Re Budworth and Repatriation Commission - [2000] AATA 127

DECISION AND REASONS FOR DECISION [2000] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N95/965 & N97/69

VETERANS' APPEALS DIVISION )

Re RONALD JAMES BUDWORTH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr B.J. McMahon, (Deputy President)

Date23 February 2000
PlaceSydney

Decision 1. The decisions under review relating to post traumatic stress disorder are affirmed. 2. The rate of pension will be nil with effect from 10 February 1988 until 18 October 1992. 3. The rate of pension thereafter will be 90% of the general rate until 1 November 1997. 4. The rate of pension thereafter will be 100% of the general rate.

(Sgd) BJ McMahon
..............................................
Deputy President
CATCHWORDS

VETERANS' ENTITLEMENTS – disability pension claim – post traumatic stress disorder with chronic pain syndrome – whether a war or defence caused disease – whether there was a traumatic event – the application of the diagnostic manual – trauma not war or defence caused – assessment dates and rates agreed

Veterans' Entitlements Act 1986 Part II, ss 19(3), 19(5), 24(1), 31, 120, 120A, 196B(2)
Statement of Principles – Post Traumatic Stress Disorder Instrument Number 15 of 1994
Diagnostic and Statistical Manual of Mental Disorders 4th Edition, published American Psychiatric Association 1994
The Vung Tau Ferry (HMAS SYDNEY) and Escort Ships (VIETNAM 1965-1972) by Rodney Nott & Noel Payne. Kingswood Press Pty Ltd Brisbane & Gold Coast 1998

Repatriation Commission v Cooke (1998) 160 ALR 17

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

These are two applications for review of two decisions of the respondent arising out of applications by Mr Budworth for a pension under Part II of the Veterans' Entitlements Act 1986 and (if entitled) to the rate payable under that pension.
On 3 November 1989, the Repatriation Commission granted an application for pension accepting that Mr Budworth was suffering from Post Traumatic Stress Disorder (PTSD) with chronic pain syndrome and that this condition was a war-caused disease. The decision was based largely on the psychiatric effects said to have followed from an event, which had occurred during Mr Budworth's service with the Royal Australian Navy (the exploding body event). In a report of 31 August 1989 Dr Roberts, a psychiatrist, referred to this incident as a fact transcribed during the history she took. It was one of a number of factual errors in the report, including the number of trips to Vietnam said to have been taken by the applicant.
From 10 February 1988 he was paid pension at 80% of the general rate. He made application for an increase of this pension because of the existence of other war-caused conditions. Chronic airways limitation, coronary atherosclerosis and bilateral sensorineural deafness were accepted as disabilities from 18 October 1992. From that day forward, the applicant was paid pension at the special rate provided for by section 24.
The applicant applied for a review of the decision of 3 November 1989 to assess his service-related incapacity at 80% of the general rate. That application came before the Veterans' Review Board on 4 April 1995. After a review of the then available psychiatric evidence and factual evidence relating particularly to the exploding body incident, the Board concluded that the basis for the Commission's decision to grant the applicant special rate was because it considered that a combination of chronic airways limitation, coronary atherosclerosis and PTSD satisfied the requirements of section 24. The Board dissented from this and took the view that Mr Budworth had not been prevented from continuing to undertake remunerative work by reason of service-related incapacity alone at any time during the period under review. For this reason, they decided that Mr Budworth's pension should be assessed at nil with effect from 10 January 1988 and at 90% of the general rate with effect from 18 October 1992.
This decision was arrived at principally on the basis that the Board assessed Mr Budworth's psychiatric disability from PTSD with chronic pain syndrome as nil. The basis of the decision was that he was not, and could not have been, suffering from that disease as the incident (the exploding body) which was said to have caused the trauma had not taken place.
An application was made to this Tribunal to review that decision of the Veterans' Review Board and is the matter referred to above with the Tribunal reference N95/965. A stay order was made preserving the applicant's payment rights until the hearing.
In the meantime, the Board's decision came to the notice of the Commission. On 6 August 1996, it revoked its decision of 3 November 1989 pursuant to section 31 of the Act. It did not, however, implement the decision and the applicant continues to receive pension at the special rate. A second application was made to this Tribunal to review the decision of the Commission made on 6 August 1996. This followed a second hearing before the Veterans' Review Board, which had again reviewed the psychiatric evidence and had affirmed the August 1996 decision.
The principal issue to be determined in this application, therefore, is whether the applicant's claimed psychiatric condition, originally accepted as PTSD with chronic pain syndrome, exists and if so whether it is war or defence caused. If so, the second matter to be decided is the correct assessment of the rate of pension in accordance with subsections 19(3) and (5) of the Act, with reference to the Guide to the Assessment of Rates of Veterans' Pensions, to section 24 and to the other accepted disabilities. If the principal issue is not decided in the applicant's favour, it will also become necessary to decide the correct or preferable date of effect of the decision to revoke acceptance in 1989 of PTSD with chronic pain syndrome.
The applicant saw operational service in the Royal Australian Navy on board H.M.A.S. Sydney and H.M.A.S. Melbourne as follows:
(a) 27 May 1965 to 26 June 1965 (HMAS Sydney);
(b)25 April 1966 to 6 May 1966 (HMAS Melbourne);
(c)25 May 1966 to 9 June 1966 (HMAS Melbourne);
(d)14 February 1972 to 12 March 1972 (HMAS Sydney); and
(e)1 November 1972 to 18 December 1972 (HMAS Sydney).

His eligible defence service is from 19 December 1972 until 22 September 1977.
The issues are to be determined, accordingly, either with reference to subsections 120(1) and (3) in the case of operational service or to subsection (4) in the case of defence service. Statements of Principles referred to in section 120A do not apply as the claim was lodged prior to 1 June 1994.
The applicant was born on 7 September 1947 and was an only child. An incident occurred when he was aged 8 or 9 which continues to cause him distress. He had put his schoolbag down in the hallway, contrary to repeated instructions not to do so. His mother tripped over it, injured her head and suffered a cerebral haemorrhage. The applicant was alone in the house with his mother at the time and had to run for assistance. Mr Budworth was extremely upset at the calling of the ambulance and at her subsequent death, for which he continues to feel guilty. After that incident, his grades at school deteriorated. He said that after her death "my life was pretty vacant". He missed a vital member of the family as well as carrying the burden of perceived responsibility for her death.
His father re-married when Mr Budworth was aged 12. Thereafter, there were constant arguments with his stepmother. He said, "I was never good enough in her eyes. I was used as a wedge". To get away from constant domestic disharmony he said he would sit in a room and listen to music. He left school at the age of 14 or 15 without having secured a Certificate. At first he took on a job as messenger for a company carrying out general duties and deliveries. The arguments at home continued. Ultimately, he said, they drove him out and caused him to join the Navy.
He enlisted on 17 October 1964, at the age of 17. His father and stepmother came to see him off when he caught a train from Sydney to Melbourne. According to Mr Budworth, his stepmother was glad to see him go saying, "It's a good thing you joined the Navy, you're pretty good at killing", or words to that effect.
In Melbourne he received his basic training at H.M.A.S. Cerberus. This included training with firearms. On advice from an officer, he agreed at the end of his initial training to work as a steward. He was subsequently posted to H.M.A.S. Sydney for more basic seaman training where his duties varied from watch to watch. H.M.A.S. Sydney went to Vietnam in May 1965 with Mr Budworth on board. Prior to sailing he had not been allowed to disclose the nature of the ship's business. For security it left at 3.00am. During the voyage, all the members of the crew were shown training films. These dealt with ways in which ships could be placed in danger by objects coming downstream. This training made a big impression on Mr Budworth. During the voyage he was also given familiarisation training on certain weapons and fired a few rounds into the water.
He was told in the course of this training that the ship would be at first degree of readiness when it reached Vietnamese waters. This is one stage less than action stations. He was told to be careful while he was on the upper deck when the ship was in port because of possible sniper fire.
H.M.A.S. Sydney anchored in Vung Tau for some 3 or 4 days withdrawing to sea each night and returning at first light on the following day. During that time, Mr Budworth's duties varied according to the watch. Sometimes he was detailed to chip rust but principally he was engaged in unloading stores. On 2 occasions for a few hours each, he was detailed to do sentry duty. On those occasions, he was apprehensive and looked for enemy divers in the water or anything drifting towards the ship. He had a rifle and scare charges which have a percussive effect and are used to scare away divers. He felt responsible and "scared" on these 2 tours of sentry duty.
After the ship left Vietnam he was happy to be out. He was posted back to Cerberus to continue his training as a steward and stayed there for more than 6 months. He was then posted to a shore job where his duties were working in a wardroom and generally as directed.
He made two trips on H.M.A.S. Melbourne in 1966. By then, he was a steward attached to the Fleet Air Arm. His job was to look after the needs of pilots and navigators and bring them hot drinks and sandwiches when required. On one occasion there was a mishap when an aircraft finished in the water and the pilot was killed. He was detailed to pack the kit of the deceased pilot and found this distressing.
He did not return to Vietnam until 1972 when he did 2 more voyages with H.M.A.S. Sydney. On one of those trips he was working in the cafeteria when he heard a loud noise which alarmed him. He thought the vessel was being attacked and looked around to see whether water was coming into the lower decks. He was then told that the noise he heard was that of a scare charge. He then recovered his composure.
Once again, the ship left its anchorage at night and returned on the next day. On one occasion Mr Budworth remembered that it re-anchored much closer to shore than usual. In fact, he said that it was no more than a tennis ball's throw away. On this occasion he saw helicopters taking off and bombers strafing nearby hills. This caused him concern and alarm. He considered that if he could see the targets then the ship could be seen by the enemy. He did not feel safe.
During shore leave in Australia, he experienced a number of problems with civilians who were opposed to the Vietnam War and opposed to the Navy taking part in it. He could not understand this reaction and was quite shocked by it. On one occasion, he met a woman at a party who told him that he had taken her son to Vietnam but had not brought him back. This again aroused feelings of guilt and association with death.
In the 1960s (not in a naval context) he was partnered in a scuba dive. Trying to surface too quickly, he was pulled back by his partner. That person subsequently developed bad headaches and died. Mr Budworth considered that he had some responsibility for this death and believed that his partner had sacrificed his life through saving Mr Budworth. That left the applicant distraught and again, feeling guilty about causing death.
In 1971 his ship set out for Vietnam picking up crew at each capital city. When it reached Adelaide, Mr Budworth decided "I had had enough of animosity and of taking young fellows and bringing old men back". He therefore deserted his ship. He took a flight to Melbourne and worked in a warehouse as a forklift driver for 3 or 4 months. He agreed in his evidence that this was a serious matter but nonetheless he felt that he had no option.
His father had told him that a shore patrol had been to his house looking for him. Eventually, the applicant was apprehended after about 12 months and was placed in cells on H.M.A.S. Sydney. A disciplinary hearing stopped his leave for 30 days and deducted certain pay. Mr Budworth "couldn't believe the leniency". He regarded it as a "slap on the wrist". Mr Budworth's recollections of Vietnam are, in certain respects, not in accordance with facts appearing in contemporary records. Evidence was given by Professor Grey (whose report was not questioned) which indicates that some of Mr Budworth's recollections are at fault.
As to the role of H.M.A.S. Sydney and H.M.A.S. Melbourne, Professor Grey said:
"HMAS Sydney was a converted light fleet carrier operating as a fast troop transport, and in this capacity made 24 trips to the Republic of Vietnam between 1965-72. It carried troops, stores and equipment of various kinds, and off-loaded/back-loaded in the port of Vung Tau. HMAS Melbourne was a light fleet carrier and the flagship of the Royal Australian Navy. It did not serve in the Vietnam War because it was too old, too small, would not fit easily into the US Navy's logistic system, and because its anti-submarine warfare role was not needed in the context of Vietnam operations. The RAN did in fact explore a number of possible uses for Melbourne in a bid to have the ship involved, but these came to nothing for the reasons already outlined. Some of the ship's helicopter pilots and air and ground crew underwent conversion training and flew helicopters as part of a US Army assault aviation company, but Melbourne itself had no part in this either."
Accordingly the statement which appears in several documents provided to me, that Mr Budworth spent 11 days in Vung Tau harbour, is wrong. He spent eight."
Notwithstanding his period of service on the two ships, therefore, it is clear that Mr Budworth was in Vietnam for no more than 8 days over a period of 7 years. On each occasion, he was in Vung Tau harbour which, according to Professor Grey, was a "safe" port because there was little enemy mainforce activity around the town itself. Contrary to Mr Budworth's recollection about the distance from shore, the records show that the Sydney always anchored in the outer anchorage, a distance of between one and three kilometres from shore. The vessels did not enter the sub-port or negotiate the Long Tau shipping channel at any stage, as a precautionary measure.
He married his first wife, Judith, in the late 1950s. This marriage lasted only a few years. Mr Budworth said that Judith did not agree with his serving in the Navy. This led to disharmony and ultimately, they parted.
He married his second wife, Joanne, in 1974. They went on a Honeymoon to Norfolk Island. At the time, Mr Budworth was concerned at his father's health and it was therefore arranged that his father was to telephone him daily. On one such call, his speech sounded slurred and slow. Because of concern for his father's health, Mr Budworth and Joanne came home early. They found that he had had a stroke. It was arranged that he be taken by ambulance to a city hospital. From there he was sent to the Lady Davidson Repatriation Hospital, where he suffered further attacks. Mr Budworth was then approached by his father's doctors to consent to the withdrawal of his father's medication. Mr Budworth was upset and angry and could not understand why he should have to make a decision whether or not his father lived or died. Eventually he went to see his father who, although he could not speak well, appeared to Mr Budworth to agree to a termination. Mr Budworth gave the necessary consent and his father died 3 or 4 days later. The applicant said that he was devastated and that, once again, he felt responsible and guilty for inducing death.
He left the Navy in 1977 and took a job as barman at a club for a few months. He then moved to another club in the same area where he worked for a year or so. One night, he had a dispute with a director on duty who was drunk and who insisted on keeping the bar open, contrary to Mr Budworth's advice. Mr Budworth gave him the keys and then walked out, refusing to carry out his directions.
He then drove taxis for some 2 years. After that time, new owners introduced different methods which Mr Budworth found unacceptable. They therefore parted company. During all this time he had found it difficult to reconcile himself to civilian life after some 13 years in the Navy. He missed the regimented routine and had the feeling that he was not fitting in to civilian life.
Around 1979 or 1980, relations with Joanne began to deteriorate. Mr Budworth became short-tempered and snappy with his clients. He continually felt violent and angry and considered this a change in his character. He was unsure of himself. Ultimately, he "walked away from the marriage". For some time after that, however, he continued to live in the district in order to make sure that Joanne was coping.
Then he put some money together, bought a van and started a courier business, contracting with larger companies. He lived in a flat in Bondi between 1984 and 1985 while he ran this business. He changed principal contracting companies in order to achieve better rates but found that after a time, he was financially worse off. By late 1984 he was also starting to lose his confidence in his driving ability. He was feeling on edge and nervous and his reactions were not sharp. He said that on one occasion on Victoria Road, he "blacked out' and arrived in Rydalmere not knowing how he had travelled the distance. His concentration was not there and he felt despondent. He therefore felt it was "time to give it away".
He then worked for a few months as a doorman at a club. During this job he had a dispute with one of the night managers concerning the scope of his duties. Although the argument had nothing to do with the subsequent event, Mr Budworth felt bad when that manager later committed suicide.
He then tried pumping petrol at a service station. The owner was looking for school children to take the job. In order to get employment, Mr Budworth said he accepted a junior wage and worked at it for some 4 or 5 months. As he was not getting anywhere he decided to terminate this employment.
He met his next wife, Isabel, and they both decided to move to Narooma, on the south coast. There, Mr Budworth received training as a professional fisherman and worked at that trade for some 2 or 3 years. He found it physically hard and difficult with his back and lung condition. Ultimately, he found he could not continue and stopped working late in 1987 or early in 1988. After a period on unemployment benefits and sickness benefits, he was advised to make application for a pension under the Veterans' Entitlements Act.
He went to the Vietnam Veterans' Counselling Service in 1989. During counselling sessions, his relationship with Isabel deteriorated and ultimately they parted. There were several counsellors who saw him during this time.

It was necessary for him to go to Canberra for this purpose and to stay at an accommodation centre. He was there for some two and half or three years. He received intense counselling over the first 12 or 18 months. While there he was asked to run the centre. After a trial period, he agreed and carried out this job for some 18 months. His duties involved taking phone bookings, greeting people, doing the bookwork and banking, and attending board meetings.
Towards the end of his period in the accommodation centre, he was involved in a number of arguments. A particularly troublesome inmate refused take his medication. Mr Budworth was instructed to see that the inmate received it. The inmate argued and demanded that he have control of his own prescriptions, which Mr Budworth refused to give him. Subsequently, the inmate attempted an overdose. Ultimately, Mr Budworth decided to leave.
He moved to a bedsitter in Canberra and later met his present wife, Monica. Late in 1994, she moved in. They were subsequently married and continued to live in Canberra until December 1999.
His memories of Vietnam are a mixture of shame and guilt. He said, "I was ashamed of our own people". He could not forgive Australians for acting towards the Navy in the way it did. He also felt guilty about "taking young people to Vietnam and bringing back old men". These feelings so influenced his behaviour that for many years he denied that he had been in the Navy.
His recollection of service in Vietnam was one of a frightening experience. He said that all service has this quality. Even leaving Sydney Harbour can be a frightening experience as one carries ammunitions and accidents can happen. There is also a general fear of going to a war zone. He remembers being particularly frightened about being on the upper deck after he had been warned of possible snipers.
His "nerves" now cause him general uneasiness and slow down his responses. He said that he is unable to handle loud noises and is nervous about authority. He suffers from headaches which are severe and occur some 2 or 3 times per week. He said that these headaches started early in his Navy career.
If he sees any news on the television concerning war, shooting or violence, he finds that he is distressed and questions why these events should take place. He could not remember when this reaction started but believed it was after he left the Navy.
On occasions he has had what he referred to as a "startle response". Once when a car backfired, he thought that it was gunfire and he pushed his companion to the ground. He was embarrassed over that incident but now does not feel a startle response to the same degree.
He suffers from nightmares about his Vietnamese service, particularly if he sees anything relating to war on television. He said "I have vivid nightmares about my failure to carry out my sentry duty. Faces appear in no order or sequence and float past. Also bits of pieces of people floating past. I have nightmares about members of my family – their death or me not living up to their expectations".
The exploding body dream referred to in the earlier applications is a dream in which Mr Budworth sees an object in the water next to his ship. As it gets closer, it looks like a body dressed in Australian uniform. He does not know whether to shoot. It then explodes as if it were a booby trap. He said this dream is vivid "I can taste, smell and feel it". His evidence was that for a long time he did not know whether it happened. Now he thinks it is only part of a nightmare sequence. In earlier applications and in interviews with psychiatrists he has asserted the existence of this incident as a fact. He now accepts that in fact it did not occur.
He could not remember when he first started having the exploding body dream. He agreed that he had told psychiatrists of the incident but denied that he did not tell, for example, Dr Knox that it was a dream. He asserted that he did, in fact, tell Dr Dent that he did not know whether it was a dream or not. This accords with Dr Dent's recollection. Mr Budworth now accepts that the incident did not happen.
In cross-examination, Mr Budworth agreed that he had not said in various accounts that he had suffered "intense fear". Although he had recounted all these experiences to counsellors, he did not recall ever using the word "intense". He agreed that he had read material about PTSD in which there is a reference to "intense fear" as a hallmark of diagnosis but said that he had read that material only in order to understand his disease.
He denied that his scare charge reaction in the cafeteria was a recent invention and said that he had told Dr Dent about it on his first visit. It was not mentioned to Dr Knox or Dr Roberts because the question did not arise during the course of their interview.
When he saw bombers strafing nearby hills he insisted that his ship was quite close into shore and denied that it stood from 1 to 3 kilometres out. He insisted, in cross-examination, on his belief that while he was in Vietnam he felt under constant threat of death. He insisted that he told Dr Roberts and Dr Knox of this. He said these nightmares from which he suffers are of events as he sees them. Although he told one of the counsellors of the troubling events in his life, he agreed that one of the 5 did not occur (the exploding body). Nevertheless, he insisted on his vivid impression in his subconscious of this event.
Generally he denied exaggerating events and denied fabrication for the purpose of enhancing the rate of his pension.
Although he told Dr Dent that the medals he received for his Vietnamese service were still in the same box, it was pointed out to him that in September 1990, he had written a letter seeking those medals. He explained this by saying that Captain Bruce had advised him that having some recognition might help to reconcile him to his condition. This was an explanation that was endorsed by Dr Dent.
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). Although some psychiatrists (particularly Dr Spragg) have suggested that Mr Budworth's psychological symptoms could be explained by reference to some other category of illness, he has claimed only in relation to a condition of PTSD. This claim has been maintained for more than 10 years.
Statements of Principles promulgated pursuant to subsection 196B(2) are statutory instruments. There is one such statement (Instrument Number 15 of 1994) dealing with this disorder. Because of the age of the claim, however, it has no statutory application in the present circumstances. It does, however, refer to the Diagnostic and Statistical Manual of Mental Disorders 4th Edition published by the American Psychiatric Association in 1994 (DSM IV) and adopts much of the relevant part of that manual. A Statement of Principles as a statutory instrument is a document susceptible of legal interpretation. Diagnostic features in DSM IV do not have the same legal standing. Nevertheless, I consider it appropriate to refer to those features as an indication of current learning in identifying and diagnosing the disorder of which Mr Budworth complains.
The diagnostic features are not to be treated like a legal instrument. They do, however, establish a standard as well as a Guideline to assist in establishing the existence of the disorder.
Dr Dent considers that DSM IV is "too rigid" and that it should have more regard to subjective perceptions. He said that a Committee was currently considering alterations for the next edition. In my view that does not detract from the current authority of the manual in a field which is constantly changing. The introduction to the manual indicates the wide area of research and consultation, which took place, leading to the formulation of these diagnostic features, and to the level of acceptance of their indicia throughout the profession. DSM IV recognises that there will be changes in the future. Indeed, Appendix B sets out a number of criterias and axes which are provided for further study and which may lead to further categorisation of mental disorders. For the time being, however, I consider that I should approach the task of establishing the existence of Mr Budworth's disorder with general reference to DSM IV.
It was submitted by counsel for the applicant that I should not attempt to apply DSM IV myself but should be guided by expert opinion. I agree with this submission to some extent. However, it is the function of the Tribunal to determine facts. As there are necessarily facts required to be identified in approaching a diagnosis of this disorder, I consider it legitimate to understand what those facts are and whether they are present in Mr Budworth's case.
The discursive part of the chapter dealing with post traumatic stress disorder illustrates the type of trauma which the authors consider a necessary substratum. As the name indicates, the disorder must occur not only after a traumatic experience but because of it.
The authors give the following diagnostic features:
"The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person's response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganised or agitated behaviour) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).
Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness. For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence or injury. Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body parts. 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 close friend; learning about the sudden unexpected death of a family member or 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 (e.g., torture, rape). The likelihood of developing this disorder may increase as the intensity of and physical proximity to the stressor increase."

To assist clinicians, these features are compressed into a number of diagnostic criteria as follows:
"Diagnostic criteria for 309.81 Posttraumatic Stress Disorder
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)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
(2)the person's response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganised or agitated behaviour
B.The traumatic event is persistently reexperienced in one (or more) of the following ways:
(1)recurrent and intrusive distressing recollections of the event including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2)recurrent distressing dreams of the event. Note: In young children, there may be frightening dreams without recognizable content.
(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.
(4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event
C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2)efforts to avoid activities, places, or people that arouse recollections of the trauma
(3)inability to recall an important aspect of the trauma
(4)markedly diminished interest or participation in significant activities
(5)feeling of detachment or estrangement from others
(6)restricted range of affect (e.g., unable to have loving feelings)
(7)sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D.Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
(1)difficulty falling or staying asleep
(2)irritability or outbursts of anger
(3)difficulty concentrating
(4)hypervigilance
(5)exaggerated startle response
E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning."

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". 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). That diagnostic criterion requires the presence of "intense fear, helplessness or horror". This is an extremely high level of reaction to extremely traumatic stressors.
The types of incidents in the minds of the authors which could amount to such objective stressors include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp and so on. All of these incidents readily suggest the necessary level of "extreme traumatic stressor". Dr Spragg instanced the trauma of the holocaust, the experience of prisoners of war working of the Burma-Thailand Railway and the experience of prisoners of war in captivity in Changi. The authors of DSM IV appear to have had such high level stressors in mind when these criteria were developed.
The response to the stressor must be not merely a general apprehension or a relief to be out of a perceived dangerous situation. The response must be so intense as to cause the symptoms appearing in criteria B, C and D.
Having regard to these standards, it appears to me that none of the traumatic events identified by Mr Budworth is in any way comparable with the events contemplated in DSM IV. The trauma suggested by him have changed from time to time. It was not until the hearing before this Tribunal that many of the details of Mr Budworth's alleged experience were recorded. Certainly from his evidence it would seem that much of the history given to the three examining psychiatrists upon whom he principally relies (Drs Roberts, Knox and Dent) was incomplete or misleading. I did not form the impression that Mr Budworth has lied to his examiners or to this Tribunal. But I consider that his other psychological symptoms require that the accounts which he has given from time to time be treated with caution, however sympathetically one may approach them.
Central to the original claim was the floating body incident which has been described in various ways but which is now accepted to be the figment of a dream. To the extent that reliance was placed on the truth of this allegation, medical reports must be discounted. Dr Roberts and Dr Knox (at first) placed considerable reliance on it. I find as a fact, therefore, that this alleged traumatic stressor did not occur. At the hearing (and largely for the first time) the applicant identified other possible stressors.
He asserted to the fact that he was in danger in Vietnam. During the short period when he was there, there is no evidence that any such danger existed in his particular circumstances. The book "The Vung Tau Ferry", extracts of which were tendered in evidence, does no more than set out the standard procedures which one would expect H.M.A.S. Sydney to follow in Vung Tau harbour. There was no visible enemy. There is certainly nothing in the applicant's service history during his eight days in Vung Tau from time to time, which could equate to military combat as described in the diagnostic features.
The evidence before me would not even support a finding that there was a sufficiently intense subjective reaction of fear, whether or not an objective traumatic stressor existed. The history which Mr Budworth gave to Dr Dent records no such reaction. No particular fear was disclosed to Dr Knox. The fear which he expressed at the hearing related partly to the two short episodes when he acted as sentry. That fear, however, appeared to relate to his nervous apprehension that he might not be able to carry out his duties. He was, of course, trained as a steward and not as an armed sentry.
The evidence concerning the scare charge and the possible danger to the cafeteria emerged during the hearing for the first time. It was, however, a passing occurrence and was not such on any view that would cause the required intense fear, helplessness or horror.
Mr Budworth pointed to the very fact that he was on a ship transporting troops as itself a traumatic stressor. In support of this he instanced his absence without leave because he did not wish to be involved in taking troops to a war zone. Once again, there is no record of any intense fear, helplessness or horror with respect to the transportation of troops in any of the reports. It was not mentioned at all in his interviews with the counsellors in Canberra.
I have concluded that, as a matter of fact, there was no extreme traumatic stressor and that, accordingly, there was no scope for the application of DSM IV in a diagnosis of PTSD. To the extent that Drs Dent and Knox arrived at a conclusion to the contrary, they were relying on facts, the like of which were not in contemplation of the authors of DSM IV. Dr Dent freely acknowledged that he had departed from that standard. I do not feel that I should exercise the same liberty. Dr Knox had not seen the applicant since 1992. His evidence was based largely on constructs which he elaborated from subsequent reports of others which were sent to him in order to enable him to prepare to give his evidence. Absence of necessary facts to one examiner was compounded in this way by the replication of the reports and by the construction by Dr Roberts of his theories based upon those reports.

There may have been other factors in Mr Budworth's life that could account for any disorder that is now manifest. His feeling of guilt and depression may be accounted for by the lingering effects of the death of his mother and father, his step-mother's behaviour to him, the diving incident and the suicide of the club official. None of these, however, are of the order contemplated by DSM IV and are obviously not war related. However, his psychological condition should be diagnosed, explained or categorised it cannot, on any view, be correctly described as PTSD. The factual triggers for such a disorder simply do not exist.
That being so, it is not necessary to consider the application of subsection 120(1). Unless the claimed condition exists, one cannot say whether it is war-caused. In my view, it does not exist.
In the event of a finding of this nature, the parties reached agreement as to the appropriate rates of pension to be paid. That agreement is reflected in the terms of my formal decision attached to these reasons.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon, (Deputy President)
Signed:       J. Healy           .....................................................................................
  Jacqueline Healy, Associate
Date/s of Hearing  8 & 10 February 2000
Date of Decision  23 February 2000
Counsel for the Applicant        Mr C Colborne
Solicitor for Applicant               Legal Aid Commission
Counsel for the Respondent    Mr D Ryan SC
Solicitor for the Respondent    Australian Government Solicitor