note that Dr Kingswell observed that Dr Chalk would have noted the presence of any symptoms which satisfied the threshold requirements of a psychiatric condition if they were present. That means that the onset of any psychiatric condition occurred more than 2 years after the turret incident and indeed, more than the 5 year clinical onset time-frame in the later Statements of Principles for anxiety disorder or alcohol abuse or dependence. The report of Dr Chalk describes not only an absence of any psychiatric condition, it describes an alcohol consumption pattern at the time he saw him and over the preceding 8 years, which was agreed to by Mr Pike in his evidence, in terms that do not constitute alcohol dependence at that time.
58. One mode of causation referred to by Dr Carter for alcohol dependence was that it developed in a manner secondary to Mr Pike’s anxiety disorder. That is a recognised factor of causation in the Statements of Principles, set out above, for alcohol dependence. However, for that factor to be satisfied, the triggering psychiatric condition of anxiety disorder must, itself, be war-caused and that is not the situation in Mr Pike’s case.
59. I am satisfied beyond reasonable doubt that anxiety disorder, panic disorder, and alcohol dependence and post traumatic stress disorder are not war-caused conditions under s 9(1)(b) of the Act.
Decision
60. The decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .....................................................................................
E. Young, Research AssociateDate/s of Hearing 10 October 2007 and 6 March 2008
Date of Decision 27 March 2008
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Haney Lawyers
Counsel for the Respondent Mr J Smith, departmental advocate
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