Public Trustee as Legal Representative of Jackson (Deceased)
[2001] AATA 63
•11 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 63
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1806
VETERANS' APPEALS DIVISION )
Re PUBLIC TRUSTEE as
LEGALREPRESENTATIVE OF DAVID ARTHUR JACKSON (DECEASED)
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date11 January 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1998/1806
)
veterans' appeals DIVISION )
Re: PUBLIC TRUSTEE as LEGAL PERSONAL REPRESENTATIVE OF DAVID ARTHUR JACKSON (DECEASED)
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr P Lynch, Member
Date 11 January 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Post traumatic stress disorder. Interpretation of Statement of Principles and the words "experiencing a stressor". Decision of Presidential Member followed an objective test. Criticism of use of DSM-IV for forensic purposes. Statements by editiors of DSM-IV that it not to be so used.
Veterans' Entitlements Act 1986 - subs120(1) and subs120(3), s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Gosewinckel [1999] fca 1273
Connors v Repatriation Commission [2000] FCA 783
Asioty v Canberra Abbattoir Pty Ltd 87 ALR 385
Budworth v Repatriation [2000] AATA 127
Re Ganchov and Comcare 19 ALD 541
REASONS FOR DECISION
Senior Member M D Allen
Dr P D Lynch, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Advocate and pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Dr P D Lynch, Member
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 11 January 2001
Date of Decision 11 January 2001
Counsel for Applicant Mr N DawsonSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Ms S Breuer, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1998/1806
By MR M.D. ALLEN, Senior Member; and
DR P D LYNCH, Member
JACKSON and REPATRIATION COMMISSION
SYDNEY, THURSDAY, 11 JANUARY 2001MR ALLEN: In this matter the Public Trustee of New South Wales has been substituted for the purposes of continuing an application by the late veteran David Arthur Jackson against the refusal by the respondent to recognise his claim to have a post traumatic stress disorder attributed to his war service. The late veteran served in the Royal Australian Navy and had two periods of operational service however only one of those periods is relevant to the current proceedings and that is the period from 18 November 1968 to 25 November 1968 whilst in Vietnamese waters. It would appear however the actual service, and some matters turn upon this, in reality relates to a fairly short period of time whilst his vessel the HMAS Duchess was in Vung Tau Harbour.
At that period his operational service, as that term is defined in the veterans' entitlements Act 1986 as amended, the standard of proof in this matter is that laid down in subsections 1 and 3 of section 120 of the Veterans' Entitlements Act. Subsection 120(1) reads inter alia:
"Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 … 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."
Subsection 3 then provides that in respect of incapacity from injury or disease the Commission and hence this Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining the injury or disease was war-caused, if, after the consideration of the whole of the material before it, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.
Section 120A of the said Act then goes on to provide that a hypothesis connecting an injury or disease with the circumstances of any particular service is reasonable only if there is in force a so-called Statement of Principles that upholds the hypothesis.
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©Auscript Pty Ltd 2001The relationship between subsection 120A(3) and subsections 120(1) and(2) was discussed in detail by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97. Those principles are now well known and the Tribunal does not pause to recapitulate them here. Other cases have also affected the way the Tribunal must approach these matters. As a starting point, we would refer to the decision of the Full Court of the Federal Court in Repatriation Commission v Bey 79 FCR 364 at 372-373. Their Honours Northrop, Sundberg, Marshall and Merkel JJ stated:
"Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. …
Whether material raises a "reasonable hypothesis" for the purposes of s 120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904."
The matter of the relationship of hypotheses and Statements of Principles has then received further interpretation. The first matter I would refer to is the decision of again the Full Court of the Federal Court in Repatriation Commission v Cooke 160 ALR 17. Then followed the decision by Repatriation Commission v Gosewinckel [1999] fca 1273. at paragrah 67 of his unreported reasons for decision his honour said:
"The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of 'purely medical ... issues' out of the hands of bodies such as the AAT - Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP cannot alter the operation of the SoP in relation to any matter to which it is applicable - see Deledio v Repatriation Commission (supra) at 411-2. An hypothesis that fails to fit within the template will be deemed not to be reasonable and the claim will fail.
The matter was then further discussed by Kenny J in Connors v Repatriation Commission [2000] FCA 783. Her honour said on page 12 of her unreported reasons for decision at paragraph 19:
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©Auscript Pty Ltd 2001"In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker. This was also the case in Repatriation Commission v Stares: see (1996) 66 FCR 594 at 601. In Bey, the Commission submitted that the primary judge was wrong in failing to find that the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. In a joint judgment, four members of the Full Court responded to this, at 373, as follows:
The hypothesis was that the respondent's physical work and sporting activities in Vietnam caused or contributed to his disease. The Tribunal did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis.
There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis. The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412."
It would simply refer to the discussion of such matters to the decision of the majority in Wheeldon v Repatriation Commission [1999] FCA 1397.
The matter was also discussed by Senior Member Commodore Gibbs in the matter of Repatriation Commission and Freeman [2000] AATA 727 at paragraphs 54 and 55 of his reasons for decision. Again we do not reiterate those passages here except to state that we have found them of considerable assistance in seeking to understand the complicated facts in this particular matter.
The claim as stated was for a post traumatic stress disorder. The Statement of Principles in existence at the time the respondent made its original decision was Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995. As pointed out by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532; it is therefore that Statement of Principles which must be applied by the Tribunal in this case.
The Instrument Number 15 of 1994 reads inter alia that a reasonable hypothesis to connect post traumatic stress disorder with the circumstances of
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©Auscript Pty Ltd 2001service are either (a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or (b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or (c) inability to obtain appropriate clincial management for post traumatic stress disorder.
Paragraph 4 of the Instrument then says:
"For the purposes of this Statement of Principles:
'DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders:
'experiencing a stressor' means the following (derived from DSM-IV):(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity ; and
(b)the person's response to that event involved intense fear, helplessness or horror."
The Instrument then says:
" 'post- traumatic stress disorder' means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; …"
That particular paragraph seems to simply reproduce what is determined as experiencing a stressor and it is common ground that it is taken directly from DSM IV, the criteria for post traumatic stress disorder. The diagnostic criteria for post traumatic stress disorder are set out under the heading 309.81 in the said manual. It is to be noted that post traumatic stress disorder is under the general heading of an anxiety disorder and it comes under the chapter dealing with anxiety disorders.
As stated, the Statement of Principles relies on the criteria in the Diagnostic and Statistical Manual. This Tribunal has said before and reiterates here, that to use the DSM in such a method is contrary to the purposes of the DSM. At page 23, volume IV of the DSM the editors say:
"DSM-IV is a classification of mental disorders that was developed for use in clinical, educational, and research settings. The diagnostic categories,
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©Auscript Pty Ltd 2001criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion."
They continue under the heading: "Use of DSM-IV in Forensic Settings":
"When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a 'mental disorder,' 'mental disability,' 'mental disease,' or 'mental defect.'"
They continue:
"Non clinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual's mental disorder or its associated impairments. Inclusion of a disorder in the Classification (as in medicine generally) does not require that there be knowledge about its etiology."
We also refer to page 22 of DSM-IV where the editors say:
"In DSM-IV, there is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders …"
Perhaps we should reiterate that. There is no assumption that each category of a mental disorder is a completely discreet entity. It continually beggars understanding and logic, why the Repatriation Medical Authority, who are a group of presumably knowledgeable medical practitioners, continue to rely upon the criteria in DSM-IV, for SoPs, when the editors of the DSM-IV specifically warn against the use of the manual for forensic purposes.
Now in this matter, there is evidence from the applicant as to his service. The first incident which is concerned, was when he was aboard HMAS Quickmatch, and there were two fires which occurred on the vessel. The applicant was involved in fighting those fires, and as the veteran is now deceased, the evidence which we must rely upon, is a transcript of evidence he gave to the Veterans' Review Board. He there says, in the course of the fire he was
stressed and says that following that fire on the Quickmatch, his standard ofpubjacj 11.1.01 P-5
©Auscript Pty Ltd 2001performance went down, however once he got off Quickmatch, which was about 12 months for him, he got back to a superior rating again.
As he said, "I recovered remarkable immediately I joined Voyager, and it was quite a happy existence again". He was then specifically asked by the Senior Member of the Veterans' Review Board, "So have you completely got over the fire?" He replied, "No, I don't think so, I still worry". That is picked up both by evidence given to psychiatrists by the applicant's son and also in other psychiatric reports.
The applicant then dealt with his period of service in Vietnam, he said in reply to the question, "You found the real episode of the stress was the fire was it?" "Yes, the fire on Quickmatch was the first, and the most traumatic, yes, and there were ….. on the way since then". He speaks of not being settled in civilian life, and re-existing in the Navy and we make no point of that.
He then in the transcript speaks of fears in his dreams, the dreams of being trapped between decks in a ship, he wakes up with cold sweats. Of his Vietnam service, he's told the Board, "We were within range of shore based mortar fire, we were to be eternally vigilant, super vigilant as the latin goes, and once again you're sitting out there like fish in a barrel with nowhere to run, and yes people were getting around joking, and you know the false bravado with each other and what you would do, and nobody knew exactly what to do in case we did get someone – did have a bit of a shot at us".
Document T7 in the material provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is a report from a consultant psychiatrist, Dr Taylor, and that report is to the Department of Veterans' Affairs. After taking a history from the applicant, he says:
"He also witnessed a ship's fire on Quickmatch which apparently was a particularly traumatic event. During his second period of duty he was involved in escort duties with H.M.A.S. Duchess, accompanying H.M.A.S. Sydney on one of her trips to Vietnam. This involved being in a 'closed up' situation, prepared for action for five days whilst anchored off Vietnam. He readily admits to feelings of helplessness while in this situation as the ship was apparently within mortar range."
Dr Taylor continues:
"For many years now Mr Jackson has suffered from middle insomnia. He wakes at approximately 2am. He experiences nightmares with naval themes approximately twice per week. He experiences nightsweats on a weekly basis. Flashbacks are a regular occurrence and the usual triggers are particular words which remind him of his naval service. During these experiences he suffers from epigastric discomfort and he makes active
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©Auscript Pty Ltd 2001attempts to avoid them. He does not like crowds and says 'I'm a loner'. He tends to sit with his back to the wall in clubs and restaurants, scanning the environment for trouble. His concentration is poor. He is very irritable and easily angered by minor comments of others eg customers in his son's shop. His startle response is exaggerated."
Dr Taylor, concludes his report by opining:
"Mr Jackson satisfies the DSMIV Diagnostic Criteria for Post Traumatic Stress Disorder. There is a clear relationship between this and his period of naval service. He also drinks unsafely at the moment."
We would only interpose by saying, that it is unfortunate the applicant, clearly and early in his naval service, hads a habit of drinking alcohol, to what might be thought as excess, and that obviously has clouded any diagnosis of his condition. Of course that very much too, we find is a question of which came first. Obviously if he had an anxiety state of whatever sort arising out of the events on Quickmatch, it is entirely understandable and in accordance with our understanding of the course of such diseases, that he would seek to self medicate with alcohol.
Dr Taylor, at document T9, forwarded another report to the deceased veteran's general practitioner. That report dated 18 April 1997 reads inter alia:
"He also witnessed a ship's fire on Quickmatch which apparently was a particularly traumatic event. During his second period of duty he was involved in escort duties with H.M.A.S. Duchess, accompanying H.M.A.S. Sydney on one of her trips to Vietnam. This involved being in a 'closed up' situation, prepared for action for 5 days whilst anchored off Vietnam. He readily admits to feelings of helplessness while in this situation as the ship was apparently within mortar range."
There is this difficulty with Dr Taylor's report, in that the history of being in Vietnamese waters and anchored for five days is not correct, he was only anchored in the Vung Tau Harbour for some four and a half hours, but obviously there was a series of precautionary status adopted by the vessel prior to entering Vietnam waters. Dr Taylor in the report just stated, opines again that the deceased veteran satisfied the DSM for diagnostic criteria for post traumatic stress disorder.
A further report in this matter, was from Dr Dinnan, psychiatrist, who we know of our own knowledge has quite an amount of experience in veterans' matters. Speaking of the Veterans' Review Board's decision in the matter, Dr Dinnan said (Exhibit A4 p4):
"… the Board then reviewed the second stressful incident sited (sic) by the veteran which was being closed down when on escort duties on HMAS Duchess in Vietnam waters. From the veteran's evidence, the actual time spent in the closed down situation was relatively small ..."
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©Auscript Pty Ltd 2001Dr Dinnen then states in reply to the VRB (Exhibit A4 p5):
"… one cannot quantify an individual's reaction to a 'stressor' by measures such as the time of exposure or the proximity to the incident."
Dr Dinnen continued:
"Fire on board ship is particularly dangerous, and the incident on the Westralia in recent years provides poignant proof of the possible consequences. There is no reason to discount the veteran's claim to the Board that these experiences, two nights in a row, left him with a feeling of great apprehension and concern, and that it was a traumatic experience. The fact that he continued on with his duties, and had an enjoyable service on the Voyager is irrelevant. Furthermore, the experience of being anchored off Vung Tau on a ship cannot be measured, in terms of its stressful impact, by time alone. After all, the time taken to experience great horror may be relatively brief, for example tending the wounded and dead in a car accident as a bystander. The effects may last for life."
He continues:
"There is nothing in the Board's comments or its evaluation of the patient's claim which would cause me to discount Dr Taylor's expert opinion that this patient did experience stressors sufficient to lead on to a chronic posttraumatic stress disorder, accompanied by longstanding alcohol abuse/dependence."
Reports were obtained by the respondent from Dr Lisa Brown, Psychiatrist. The first of her reports is dated 18 April 2000, and is Exhibit R2. Dr Brown says (p9):
"I suspect that Mr Jackson suffered either a subsyndromal posttraumatic stress disorder or generalised anxiety disorder resulting from the Quickmatch's fire, and that the probable clinical onset of this disorder may have been on return to civilian life, particularly after an undated incident in which he feared for his family's safety after a kerosene fire, otherwise I am unable to locate history which gives any indication of the onset of a possible posttraumatic stress disorder during his Naval service."
Interestingly enough, she continues at paragraph 15 on page 10 of her report:
"In my opinion, Mr jackson's psychiatric condition would have prevented him from continuing to undertake remunerative work for more than eight hours weekly, and would have prevented him working during the assessment period from January 1997 to March 1999."
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©Auscript Pty Ltd 2001She added:
"… Mr Jackson's alcohol abuse during the assessment period was the major diagnosis, and that many of his ongoing psychiatric symptoms may have been causally related to this primary diagnosis. … It is certainly possible that Mr Jackson was self medicating during these last lonely isolated years …"
In a second report dated 11 October 2000 (Exhibit R3) Dr Brown states (p5):
"As the only contemporaneous information about his psychiatric symptoms is provided in the report of Dr Jim Taylor in 1997, I would accept that Dr Taylor's description of insomnia, nightmares with naval themes, flashbacks and some possible hyperarousal symptoms do sound to be post-traumatic symptoms."
She continues (pp5-6):
"… the picture described by Dr Taylor, may well represent the combination of some post-traumatic stress type symptoms in a man with alcohol abuse and dependence. However, he neither meets the severity of stressor criterion for PTSD under the relevant Statement of Principles nor am I convinced that he suffered a generalised anxiety disorder with the requisite symptoms occurring within two years of the relevant stressful events."
There was debate within the submissions here, of what may or may not constitute trauma and stressful events. At this stage, we would certainly refer to the DSM-IV, page 424 under the heading, 309.81 Post Traumatic Stress Disorder, where the editors state diagnostic features:
"The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor, … or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate."
They continue:
"Traumatic events that are experienced directly include, …"
Then go on to list some, but add:
"Witnessed events include, but are not limited to, …"
And list further events. The significance of our purposes is that the editors of the DXM-IV acknowledge that a post traumatic stress disorder can be occasioned by witnessed events, which include:
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"Events experienced by others that are learned about include, but are not limited to, violent personal assault, serious accident, or serious injury experienced by a family member or a close friend; …; or learning that one's child has a life-threatening disease. The disorder may be especially severe or long lasting when the stressor is of human design …"
But as stated above, it is clearly recognised by the DSM that learning about stressful events to others, to whom one is in a close relationship, is acknowledged as a stressor sufficient to occasion post traumatic stress disorder.
This in many senses is also reflected in the definition of what is a traumatic event, in a publication referred to by the applicant's counsel. The publication is headed, "Posttraumatic Stress Disorder (PTSD) and War-Related Stress", it has the sub-heading, "Information for Veterans And Their Families", and is published under the imprimatur for the National Centre For War-Related PTSD and the Department of Veterans' Affairs.
The publication states at page 6:
"Trauma is a very personal thing. What traumatises one person can be of less significance to others. This variation in peoples' reactions occurs because of their individual personality, beliefs, personal values, and previous experiences (especially of other traumatic events in their life)."
The publication goes on to say for military veterans the trauma may relate to direct combat duties being in a dangerous war zone or taking part in peace keeping missions under difficult or stressful conditions.
Taking all of that material into account we are of the opinion, and so find, that the traumatic experiences aboard HMAS Quickmatch where the applicant was involved in a fire led to his having a post traumatic stress disorder. Dr Taylor, psychiatrist, who saw the applicant stated unequivocally in his first report that he conformed with the criteria in DSM-IV, consequently we find that the criteria set out in paragraph 4 of the Statement of Principles have been met. We are satisfied, on the balance of probability, that the applicant had a post traumatic stress disorder at the time he went to Vietnam but unfortunately for the veteran and his next of kin, that post traumatic stress disorder arose out of a period which was not eligible service under the Veterans' Entitlements Act.
One must then have regard to subparagraph (b) of paragraph 1 of Instrument No 15 of 1994 which says that a post traumatic stress disorder for the purposes of the Veterans' Entitlements Act may be founded by experiencing a stressor prior to the clinical worsening of post traumatic stress disorder. In other words
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an aggravation. As to what is or may be an aggravation, we would simply refer to the decision of the High Court in Asioty v Canberra Abbattoir Pty Ltd 87 ALR 385. At page 389 the court said:
"'The production of incapacitating symptoms, or the intensifying of existing symptoms, to the point of their becoming incapacitating is incapacity arising from a deterioration or aggravation of the disease.' While these dicta may be appropriate to determine what constitutes an aggravation of a disease in many cases, they are not conclusive in all situations."
The judgment continued at page 390, speaking of the dicta of Moffitt J in Federal Broom Co Pty Ltd v Semlitch 1964 NSWLR 511. They said:
"It is true that Moffitt J spoke of the aggravation of a disease as consisting of the production or intensifying of its symptoms. And this will often be the case. However, there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravation when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions."
In this matter therefore it seems clear that if the applicant be said to have aggravated a post traumatic stress disorder by the incidences of his service in Vietnamese waters, he would be entitled to a pension. However, as stated in cases such as Connors v Repatriation Commission supra, he must bring himself clearly within the Statement of Principles before we can be satisfied, on the balance of probabilities, a reasonable hypothesis exists or, to put it another way, as stated in Deledio's case supra, he must bring himself within the template of the Statement of Principles.
Subparagraph (b) of paragraph 1 says that the circumstances are experiencing a stressor. We have referred previously to the definition of experiencing a stressor in paragraph 4 of the Statement of Principles and although that definition purports to refer back to DSM-IV as was said by Deputy President McMahon in Budworth v Repatriation [2000] AATA 127:
"The standard of proof to be applied in determining whether a disease was war-caused is set out in section 120. Before applying the appropriate subsection, it is necessary to determine whether or not the disease, which is the subject of the claim, exists. This determination is to be made on the balance of probabilities (Repatriation Commission v Cooke 160 ALR 17)."
Deputy President continued at paragraph 55:
"… A Statement of Principles as a statutory instrument is a document susceptible of legal interpretation."
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"These features call for a number of comments. Firstly, the nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective 'extreme'."
We would only pause to say, however, that subparagraph (b) of the definition of experiences stressor is of course subjective and it is clear that a person who already has an existing psychiatric condition in the nature of an anxiety state however it might be classified, is obviously susceptible. There is also other evidence in this material that although the applicant refers to mortars, the vessel was certainly within the range of rocket propelled grenades launched by the Vietcong so, in one sense, there was a realistic apprehension that something may have occurred were the vessel struck by incoming ordnance.
Deputy President McMahon then continued:
"The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2)."
In other words, for what is the definition in experiencing stresor in paragraph (a) an objective test is required and that is how we read Budworth's case.
Let it be said that Budworth is under appeal, however, no decision has been taken as yet. In that regard we would refer to the remarks of Deputy President Todd in Re Ganchov and Comcare 19 ALD 541 at 542. The learned Deputy President there said:
"It is, however, I believe time to say that unless decisions of the President are followed by all within the Tribunal, and unless decisions of presidential members (which of course includes deputy presidents) clearly dealing with a point in issue are followed within the Tribunal, the Tribunal could gain a reputation for inconsistency if not disarray. In critical cases it is certainly in my view open to a member to note his or her disagreement with a precedent decision, but it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level. That is not to say, however, that members are not entitled to express their own view for the record, as I have done here. For the rest, as the whole question of following previous decisions is related solely to questions of law, a disappointed party has a right of appeal if the view of such a would-be dissentient from the precedent case is seen as compelling."
We therefore consider ourselves as if not strictly bound, certainly urged if not as a matter of strict comity required, to follow the decision of Deputy President McMahon in Budworth. That decision requires that the stressor be an objective fact.
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Now in this case although the applicant certainly felt apprehension whilst in the locked down state, it cannot be said that he was experienced, witnessed or confronted with an event that involved actual or threatened death or serious injury in the terms of the section. We therefore find that he did have an existing post traumatic stress disorder and that it is highly probably that that was aggravated in the sense of having been made worse, by his experiences in Vietnam.
Because he cannot bring himself within the strict terms of the Statement of Principles, we must find that on the balance of probabilities the condition, then the worsening or the hypothesis that the condition was made worse does not fall within the template of the Statement of Principles. Therefore the said post traumatic stress disorder was not clinically worsened by the incidences of his Vietnam service and the decision under review must be affirmed.
The only other matter we would add is that if we are wrong on that point, given the contents of Exhibit R8 which are the documents from Centrelink and the reasons as to why the applicant was granted a Disability Support Pension, the decision of Nicholson J in Forbes v Repatriation Commission [2000] FCA 328 makes it clear that the applicant could not satisfy the alone test in paragraph 24(1)(c) of the Veterans' Entitlements Act and he would not be entitled to pension at the Special Rate.
However, the decision of the Tribunal is that the decision under review is affirmed.
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