Ralph and Repatriation Commission (Veterans' entitlements)

Ralph and Repatriation Commission (Veterans' entitlements) [2019] AATA 44 (23 January 2019)
Division:General Division
File Number: 2017/5013
Re:Colin Ralph
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:23 January 2019
Place:Perth

The Tribunal finds that the Applicant does not suffer from PTSD and that even if he did suffer from PTSD, the Applicant’s PTSD and IHD are not defence-caused injuries or diseases for the purposes of s 70 of the Veterans’ Entitlements Act 1986 (Cth). Accordingly, the Tribunal affirms the decision under review.
.............[sgd]..........................................................
Deputy President Boyle
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – posttraumatic stress disorder – ischaemic heart disease – whether Applicant suffers from PTSD – whether defence service caused injury or disease – no causal relationship with defence service – reasonable satisfaction – overboard accident – discrepancies in versions of evidence between witnesses – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – s 5D, s 70, s 70(5)(a), s 120(4), s 120B,
s 120B(3)(a), s 120B(3)(b)
CASES
Kowalski and Repatriation Commission [2014] AATA 141
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11
Repatriation Commission v Smith (1987) FCR 327
Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115
Whitworth v Repatriation Commission (2003) 78 ALD 126; [2013] FCA 1530
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles concerning posttraumatic stress disorderNo. 83 of 2014 (Repatriation Medical Authority, 24 September 2018)
Repatriation Medical Authority, Statement of Principles concerning ischaemic heart disease (Balance of Probabilities) No. 2 of 2016 (Repatriation Medical Authority,
24 September 2018)

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Deputy President Boyle
23 January 2019
THE APPLICATION

The Applicant seeks review of a decision of the Veterans’ Review Board (VRB) of

27 June 2017 which affirmed a decision of the Respondent of 21 March 2016 determining that the Applicant’s claimed posttraumatic stress disorder (PTSD) and ischaemic heart disease (IHD) were not related to service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (VEA).
BACKGROUND
The Applicant was born in 1961.
The Applicant enlisted in the Royal Australian Navy on 5 January 1977 and was discharged on 23 July 1984 (R3, T44). It is accepted by the parties that the whole of this period constitutes defence service for the purposes of the VEA.
The Applicant served on HMAS Perth in the periods 25 July 1979 to 6 September 1979 and 7 September 1979 to 9 December 1980 (R3, T38).
The Applicant claims that while serving on HMAS Perth in or about October/November 1980 (summarised in his evidence to the VRB in June 2017 (R3, T60 at 306-307)) he was late to muster at his station for an underway fuel replenishment from HMAS Melbourne at
2:00 am and that when he was making his way forward about halfway up to the port side of the upper deck of the vessel, he was picked up and washed back along the deck and went over the side. He managed to catch on to what he thought was a guard rail post with his arm. The rest of his body was over the side while he was being bounced around until someone grabbed him and pulled him back on board. He could not remember whether he slipped or got knocked down by the water. Once back on board, he was held on the deck for a couple of minutes, then told to return to his mess, dry off and return to his bunk. He was not given nor did he seek any medical assistance afterwards. The sea state at the time was very rough and choppy with lots of waves between the ships and HMAS Perth was pitching up and down and rolling. According to the Applicant, h thought then that he was going to die.
As was noted by the VRB in its decision (R3, T60 at 310), the Applicant’s version of the “overboard incident” is different to that given by Mr Jeffrey Ellis to the VRB. Mr Ellis also gave evidence in these proceedings which was substantially consistent with his evidence to the VRB as disclosed by the VRB’s reasons (R3, T60 at 310). The Applicant’s evidence to the VRB is also different to the evidence given by the Applicant to the Tribunal. Those differences are dealt with later in this decision.
Following his discharge from the Navy in 1984 the Applicant has made a number of claims. The relevant claims history is as follows:
4 October 1990: the Applicant lodged a claim for “post viral fatigue syndrome” and “myocardial infarction” (R3, T3 at 23-30);
23 January 1991: the Respondent made a determination refusing liability for “post viral fatigue syndrome” and “left circumflex coronary artery disease” (R3, T10 at 57-60);
25 February 1991:
the Applicant requested review of the determination of

23 January 1991 and claimed that there had been confusion in the diagnosis of “Post Viral Fatigue Syndrome” with “Myocardial Infarction” (R3, T11 at 61). The Applicant further clarified in the request for review the compensation sought was only in respect of “Post Viral Fatigue Syndrome” which he contracted after suffering a “Coxsakie B infection” (R3, T11 at 61- 62);
20 September 1993: the Respondent dismissed the Applicant’s request for review because of failure to provide the requested evidence (R3, T13 at 66-68);
4 August 1995: the Applicant lodged a claim for “acute myocardial infarction”, “post-viral fatigue Syndrome”, “generalised anxiety disorder” and “substance abuse (alcoholism)” (R3, T14 at 71-75);
16 August 1995: the Applicant lodged a claim for “viral myocarditis”, “post-viral syndrome”, “cardiac anxiety” and “skin rashes” (R3, T15 at 78-83);
4 December 1995: the Respondent made a determination refusing liability for “Left circumflex coronary artery disease, Chronic Post Viral Fatigue Syndrome, Generalised anxiety disorder and Psychoactive substance abuse or dependence” (R3, T19 at 93-97);
4 December 1995: the Respondent made a determination:
- accepting liability for “Chronic solar skin damage”, and
- refusing liability for “Viral Myocarditis” (R3, T18 at 90-92);
21 December 1995:
the Applicant requested review of both determinations of

4 December 1995 except in respect of the accepted condition of “chronic solar skin damage” (R3, T20);
16 January 1997: the VRB affirmed both determinations of 4 December 1995 (R3, T26 at 115-126);
23 April 1997:
the Applicant sought the Tribunal’s review of the VRB decision of

16 January 1997 in respect of the conditions of “ischaemic heart disease” and “chronic fatigue syndrome” (R3, T27 at 127-128);
2 July 1999: the Tribunal affirmed the VRB decision of 16 January 1997 (R3, T34 at 162-167);
21 November 2001: the Applicant lodged a claim for PTSD on account of various stressor events during service (R3, T35 at 171-194);
11 March 2002: the Respondent made a determination refusing liability for PTSD (R3, T40 at 202-204);
22 March 2003: the VRB affirmed the determination of 11 March 2002 in respect of PTSD (R3, T43 at 209-213);
2 June 2009: the Applicant lodged a claim for “Heart Disease” (R3, T45 at 215-224);
20 November 2009: the Respondent made a determination refusing liability for IHD (R3, T47 at 228-231);
10 November 2010: the Applicant lodged a claim for “cardio vascular disease” of which the basis for the diagnosis was recorded as “erectile dysfunction”, “lschaemic Heart Disease” and “diabetes mellitus”. (R3, T48 at 236-246);
6 April 2011: the Respondent made determination refusing liability for “lschaemic Heart Disease”, “erectile dysfunction” and “diabetes mellitus” (R3, T51 at 260-266);
23 February 2016: the Applicant lodged a further Claim for Disability Pension for PTSD and IHD (R3, T52);
21 March 2016: the Respondent made a determination refusing liability for both the PTSD and IHD (R3, T55 at 290-296);
15 April 2016:
the Applicant requested a reconsideration of the determination of

21 March 2016 (R3, T56);
27 June 2017:
upon review, the VRB affirmed the determination of 21 March 2016

(R3, T60); and
23 August 2017: the Applicant applied to the Tribunal for a review of the VRB’s decision of 27 June 2017 (R3, T1).
THE ISSUES
By his “Statement regarding my AAT Appeal”, received by the Tribunal on 27 August 2018 (A2), the Applicant advised that he was “only pursuing what I refer to as the “Man Overboard Incident” in respect of my claim for post traumatic stress disorder, although later incidents did possibly contribute to aggravation of this…” and that “…my ischaemic heart disease is directly connected to my ptsd...”
The Respondent identifies the issues for determination as being (Respondent’s SFIC R1):
14.1.whether the material before the Tribunal ‘raises a connection’ between the claimed PTSD and any defence service rendered by the applicant
14.2.if so, whether the factor(s) relied on by the applicant in the relevant Statement of Principles (SOP) upholds the contention that the claimed PTSD is, on the balance of probabilities, connected with the applicant’s defence service, and
14.3.if so, whether the factor(s) relied on by the applicant in the relevant SOP upholds the contention that the claimed IHD is, on the balance of probabilities, connected with the applicant’s defence service.
The Respondent contends that before a determination is made in respect of those issues, the Tribunal must also consider the correct diagnosis and date of clinical onset of the Applicant’s claimed PTSD and IHD.
The Tribunal agrees with the Respondent’s contentions in relation to the issues for determination and the need for determination of the correct diagnosis of the Applicant’s condition(s) and the date of onset of any condition found.
LEGAL FRAMEWORK
Section 70 of the VEA relevantly provides:
Eligibility for pension under this Part
(1)Where:
(a)…
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the member-pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act … an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
In relation to s 70(5)(a) of the VEA, the High Court provided guidance in Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, [27]:
The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying the test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
Thus, in order for the Applicant to be successful, the Tribunal must first find that he suffers from an injury or disease which he claims and secondly that the said injury or disease was causally connected to his service.
Section 5D of the VEA defines the following terms:
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)disease; or
(b)the aggravation of a physical or mental injury.
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease
(2)In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease ; or
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease ;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
(Original emphasis.)
For the Applicant to succeed in his claims, it must be shown that he is suffering from an injury or disease to the Tribunal’s “reasonable satisfaction” (s 120(4) of the VEA). This standard was discussed in Repatriation Commission v Smith (1987) FCR 327 at 335 where Beaumont J said that a decision-maker must ask:
...itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.
Section 120(4) of the VEA must be read with s 120B of the VEA, which applies to the Applicant’s claims as they are claims made under Part IV relating to defence service other than peacekeeping service, hazardous service or British nuclear defence service.
Section 120B of the VEA relevantly provides:
Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)…
(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Note 1:   Subsection 120(4) is relevant to these claims.
…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)     a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)    a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
There are Statements of Principles in relation to PTSD (No. 83 of 2014) (SOP No. 83) and IHD (No. 2 of 2016) (SOP No. 2).
Relevantly, in Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11, Dowsett J, of the Federal Court observed that:
[87]The logical starting point is identification of the connection. It is to be found in the material before the tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the commission to identify relevant aspects of the material which it must consider. None the less, the connection must have a factual basis demonstrated in such material ...
In Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 (Bey), the majority of the Full Court of the Federal Court (Northrop, Sundberg, Marshall and Merkell JJ) held that it is not sufficient for a medical practitioner to suggest that the cause of a condition was “a possibility”. The opinion expressed by the practitioner must have “pointed to” the hypothesis advanced before it could raise a reasonable hypothesis connecting a condition with defence service. Their Honours later relevantly concluded, at 375:
The primary judge erred in law in holding that the mere possibility of a connection between war service and the [veteran’s] disease constitutes a reasonable hypothesis…
Nicholson J made some similar points in a separate judgment in Bey, at 376, stating:
(1)For a reasonable hypothesis to arise, what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required: East at 531.
…
(4)… there must be some material which points to some fact or facts (the raised facts) which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell at 414. It is from the evidence that the raising of a reasonable hypothesis comes: Bushell at 427. This means the material before the Commission must raise some fact or facts which give rise to the hypothesis: Byrnes at 569-570 …
…
(8)A “mere possibility”, in the sense of a hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis – it will not be an hypothesis “raised by the facts” ...
The Respondent submits that while Bey dealt with a claim to which the “reasonable hypothesis” provisions of the VEA apply, the same general principles ought to be applied when considering whether the Tribunal is reasonably satisfied under s 120B(3) of the VEA. The Tribunal agrees.
In Whitworth v Repatriation Commission (2003) 78 ALD 126; [2013] FCA 1530, Ryan J stated at [14]:
It is apparent from that evidence that Dr Collins could go no further than to express a belief in a “real possibility ...”; that one could only say there was a possible connection ... and that, as there is no clinical evidence supporting or contradicting the theory, it “can’t be excluded”. That evidence clearly does not satisfy the test in East as refined in Bull. Merely because a theory cannot be excluded as impossible, fanciful or contrary to the known facts does not entail it is reasonable. There must be some material pointing to it.
THE EVIDENCE
The Hearing
The application was heard on 4 and 5 October 2018. The Applicant was represented by advocate Mr T Robbins and the Respondent was represented by counsel Ms A Ladhams instructed by the Australian Government Solicitor (AGS).
The Applicant gave evidence at the hearing and was cross-examined. Mr Jeffrey Ellis, who served with the Applicant on the HMAS Perth at the time of the overboard incident, gave evidence by telephone and was cross-examined. The only medical evidence given at the hearing was that of Dr Jonathan Spear, psychiatrist, who was called by the Respondent and was cross-examined.
The following documents were admitted into evidence:
·Applicant’s Statement of Facts, Issues and Contentions dated 25 August 2018 (Exhibit A1);
·Applicant’s Statement (undated) received by the Tribunal on 27 August 2018 (Exhibit A2);
·Bundle of Photographs, Beginning with “Charles F Adams Class Guided Missile Destroyers” (Exhibit A3);
·Statement of Jeffrey Ellis (undated) received by the Tribunal on 22 May 2018 (Exhibit A4);
·Applicant’s Statement (undated) received by the Tribunal on 22 May 2015 (Exhibit A5);
·Respondent’s Statement of Facts, Issues and Contentions with Annexures A to R dated 11 July 2018 (Exhibit R1);
·Report of Dr Jonathan Spear dated 13 February 2018 (Exhibit R2);
·Tribunal Documents (T1-T61) received by the Tribunal on 20 September 2017 (Exhibit R3);
·Briefing documents provided to Dr Jonathan Spear dated 9 (undated) (Exhibit R4).

Written closing submissions were made by the parties. The Applicant’s closing submissions were received on 18 October 2018 and the Respondent’s closing submissions were received on 7 November 2018.
Factual and medical evidence
The Applicant relies on factor 6(a) in SOP No. 83; experiencing a category 1A stressor before the clinical onset of PTSD and on factor 17 in SOP No. 2; having a clinically significant disorder of mental health as specified for at least the five years before the clinical onset of the IHD. The category 1A stressor that the Applicant relies on is the overboard incident described at [4] and [5] above.
As noted above, there are discrepancies between the versions of the overboard incident provided by the Applicant and those provided by Mr Ellis.
In the Applicant’s evidence to the VRB on 27 June 2017 (R3, T60 at 306-307) he described the overboard incident as follows:
(a)while serving on HMAS Perth in or about October/November 1980, he was late to muster at his station for an underway fuel replenishment from HMAS Melbourne at 2:00 am and when he was making his way forward about halfway up to the port side of the upper deck of the vessel, he was picked up and washed down by water;
(b)he went over the side but managed to catch on to what he thought was a guard rail post with his arm with the rest of his body over the side while he was being bounced around until someone grabbed and pulled him back on board;
(c)he could not remember whether he slipped or got knocked down by the water;
(d)once back on board, he was held on the deck for a couple of minutes, then told to return to his mess, dry off and return to his bunk;
(e)he was never given nor did he seek any medical assistance afterwards; and
(f)the sea state at the time was very rough and choppy with lots of waves between the ships. HMAS Perth was pitching up and down and rolling and he thought then that he was going to die.
In a statement provided by Mr Ellis dated 3 February 2016 which was provided by the Applicant as part of his claim for disability pension and/or for increase in disability pension (R3,T52 at 278), Mr Ellis said that:
(a)he served with the Applicant on board HMAS Perth at the relevant time and was with him when the overboard incident occurred;
(b)he witnessed the overboard incident in the early hours of October/November 1980 while he and the Applicant were preparing to take up their duty as Distance Line Party on the HMAS Perth in preparation for a replenishment at sea with aircraft carrier HMAS Melbourne. They were making their way to the port side of the deck when the pressure bow wave from HMAS Melbourne created a swirling sea effect which struck and knocked both of them off their feet forcing them both aft along the port side of the first deck;
(c)he recalled being slammed into a guardrail stanchion with the Applicant “partly disappearing over the side of PERTH”;
(d)he also recalled holding on to the Applicant’s legs in an attempt to save him from completely falling over the side while the other shipmates hurried to assist him and they were able to drag the Applicant back on board;
(e)the Applicant was taken below for first aid treatment and did not take any further part in the replenishment that evening and in the days that followed, he was made aware that the Applicant had been relieved of his normal duties and placed in the ship’s laundry to assist in his recovery from the incident; and
(f)his recollection of the overboard incident remained graphic despite being involved with numerous incidents over 32 years and he believed that such evolutions would not have been conducted today in such conditions with the advent of risk assessment.
At the hearing the Applicant’s evidence was, relevantly:
[The Applicant]: I had – we were – for the razz, trying to get a couple of hours sleep just before it. I believe it was somewhere around the Arabian Sea or Persian Gulf, and well aware that we had a razz with Melbourne that evening at 0130 was the time. Normally, I was a member of the (indistinct) party, which is probably the hairiest part of the operation up on the distance line. Normally, the preparation for it is, you know, you will have your overalls, you will have non-slip boots under your bunk, and all your gear ready and you just grab and go as soon as you get out of your bunk and off you go. However, I woke up ready to go to the razz in time, and somebody pinched my boots, as they do, and so I had to scrabble around for a fait bit of time to find another pair of boots. I ended up with a – I found a pair in a locker, got them on. By the time I – and rushing, I was sweating because I was supposed to be on the distance line, which is one of the first lines to go across on the razz, so I was panicked, and I was in a hurry, and worried I was going to get into trouble. So, I took the shortest route I could, which is I think through the café to the nearest door or hatch to get out on the upper deck, which opened up just after the splash way on the portside. I opened up the hatch, I looked out. I could see The Melbourne already alongside, and I could see the churning, the water was everywhere. It was really choppy. I quickly closed the hatch, had my back to the hatch, and the first thing I recall, I smelt Diesel …and the vent was right next to where I stepped out of the hatch onto the portside and near the splash way. I had no sooner stepped out and closed the hatch and just got knocked over. Just, all the water, just smashed me over. I remember having no – not feeling any – I couldn’t – I had no direction. I didn’t know which way was going up or down, just completely disorientated. I remember hitting – my shoulder hit something hard and I grabbed on, and it turned out to be later, a guard rail stanchion, and I remember feeling or knowing – I just thought I was dead, because I couldn’t feel deck under my feet. The only thing I could feel was that guard rail stanchion, and I couldn’t – I couldn’t hold my grip on it, I couldn’t – I knew I was going to have to let go, and I knew I was going to die, and then I felt like I couldn’t breathe. I was panicking, obviously and I felt somebody grab part of the lower half of my body. I don’t know whether it was my legs or whether it was – like, all I felt was a huge amount of weight on me from the water and I thought I felt somebody grip me and my clothes, and my whatever, and the next thing I know, I was against the bulkhead just behind the splash way on that side. The wave had gone past. There were – didn’t seem to be anyone around except – and it was dark, and I couldn’t see who it was that had actually pulled me in. In fact, it was 40 years before I found out who it actually was, and that was Jeffrey Ellis, because he was also – apparently, he had come looking for me because I was late, and then he had to go straight back, and I don’t know if it was him or somebody else. There was a couple of people by this time who said, ‘Get him below.’
(Transcript at 12-13)
[Ms A Ladhams]:        So, people that were manning the fuelling point wouldn’t have been able to see you?
[The Applicant]:          No one saw me, no. The only one who had any inkling I think was Jeff, but as I said, I didn’t know at the time who it was that…
[Ms A Ladhams]:        So, you felt pretty alone from the word go?
[The Applicant]:          Totally, because I was late, because the stupid boots.
…
[Ms A Ladhams]:        … So, anyone in the bridge would be probably attending the distance line, which is the one right up the front, or to the actual fuelling line itself?
[The Applicant]:          Yes. That’s right. I don’t think anyone – if anyone would have saw it – no one saw it.
(Transcript at 14)
[Ms A Ladhams]:        In actual fact, a hatch is usually in the deck, so just clarifying that, the door that you came out of, was that one marked “Door to number one deck”?
[The Applicant]:          Yes.
[Ms A Ladhams]:        So, you can see from these photos that it would have been very difficult for anyone who was not in that location to see you?
[The Applicant]:          Correct.
[Ms A Ladhams]:        And you were very conscious of that?
[The Applicant]:          I knew that. I was on my own, that’s how it was, really. I was running late, there was no one around. The only thing I remember clearly was the smell of Diesel as I opened up that door, and then suddenly a wave hit me and one of my triggers is the smell of Diesel fumes.
(Transcript at 15)
The Applicant was cross-examined on the detail of the overboard incident. His version of the incident as set out in his statement to the Tribunal (A2) was put to the Applicant. The Applicant said:
[The Applicant]:          …That’s what Jeff – pretty much I was going on what Jeff said.
[Ms A Ladhams]:        So that is not your recollection, that is Jeff’s recollection?
[The Applicant]:          Well, that would be – as I said, my memory of that, and anyone’s memory of that I don’t think would be very accurate in that circumstance. That’s an instant split second kind of horrific thing to happen to somebody. You don’t know where you are. So as I’ve got talking to – you know, and I’ve been tainted I guess as well by, you know, Jeff’s version. Jeff may have a different story than what I’ve got, except that all that he did was grab me as I went over. And then rationalising it over the years as I have, trying to work out where it happened, why it happened, this is something that I got obsessed about at one point, and you know, it’s a bit like my illness, a heart disease; why did it happen, how did it happen, what caused it? So basically I was knocked off my feet, thrown over to the guard rail that side of the ship, over the side, and somehow – I know that I went partially over and I believe it was like – it wasn’t all just like halfway hung over, I was over and I was hanging on by my right, so I would’ve been slung around. You know, I could tell you a different version because it was my right arm, there was a lot of bruising that happened, because of my grip, or being bashed into that rail, and I was flipped around. I believe – I felt that I was flipped, but I slipped in a lot of directions at that particular point, and I did feel somebody grab me, which later turned out to be Jeffrey and basically I think we both got flung back into the bulkhead back on board by the opposite wash. So it’s very difficult to describe something like that in terms of that guard rail, that – that – it’s really difficult.
(Transcript at 26-27)
[Ms A Ladhams]:        How did you find out that it was Mr Ellis who pulled you in?
[The Applicant]:          Forty years…, so I had never ever spoken to the man since – since that time. We were never – as I said, I think I said earlier, I was isolated after the incident, I was actually sent to the laundry to work, which meant I even moved bunks down to the back, and separated in the mess, and my shifts were totally different, and I was well away from my old work mates, which included Jeff, and within a week I was called up to the bridge and sent home with no fanfare, no time to tell anybody that I was going, anything. So, 40 odd years later I was looking on Facebook and I rarely ever go on it and I’m still not on it, and there was Jeff and we got in touch and I was telling him about the problem I was having with DVA, and with this whole business, and he said – he told me it was him. He said, “It was me”, and I was just absolutely gobsmacked.
(Transcript at 28)
The evidence of Mr Ellis at the hearing and in his written statement to the VRB was different to that of the Applicant. In particular there were significant discrepancies between the evidence of the Applicant and that of Mr Ellis as to whether the Applicant was alone or with others when he stepped out onto the deck and was washed overboard. Mr Ellis’ evidence at the hearing was:
I recall us leaving the ship’s cafeteria on HMAS Perth and heading out onto the upper deck. There would have been a number of us because it was at the change of watch. Whether Colin was at the front or I was at the front, I don’t recall what. The main thing I recall is that as we opened the hatch to go out onto the upper deck, it was – the only lights we had in those days were, of course, were red lighting and all I recall is that a bow wave come along the port side of Perth and hit us, or hit me fair and square off my feet and then I slid along one deck and I recall that Colin was also sliding a number of – as I remember, it was at least two of us – slid along the deck. And Colin and I ended up in the scuppers of the ship, about to – you know, if we hadn’t had a guardrail there, I would have been over the side as well. I grabbed onto whatever I could, which as I now recollect, was Colin. And we held firm until some people, some other members of the crew saw what had happened and came down and picked us up off the deck.
(Transcript at 66-67)
In cross examination Mr Ellis gave the following evidence:
[Ms A Ladhams]:        So you specifically recalled walking out the hatch with Colin that night?
[Mr Ellis]:         I do. I do recall. Whether I went first, or whoever was in front, they were a particular, very difficult door. When I say hatch, they are actually the ship’s doors, and they operate on a fulcrum system were six dogs are required to close down the hatch to make a watertight. I recall trying – the door being difficult to open, and as we pushed out on it we were getting both waves and wind forcing the door back on us. So I do recall trying to open the door to get out to actually take up my position.
…
[Ms A Ladhams]:        Do you have any particular memories of running late at night?
[Mr Ellis]:         I would say I don’t, but then again, as I say, there were four or five – as a young sailor you always think you’re running late because the pressure on you and the discipline you face if you are late is pretty harsh, so it would not strike me if we were – you know, be out there.
(Transcript at 70-71)
…
[Ms A Ladhams]:        So if you had both just come out of the hatch, you and Colin must have been pretty close together when that happened?
[Mr Ellis]:         Well, I don’t know. As I recall, I don’t remember it was Colin and I coming out the hatch together. I don’t know who went out the door first, but I remember two of us all three of us pushing on the hatch door to try and get the thing open because of the pressure that may be a wave or wind was creating for us to (indistinct)…
(Transcript at 71)
According to the Applicant he was alone when he went out onto the deck and was hit by the water and knocked over whereas on Mr Ellis’ version there were at least two of them if not up to four when they went through the door onto the deck. His advocate put to the Applicant, “So, you felt pretty alone from the word go?” to which the Applicant responded “Totally, because I was late, because the stupid boots” (See [33] above). Mr Ellis’ version was that he “remember(ed) two of us all three of us pushing on the hatch door to try and get the thing open” (see [36] above).
The materiality of the difference is that the Applicant appeared to rely on the fact of his being alone and the possibility of no-one seeing him go overboard as contributing to the potential for the threat to life that was involved and, accordingly, the psychological impact of the overboard incident.
There were other differences in the respective accounts of the Applicant and Mr Ellis relating to what happened immediately after the overboard incident. Mr Ellis’ written statement (R3, T52) was that the Applicant was “taken below for first aid treatment” whereas the Applicant’s evidence was that he was “told to return to his mess, dry off and return to his bunk”.
The Tribunal appreciates that the events that the Applicant and Mr Ellis are recounting occurred some 37 or 38 years prior to their giving evidence. The Applicant also conceded that his evidence may not be totally accurate and his recollection may be “tainted” by his more recent discussions with Mr Ellis. As he put it:
That’s an instant split second kind of horrific thing to happen to somebody. You don’t know where you are. So as I’ve got talking to – you know, and I’ve been tainted I guess as well by, you know, Jeff’s version.
(Transcript at 26)
As the Respondent also points out, the Applicant’s service records make no mention of the overboard incident or any injuries suffered by him arising from such an incident. Further, there is no mention of the overboard incident by the Applicant for a significant number of years. In October 1995 (some 15 years after the alleged overboard incident), Dr Leonard Marinovich (Consultant Psychiatrist) provided a report (R3, T17) in which he recorded a detailed history given to him by the Applicant regarding various events that occurred during his service, however, there is no mention of the overboard incident in the report.
Similarly, in March 1996 the Applicant provided a seven page detailed statement in which he described various matters including that he felt he made a mistake in joining the service, how repeated refusals to grant him an early discharge from his service and his subsequent overseas deployment on HMAS Perth had impacted on him and his new marriage causing him to be stressed and anxious and leading to him drinking heavily. Although the Applicant spoke of his time on HMAS Perth, there is no mention of the overboard incident in the statement (R3, T22).
Various other medical reports were prepared over the subsequent years which go into some detail about the Applicant’s service and the events, both in the course of the Applicant’s service and after his discharge, that could be possible causes of various ailments suffered by the Applicant, including PTSD, however, these reports did not refer to the overboard incident.
On 28 May 1997 Dr Song Tai (Acting Medical Director from Australian Government Health Services) provided a report in which he said that he reviewed the Applicant for the purposes of determining his application for a Sickness Allowance/Disability Support Pension and diagnosed him as suffering from various conditions including “a new condition of post-traumatic stress disorder after an assault in January 1995”. Dr Tai made no mention of the overboard incident, only that there was an assault incident (post his discharge) which led to his PTSD (R3, T28).
Dr Marinovich provided a second report dated 19 June 1997 in which he said that the Applicant had had 34 jobs in the last five years and was unable to maintain any of them because of his irritability, short-temperedness and inability to relate with those around him. He assessed the Applicant as totally and permanently incapacitated. Again, there was no mention of the overboard incident in the further report (R3, T30).
On 30 June 1997 Dr E Lloyd (examining medical officer for the Department of Social Security) provided a report in which he also referred to the Applicant as having been “assaulted while working as care taker [sic]” in January 1995 and said that the Applicant had since been “... treated for post-traumatic stress disorder by Legal Aid person, Ian Joblin (psychologist)”. There was no mention of the overboard incident in that report, only that there was an assault incident during his work as a caretaker (R3, T31 at 149).
As mentioned above, the Applicant had previously made an application to the Tribunal for the conditions of “Chronic Post Viral Fatigue Syndrome” and “Generalised Anxiety Disorder”. In that application Senior Member Beddoe made findings as follows (R3, T34 at 162-167):
(a)the Applicant experienced personality changes while posted to HMAS Perth and in particular while PERTH was absent from Australia on blockade in the Persian Gulf;
(b)the Applicant was flown from the Gulf because of problems with his wife’s health;
(c)the Applicant had a myocardial infarction at age 22 years and said he was hospitalised at Concord Hospital for a month although the Naval records show a lesser period at Concord;
(d)the Applicant’s marriage failed – he says because of Naval requirements and seagoing service but it actually failed at the time following his heart attack;
(e)throughout the latter part of his Naval Service, the Applicant engaged in heavy drinking and became antisocial to such an extent that he “frightened” himself;
(f)in 1983 Naval doctors diagnosed an alcohol problem but the Applicant apparently refused to accept advice to abstain from alcohol consumption and continued to consume, and
(g)the Applicant was paid a Disability Support Pension under the Social Security Act 1991 (Cth) on the basis of permanent medical conditions diagnosed as Chronic Post-Viral Syndrome and PTSD.

Relevantly, Senior Member Beddoe made comment that “[t]he difficulty with this case is the confusion between the applicant's dissatisfaction with the Navy and his attempts to be discharged and the medical conditions subsequently diagnosed during his Naval Service and subsequent to his Naval Service”. Senior Member Beddoe ultimately refused the Applicant’s claimed conditions citing the following reasons:
(a)the diagnosis of Chronic Post Viral Fatigue Syndrome had been made without excluding the condition of PTSD arising from the assault in 1995 which may be the explanation for the Applicant’s symptoms;
(b)the claimed condition of Generalised Anxiety Disorder reflected, according to the reports of Dr Marinovich, the personality of the Applicant and his dissatisfaction with the Naval Service therefore could not be said to have been caused by the Naval Service; and
(c)it was more likely than not that the Generalised Anxiety Disorder was caused by the Applicant’s own personality and his dissatisfaction with naval service rather than the Naval Service itself.
Senior Member Beddoe’s decision made no mention of the overboard incident. Presumably this incident was not raised by the Applicant.
On 16 August 2001 Dr L Risbey (psychiatrist) provided a report (R3, T35 at 185-194) in which he said that the Applicant gave a history which included that:
(a)the Applicant’s father had suffered coronary artery disease and had bypass operations and that following his return from war, had spent a lot of time alone and brooding, and the Applicant was sure that he had PTSD;
(b)prior to joining the Navy, the Applicant had tasted beer on only one occasion (half a can) and had no history of any traumatic stressors prior to his enlistment;
(c)in 1978 while the Applicant was serving on board HMAS Stalwart, one evening a sailor who was drunk confided in the Applicant and others about his paedophilic sadistic exploits and the next day the same sailor threatened to have the ship turn around (a hijack) and when the Applicant phoned the bridge to advise them, he was warned by two officers to keep his mouth shut or they would let loose the sailor on him. Further, when the sailor was led away he threatened the Applicant saying he would shoot his guts out and after the incident the Applicant began to suffer from claustrophobia and started to drink regularly for the first time;
(d)while on board HMAS Perth in the Persian Gulf, there were two Russian ships, a supply vessel which was in the process of refuelling the smaller destroyer and through his binoculars, the Applicant saw the Russian destroyer “commence attack readiness by setting up its Box missiles (a set of loading tubes)… This made him feel extremely endangered”;
(e)the most traumatising experience for him was the overboard incident which occurred in 1981 while on HMAS Perth which was alongside HMAS Melbourne. The Applicant recalled “waves washing over the deck... he was on duty, and alone at 2am, not aware that anyone may have seen him. His feet slipped and he slid to the edge, under the rails, with his body (up to his waist or even his armpits) over the side of the ship. He was terrified but managed to grip the rail with his right arm.... His body was dangling over the edge of the ship, and he felt totally powerless, helpless and terrified ... As it was dark, he dreaded not being able to hold on and was sure he would die by falling into the water with nobody knowing.. Fortunately, someone saw him ... and he was dragged to safety ... extremely traumatised. Following this experience he suffered from acrophobia”;
(f)the Applicant’s regular drinking began in 1978 but became a major problem from 1981 and continued to drink in excess until 1988 when he ceased;
(g)in 1983, the Applicant suffered a heart attack when aged 22 years which was a stressful experience;
(h)the Applicant had difficulty settling down after his discharge and worked in 27 different jobs. In 1996 he commenced receiving a disability support pension from Centrelink after he was diagnosed with PTSD by the medical officer; and
(i)the Applicant had been suffering intrusive and distressing images of the traumatic incidents, recurring nightmares, flashbacks (reliving when he was nearly swept into the ocean), intense psychological distress at being reminded of these events, palpitations, sweaty palms with reminders and frequently woke in the night with profuse sweating, shaking and feeling weak. Following his experiences on HMAS Perth, he refused any further sea postings and even now would not get on a ferry.
This report appears to be the first reference to the overboard incident.
Did the overboard incident occur?
Notwithstanding the inconsistencies between the versions of the overboard incident, even the apparent inconsistencies between the Applicant’s different versions of the incident, and notwithstanding that it appears that the Applicant made no reference to the overboard incident for some 20 years after its occurrence, the Tribunal is satisfied, on the balance of probabilities, that an event involving the Applicant being washed, or almost washed, overboard did occur. In order to find otherwise the Tribunal would not only have to disbelieve the evidence of the Applicant but would also have to disbelieve the evidence of Mr Ellis. Although he gave evidence by telephone from Cooma in New South Wales rather than in person, his evidence was clear, forthright and credible. Insofar as there are inconsistencies between his evidence and that of the Applicant, they can in the Tribunal’s view be explained by the effluxion of time and the chaotic circumstances of, and the conditions prevailing at the time of, the overboard incident.
In the report of 16 August 2001 (R3, T35 at 185-194), Dr Risbey also said that the Applicant was exposed to various other stressors including a fight with a Thursday Islander, his younger brother dying at age 24 years in tragic circumstances, his next younger brother, also a Naval officer, committing suicide in 1986 at age 24 years through a drug overdose and the Applicant suffering a heart attack at age 22 years. He expressed the view that:
(a)the Applicant had a clear history of chronic PTSD arising from several highly traumatic experiences from 1978 to 1981 whilst serving in the Navy and comorbid with the diagnosis of PTSD was a history of excessive alcohol use from 1978 and particularly from 1981 through until 1988 when he gave up alcohol;
(b)it was clear that the Applicant’s increased drinking commenced after the traumatic experiences and in the context of ongoing post trauma symptoms, in particular, insomnia and overactive mind (intrusive memories and worrying). Therefore, the alcohol dependence was secondary to and a complication of his chronic PTSD;
(c)a differential diagnosis to consider would be a depressive disorder or other anxiety disorders but the prominence of a trauma history and the post-traumatic stress features indicate that PTSD was the most appropriate diagnosis; and
(d)the Applicant’s symptoms satisfy all of the DSM-IV criteria,[1] and the causal relationship linking the Applicant’s PTSD to experiences as described suggest strongly that he did not have a drinking problem prior to entering the Navy nor during his first year or so and only became a problem following his traumatic experiences.
[1] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994).
By a report dated 12 May 2017, Dr M Woodall (Psychiatrist) (R3, T59) stated that the Applicant reported that:
(a)he was often on edge and tense with a tendency to be hyper alert. He feels that his nerves are shot from time to time and he tends to isolate himself and avoid contact with others. There have been significant difficulties in his accommodation where he has been in conflict with people commenting that his neighbours watch out for him and he will have a go at them. His irritability and rage outburst have led to him being involved in assaults and he has a heightened startle response to sudden loud noise. There have been difficulties with concentration and memory exacerbated by sleep disturbance. He reports palpitations, sweating and wakefulness at night where he would experience nightmares of past events. Intrusive daytime recollections would occur and he avoids ANZAC Day or other situations which may be associated with recall of his experiences;
(b)he drank alcohol regularly from 1978 and it became a major problem from 1981 to 1982, and related the increase to a traumatic incident that occurred while he was serving in the Persian Gulf on HMAS Perth, and that after this incident, his alcohol increased seriously and was associated with feelings of guilt, shame, the fear of going back to sea and he dreaded the thought of sea duties he was discharged in 1984. He continued to drink heavily until he ceased in 1988;
(c)he underwent a most traumatic experience while on board HMAS Perth in the Persian Gulf when he was knocked down by wash and swept to the side of the ship under the rails, fearful that he was going over the side. He managed to grip the rail with his right arm while being flung back and forth as the ship rolled before he was seen and dragged to safety, and subsequently sent below and off the ship; and
(d)he was involved in another incident while on HMAS Perth in Colombo when a hulk was released in the path of his ship, and it had to move quickly to avoid a collision and describing a sense of controlled panic then when the ship was able to pull away with just seconds to spare.
That report of Dr Woodall also stated that:
(a)on mental examination, the Applicant was restless and fidgety, although relating in a superficially cheerful manner. The Applicant found talking about his naval experience difficult and avoided dwelling on those areas. His speech was normal in form and flow although he was disorganised in his thinking at times and would lose his train of thought, mood was OK and his affect was anxious and no psychotic symptoms was elicited and there was no suicidal ideation; and
(b)it was Dr Woodall’s impression that the Applicant was a man with a history of PTSD and a period of heavy alcohol use for a number of years during his service who reported of continuing symptoms at a significant level and requiring continuing psychiatric treatment.
By a report dated 13 February 2018 prepared at the request of AGS (R2), Dr Jonathan Spear (psychiatrist) opined, in effect, that:
(a)the earlier diagnosis given of PTSD was consistent with the documented reports of the Applicant suffering flashbacks, anxiety, anger, insomnia, avoidance of large crowds, hypervigilance, nightmares, palpitations, sweating, tremor and weakness. However, if he did suffer from the condition, then it was unclear whether that was related to his service because there were other reported stressors which included an assault in 1995, an incident in 1989 when he set fire to himself and reports of frequent fights and childhood adversity (R2, page 11 at 1.1);
(b)the Applicant’s presentation and the history that he provided at the interview raised doubts about the diagnosis of PTSD in that he described recurrent stereotypic dreams which are uncharacteristic of PTSD and he did not have emotional detachment or emotional distress which are usually seen with PTSD especially when recounting traumatic events, his mood was-reactive, he was easy to engage and he had a charming demeanour, and therefore, on that basis, and that:
The history he provided was not consistent with posttraumatic stress disorder.
Therefore, on balance despite his previous diagnosis of posttraumatic stress disorder, I consider it was most likely that he does not have a diagnosis of posttraumatic stress disorder.
(R2, page 11 at 1.2)
(c)the Applicant’s diagnosis, according to DSM-V[2] is alcohol use disorder (R2, page 11 at 1.1) with that condition having most likely developed between 1980 and 1989 (R2, page 12 at 1.3); and
(d)while the alcohol use disorder most likely resolved in 1989, the Applicant had ongoing severe mental health issues relating to personality disorder (R2, page 12 at 1.4)
[2]
Specifically, Dr Spear’s view was:
Mr Ralph appears most likely to have experienced alcohol use disorder during his Royal Australian Navy service, given it appears most likely his period of ‘serious alcohol abuse’ was between about 1980 and 1989. This indicates that it is likely that alcohol abuse was aggravated by service factors, including his description of a culture where alcohol use was accepted and common.
In addition he appears to have a genetic component given he has a family history of alcohol use with report [sic] that his father was a ‘big drinker’..
Personality disorder is often associated with heavy alcohol use.
His cognitive distortions indicate a vulnerability to development [of] mental health disorder, as does his history of childhood adversity.
He reported a high intake of caffeine, which most likely contributes significantly to symptoms including insomnia, anxiety and irritability.
His medications may cause side-effects including nightmares, insomnia and irritability.
I consider his family history, likely personality disorder, cognitive distortions and history of childhood adversity, heavy caffeine use, and medication side-effects are most likely significant contributing factors to his current mental health presentation.
(R2, pages 12 and 13, at 1.5)
Dr Spear also noted, relevantly, that:
(a)the Applicant was “a rambling historian, at times evasive and vague... had brief demonstrative dry tears. He did not have any evident distress” (R2, page 8);
(b)the Applicant had been reported to have “narcissistic personality traits... reported to have risky behaviour… [and] reported frequent fights involving the police and ‘issues with people’” (R2, page 9); and
(c)the Applicant had childhood adversity, a family history of suicide (brother committed suicide), cognitive distortions (sense of isolation, catastrophic thinking and a sense of rejection) indicated a vulnerability to develop a mental health disorder and decompensation indicated he had limited adaptive skills and he most likely had a personality disorder (R2, pages 9-10).
At the hearing Dr Spear was also asked to comment on his statement at page 10 of his report (R2) that despite treatment for PTSD the Applicant had not made a recovery. His evidence was:
[Ms A Ladhams]:        What is the significance of a lack of recovery following treatment?
[Dr Spear]:      Well, it’s a difficult question to answer in many ways. I mean, there are many causes why somebody may not recover from treatment. Some mental conditions do not respond to treatment, and that includes post-traumatic stress disorder, but another explanation for that is the possibility of personality disorder, given that personality disorder doesn’t respond to mental health treatments. So it’s a rule of thumb that always alerts me to the possibility of that diagnosis when somebody has not made a recovery. We don’t make the diagnosis, it’s just a rule of thumb that we use. And I’ve followed that since I was a student in Newcastle. You know, not all patients with PTSD will make a recovery. Some do.
(Transcript at 86)
…
[Ms A Ladhams]:        What you understood Mr Ralph to have received at that point, would that be considered by you to be appropriate trauma therapy?
[Dr Spear]:      I mean, without knowing – I didn’t have any details of the content of the therapy in it, but Vietnam Veterans’ Counselling Service have an extremely good reputation. In my experience they’re very professional, their psychologists are highly trained and they’re used to working with veterans, so I would expect that they would have delivered it, I can’t confirm it absolutely, but it’s most likely it would have been a very high standard and it would be most unusual not to have made a response to treatment if he was going to respond to treatment, with that amount of treatment. It’s a large amount of treatment by any standards.
…Because normally I’d expect, you know, up to 16 sessions, and sometimes less than that.
[Ms A Ladhams]:        Up to 16 sessions?
[Dr Spear]:      Yes. Yes. He’s had over 100.
(Transcript at 87-88)
At the hearing Dr Spear was also asked to comment on an observation that he made in his report of 13 February 2018 to the effect that there was doubt about the accuracy of the Applicant’s description of military related trauma:
[Ms A Ladhams]: If the Tribunal were to find that that event happened as Mr Ralph claimed, would that change your diagnosis that you’ve expressed in your report?
[Dr Spear]: I don’t think that it would do because it’s not only – a lot of the symptoms are documented, but Mr Ralph himself was unable to spontaneously provide many of those symptoms. Or he did provide some of those symptoms, I think I summarised on page 10. So that raised some doubt in my mind as well. And then the second thing is he’s also experienced a number of other traumatic life events, including the assault in 1995, the incident where he apparently set fire to himself, as well as his reports of frequent fights and the confirmation he made of having experienced, unfortunately, childhood adversity. And the other concern I had was his presentation at interview. Again, was inconsistent. I’ve mentioned – earlier had mentioned of the stereotypic dreams. In addition to that, patients with post-traumatic stress disorder have a very characteristic emotional detachment. It’s very very difficult to engage with somebody who’s been traumatised and it’s a characteristic sign of having the condition. And in addition, I would expect somebody who’s had a diagnosis of post-traumatic stress disorder to be evidently emotionally distressed or to show some signs of reaction to that. And these are very characteristic of post-traumatic stress disorder. (Indistinct) things like becoming angry or distressed or tearful or showing signs of muscle tension or a tremor or an anger outburst, and all the symptoms associated with that, I expect an emotional response to recall of these symptoms. If you’re close enough to a patient, sitting across a desk, you also see the characteristic rapid eye movement that you see when a traumatic memory is being recalled. It’s a classic sort of clinical sign. Unfortunately, clinical signs are not taken into account so strongly when making the DSM type diagnosis, but I take the clinical signs into account and I take them very seriously when doing medical legal assessments because obviously you could – your patients could just run through a check-list of symptoms and then get a diagnosis, but that wouldn’t be meaningful. It needs to be validated with the documentation, as well as the patient’s appearance and behaviour and mental state examination. So those are the things I look for as a clinician. And unfortunately, you know, in terms of Mr Ralph’s diagnosis of post-traumatic stress disorder, his behaviour was not consistent with that. He was charming and very engaging, and was easy to engage in the assessment, which is unusual for someone with post-traumatic stress disorder. It made my job a lot easier, to be honest. But nonetheless, that was the case.
Medical records were also produced under summons by Maylands Medical Centre (GP) and by Hollywood Private Hospital. Those records included the following relevant information:
(a)in a letter from St John of God Hospital dated 21 May 2009, it was recorded that the Applicant “currently smokes 15 to 30 cigarettes per day. He does have a family history of vascular disease with his father having had both a stroke and a coronary event”, and that he “suffers post-traumatic stress disorder related to service in Iraq...” There is no mention of the overboard incident;
(b)a letter from Bendigo Community Health Services dated 19 June 2009 reported that the Applicant had a complex medical history which included PTSD and a history of alcohol abuse;
(c)an inpatient admission form from the Hollywood Clinic recorded that the Applicant had “nil previous admission” insofar as his past psychiatric history, and family history included “Brother committed suicide (long hx drug abuse) fa (father) Korean veteran Physical discipline ... not spoken to parents since ‘99” and in respect of collateral history “could never handle arguments problems” and a provisional diagnosis of “Adjustment Disorder PTSD (likely) Personality Disorder”;
(d)an Emergency Department Medical Note from Sir Charles Gairdner Hospital dated 5 January 2011 recorded “PTSD since 1996 (Veterans’ affairs psychiatrist) no previous admissions to a psychiatric unit .. anxiety poor concentration ... share mate complained to the administrator of the house who talked to the pt... and this incidence triggered his anxiety and nervousness and brought back his flashes of war zone conflicts and stresses... ongoing suicidal thoughts.. his friend committed suicide on x mas day and this made him sad and down... no delusions” and another note recorded “Main issues at present – homelessness – feels he cannot go back to hostel due to feelings of persecution & scapegoating at hostel ... gave up smoking 2/12 ago...feels this may have made him, ‘go strange’ – [increase] in paranoia/argumentativeness”;
(e)Inpatient Notes from Sir Charles Gairdner Hospital dated 6 January 2011 recorded “hx of PTSD (veteran) dx 1999...has been on medications has seen psychologists over a long period of time through the department of Vet Affairs. Longest period with one psychologist – 5 yrs…Pt can have flash backs…scared, confused daily & avoid crowds, loud noise, fire crackers…brother committed suicide & parents felts that pt was to blame because they were both in the Navy… Father was a Korean Veteran, likely had PTSD... Pt came to hospital because he didn’t feel he had anywhere to turn to – suicidal thoughts – 22 yrs ago set fire to himself- multiple episodes of ‘let myself get lost’... regularly see psychologist.. Imp: Adjustment disorder PTSD Narcissistic [sic] personality traits”;
(f)a letter from the Hollywood Clinic dated 12 January 2011 recorded that the Applicant “was admitted under the treating care of Dr Andrew Jackson for exacerbation of PTSD and GAD” and that he was a Gulf veteran;
(g)in a note from Dr Chiu to Dr A Jackson dated 21 January 2011, it was recorded that the Applicant “suffers from war-related posttraumatic stress disorder and is recommended to participate in The Hollywood Clinic Trauma Recovery Program”;
(h)an Integrated Progress Notes from the Hollywood Clinic dated 7 February 2011 recorded that the Applicant commenced Trauma Recovery Programme for two weeks and in a note dated 8 February 2011 it recorded “Early childhood Hx obtained. Strong punitive themes … false blame, betrayal & inappropriate expectations from parents (re care of siblings) Colin very aroused as he spoke of these -needed containment. Feeling very anxious...”;
(i)a letter from Dr P Connor (GP) dated 22 February 2011 noted that the Applicant had a “history of…PTSD. this [sic] dates back to his years in the Royal Australian Navy. In 1981 he slipped on the deck of a ship and his problems started then … describes hypervigilance…, easily aroused to anger, short tempered, insomnia, nightmares where he relives the events(s) and flashbacks. He started the PTSD group whilst inpatient at RPH. On discharge he has been prescribed with cipramil 20mg, lorazepam ... and temazepam … for sleep…”;
(j)a clinical note from the Hollywood Clinic dated 26 February 2011 recorded that the Applicant was a “Smoker (trying to quit)” and was “admitted to stabilize [sic] emotional state and assist with accommodation”.
(k)a clinical note dated 5 March 2011 from the Hollywood Clinic recorded that the Applicant was “anxiety/restlessness [sic]. Admitting to some relationship problems with his girlfriend – not happy about being always yelled at...”;
(l)a Discharge Summary dated 14 March 2011 recorded that the Applicant presented with “increased anxiety poor concentration, low mood and suicidal ideation on a background of problems with current flatmate which also brought back flashbacks of warzone conflicts and stressors” and the principal diagnosis was “Adjustment Disorder”;
(m)in a Discharge Summary dated 21 March 2011, Dr W Chiu (psychiatrist) at Hollywood Clinic recorded that the Applicant was attending the Trauma Recovery Programme and was re-admitted because of “high distress associated with lack of accommodation...”;
(n)in a Discharge Summary dated 16 September 2011, Dr W Chiu recorded that the Applicant’s participation in the Trauma Recovery Programme was erratic; and
(o)an Acute Care Certificate dated 18 February 2011 stated that the condition requiring acute care was PTSD.

There is no mention in any of the summonsed records of the overboard incident. The only service related stressor mentioned was in relation to: service in Iraq; suffering flashbacks of war zone conflicts and stresses; and being a Gulf veteran although there were no details provided in relation to any particular service related incidents or events in Iraq or elsewhere. The records also refer to the Applicant having various family and personal related stressors and personality traits.
Does the Applicant have PTSD?
As is often the case in matters before the Tribunal, there can be diverse medical opinions on whether the Applicant suffers from the ailment for which the claim is made. On the one hand there are the reports of Dr Marinovich, Dr Risbey and Dr Woodall which diagnose the Applicant as suffering from PTSD and on the other hand the report and oral evidence of Dr Spear to the effect that the Applicant does not suffer from PTSD but rather suffers from personality disorder. Which evidence should be preferred?
The Respondent points to a number of factors which it says should cause the Tribunal to accept the diagnosis of Dr Spear. In particular the Respondent notes that Dr Spear was called to give evidence and be cross-examined. Neither Dr Risbey nor Dr Woodall, whose medical opinions the Applicant relies on, was called to give evidence. The Tribunal did ask the Applicant’s advocate why the Applicant was not calling either doctor, in particular Dr Risbey upon whose evidence the Applicant primarily relies. Mr Robbins advised that he had asked Dr Risbey whether he would give evidence and that Dr Risbley had said that he had retired from practice and did not want to get “back into practice” by giving evidence. Mr Robbins advised that he had “pleaded” with Dr Risbey to give evidence but that the doctor was not prepared to give evidence (Transcript at 8-9).
The Tribunal appreciates the Applicant’s situation with respect to Dr Risbey and the limited resources that the Applicant has to put into the case. There is no criticism of the Applicant or Mr Robbins for Dr Risbey not being called. The fact is, however, that in the end the Tribunal did not have the benefit of Dr Risbey’s or Dr Woodall’s opinions being tested by cross-examination in the same way that Dr Spear’s opinion and diagnosis was tested.
The Respondent identifies further reasons why the opinion of Dr Spear should be preferred over those of Dr Woodall and Dr Risbey. In summary they are:
(a)not only could the Respondent not challenge the key findings in Dr Risbey’s report in cross-examination, but also the Applicant could not clarify how the report was prepared and what information Dr Risbey was given and/or took into account. Dr Risbey acknowledged that he took into account a referral letter from Dr Daly dated 21 June 2000 and three consultations with the Applicant, which took place some 11 months before the date of the report. Dr Risbey has not identified any other materials as being taken into account. Assuming that Dr Risbey did not take any further material into account, it then follows that he has based his assessment in a large part on the history provided to him by the Applicant. The accuracy of his report, including his diagnosis, would therefore be impacted by the accuracy of the history given by the Applicant. The Applicant has acknowledged that there are many details that he cannot clearly recall and Dr Spear stated in his oral evidence that the Applicant’s cognitive disorders are likely to impact his interpretation of events, including past events.
(b)the Applicant gave evidence that Dr Risbey was very thorough and spoke with the Applicant’s wife and brother. If this is the case, it is not recorded in Dr Risbey’s report. In relation to discussions with family members, Dr Risbey has simply noted the he was unable to contact the Applicant’s parents for their observations on the Applicant’s personality before and after naval service as the Applicant did not consent to this (R3, T35 at 191). This is important because the Tribunal is asked by the Applicant to accept a report at face value, when, if Dr Risbey did indeed contact the Applicant’s wife and brother, he has not indicated all sources of information that he relied on.
(c)Dr Risbey did not have available to him the same extensive range of material that Dr Spear was provided with and reviewed. Also, the Applicant’s evidence at the hearing was that the reason he did not previously mention the overboard incident or attribute his condition to this incident was that he only recalled the incident the year before the assessment by Dr Risbey, in the course of hypnotherapy (Transcript at 35-36). There is nothing in Dr Risbey’s report to suggest that he was aware that the Applicant had recently recalled the overboard incident and/or that it was during hypnotherapy. Accordingly, there is no way for the Tribunal to ascertain what significance, if any, Dr Risbey would have placed on this.
(d)In relation to Dr Woodall’s report, the Respondent notes that the sole report from Dr Woodall is a three page report said to be based on two assessments conducted some five months before the date of the report. The Applicant gave evidence that he continued to see Dr Woodall on a monthly basis. If that is the case, then there is nothing to indicate that Dr Woodall took into account in preparing his report any subsequent consultations with the Applicant. Further, it is clear from Dr Woodall’s report that the Applicant was referred to Dr Woodall by his GP and that he had a copy of Dr Risbey’s report. It is not clear that Dr Woodall had any further documentary material before him and it clearly appears that he did not have access to the full range of material before him that Dr Spear had access to.
(e)The Applicant indicated in cross-examination that he had become more comfortable and open with Dr Woodall over time. If this is the case, then it would be highly relevant for the Tribunal to know whether the increased “openness” had any impact on Dr Woodall’s assessment of the Applicant. In the absence of an updated report, or Dr Woodall being available for cross-examination, there is no way of knowing this.
(f)In any event, Dr Woodall’s report does not materially assist the Applicant. Although Dr Woodall appears to confirm that the overboard incident was the most traumatic incident that the Applicant experienced and that it was the most clearly associated with the development of symptoms and changes in the Applicant’s behaviour, this appears to be based only on the history provided by the Applicant. The Tribunal can infer that the assessment is based on what the Applicant said in 2016 which is different from the views expressed by the Applicant previously (see 1996 statement). This suggests that the changes in the Applicant’s behaviour and personality occurred after the Applicant’s myocardial infarction, some two to three years after the overboard incident.
(g)More critically, Dr Woodall’s report does not offer an explanation as to why the Applicant meets the diagnostic criteria for PTSD on DSM-V. Rather, the report simply states that the Applicant gives the impression of a man with a history of PTSD (R3, T1 at 16).
There is merit in the Respondent’s submissions. The report of Dr Spear is thorough and sets out the full basis for his conclusion that the Applicant does not suffer from PTSD. It is the most recent of the reports and on its face, would appear to have been prepared with access to more comprehensive background material than were the reports of Dr Woodall and Dr Risbey. Most significantly, however, Dr Spear’s opinion was tested by cross-examination and the Tribunal had the benefit of hearing directly from and interacting with Dr Spear. On these bases the Tribunal prefers the opinion of Dr Spear over those expressed by Dr Risbey, Dr Woodall and Dr Marinovich. The Tribunal accordingly is not satisfied, on the evidence presented, that on the balance of probabilities the Applicant does suffer from PTSD.
The Tribunal’s finding that the Applicant does not suffer from PTSD effectively disposes of the Applicant’s claims. However, for the sake of thoroughness the Tribunal will consider the question of whether if the Applicant did suffer from PTSD that condition has the necessary causal relationship with the Applicant’s service.
Causal relationship with defence service
How does the legislative scheme work? A useful summary of its relevant operation is set out in Deputy President Forgie’s decision in Kowalski and Repatriation Commission [2014] AATA 141 as follows:
[18] It is important to note that s 70(5) describes the various connections between a person’s injury or disease and that person’s defence service that will lead to a conclusion that a particular injury or disease can be said to be defence-caused. They are the only circumstances that will lead to that conclusion. Stating the connection is one thing and setting out the standard by which the evidentiary material is analysed to decide whether or not the necessary connection has been made out. The standard of proof, found in ss 120(4) and 120B(3), has two distinct steps, both of which must be taken. The first is that:
“the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person”. [s 120B(3)(a)]
[19] The second, found in s 120B(3)(b), is that, if a relevant SoP is in force, it “... upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.” As both steps must be taken, an injury or disease will not be found to be defence-caused simply because a circumstance set out in the relevant SoP has been established on the balance of probabilities. There must also be a connection between the injury or disease and some particular service rendered by the person…
(Footnotes omitted.)
Applying the two step test identified by Deputy President Forgie to the present case, the Tribunal is not satisfied, on the balance of probabilities, that “the material before the … [Tribunal] raises a connection between the…disease…and some particular service rendered by…” the Applicant. The Tribunal notes the following:
·the significant lapse in time between the overboard incident (1980) and the Applicant being diagnosed as suffering from PTSD as a result of that incident (Dr Risbey’s report of 16 August 2001);
·the diagnoses by medical practitioners prior to Dr Risbey’s diagnosis in 2001 including:
oDr Marinovich’s diagnosis in 1995 that the Applicant suffered from, amongst other ailments, anxiety, but attributed that to a range of factors, including the Applicant’s personality type but made no reference to the overboard incident (R3, T17);
oOn 28 May 1997, Dr Song Tai (Acting Medical Director from Australian Government Health Services) provided a report in which he said that he reviewed the Applicant for the purposes of determining his application for a Sickness Allowance/Disability Support Pension and diagnosed him as suffering from various conditions including “a new condition of post-traumatic stress disorder after an assault in January 1995” (R3, T28). Dr Tai made no mention of the overboard incident;
oDr Marinovich provided a further report dated 19 June 1997 which again made no reference to the Applicant’s mental condition being related to the overboard incident (R3, T30);
oOn 30 June 1997, Dr Lloyd (examining medical officer for the Department of Social Security) provided a report in which he referred to the Applicant as having been “assaulted while working as care taker [sic]” in January 1995 and said that the Applicant had since been “... treated for post-traumatic stress disorder by Legal Aid person, Ian Joblin (psychologist)” (R3, T31). There was no mention of the overboard incident;
·The Applicant’s failure to refer to the overboard incident as causing any issue in his seven page statement made in March 1996 (R3, T22);
·The Applicant’s failure to refer to the overboard incident as causing any issues in his previous applications to this Tribunal; and
·The fact that the overboard incident being the cause of the PTSD was only “discovered” through hypnotherapy undertaken by Dr Daly in or around 2000. However, no records of those sessions are available (Transcript at 48).
The Tribunal is also persuaded by Dr Spear’s report and oral evidence which was to the effect that the Applicant’s mental condition is related to a range of factors including personality type, family history, alcohol use, childhood adversity and the side effects of medication (See [57] above) and not the overboard incident.
The Tribunal is not satisfied that there is the required connection between the condition claimed by the Applicant and the overboard incident, even if the Tribunal were to accept that he suffers from PTSD, and the relevant service. The Applicant therefore does not satisfy the requirement of s 120B(3)(a) of the VEA.
As both subsections 120B(3)(a) and 120B(3)(b) must be satisfied (see [69] above), the finding that the requirement of subsection 120B(3)(a) is not met means that it is unnecessary to consider whether SOP No. 83 upholds the Applicant’s contention that the Applicant’s PTSD is connected with the overboard incident.
The Applicant’s claim for IHD
The Applicant’s claim for IHD is dependent on a finding in favour of the Applicant on his PTSD claim. As the Applicant put it in paragraph 21 of his SFIC, referring to SOP No.2:
It is therefore assumed that the only factor of the above instrument which would be relevant in this case will be 9(17) ‘having a clinically significant disorder of mental health as specified for at least five years before the clinical onset of ischaemic heart disease’
Given the Tribunal’s decision in relation to the Applicant’s claim for PTSD, the Applicant’s claim for IHD must also fail.
DECISION
The Tribunal finds that the Applicant does not suffer from PTSD and that even if he did suffer from PTSD, the Applicant’s PTSD and IHD are not defence-caused injuries or diseases for the purposes of s 70 of the VEA. Accordingly, the Tribunal affirms the decision under review.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

......[sgd]..................................................................
Associate
Dated: 23 January 2019

Date(s) of hearing: 4 and 5 October 2018

Representative for the Applicant: Mr T Robbins

Counsel for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitors

The Tribunal notes that at the hearing Dr Spear amended his report (R2) to clarify that all references to

DSM-IV were in fact references to DSM-V (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)).

[2019] AATA 44

23 January 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Causation

Statutory Construction

Date(s) of hearing:	4 and 5 October 2018
Representative for the Applicant:	Mr T Robbins
Counsel for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitors