Press and Repatriation Commission
[2007] AATA 1457
•22 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/115
VETERANS' APPEALS DIVISION ) Re JOHN WILLIAM PRESS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member PM McDermott, RFD Date22 June 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that post traumatic stress disorder and depressive disorder were war-caused – consideration of Statements of Principles – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION
22 June 2007 Senior Member PM McDermott, RFD Introduction
1. Mr John Press was engaged in operational service with the Royal Australian Navy in the Persian Gulf. I have to decide whether his claimed conditions of post traumatic stress disorder and depressive disorder are war-caused conditions.
Decisions
2. On 5 July 2005 the Repatriation Commission (“the Commission”) made a decision that post traumatic stress disorder and depressive disorder were not war-caused conditions.
3. Mr Press sought a review of this decision from the Veterans’ Review Board. On 16 December 2005 the Veterans’ Review Board affirmed the decision under review.
4. Mr Press has now applied to this Tribunal to review the decision of the Veterans’ Review Board.
Issues before the Tribunal
5. The applicant has stated that this application “deals with a claim for pension and treatment for Major Depressive Disorder and Post Traumatic Stress Disorder”: see Applicant’s Statement of Facts and Contentions, 17 November 2006 [ex. A2, para 3.1].
6. This application raises accordingly the issues of whether the applicant’s claimed conditions of post traumatic stress disorder and depressive disorder are correctly diagnosed, and, if so, whether these conditions are war-caused conditions for the purposes of section 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
Date of Effect
7. I consider that if Mr Press is successful in his application, the earliest date of effect is 31 December 2004.
Background
8. Mr Press served in the Royal Australian Navy from 29 April 1975 until 29 April 1995.
9. Mr Press has operational service in the Persian Gulf aboard HMAS Success from 22 August 1990 until 2 February 1991. The service of Mr Press otherwise constitutes eligible defence service.
10. Mr Press asserts in these proceedings that certain stressful events occurred during his operational service, and caused the conditions on which his claim is based. On no occasion did Mr Press witness any engagement with the enemy.
11. Mr Press has referred to four stressful events:-
(a) Drills and exercises
(b) Video footage of Falkland Islands War casualties;
(c) Danger from mines; and
(d) Threat of enemy air attack.
(a) Drills and exercises
12. Mr Press has referred to the preparations for operational service including the drills and exercises. In his statement of 21 April 2005 he mentioned that there was full training at all hours of the night and day. There was NBCD and damage control exercises. There were simulated fire fighting exercises and simulated chemical attack exercises. The RAAF provided aircraft to stage mock attacks whilst they were en-route. Mr Press stated that the crew suffered from sleep deprivation and stress during these drills and exercises. Mr Press in his statement commented:
“The whole thing was designed to see how we would react under extreme stress and exhaustion and to ensure we were battle ready. It was much worse than any work-up I had ever done before, and I had done some over the years” [exhibit A, fol. 30].
(b) Video footage of Falkland Islands War casualties
13. Mr Press gave evidence of the work that was done to prepare HMAS Success for operational service. HMAS Success was required to refuel allied ships which were deployed in the Persian Gulf. Mr Press stated that during the training he attended a presentation which illustrated casualties aboard vessels. The graphic footage showed a man being carried off a ship on stretcher with his leg blown off. There were also other distressing images. The film showed actual casualties. Mr Press said that he was distressed by this footage. Mr Press in his evidence mentioned that the officer of the Royal Navy who gave the presentation was an “idiot” for distressing the crew. This film was seen by everybody on HMAS Success. Mr Press in his statement of 21 April 2005 commented:
“I swear this idiot had the crew traumatized before we had even arrived at our destination” [exhibit A, fol. 30].
(c) Danger from mines
14. Mr Press gave evidence that early in the deployment he was aware that HMAS Success would be a target for the enemy. Mr Press stated that Iraq had laid down thousands of mines in the Gulf and the location of these mines was not known. Mr Press appreciated that the cargo of fuel on board made HMAS Success a dangerous target. He mentioned the danger that was posed by mines which were known to be present in the area of operations. This caused stress to him. In his statement of 21 April 2005 he remarked:
“Our ship was laden with fuel and ammunition for re-supply to war ships in company and I was well aware that if we did hit a mine there wouldn’t be much left of our ship or the ship’s company. This was a fear that stayed with me and I’m sure the rest of the ship’s company for the entire five months we were there”.
(d) Threat of enemy air attacks
15. Mr Press gave evidence of his duties in regard to the air defence of HMAS Success. In his statement of 21 April 2005 he mentioned that the anti-aircraft defence comprised four 40/60 Bofors anti-aircraft guns as well as army RBS70 anti-aircraft weapons systems. Mr Press stated that the ship was on action stations in response to warnings of attack from enemy aircraft. They were told that two enemy aircraft were approaching, but they were intercepted by American planes and turned around. He stated: “This ploy of the Iraqi’s of launching their planes and sending everyone to action stations only to turn back was used a number of times by them”. This incident was not mentioned in the statement of facts and contentions of Mr Press. Mr Press remarked that he felt very vulnerable. However, no enemy aircraft appeared. Mr Press stated that he experienced terror in his knowledge of what a missile could do to the ship which was loaded with fuel. Mr Press was unable to say how far from the coast he was when there was a threat of enemy air attacks.
Medical Evidence
16. Dr Peter Welsh, a general practitioner, provided two reports: a medical impairment assessment report dated 12 April 2005 [ex A, T4, fols. 1-7] and a medical examination form dated 12 April 2005 [ex A, T4, fols. 9-14]. In those reports Dr Welsh gives his opinion that Mr Press suffers from severe depression/ anxiety; post traumatic stress disorder and alcohol abuse.
17. Dr Clive Fraser, a consultant psychiatrist, gave evidence. Dr Fraser had made a report on 23 June 2005 which was prepared at the request of the respondent. That report was admitted as evidence [ex A, T4, fols 40-46]. In that report Dr Fraser had diagnosed the applicant as suffering from a major depressive disorder, post traumatic stress disorder and alcohol abuse and dependence. Dr Fraser had stated that he was utilising DSM-IV Criteria.
18. Dr Peter Mulholland, psychiatrist, gave evidence. Dr Mulholland had prepared two reports. These reports were admitted into evidence: report, 10 August 2006 [exhibit R1]; report, 25 August 2006 [exhibit R2].
19. Essentially, Dr Mulholland in his report of 10 August 2006 has given a tentative and qualified diagnosis of post traumatic stress disorder. In that report he gave “a qualification in respect of the PTSD diagnosis in that it is arguable as to whether Criterion A1 and A2 have been met. Hence the diagnosis of PTSD is tentative and qualified. In the normal course of events I would not have regarded the stressors that he described as fulfilling the demands of Criterion A1 and A2”.
20. Dr Mulholland in a supplementary report of 25 August 2006 reiterated his view that he did not consider that Mr Press’ experiences fulfilled the demands of Criteria A1 and A2. His concluded opinion is that “the demands for a diagnosis of PTSD have not been met” [ex. R2, p.2].
21. Dr Mulholland in his report of 10 August 2006 and in his supplementary report of 25 August 2006 has confirmed that Mr Press does have chronic depressive disorder as well as chronic alcohol abuse/dependence [ex. R2, p. 1].
Legislative Background
22. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
23. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for continuous full-time service in an operational area. There is no issue that the applicant has not rendered operational service.
24. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
25. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:
“120 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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.”
26. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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.
Note: See subsection (4) about the application of this sub-section.”
27. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
28. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to operational service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
29. I have to initially give consideration to the appropriate diagnosis of the conditions of Mr Press.
30. I am bound by a decision of the Full Court of the Federal Court of Australia that the issue of whether a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke (1998) 52 ALD 1 at 6. This is the standard that is prescribed by s 120(4) of the Act, which is the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327.
31. I will initially consider whether Mr Press has post traumatic stress disorder.
32. In this case, Mr Press has relied upon a report from Dr Fraser, a consultant psychiatrist, who in 2005 gave has given a firm diagnosis of post traumatic stress disorder.
33. I prefer the evidence of Dr Mulholland which withstood cross-examination. This is despite the fact that in cross-examination Dr Mulholland stated that if Mr Press was his patient he would treat him as if he had post traumatic stress disorder. That reply in cross-examination was certainly not an acknowledgement that Mr Press had post traumatic stress disorder. In his evidence, Dr Mulholland highlighted the fact that it was also mentioned in his report of 10 August 2006, that Mr Press had exhibited a high degree of entitlement [ex. R1, para 15.1].
34. Dr Mulholland, in his comprehensive report, had fully considered the various stressors that were said to have occurred on operational service. The stressors on operational service were also mentioned in the report of Dr Fraser. Dr Mulholland in his comprehensive report has examined two other events that occurred during eligible defence service. These events have not been relied upon by the applicant.
35. I make the comment that the stressors that have been outlined by Mr Press have been considered by Dr Mulholland, an experienced clinician, to not meet Criteria A1 and A2 of the diagnostic criteria in DSM-IV-TR. I agree with this conclusion. I also make the observation that none of the events which were outlined by Mr Press could be regarded as coming within Criteria A1 and A2.
36. The reports of Dr Mulholland were not challenged in any evidence that was admitted before me. There was, for instance, no evidence from any practitioner who had read Dr Mulholland’s reports and had disagreed with the conclusions stated in those reports.
37. I rely upon the reports of Dr Mulholland. I have come to the conclusion, on the balance of probabilities, that Mr Press does not have post traumatic stress disorder.
38. I agree with the conclusion of Dr Mulholland that Mr Press has chronic depressive disorder as well as chronic alcohol abuse/dependence.
39. I have to consider whether the contentions of the applicant satisfy the following SoPs:
· Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998
· Depressive Disorder, Instrument No 17 of 2007.
40. Where a SoP exists I am bound to apply the test which is prescribed by s 120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
“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 s 196B(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 ss 196B(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 s 120(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.”
41. I am satisfied that the evidence before me points to a hypothesis connecting the chronic depressive disorder as well as chronic alcohol abuse/dependence of Mr Press with his operational service. Accordingly the “first step” in Repatriation Commission v Deledio is satisfied.
42. The “second step” in Repatriation Commission v Deledio requires me to ascertain whether there is a SoP which has been determined by the RMA.
43. I have already mentioned that SoPs have been determined by the RMA pursuant to s 196B(2) of the Act in respect of the conditions in question:
· Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998
· Depressive Disorder, Instrument No 17 of 2007.
44. I must now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP.
45. I will initially consider the Alcohol Dependence or Alcohol Abuse SoP.
46. Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
47. In Clause 5 the relevant factor which is in contention is factor 5(b) which refers to the veteran experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. “Experiencing a severe stressor” is defined as follows:-
. “…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.
…
…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;”
48. I have considered the stressors that have been outlined by Mr Press. These are the drills and exercises; the video footage of Falkland Islands War casualties; the danger from mines; and the threat of enemy air attack. I do not consider that any of these stressors can be regarded as coming within the definition of “experiencing a severe stressor”.
49. Having regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55], I consider that these events judged objectively from the point of view of a reasonable person in the position of the applicant was not capable of and did not convey (on a subjective basis) the risk of death or serious injury or a threat to physical integrity. Mr Press was an experienced seaman who was promoted to the rank of petty officer whilst he was serving in the Gulf.
50. For these reasons I consider that the “third step” in Repatriation Commission v Deledio is not satisfied in respect of the claim for chronic alcohol abuse/dependence.
51. I will now consider the Depressive Disorder SoP.
52. Under clause 5 of the Depressive Disorder SoP at least one of the factors set out in clause 6 must be related to the relevant service (being operational service) rendered by the veteran.
53. There are a number of factors in clause 6 which I regard to be fairly in contention:-
· factor 6(b), experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
· factor 6(c), experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; and
· factor 6 (f), experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.
54. One difficulty that is faced by Mr Press is that the time of clinical onset of his alcohol abuse/dependence condition appears to be in the late 1990s when he received some treatment in Cairns [ex R1, para 17.4]. The applicant did not tender any medical evidence of this treatment. Dr Mulholland has concluded that the depressive disorder condition was probably secondary to the alcohol abuse/dependence condition [ex. R1, para 17.3]. This conclusion of Dr Mulholland has not been contradicted.
55. The SoP imposes a requirement that the category 1A and the category 1B stressors be within five years before the clinical onset of depressive disorder. A category 2 stressor should be within one year before the clinical onset of depressive disorder.
56. In these circumstances the case advanced by Mr Press does not meet the “template” of the Depressive Disorder SoP: Instrument No 17 of 2007.
57. Mr Press is also entitled to have his case considered having regard to the Depressive Disorder SoP: Instrument: No. 58 of 1998. This SoP was in force at the time when he made his claim.
58. Under clause 4 of the Depressive Disorder SoP No 58 of 1998 at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
59. Under that SoP the relevant factor that is in contention is factor 5(b) which refers to a veteran “experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.
60. Clause 8 of that SoP contains the following definition:-
“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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
61. I have considered the stressors that have been outlined by Mr Press. These are the drills and exercises; the video footage of Falkland Islands War casualties; the danger from mines; and the threat of enemy air attack. I do not consider that any of these stressors can be regarded as coming within the definition of a “severe psychosocial stressor”.
62. There is a further difficulty for Mr Press in that Dr Mulholland has concluded on the material before him that the date of onset of the depressive disorder was in the late 1990’s. This is more than 5 years after the events in question. This conclusion of Dr Mulholland has not been contradicted. The stressors that are advanced by Mr Press do not meet the “template” of the 1998 Depressive Disorder SoP.
63. Even though I have concluded that Mr Press does not have post traumatic stress disorder, I have nevertheless considered his claim with reference to the Post Traumatic Stress Disorder SoP (Instrument No 3 of 1999). I do not consider that he has experienced a severe stressor within the meaning of Factor 5(a) and (b). I have considered the objective and subjective elements of his claim as required by Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55].
64. In these circumstances I do not have to proceed to consider the “fourth step” in Repatriation Commission v Deledio.
Decision
65. For the above reasons, I affirm the decision under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member PM McDermott, RFD
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 19 and 20 March 2007
Date of Decision 22 June 2007
For the Applicant Mr N Jarro of Counsel
Ms A Gaffy, Sciaccas, Solicitors
For the Respondent Mr M Smith, Departmental Advocate
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