Porter and Repatriation Commission
[2004] AATA 51
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 51
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/1252
VETERANS' APPEALS DIVISION )
Re INA MAUD PORTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date23 January 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of Victor George Porter is war-caused and that his widow, Ina Maud Porter, is to be paid a war widow’s pension on and from 12 September 1996.
....................(Sgd)......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran caused by his war service – ischaemic heart disease – veteran suffered from generalised anxiety disorder as a result of stressors suffered during operational service – reasonable sub-hypothesis established connecting hypertension with veteran’s service -reasonable hypothesis established connecting death with service – decision set aside
Veterans’ Entitlements Act 1986, ss 6A(1)(d), 8, 11, 13, 14, 119, 120, 120A
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Cook (1998) 90 FCR 307
Benjamin v Repatriation Commission [2001] FCA 1879
Re Cowie and Repatriation Commission [1999] AATA 334
Re Campbell and Repatriation Commission [2001] AATA 559
Re Lewis and Repatriation Commission [2003] AATA 1078
Re May and Repatriation Commission [2003] AATA 1216Lees v Repatriation Commission [2002] FCAFC 398
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Bey (1997) 149 ALR 721Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart [2003] FCAFC 300
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Budworth [2001] FCA 1421
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998)
McKenna v Repatriation Commission (1999) 86 FCR 144
Woodward v Repatriation Commission [2003] FCAFC 160REASONS FOR DECISION
23 January 2004 Mr IR Way, Member 1. This is an application by Ina Porter for review of a decision of the Repatriation Commission dated 14 October 1996 and affirmed by the Veterans’ Review Board on 18 September 1997, which determined that the death of Mrs Porter’s husband, Victor George Porter (“the veteran”) was not war-caused within in the meaning of section 8 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T7) and other documentary evidence as follows:
Exhibit A1 Statement of Ina Maud Porter dated 16 June 2002
Exhibit A2 Statement of Ina Maud Porter dated 20 February 2003
Exhibit A3 Statement of Ina Porter dated 12 September 2003
Exhibit A4 Statement of Maree Tognola dated 15 August 2000
Exhibit A5 Statement of Mona Passmore dated 18 September 2003
Exhibit A6Statement of Ernest Passmore dated 18 September 2003
Exhibit A7Statement of Kevin Charles Knowles dated 11 September 2003
Exhibit A8Report of Dr Michael Likely dated 10 January 2001
Exhibit A9Report of Dr Michael Likely dated 27 August 2001
Exhibit A10 Report of Dr Michael Likely dated 12 November 2001
Exhibit A11 Report of Dr Michael Likely dated 21 January 2002
Exhibit A12 Report of Dr Michael Likely dated 28 October 2003
Exhibit R1Report of Dr Peter Mulholland dated 21 January 2003
Exhibit R2Report of Dr Lachlan Laing dated 22 August 2000
Exhibit R3Report of John Tilbrook, Writeway Research, 31 July 2002
Exhibit R4Report of Robert Piper dated 4 October 1995 with attachments
Exhibit R5Map of Townsville (Special 1942)
Exhibit R6Historical document on The Second Japanese Air Raid on Townsville on 27-28 July 1942
Exhibit R7Map of Townsville
Exhibit R8Queensland tourism map of Townsville
3. The applicant was represented by Mr A Harding of Counsel, instructed by Gilshenan and Luton and the respondent was represented by Mr J Stoner, Departmental Advocate.
4. Oral evidence was given by the applicant and the applicant’s daughter Maree Tognola. Evidence was given by telephone by Mona Passmore, Ernest Passmore, Dr M Likely and Dr P Mulholland.
5. Under section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.
6. The veteran was born on 29 December 1912 and served in the Australian Army from 17 March 1942 to 6 July 1945. His service included service in Townsville for the period 25 July 1942 to 29 July 1942 during which time the Japanese enemy forces bombed Townsville. The veteran’s period of service, from 25 July 1942 to 29 July 1942, has been accepted by the respondent as service in actual combat against the enemy, pursuant to section 6A(1)(d) of the Act and in view of this, and on the material before it, the Tribunal finds that the veteran rendered operational service from 25 July 1942 to 29 July 1942 inclusive.
7. The veteran died on 11 September 1996, aged 83 years. The cause of the veteran’s death is recorded on the veteran’s death certificate as:
(a) Myocardial infarction (minutes); and
(b) Ischaemic heart disease (7 years).
8. At the time of his death the veteran has no accepted disabilities and no rejected disabilities, apart from death, which is the subject of this review.
Legislative Framework
9. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused” the relevant part of section 8 provides:
“(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
10. Section 120 describes the relevant standard of proof.
“(1)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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
11. Other relevant provisions of the Act in respect of a claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
12. Section 120A provides that the reasonableness of hypotheses is to be assessed by reference to the relevant Statement of Principles (SoP).
“(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
5(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
13. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
14. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
15. The Act provides that an hypothesis is not reasonable for the purpose of subsection 120(3) unless a relevant SoP upholds the hypothesis.
16. The applicant has raised the primary hypothesis that the veteran suffered from panic disorder as a result of stressors he suffered during his operational service and that his panic disorder contributed to his death from ischaemic heart disease; and therefore the veteran’s death was contributed to by his service. In the alternative, the applicant has raised the hypothesis that the veteran suffered from generalised anxiety disorder because of the stressors he suffered during his operational service and that this contributed to his suffering hypertension, this condition contributing to his ischaemic heart disease and ultimately his death.
17. It is common ground between the parties, and the Tribunal accepts, that the relevant SoPs in this matter are:
§Instrument No 53 of 2003 – Ischaemic Heart Disease
§Instrument No 58 of 1999 – Panic Disorder (as amended by Instrument No 58 of 1999)
§Instrument No 1 of 2000 – Anxiety Disorder
§Instrument No 48 of 1994 – Generalised Anxiety Disorder
§Instrument No 35 of 2003 – Hypertension
18. Instrument No 53 of 2003 relevantly provides as follows:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b) For the purposes of this Statement of Principles, ‘ischaemic heart disease’ means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
(c) Ischaemic heart disease attracts an ICD-10-AM code in the range I20 to I25.
(d) In the application of this Statement of Principles, the definition of ‘ischaemic heart disease’ is that given at para 2(b) above.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
…
(n) for angina, acute myocardial infarction or sudden death from ischaemic heart disease only, suffering from panic disorder or phobic anxiety with panic attack, within the 12 months immediately before the clinical onset of ischaemic heart disease; or
…
Other definitions
8. For the purposes of this Statement of Principles:
‘death from ischaemic heart disease’ in relation to a person includes death from a terminal event or condition that was contributed to by the person’s ischaemic heart disease;
‘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;
‘panic attack’ means a condition, as defined in DSM-IV, meeting the following criteria:
the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:
(1) palpitations, pounding heart, or accelerated heart rate; or
(2) sweating; or
(3) trembling or shaking; or
(4) sensations of shortness of breath or smothering; or
(5) feeling of choking; or
(6) chest pain or discomfort; or
(7) nausea or abdominal distress; or
(8) feeling dizzy, unsteady, light headed or faint; or
(9) derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or
(10)fear of losing control or going crazy; or
(11)fear of dying; or
(12)paraesthesia (numbness or tingling sensations); or
(13)chills or hot flushes;
‘phobic anxiety’ means a psychiatric condition which significantly limits an individual’s normal routine, occupational and social activities by excessive or unreasonable persistent fears brought on by the presence or anticipation of certain situations or objects. The exposure to the stimulus invariably provokes an immediate anxiety response such as a panic attack and the response is recognised as being excessive or unreasonable by the affected individual;
‘sudden death’ means death within one hour of onset of acute symptoms;
‘terminal event’ means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e) cessation of brain function.”
19. Instrument No 9 of 1999 (as amended) relevantly provides:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about panic disorder and death from panic disorder.
(b)For the purposes of this Statement of Principles, ‘pannic disorder’, means a psychiatric condition characterised by the following diagnostic criteria:
(A) the person has experienced both:
(1) recurrent unexpected panic attacks; and
(2) (i) has experienced at least four panic attacks in four weeks, or
(ii) in the case of fewer panic attacks, at least one of the panic attacks has been followed by 30 days (or more) of one (or more) of the following:
(a) persistent concern about having additional panic attacks; or
(b) worry about the implications of the panic attack or its consequences; or
(c)a significant change in behaviour related to the panic attacks; where
(B) the panic attacks can occur in the presence or absence of agoraphobia; and
(C) the panic attacks are not due to the direct physiological effects of a substance or a general medical condition; and
(D) the panic attacks are not better accounted for by another mental disorder, such as social phobia, specific phobia, obsessive-compulsive disorder, post traumatic stress disorder, or separation anxiety disorder,
attracting ICD-9-CM code 300.01 or 300.21.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that panic disorder and death from panic disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting panic disorder or death from panic disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; or …
Other definitions
8. For the purposes of this Statement of Principles:
‘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’ Entitlement Act applies, events that qualify as 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;
‘panic attack’ means a condition, as defined in DSM-IV, meeting the following criteria:
the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:
(1) palpitations, pounding heart, or accelerated heart rate; or
(2) sweating; or
(3) trembling or shaking; or
(4) sensations of shortness of breath or smothering; or
(5) feeling of choking; or
(6) chest pain or discomfort; or
(7) nausea or abdominal distress; or
(8) feeling dizzy, unsteady, light headed or faint; or
(9) derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or
(10) fear of losing control or going crazy; or
(11) fear of dying; or
(12) paraesthesia (numbness or tingling sensations); or
(13)chills or hot flushes;”
20. Instrument No 1 of 2000 relevantly provides:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, ‘anxiety disorder’ is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only …
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
Other definitions
8. For the purposes of this Statement of Principles:
‘generalised anxiety disorder’ means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5)muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental 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;”
21. Instrument No 48 of 1994 relevantly provides:
“1. Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder and death from generalised anxiety disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are:
…
(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;
…
4. For the purposes of this Statement of Principles:
‘generalised anxiety disorder’ means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):
(a) excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i) the person finds difficult to control; and
(ii) which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months:
(A) restlessness or feeling keyed up or on edge;
(B) being easily fatigued;
(C) concentration difficulties or mind going blank;
(D) irritability;
(E) muscle tension;
(F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and
(iii) the focus of which is not confined to features of an Axis I disorder, for example, it is not about:
(A) having a Panic Attack (as in Panic Disorder); or
(B) being embarrassed in public (as in Social Phobia); or
(C) being contaminated (as in Obsessive-Compulsive Disorder); or
(D) being away from home or close relatives (as in Separation Anxiety Disorder); or
(E) gaining weight (as in Anorexia Nervosa); or
(F) having multiple physical complaints (as in Somatization Disorder); or
(G) having a serious illness (as in Hypochondriasis); and
(iv) it does not occur exclusively during Post-Traumatic Stress Disorder; and
(v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(b) which is not due to the direct physiological effects of:
(i) a drug of abuse; or
(ii) a medication; or
(iii) a general medial condition (such as hyperthyroidism); and
(c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘stressful event’ means an occurrence which evokes feelings of anxiety or stress.”
22. Instrument No 35 of 2003 relevantly provides:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about hypertension and death from hypertension.
(b) For the purposes of this Statement of Principles, ‘hypertension’ means permanently elevated blood pressure, evidenced by:
(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii) the regular administration of antihypertensive therapy to reduce blood pressure.
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
(c) Hypertension attracts ICD-10-AM codes I10, I11, I12, I13 or I15.
(d) In the application of this Statement of Principles, the definition of ‘hypertension’ is that given at para 2(b) above.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are: …
(n) suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension; or
…
Other definitions
8. For the purposes of this Statement of Principles:
‘clinically significant anxiety disorder’ means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;”
Applicant’s Evidence
23. Mrs Ina Porter provided three written statements (Exhibit A1, A2, A3). In her written statements, Mrs Porter said:
Exhibit A1
“It is my belief that Vic’s health was compromised because of the following:
(a)He was on duty and in charge of transport during the threat and the subsequent bombing of Townsville from 25th to 29th July 1945 an event which he often spoke about particularly on the occasions when he was depressed.
…
Prior to his discharge Vic was treated for anxiety state and nervous instability at two separate hospitals, the 2/14 Australian General Hospital Townsville and the second 102 Australian General Hospital Brisbane.
Medical Records from both those hospitals unequivocally state that he was discharged ‘medically unfit’.
Vic was medically fit when he enlisted and the fact that he was discharged medically unfit clearly shows that through a combination of a series of events and experiences during his time in service, namely his substandard living conditions, the constant and unrelenting pressure of the job, the psychological and physical effects arising from the bombing of Townsville (he was in proximity to the bombing) all contributed significantly to having an adverse impact on his health.”
Exhibit A2
“2.Prior to my enlistment in the Australian Army, I resided in the Townsville area and was pretty conversant with the circumstances relating to the bombing.
3.It was severe in that the bombs were dropped on Townsville and it was necessary for me to reside in the bunkers around Townsville because of the bombing at that time.
…
12.Even though Vic would tell me funny stories about things that happened while he was in the Service, he never ever spoke about the bombing.”
Exhibit A3
“19.Even though Vic did not speak very much of the bombs, he did occasionally indicate quite clearly that he saw the bombs actually drop.
20.When the planes came, on most of the occasions the sirens went off which told us all that there was an air raid on the way.
21.When the bombs dropped there was a distinct whistling sound which alerted us that the bombings were started. Tom (Ernest Passmore) told us that everybody at the show grounds was scared because they did not know where the bombs were going to fall.
22.Prior to my joining the army, I lived in Townsville and I remember quite well nights that the bombs dropped.
23.We lived pretty close to the harbour at that time and when the sirens went off we knew that there was an air raid on the way and we ran and headed for the shelter as we had been told to do.
24.I remember quite well being quite scared and terrified at that time because we never knew where the bombs were actually going to hit.
…
29.Further I am pretty sure that he would have been as terrified and fearful for his life as I was and as Tom was, concerning the imminence of the bombs being dropped.”
24. In her oral evidence Mrs Porter confirmed that her late husband never spoke about the bombing of Townsville and she had learnt about this through conversations with Ernest Passmore, the veteran’s cousin, who had served with the veteran in Townsville at the time of the Japanese air raids.
25. She said she was born on 6 April 1922, had joined the AWAS in Townsville in December 1942 and after recruit training was posted in 1943 to 16 AA Battery at Jimmys Lookout. She said she first met the veteran in 1943 and that they were married in early January 1944.
26. Apart from the veteran suffering a fall and being treated for an injured shoulder and for haemorrhoids, she could not recall the veteran receiving any treatment for any other illness until he suffered heart problems in the late 1980s.
27. It was Mrs Porter’s evidence that the veteran would get worked up from time to time but she was not sure how often this occurred. She said she knew when the veteran was worked up by his clicking his lips and his body movement displaying a sense of anxiousness. He said that he always suffered from headaches and when he was worked up he would go off by himself. She said he was not a drinker. When asked whether the veteran got on well with his parents when they were first married, Mrs Porter described the relationship as “good”.
Other Evidence
Mona Passmore
28. Mona Passmore, the wife of the veteran’s cousin, provided a written statement (Exhibit A5) and gave oral evidence. In her written statement she said:
“5.As a civilian I lived in the Townsville area during World War II and was there during the bombing raids.
6.Naturally, we spoke often to Vic Porter after the war about the incidents that happened during the war.
7.I remember quite distinctly Vic telling us that he was at Pallarenda [Show Grounds] when the bomb dropped on that location.
8.He also told me at the time of the dropping of the bomb that he dived into a trench filled with water at that time.
9.This I remember from a conversation I had with Vic in 1945 just after the war.
10.I remember quite well Vic telling me that they were absolutely terrified as the bomb was very close and they just did not know when the next bomb was coming or where it would fall.
11.I remember from my own experience when the planes came over and the bombs dropped they were called zero and they had search lights on them and the noise was quite distinct, something I shall never forget.”
29. In cross-examination, Mrs Passmore agreed that the bomb she referred to in her written statement as being “pretty close” was dropped at Pallarenda, some 5 miles away.
Ernest Passmore
30. Ernest Passmore, the veteran’s cousin and husband of Mrs Passmore, provided a written statement (Exhibit A6) and gave evidence by telephone.
31. In his oral evidence, Mr Passmore said that he (and the veteran) were billeted in the Townsville Show Grounds when the bombs were dropped and described each bombing as “pretty scary – not far away – and not a good turn out”. He described being taken by surprise and having to get into a slit trench. He said the veteran was in another tent in the show grounds “just around from me” at the time of the bombing.
32. In cross-examination he said he was in the show grounds on each bombing raid as was the veteran.
Maree Tognola
33. Maree Tognola, the veteran’s daughter, was born in 1954. She provided a written statement (Exhibit A4) and gave oral evidence.
34. In her written statement, Mrs Tognola said:
“4. Ever since I was a little girl I noted that Dad had some problems.
5.I have been shown in the Statement of Principles relating to ischaemic heart disease, the description of panic attack as defined in DSM-IV.
6.I remember quite well Dad suffering from what was clearly now described in that definition.
7.When Dad had one of these attacks he would tremble and shake and be short of breath and often he indicated that he had a chest pain and was nauseous complained of being dizzy or unsteady on his feet. He admitted to me that he had a fear of dying.
8.These attacks happened from time to time when we least expected them.
9.There were four distinct occasions that I remember when Dad had a real bad attack of these.
10.In 1989 after Dad was diagnosed as having ischaemic heart disease he was very restless and disappeared from the house for some time.
11.I discovered him on the river bank and he quite clearly had one of these bad attacks at that time what I now see as panic attacks.
12.Dad had had two or three bad panic attacks before this real bad one in 1989.
13.All my life Dad suffered from very bad headaches.
14.We always believed that these headaches were related to his stress levels.
15.Dad took aspirin and other headache tablets quite often for these headaches. This consumption of over the counter headache tablets was very regular.
…
17.I remember quite well Dad used to get out of bed in the middle of the night often to go to the toilet which was on regular occasions indicating to me quite often that he could not sleep at that time.”
35. In her oral evidence, Mrs Tognola told the Tribunal that she recalled observing her father in her late teens and that her recollections would date from approximately the mid-1970s at which stage the veteran was in his late 50s.
36. In summary she said that she had the best childhood and was very close to her father whom she found normally fairly calm. However, she said that when her father was stressed she knew by the way he pursed his lips and the squeaking noise he made. She said that he would say that he was not feeling as he should and would sweat, was dizzy, was nauseous and had headaches at these times.
37. She could only recall one time when her father felt crazy or that he was losing control and that was in 1988-89 at which stage he was in his late 70s and suffering heart problems. She said he thought he might commit suicide. She said her father always had a fear of dying and that while he was a Christian he was not a church-goer.
38. With respect to chest pain she said she noticed this by the time she was about 25, that is, in the late 1970s or early 1980s. She said his shortness of breath was in later years. When asked about the lead-up to the symptoms she had described she said her father would go very quiet. In respect of the frequency of her observing the times at which her father was suffering she said it “may be monthly, not every month”. The Tribunal is mindful, as indicated earlier, that Mrs Tognola’s recollections of her father suffering these attacks related to the time that he was in his late 50s and subsequently.
Kevin Charles Knowles
39. Kevin Charles Knowles, the veteran’s son-in-law, provided a written statement (Exhibit A7). In his written statement, Mr Knowles said:
“I have known Ina Porter and the late Victor George Porter since 1963. As I am their son-in-law I have had a lot of conversations with both of them over the years.
My recollections of some of these conversations with Vic were about his service during the second world war. As I am an ex-Vietnam Veteran, we had a fair bit in common. He sometimes talked about his experiences during the war and the bombing of Townsville.
He conveyed to me the long periods of sleeplessness, due to being constantly ‘on call’, to transport equipment and personnel at all hours, day and night. He said during the time Townsville was bombed, he felt very vulnerable and ‘like a target’ as he drove around the area in the vehicles.
When Townsville was bombed he said how it ‘fair put the wind up me’, and ‘I thought we were gonnas’. Meaning that he thought that they may be killed at the time. He admitted it was a pretty ‘scary’ time, although he never complained about it.
I observed these experiences left him feeling ‘anxious’ and nervous, but felt he could talk to me about these things.”
Medical Evidence
40. The veteran’s available medical records state:
(a)On entry to the Militia in 1941 it is recorded that the veteran had never suffered from a nervous illness or had fits or had any other serious illness. It is also recorded that there is no family history of nervous breakdown of mental trouble and that the veteran had never been rejected for life insurance. On 13 June 1941 the veteran was classified fit for Class 1.
(b)On 11 December 1944 the veteran was admitted to 2/14 AGH with anxiety state and discharged on 28 December 1944.
(c)On 11 December 1944 it is noted that the veteran had pains in the stomach and had lost 2 stone in weight in the last six months (12 months) and that he suffered a week of alternating diarrhoea/constipation, suffered loss of energy and had lassitude. It was recorded that he had had a similar attack six months ago. On this date it was also recorded that the veteran’s nerves were “pretty shattery” and he had headaches at the time.
(d)Captain Pratt, Army Psychologist, in a report to the President of the Medical Board dated 13 April 1945, included the following remarks:
“Family: Both parents are living. Father suffers from Miners Phthesis and Mother is nervous.
Soldier is eldest in the family with four brothers and one sister.
Marital: Has been married 15 months and has one child, aged four months. Wife is somewhat nervy and is at present living with soldier’s people. She was living with her parents but neither she nor soldier got on well with her parents and this caused a lot of trouble.
MedicalHas recently had an operation for haemorrhoids and spent two weeks in hospital for ‘nerves’ in 1943. States that he now gets giddy turns and headaches, perspires freely, becomes excited and stirred up easily and is worried about his wife. States that his nervous trouble started about 8-9 months ago, following several M.T. accidents but that he has always been nervous and highly strung and has had accidents before. He says that he now doesn’t feel like carrying on and wants to be discharged from the Army as he ‘has given the game away and can’t set his mind to anything’.
CommentsThis soldier appears to be in a fairly nervous and anxious state and his insecurity in civil life has probably had a lot to do with this. His greatest trouble though appears to be the attitude he has developed to future army service and while in his present condition, he is likely to be of very little value.
He would be unsuitable for duties in a forward area.
He might possibly be used as a general duties N.C.O. in a base unit though even this would probably prove uneconomical. (as an N.C.O.).
Psychiatric opinion appears advisable particularly as he is an N.C.O.”
(The Tribunal notes that there are no hospital records relating to the veteran’s admission “for nerves in 1943”).
41. On 24 April 1945 the veteran was admitted to 102 AGH with nervous instability and it would appear he was discharged “well on 25 June 1945”. (There are records from 102 AGH indicating that the veteran underwent occupational therapy as part of his demobilisation process and was classified as suitable for employment in his chosen field of employment with Queensland Railways or labouring).
42. Examination on 28 April 1945 on admission to 102 AGH records:
“Complains of giddy terms, ‘blackouts’ & worry duration 8-9 months. Is ‘highly strung’ & when excited gets a ‘blackout’. In these he does not fall, he holds on to something - & ‘everything to darkness’ for 5-10 minutes. Giddy terms – after stooping. Is very irritable & can’t keep his temper – not violent – ‘walked away to calm down’.
… Has been in Townsville whole time… No action.”
43. On 28 June 1945 the veteran was medically boarded at 102 AGH Ekibin and reclassified D; and discharged as medically unfit on 6 July 1945 at Redbank. In the Final Medical Board Report it is recorded that the veteran signed a statement on 6 June 1945 recording his disability as “nervous”, its origin “Ten month ago (app) Townsville, Q’land”. The veteran also stated he had been in hospital approximately 14 December to 30 December 1944 and 16 March to 3 April 1945.
44. In the same Board Report, the Medical Officer gave a provisional diagnosis of psychopathic personality. The Medical Officer recorded a medical history consistent with the above extracts and included the remark “nothing significant in family or past history, save several accidents while driving”.. From the clinical examination the veteran was recorded as having blood pressure 135/100 and that “semi-skilled routine normal duties not involving responsibility is within his scope”.. The opinion of the Medical Report was that a diagnosis of anxiety state was appropriate and furthermore the Board reported that the applicant “appears to be of rather weak constitutional make-up suffering from current domestic difficulties”.
45. Clinical notes taken just prior to the veteran’s Medical Board Report record:
“Had several accidents while MT driver – brought about, he thinks, by nerves.
Small, rather tremulous. Tremor of hands. Sweating palms. Tells his story well but does not volunteer much.”
46. The Tribunal notes that on joining the Militia in 1941 the veteran weighed 9 stone 10 pounds and that at the time of his Medical Board examination he weighed 9 stone 5 pounds.
Dr Michael Likely
47. Dr Michael Likely, the veteran’s treating psychiatrist, provided five written reports (Exhibits A8, A9, A10, A11 and A12) and gave evidence by telephone.
48. Dr Likely, in his written reports, initially opined that it was probable that the veteran suffered from an anxiety disorder at the time of his heart attack and that his anxiety symptoms were first reported in 1944 (Exhibit A8). In his next report (Exhibit A9), Dr Likely said:
“You have specifically asked me to make comment on the likely differential diagnosis of Mr Porter’s anxiety symptoms. When they were first recorded in 1944, the system for classifying mental disorders was very much different from that used today. The current standard for diagnosing mental disorder is the Diagnostic and Statistical Manual 4th Edition Text Revision. The first edition of the Diagnostic and Statistical Manual of Mental Disorders was not published until 1952, hence the terminology used to describe Mr Porter’s symptoms when they first occurred would be quite different to that used today. His medical record however did make reference to symptoms such as ‘loss of weight 2 stone, loss of energy’ together with ‘anxiety state and nervous instability’. It is clear from this that there were significant symptoms of both depression and anxiety.”
49. With respect to the definition of panic disorder, panic attack and agoraphobia and how they applied to the veteran, Dr Likely said:
“…I think it is pertinent to consider two aspects, firstly the record in his military medical notes of a diagnosis of ‘anxiety state’ the use of the word state implies the presence of acute anxiety symptoms rather than chronic ones which would be better classified as being an anxiety ‘trait’. Also I believe that the comments of Ms Tognola in her statement of the 15/8/00 are pertinent. She recalls ‘I remember quite well Dad suffering from…attacks. He would tremble and shake and be short of breath and often he indicated that he had chest pain and was nauseous, complained of being dizzy or unsteady on his feet. He admitted to me that he had a fear of dying. These attacks happened from time to time when we least expected them. There were four distinct occasions that I remember when dad had a real bad attack of these’.. It would appear from this description that Ms Tognola is describing Mr Porter as having experienced unequivocal panic attacks.
Considering all the above, my conclusion is the late Victor Porter suffered from panic disorder.”
50. Dr Likely, in a further report (Exhibit A11), expanded this diagnosis to one of panic disorder with agoraphobia.
51. When asked to comment on the effects on the veteran of the Japanese bombing, Dr Likely concluded that there are certain indications that the veteran suffered from a reaction to the stressor of Japanese bombs and opined that the veteran’s apparent reaction precipitated the veteran’s symptoms of anxiety since they clearly served as a significant psychosocial stressor. In arriving at this view, Dr Likely referred to Mr Knowles’ recollection of the veteran telling him the bombing “fair put the wind up me” and that “I thought we were gonnas” and that “it was a pretty scary time”. He also referred to Mona Passmore stating “I remember quite well Vic telling me they were absolutely terrified as the bomb was very close and they just did not know when the next bomb was coming or where it would fall”.
52. In his oral evidence, Dr Likely said he thought the clinical onset of the veteran’s panic disorder with agoraphobia was sometime between 13 June 1941 and 11 December 1944, based on the contemporaneous documents that were available. Dr Likely said it was difficult to equate the contemporaneous diagnosis of the veteran's condition in 1944 and 1945 to today’s terms based on DSM-IV (which did not come into being until 1952). He confirmed that his diagnosis of panic disorder with agoraphobia relies on the history he obtained from family members as well as medical records.
53. When taken to the symptoms recorded in the medical records during the war, namely, giddy turns, blackouts, worrying, highly strung, tremor of hands, sweating palms, irritability, loss of temper and leaning to hold onto something to stop falling, Dr Likely said that these were a pretty good description of a panic attack and that pains in the stomach and nausea were also consistent with panic attack.
54. In cross-examination, it was put to Dr Likely that the family evidence supported a proposition that, even if the veteran suffered from panic disorder, it probably did not occur as Dr Likely had suggested. Dr Likely said his opinion is that he thought the veteran suffered panic disorder in 1944. Furthermore, he said it was possible for there to be long periods between bouts of attacks and that in effect what the veteran suffered in the war years may not recur until many years later.
Dr Mulholland
55. Dr Mulholland provided a written report (Exhibit R1) and gave evidence by telephone. In his written report Mr Mulholland, in his discussion of the case, said:
“8.1This is an unusual case because there is a well documented history of psychiatric disorder occurring during the war.
8.2There is no reference made to his experiencing any stressful events during his service career apart from a vague reference to motor vehicle accidents. Despite the fact that he seems to have been seen by a number of psychologists and medical practitioners and perhaps even psychiatrists there does not seem to be any attribution of his psychiatric condition to the conditions of his service. The general thrust of the comments seem to be that his anxiety was of constitutional origin.
8.3Note that the term ‘psychopathic personality’ had a different meaning then than now. The meaning then was a rather general term which usually referred to personality disorder and in particular referred to so-called inadequate personality. Today the meaning of the term has changed such that these days it refers to pronounced antisocial behaviour. There is no suggestion that the late Mr Porter ever engaged in any form of antisocial behaviour.
8.4The history is consistent with his having an anxiety disorder during his time in the army such that he was eventually discharged because of it. The history is also consistent with his having what would have been regarded in those days as an inadequate personality disorder which these days would be regarded as personality disorder (unspecified) as being the cause for his problems during his service life and his being medically discharged.
8.5He may subsequently have developed a panic disorder and the history in terms of recurrent bouts of agitation is suggestive but not necessarily conclusive of his having developed a panic disorder. He may subsequently have developed a chronic anxiety disorder such as a generalised anxiety disorder.
8.6The difficulty with the assertions of the claimant is to do with whether he had sufficient psychological stressors or sufficient psychosocial stressors during his service in the Army to actually cause the psychiatric conditions that he had when he was in the Army and possibly had when he left the Army. On the information available to me at this time he did not experience any psychological stressors or stressful events during his Army life or whichever terminology one may choose to use that would have been the cause of subsequent generalised anxiety disorder or panic disorder. Ultimately, and this point has to be stressed, the decision as to whether he experienced sufficient psychological or psychosocial stress during his service time as is required in the relevant SOPs is up to the AAT. All I can say is that as far as I am aware he did not experience sufficient psychological stressors, etc to qualify under the relevant SOPs. One would have thought that if he had experienced such stressors then reference would have been made to same by the psychologists-medical officers who saw him at the time.”
56. In his evidence by telephone, Dr Mulholland said he did not think there was sufficient specific evidence to support a diagnosis of panic disorder. He agreed in cross-examination that it was “pretty unusual” for a soldier to be admitted to hospital for nerves during World War II. When taken to his report where he said the veteran may have developed panic disorder and when referred to the symptoms which the record shows the veteran displayed and the difficulties in terminology, he said his assessment was that it was possible that the veteran suffered from panic disorder but there is not sufficient information to enable him to say, with confidence, that the veteran probably suffered panic disorder and that he would be guessing in making any such diagnosis.
57. He agreed that at the time of the veteran’s service and his obvious nervous condition, psychiatrists at the time did not have available the criteria for panic disorder or panic attack as now set out in DSM-IV, nor would their training have been such that they would be considering whether the veteran was suffering from panic attacks and this would affect the comprehensiveness of the notes taken at the time.
58. When taken to the record made on 11 December 1944 of the veteran having a similar attack six months ago (referred to in paragraph 40 above), Dr Mulholland said that it was his opinion that it was not possible to arrive at any definite conclusion about this episode, based on the available evidence. Dr Mulholland said the material pointed to the veteran having developed an anxiety condition by 1945.
59. With respect to issues of causation and the lack of any reference to bombing in the contemporaneous medical records, Dr Mulholland agreed that clinical psychology was all a bit vague at the time and medical staff would not be as finely tuned as they now are to enquire about possible causes of an anxiety condition. However, he said he thought there were glimmers of people thinking about such issues and referred to references in the documentation about the veteran’s constitutional background and motor vehicle accidents.
60. Dr Mulholland did not accept that at the time the veteran was serving there would have been more emphasis put on physical causation than mental causation. With respect to Captain Pratt’s comments (referred to in paragraph 40 above), Dr Mulholland said Captain Pratt was a psychologist more concerned with the management of what to do with the solider rather than the finer points of causation.
61. When the veteran’s symptoms, as described by Mrs Tognola, were put to Dr Mulholland, he agreed it was possible that these indicated that the veteran suffered from an anxiety disorder sufficient to warrant treatment.
62. When asked whether his opinion that the veteran may have developed panic disorder subsequent to the anxiety condition the veteran suffered during the war, Dr Mulholland opined that the only link would be presumed personality disorder.
Submissions
63. With respect to the two hypotheses put forward by the applicant, Mr Harding submitted that the crucial question before the Tribunal is whether the veteran experienced a severe stressor (or a severe psychosocial stressor) within the two years immediately before the clinical onset of panic disorder (or anxiety disorder).
64. It was the applicant’s submission that the bombing raids at Townsville in July 1942, at which time the applicant was serving in Townsville, were events which met the definition of stressors in the relevant SoP, that these stressors occurred within the two years immediately before the clinical onset of the veteran’s psychiatric condition and that there was material before the Tribunal which pointed to the hypotheses contended for the applicant.
65. That being so, it was submitted that the veteran’s death from ischaemic heart disease was causally related to his service because of his war-caused panic disorder or, in the alternative, because of the veteran’s hypertension, which was causally connected with a war-caused anxiety disorder.
66. In respect of the alternative hypothesis, Mr Harding drew to the Tribunal’s attention the need to consider this hypothesis, in the first instance, within the terms of Instrument No 35 of 2003 and if the applicant’s hypothesis was found to not fit the template of this SoP, then the Tribunal would need to consider the applicant’s case within the terms of the SoP that was current at the time of Mrs Porter’s application, namely, Instrument No 48 of 1994.
67. Mr Harding submitted that the Tribunal could not be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was war-caused.
68. In respect of the standard of proof to be applied in determining a diagnosis in matters such as this, Mr Harding submitted that this was not clearly established on the authorities and submitted that once the cause of death was determined on the probabilities, whether the death was connected to the veteran’s war service was a question to be decided on the reverse criminal standard provided for in section 120 of the Act. In effect Mr Harding submitted that it was sufficient for a Tribunal to be satisfied that the material before it pointed to a diagnosis for that diagnosis to form part of the hypothesis.
69. The Tribunal notes that in respect of this issue reference was made to Repatriation Commission v Hancock [2003] FCA 711; Repatriation Commission v Cook (1998) 90 FCR 307; Benjamin v Repatriation Commission [2001] FCA 1879; Re Cowie and Repatriation Commission [1999] AATA 334; Re Campbell and Repatriation Commission [2001] AATA 559; Re Lewis and Repatriation Commission [2003] AATA 1078 and Re May and Repatriation Commission [2003] AATA 1216.
70. Mr Harding drew the Tribunal’s attention to Lees v Repatriation Commission [2002] FCAFC 398, in respect of the question of date of clinical onset and submitted that the medical records in this case are not conclusive given that panic attack and panic disorder were not available diagnoses at the time of World War II and that a proper forensic analysis as might apply now, would not have occurred during World War II.
71. In respect of ischaemic heart disease and hypertension, it was Mr Harding’s contention that there was no dispute about the veteran suffering from both of these conditions and that the clinical onset of the veteran’s ischaemic heart disease was by 1989 and the clinical onset of the veteran’s hypertension was by 1982.
72. Mr Stoner accepted that the veteran suffered ischaemic heart disease by 1989 and hypertension by 1982. Furthermore, he agreed that the principal issues in this matter were the diagnosable psychiatric condition of the veteran and the clinical onset of any such condition and whether the applicant had suffered the requisite service stressors within the relevant time such that his psychiatric condition was war-caused.
73. Mr Stoner conceded that the applicant’s claim would succeed if the Tribunal were satisfied that the veteran suffered war-caused panic disorder or war-caused (generalised) anxiety disorder within the relevant times.
74. In addressing the principal issues, Mr Stoner submitted that in this case there were many assumptions contended for and caution must be exercised in considering these assumptions. He submitted that the material before the Tribunal either pointed to a connection between the veteran’s service and his various conditions or not and that, pursuant to section 119 of the Act, resort could not be had to a procedural subterfuge to establish the merits of the case. In this respect Mr Stoner drew the Tribunal’s attention to the applicant of law since 1994 and referred the Tribunal to: Connors v Repatriation Commission (2000) 59 ALD 61 and Repatriation Commission v Bey (1997) 149 ALR 721.
75. Insofar as panic disorder is concerned, Mr Stoner submitted that a diagnosis of panic disorder went beyond the question of whether the veteran suffered from symptoms of panic attack, and that the requirements for panic disorder, as set out in the relevant SoP, were not met. Mr Stoner accepted that the veteran suffered from panic attack at some stage but these were not of the frequency and scope required for a diagnosis of panic disorder to be made and, furthermore, any such attacks did not occur in the period from July 1942 to July 1944, and whatever psychiatric condition the veteran suffered was developed in late 1944 and there is nothing clinically significant prior to this time. In this regard Mr Stoner referred the Tribunal to Lees v Repatriation Commission (supra).
76. With respect to experiencing a severe stressor, Mr Stoner accepted that the test as set out in Stoddart v Repatriation Commission (2003) 197 ALR 283 was the current authority, although he noted that this matter was on appeal.
77. Mr Stoner drew the Tribunal’s attention to the material before it. The Tribunal was referred to motor vehicle accidents and constitutional factors as well as the bombing. Mr Stoner said that it was common ground between the parties that the veteran, at the time of the bombing, was billeted in the Townsville Show Grounds and that of the bombs dropped on land in the Townsville area, approximately eight 250 kg bombs dropped at Pallarenda (some 8 to 9 kilometres north of the show grounds) and one bomb dropped near Oonoonba (some 2 kilometres south of the show grounds). The Tribunal notes that a dozen or so bombs also fell into the sea to the east of the town.
78. It was Mr Stoner’s submission that the events that occurred during the veteran’s operational service were not such as would meet the definition of a severe stressor and that the definition of “stressful event” in Instrument No 48 of 1994 was completely subjective. It was Mr Stoner’s contention that the Tribunal was being asked to accept too much speculation for it to find that the veteran did experience such an event or events.
79. In reply, Mr Harding submitted that the material before the Tribunal supports a conclusion that the veteran first suffered a psychiatric condition in June 1944 and that this onset was within the two years of the claimed stressors in July 1942.
Consideration
80. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
81. At the outset, the Tribunal must determine to its reasonable satisfaction the cause of the veteran’s death (see Repatriation Commission v Budworth [2001] FCA 1421). In this case there is no question that the veteran suffered death from ischaemic heart disease and that the clinical onset of this disease was in 1989; and on all of the material before it the Tribunal so finds.
82. The hypotheses put forward by the applicant are set out in paragraph 16 above.
83. After considering all the material before it, the Tribunal is of the view that this material points to hypotheses connecting the veteran’s death with the circumstances of his service and there is in force a relevant SoP for ischaemic heart disease, namely Instrument No 53 of 2003.
84. The question then before the Tribunal is whether one or both of the contended hypotheses fits the template of Instrument No 53 of 2003.
85. In this case the applicant is relying on the veteran suffering from panic disorder within the twelve months prior to 1989 and/or hypertension before 1982.
86. The first question that is then raised is whether there is a diagnosis of panic disorder and/or hypertension.
87. As the Full Federal Court determined in McKenna v Repatriation Commission (1999) 86 FCR 144, a hypothesis connecting the veteran’s death with the circumstances of his war service can contain a linking sub-hypothesis, the whole seen as a complex hypothesis with each element being no stronger than each of its elements or parts. Furthermore each element must be upheld by a relevant SoP for the hypothesis as a whole to be a reasonable hypothesis.
88. The Tribunal is of the view that in this case there is a linking sub-hypothesis, namely that the veteran suffered panic disorder as a result of his war-service in Townsville, and that this sub-hypothesis must be considered within the context of the steps as set out in Deledio (supra). Furthermore, the Tribunal is of the view that any such consideration requires the Tribunal in the first instance to be reasonably satisfied that the veteran suffered from panic disorder. Such an approach is consistent with what the Full Court said in Cooke (supra).
89. Accepting that consideration of the applicant’s claimed condition of panic disorder is, in effect, a sub-hypothesis of the overall hypothesis, and accepting that the purpose of SoPs is to regulate the reasonability of the medical and scientific components of a hypothesis, the Tribunal is of the view that the diagnosis of each medical condition, in this case the cause of death and panic disorder must be considered within the same standard of proof namely that of the reasonable satisfaction.
90. In arriving at this view the Tribunal has carefully considered the applicant’s submissions in respect of Cowie and Campbell (supra) and in so doing has considered the approach taken by Senior Member McCabe in May (supra). In that decision the Tribunal stated:
“Mr Harding, for the applicant, agreed that where an applicant seeks compensation in respect of an injury or disease as opposed to a death, the diagnosis must be decided on the balance of probabilities. That much seems clear from the decision of the Federal Court in Cooke v Repatriation Commission (1998) 160 ALR 17; see also Budworth v Repatriation Commission [2001] FCA 1421 at para 15. But Mr Harding said the position was different where the question is whether the veteran’s death is war-caused. In death cases, the fact of the veteran’s death is presumably beyond doubt. What remains to be determined is whether death was connected to the veteran’s war service. That question is decided on the reverse criminal standard provided for in s 120(1), Mr Harding explained.
Mr Harding referred to two decisions of the Tribunal: Re Cowie and Repatriation Commission [1999] AATA 334 and Re Campbell and Repatriation Commission [2001] AATA 559. Those decisions appear to support Mrs May’s claim and would result in an applicant for a widow’s pension being treated more favourably than an applicant for a disability pension. I note that in both of these cases, the Tribunal was comprised of three members including Deputy President Forgie. It follows that the decisions necessarily carry considerable weight.
The respondent relies on Cooke. Mr Smith also referred me to the Tribunal’s decision in Re Turner and Repatriation Commission [2002] AATA 799. Senior Member Sassella rejected an argument in similar terms to that pressed by Mr Harding. I note he did not refer to Cowie or Campbell in the course of his reasons, although those cases were decided prior to his decision in Turner. Senior Member Sassella analysed Cooke and Benjamin v Repatriation Commission (2001) 34 AAR 270. He noted the court in Cooke did not differentiate in its reasons between death and disease when it concluded that a diagnosis had to be made out on the balance of probabilities.
With respect, I prefer the reasoning in Turner. If the Tribunal is to identify an appropriate statement of principles as required in cases like Deledio v Repatriation Commission (1998) 49 ALD 193, it must settle on a diagnosis. The same need arises whether the claim is for a pension arising out of a disability or a death. There is no reason to suppose the decision in Cooke intended that the standard of proof applicable to different sorts of claims should differ, given the purpose of the inquiry is essentially the same.”
91. With respect, the Tribunal agrees with the approach taken by Senior Member McCabe.
92. For the reasons given above the Tribunal does not accept the applicant’s submission that once there is a cause of death established, then the consideration of diagnoses relating to any sub-hypothesis is to be undertaken on a standard of proof of beyond reasonable doubt. The Tribunal, in this case, accepts the respondent’s position that the crucial question before the Tribunal is whether the veteran suffered from panic disorder and that the Tribunal must, at the outset, be reasonably satisfied that the veteran did in fact suffer from panic disorder for the primary hypothesis to be reasonable.
93. Turning then to the veteran’s psychiatric condition.
94. Following the reasoning given above the Tribunal must, in the first instance, determine, to its reasonable satisfaction, whether the veteran suffered from a psychiatric condition and, if so, what this condition was. In this case, this requires the Tribunal to consider whether it is satisfied, on balance, that the veteran suffered from panic disorder and/or anxiety disorder. If the answer to either of these questions is in the affirmative, clearly the Tribunal must then apply the relevant SoP, either the SoP for panic disorder and/or the SoP for anxiety disorder, in determining whether either sub-hypothesis is reasonable, thereby making the complex hypothesis reasonable.
95. The criteria for panic disorder and panic attack and for anxiety disorder are defined in DSM-IV and are as set out in the relevant SoPs (paragraphs 19, 20 and 21 above).
96. As is often the case in matters such as this, there are differing medical opinions. Dr Likely is of the opinion that the veteran suffered from panic disorder with agoraphobia (with onset during his service in World War II). Dr Likely based his opinion on the evidence of the veteran’s son-in-law, his daughter, his wife, his cousin and his cousin’s wife; and on the contemporaneous medical records that were available. Dr Mulholland has likewise considered the available evidence, but he has concluded that, on balance, the veteran suffered from chronic anxiety disorder.
97. With respect to the veteran’s symptoms recorded in his service medical records and records of service, the veteran was admitted to 2/14 AGH for anxiety state on 11 December 1944 and discharge on 28 December 1944; he was admitted to 128 AGH in March/April 1945 for prolapsed haemorrhoids and he was admitted to 102 AGH on 24 April 1945 for nervous instability and he was discharged medically unfit because of his nervous state on 6 July 1945.
98. The veteran’s hospital admissions as set out above are consistently set out in his service records; in his own signed statement (6 June 1945) at his Final Medical Board examination at 102 AGH; in his Army Medical History Form; and in various clinical notes.
99. In respect of his nervous state it is relevantly recorded that:
§on admission to 2/14 AGH on 11 December 1944, he had lost 2 stone weight during the past six months;
§he had pains in his stomach;
§he had no diarrhoea in the past week;
§his nerves were pretty shattered;
§he had a similar attack six months ago; and
§he had a sensitive temperament and he was worried about his wife going to hospital to have a baby.
100. On admission to 102 AGH in April 1945 he complained of giddy turns, blackouts when excited and worry over the past eight to nine months, being very irritable and losing his temper.
101. On examination by Army Psychologist Captain Pratt at about the time of his admission to 102 AGH, Captain Pratt recorded the veteran being in hospital for “nerves” in 1943, that he gets giddy turns and headaches, perspires freely, becomes excited and stirred up easily and is worried about his wife. The Tribunal notes Captain Pratt stating the veteran being in hospital in 1943. However, the Tribunal is satisfied that this is an error and the hospitalisations of the veteran are as stated in paragraph 98 above.
102. The Tribunal is mindful that Ernest Passmore, Mona Passmore and Kevin Knowles did not provide any details of symptoms experienced by the veteran apart from his reaction of being terrified and fearful for his life during the Japanese bombing of Townsville.
103. The veteran’s wife was able to tell the Tribunal that the veteran always suffered from headaches, that she could sense when he was anxious or upset, because he would purse his lips and go off by himself. She was unable to say how often this would happen other than to say it happened from time to time. Nor was she able to assist the Tribunal with any other observations or recollections about the symptoms that the veteran suffered.
104. The veteran’s daughter, Mrs Tognola, was the most helpful witness in respect of the veteran’s symptoms. However, she was only able to comment on these in respect of the period from the mid-1970s to the end of her father’s life. She recalled four distinct occasions when the veteran had attacks in which he would tremble, shake, be short of breath, have chest pain, nausea, dizziness or being unsteady on his feet. She also said her father had a fear of dying, did not sleep well and always had very bad headaches.
105. In cross-examination, Mrs Tognola related the attacks she described above to about the time that the veteran first suffered heart problems in 1988/89 but she could not say exactly when they occurred.
106. It is against the symptomatology as evidenced above and the DSM-IV criteria that the Tribunal must consider the opinions of Dr Likely and Dr Mulholland. Also relevant is the applicant’s evidence that at no time after the war could she recall the applicant being treated for any psychiatric condition, nor could Dr Laing, the veteran’s general practitioner since 1982.
107. The Tribunal is mindful that the Act is beneficial legislation and that, pursuant to section 119 of the Act, account must be taken of the difficulty where there is a paucity of records and where lapsed time has limited the availability or the recollection of relevant evidence. The Tribunal accepts Mr Stoner’s submission that the Tribunal cannot adopt a procedural subterfuge to fill in any gaps where there is no material in the evidence to point to an hypothesis or causal connection (see Bey (supra)). However, in this case the Tribunal is satisfied that there is sufficient material before it to assess the opinions of both psychiatrists.
108. After consideration of all of the material before it and the submissions of both parties the Tribunal is reasonably satisfied that while the veteran has displayed some symptoms which are consistent with panic attacks, Dr Mulholland’s opinion is preferred, namely, that the veteran did not suffer from panic disorder and suffered from general anxiety disorder during World War II and subsequently.
109. This disease then needs to be considered as a sub-hypothesis within the steps as set out in Deleido (supra).
110. The Tribunal is satisfied that the material before it points to an hypothesis connecting the veteran’s anxiety disorder with the circumstances of his service and that in the first instance the relevant SoP is Instrument No 1 of 2000.
111. For the hypothesis to be reasonable at least one of the factors in this SoP must exist and in this case the applicant relies on factor 5(a)(ii), namely:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only …
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; …”
112. The question then is whether this factor is met. In considering this question the Tribunal must firstly determine the clinical onset of the veteran’s anxiety disorder. The respondent has submitted that the clinical onset of any psychiatric condition occurred in late 1944 while the applicant contends it occurred in June 1944.
113. In Lees (supra) the Court referred to the Tribunal’s acceptance of the approach taken in Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998), namely that:
“…there is a clinical onset of a disease, either when a person becomes aware of some features or symptoms which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
The Court went on to express the view that the Tribunal did not err in its approach to the meaning of the expression “clinical onset”.
114. The medical opinions are somewhat equivocal about onset. On all of the material before it, and taking into account the provisions of section 119 of the Act, and what the Full Court said in Lees (supra), the Tribunal is of the view that the veteran’s anxiety disorder had a clinical onset in June 1944 and so finds. In arriving at this view the Tribunal has taken into account the recording of the applicant losing weight over a period of six months (or in some records twelve months) prior to December 1944, that the veteran had had a “similar attack” six months prior to his admission to hospital in December 1944 for “anxiety state” and that the veteran had stated that he had had a number of previous motor vehicle accidents prior to December 1944 because of nerves.
115. The question then is whether during the period July 1942 to June 1944 the veteran experienced a severe psychosocial stressor as that term in defined in Instrument No 1 of 2000 (paragraph 20 above).
116. The applicant relies on the veteran being subjected to Japanese air raids in Townsville in July 1942.
117. In Stoddart (supra) his Honour Justice Mansfield held:
“The language of the definition of experiencing a severe stressor caters for a person experiencing, or being confronted with, an event involving the threat – of death, serious injury, or harm to physical integrity – if the event said to constitute that threat – judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event – is capable of and did subjectively convey the threat.”
118. In Woodward v Repatriation Commission [2003] FCAFC 160 the Full Federal Court considered Stoddart and said:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.”
119. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by his Honour, Justice Mansfield, clearly accepted the approach taken by Mansfield J (and adopted by the Full Court in Woodward’s case) in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J, namely “an indication of probable evil to come; something that gives indication of causing evil or harm”; and stated that the description “a risk of death”, “can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
120. Also of significance is the Full Court’s observation, in addressing what can be described as routine normal service duties, “that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time”.
121. It is clear from the above findings in Stoddart’s case that the Court was principally addressing the definition of “experiencing a severe stressor” in the SoPs for PTSD (and ALD) and that the definition of “experiencing a severe psychosocial stressor” in this case, makes no mention of “threat”, but, as Mr Stoner correctly contended, requires an identifiable occurrence that evokes feelings of substantial distress in an individual, and as such, the test is subjective in nature.
122. There is considerable evidence before the Tribunal about the extent and nature of the Japanese bombing attacks and in particular the Tribunal has noted the descriptions given in Exhibits R3, R4 and R6, and the evidence of the veteran’s family members who were present in Townsville at the time.
123. It is common ground between the parties, and the Tribunal accepts, that during the bombing raids the veteran was billeted in the show grounds in the centre of Townsville and, furthermore, on the evidence of Mr Passmore, who was also billeted with the veteran in the show grounds at that time, both he and the veteran were there on the nights of all of the raids and occupied slit trenches for protection.
124. A considerable amount of “own troops” activity took place during these raids including use of graduated air raid warnings, evasive actions, search lights, anti-aircraft gunfire and fighter aircraft sorties. Bombs were dropped, albeit not on the show grounds where the veteran was billeted and at least two kilometres away from where he was. The Tribunal accepts Dr Likely’s opinion that the Japanese air raids served as significant psychosocial stressors suffered by the veteran (for the reasons as set out in paragraph 51). On all of the evidence before it, the Tribunal is of the view that it cannot be said that it is not objectively reasonable to find that the veteran was subject to an identifiable occurrence. Nor can it be said that the veteran did not suffer feelings of substantial distress as a result of these air raids..
125. The Tribunal therefore finds that the veteran did experience a severe psychosocial stressor during his operational service in July 1942 and that the sub-hypothesis that the veteran suffered from war-caused anxiety disorder is a reasonable hypothesis.
126. Turning then to the next sub-hypothesis in respect of hypertension.
127. There is no question that at the time of his death the veteran suffered from hypertension, that this contributed to his death and that the clinical onset of this condition was in 1982; and, on all of the material before it, the Tribunal so finds.
128. The Tribunal is satisfied that on all of the material before it that material points to a sub-hypothesis connecting the veteran’s hypertension with the circumstances of his service; and that Instrument of 35 of 2003, hypertension, is relevant.
129. The applicant relies on factor 5(n) of this SoP, namely, “suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension”. As the Tribunal has already found, hypertension had a clinical onset in 1982 and at that time (and commencing in June 1944) the veteran had suffered from anxiety disorder.
130. For this disorder to be clinically significant the disorder must be sufficient to warrant ongoing management by a psychiatrist, counsellor or GP. Dr Mulholland, in his oral evidence, agreed that the veteran, at the relevant time, would have warranted ongoing professional management, even though such management was not provided. The Tribunal accepts Dr Mulholland’s opinion.
131. The Tribunal therefore is of the view that the sub-hypothesis put forward by the applicant fits the template of the SoP for hypertension and the Tribunal finds that the sub-hypothesis is a reasonable hypothesis.
132. In summary, the Tribunal is of the opinion that the complex hypothesis, comprising sub-hypotheses connecting the veteran’s death with his hypertension, which is causally linked to his anxiety disorder, which is war-caused, is a reasonable hypothesis and the Tribunal so finds.
133. Furthermore, after consideration of all of the material before it and the submissions of both parties, the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was war-caused.
134. The Tribunal sets aside the decision under review and in substitution therefor determines that the death of Victor George Porter is war-caused and that his widow, Ina Maud Porter, is to be paid a war widow’s pension on and from 12 September 1996.
I certify that the 134 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDates of Hearing 10 and 11 December 2003
Date of Decision 23 January 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Stoner, Departmental Advocate
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