Re Collier and Repatriation Commission
[2004] AATA 111
•6 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 111
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/92
VETERANS' APPEALS DIVISION ) Re CRAIG WILLIAM ROBERT SNADDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal S P Estcourt QC., (Deputy President) Date6 February 2004
PlaceHobart
Decision The decision under review is set aside and in substitution therefor a decision that the applicant is suffering from anxiety disorder, depressive disorder, alcohol abuse and hypertension, which are war-caused within the meaning of the Veterans’ Entitlements Act 1986.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Veterans’ Entitlements – disability pension – reasonable hypothesis – whether conditions of anxiety disorder, depressive disorder, alcohol dependence or alcohol abuse and hypertension causally related to service - decision set aside.
Veterans Entitlements Act 1986 – s120
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2002) 66 ALD 285
Repatriation Commission v Bendy (1989) 18 ALD 144
Re Slattery and Repatriation Commission [1998] AATA 427
Woodward v Repatriation Commission [2003] FCAFC 160
Statements of Principle – Nos 1 of 2000, 58 of 1998, 76 of 1998 and 35 of 2003
REASONS FOR DECISION
6 February 2004 S P Estcourt QC., (Deputy President) 1. This is an application to review a decision of the Veterans’ Review Board dated 4 July 2002, affirming two decisions of the Repatriation Commission of 19 January 1999 and 16 September 1999, refusing claims for anxiety disorder, depressive disorder, alcohol dependence or alcohol abuse and hypertension, as not war-caused.
2. The applicant’s relevant service was operational service in the Royal Australian Navy, serving in Indonesian waters in January and February 1965. Accordingly, the standard of proof is governed by s120 of the Veterans Entitlements Act 1986 (“the Act”) applied in accordance with the four stages of analysis prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 96-7.
3. As correctly pointed out by Mr Castle, counsel for the respondent, the first issue in this case is the question of the diagnosis of the applicant’s claimed conditions, which is to be determined to the Tribunal’s reasonable satisfaction in accordance with the conclusion of the Full Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at 635 and Repatriation Commission v Budworth (2002) 66 ALD 285 at 292.
4. In the present case it is conceded that the Tribunal can be reasonably satisfied that the applicant meets the requirements of DSM IV in respect of the conditions of anxiety disorder and depressive disorder, and that he also has the condition of alcohol abuse and the condition of hypertension.
5. It falls therefore for the Tribunal to consider all the material which is before it , and to determine whether that material points to a hypothesis connecting the applicant’s conditions with the circumstances of his particular service.
6. In a written statement tendered to the Tribunal on behalf of the applicant, he stated in relation to the incident on operational service which he holds to be responsible for each of his conditions:
“5. During one of my periods of operational service, most likely the period between the 5th January 1965 and 10th February 1965, I was serving on board the HMAS Vampire when I witnessed the recovery of three dead Indonesian bodies in the water, by some of the crew on the HMAS Vampire.
6. My understanding, based on discussions with Navy personnel, of the background to this incident was that an Indonesian tug boat had been sunk by an allied vessel, which I believe may have been the HMAS Teal. I understood that some days after the incident some bodies, allegedly crew of the Indonesian tug had been sighted in the water. The HMAS Vampire was deployed to recover those bodies.
7. I recall being on the main deck, of the HMAS Vampire as it approached the three bodies floating in the water. As our vessel came close to the bodies, I remember seeing the bodies at a distance of about 30 feet (or 10 metres away), accompanied by an awful putrid smell associated with their decomposition. I noticed the bodies were very bloated.
8. At the time I was 18 or 19 years old.
9. I felt sick and horrified as the ship drifted closer and closer to the bodies. It was a shocking event the likes of which I had not experienced at any prior time in my civilian or service life. It caused me great distress
10. I stayed on B deck of the vessel for about 20 minutes as the bodies came closer and some of the crew prepared to put them into the sea-boat and return them to the ship to be taken on board the vessel. My feelings of horror were such that I could not stand the thought of witnessing the taking of the bodies on board the vessel I therefore went below deck prior to this happening and continued to feel shaken and horrified by what I had witnessed.
11. Raymond Matson and George Hortle were just two of the crew members on board the Vampire when the bodies were recovered.
12. Almost from the very day that I had witnessed the bodies I started having nightmares. Often I would wake up screaming and sweating. The nightmares always had the same themes. The most common was that I was in water with dead bodies surrounding me and not being able to remove myself from the situation.
13. Other nightmares involved me being in the HMAS Sydney (a ship upon which I never served, but later escorted to Vietnam) and the ship was sinking into waters . They also involved visions of dead bodies.
14. From the time those nightmares started whilst I was serving in the Navy, I attributed them directly to my feelings associated with the incident of recovering the dead bodies. I had never experienced such nightmares at any time prior to the incident
15. Whilst I was in the Navy I became very ashamed of my feelings of horror and anxiety as I felt that, as a member of the defence force, I should be invincible, brave and courageous. I felt that my horror and subsequent nightmares and feelings about the incident showed me to be a weak and vulnerable person and that this fact should not be revealed to anyone, especially my ship-mates. I did not perceive the other crew, some of whom may have been more directly involved in the body recovery to have any similar feelings.
16. I felt very ashamed and I felt I was weak, and still do to this day, so I hid my feelings from everyone in the Navy, I still have a lot of difficulty discussing these events
17. I noticed that as well as the nightmares I became anxious and panicky and started to feel stressed about serving in the Navy. Some of the feelings were of finding it hard to breathe or swallow, at times I felt my throat was going to stick together and sometimes a very tight feeling across my chest, I also felt nauseous, very irritable with people, found it hard to cope with any pressure, felt very depressed and paranoid about what is going on around me etc.
18. I became very afraid to go to sea and my feelings of fear and anxiety increased when I found I was posted to HMAS Stuart, a ship unfamiliar to me. I tried to obtain information on gaining a compassionate discharge, but was informed that this would be practically impossible as there had already been some discharges from the ship and this would make things look bad for the ship and possibly the Captain as well. I was given a hypothetical situation whereby if I jumped ship and gave some reasons why I left ship and why I returned it would not be classified as desertion, but AWOL. The reason I gave was that my then wife broke down every time I went away. It was true that my wife broke down when I went away but this was only a fabricated reason to cover up my true feelings of desperate fear and anxiety at the prospect of going back to sea. I felt I would and could not contemplate expressing my fears to my superiors.
19. Some negotiations followed and I gave my self up to my commander and was placed under close arrest, which was later relaxed to open arrest and eventually was allowed to go ashore if I wished.
20. Eventually I ended up in front of a Naval Medical Board at HMAS Lonsdale, where I was given a Medical Discharge, Below Naval Physical Standard category “C” invalidity. I was discharged on the 6th April 1966.
21. Before my discharge I had started drinking and smoking quite heavily to cope with my feelings. My drinking and smoking increased after I was discharged and I tried to cope further with my feelings of fear and anxiety. I was also tyring to cope with civilian life and to come to terms with the manner in which I was discharged from the Navy, I felt as though I had been treated poorly, which I felt was a turn around on the Navy’s behalf as in one of the periodical reports they do on ratings stated that I was an asset to the RAN
22. My first marriage broke up and was possibly not helped by my heavy drinking and very short temper outbursts, but unfortunately I didn’t seem to have any control over those matters then or now.
23. My drinking pattern has essentially not changed since my drinking habits became entrenched when I left the Navy.
24. I have always drunk at least 6 to 8 stubbies a night. In the early days after my service I was in addition binge drinking two or three nights per week at pubs in Launceston. This would involve me consuming very large amounts of alcohol to the point where I could hardly talk.
25. I was diagnosed with hypertension by Dr Jackson about 25th July 1988 .When I was diagnosed with hypertension, I was advised to cut down my consumption of alcohol. Since then I have still consumed 6 to 8 cans of full strength beer per night and occasionally binge drink. The binge drinking occurs usually on a Wednesday night and sometimes on Friday nights at the RSL in St Helens where typically I will consume 12 or 13 cans of beer in an approximate 2 hour period.
26. I have found that if I go to a pub for a drink I become paranoid and sometimes aggressive until I have my first drink, I feel people are talking about me.
27. There has never been a period since I first started drinking heavily whilst in the Navy where I have stopped drinking alcohol at less than the rate which I have described in para. 25
28. Throughout my civilian life I have continued to have nightmares, anxiety and depression. The nightmares petered off a bit in some of the middle years of civilian life, but for some reason came back in the early 1990’s. My anxiety manifests itself in a feeling of being down in the dumps,a state of panic, tightness in the chest which feels like I’m having a heart attack, insecurity, a general feeling of being very low down and a feeling of nausea.”
7. The applicant’s wife, Lee Snadden, gave evidence before the Tribunal that she first met the applicant some 33 years ago after he had served in the Navy and that for the whole time she has known him, he has suffered from sleep disturbance and bad dreams, volatile and swinging moods, poor concentration, lack of motivation and panic attacks.
8. Mrs Snadden confirmed that her husband first started to talk about the experience in Indonesia with the recovery of bodies onto the HMAS Vampire somewhere between 3 and 11 years ago, but she did not accept the catalyst for this was the applicant’s pension claims. She said that he had been speaking of these things before his first claim for a pension some 4½ years ago in January 1999, although not in great detail.
9. Dr E.V.R. Ratcliff, a psychiatrist, confirmed Mr Snadden’s diagnosis of anxiety disorder and depressive disorder, giving his medical opinion that the sight and smell of bodies being recovered from the sea constituted a “severe stressor” or a “psychosocial stressor” for the purpose of the relevant Statements of Principles, and gave his medical opinion that it was a reasonable hypothesis to link the applicant’s psychiatric conditions to his Naval service “in particular the incident involving the recovery of bodies”.
10. The applicant’s general practitioner, Dr Jackson, gave evidence that he initially diagnosed the clinical onset of hypertension on 5 May 1981. He noted that alcohol abuse is well documented to play an important role in the development of hypertension, and opined that there was a clear linkage in respect of Mr Snadden’s development of alcohol abuse at the time of Navy service, and the subsequent development of hypertension some two decades later. (Mr Snadden’s drinking habits at the time of, and leading up to the diagnosis of hypertension were a retrospective self reported review of his habits from the 1960’s onwards.)
11. Dr I.P. Burges Watson, a psychiatrist, gave his medical opinion in a report dated 3 May 1999, that there was a reasonable hypothesis connecting the applicant’s service with his chronic anxiety/depression, and that stressful events during his eligible service might reasonably be said to contribute significantly to that condition. Dr Burges Watson also noted that the only treatment he had prior to 1989 was for hypertension and his drinking could be seen to be a contributory factor in this.
12. Later in a report dated 21 May 2003, Dr Burges Watson in a review of the evidence given to the Tribunal in this appeal to that date, and on a review of his own prior reports, concluded that the history and presentation in his sessions with the applicant and Mrs Snadden, and the information at his disposal were not consistent with the case presented to the Tribunal.
13. At the heart of this latter opinion expressed by Dr Burges Watson was his view that in retrospect, and on viewing the evidence as a whole, it seemed to him that much, if not all, of the applicant’s problems were understandable in terms of his excessive drinking and his physical problems, and that he believed it was doubtful that the event in Indonesia was sufficient to be the major cause of his problems. To a large extent, Dr Burges Watson based this view on the proposition that in his early sessions with Mr Snadden, he had placed most emphasis for his problems on the pressure he suffered in the Navy, and the problems of having to go away from his wife while serving on board Navy vessels.
14. On the whole of the material before it in this case, the Tribunal determines that it points to a hypothesis connecting the applicant’s conditions with the circumstances of his operational service in Indonesian waters in January/February 1965.
15. There are in force relevant Statements of Principles determined by the repatriation medical authority under s196B(2) of the Act.
16. In the case of anxiety disorder, the Statement of Principle is No.1 of 2000.
17. In the case of depressive disorder, the Statement of Principle is No.58 of 1998.
18. In the case of alcohol abuse, the Statement of Principle is No.76 of 1998.
19. In the case of hypertension, the Statement of Principle is No.35 of 2003.
20. That the Statements of Principle enumerated above are the relevant Statements of Principle is a matter of agreement between Mr Castle and counsel for the respondent, Mrs McTaggart, as a result of their exchange of written closing submissions in this appeal.
21. It falls therefore for the Tribunal to form the opinion whether the hypothesis raised by the applicant is a reasonable one. To do so, it must be consistent with the “template” found in the relevant Statements of Principle, containing one or more of the factors which the Authority has determined to be the minimum which must exist.
22. The hypothesis in the Tribunal’s opinion, does contain factors rendering it consistent with the template found in each of the relevant Statements of Principle, and can be related to the applicant’s service.
23. In respect of anxiety disorder and depressive disorder, the factor which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of a person’s relevant service is:
“Experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of (the) disorder.”
24. “Severe psychosocial stressor” is defined as meaning:
“An identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
25. In the case of alcohol abuse, the factor which must exist as a minimum is:
“Experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.”
26. “Experiencing a severe stressor” is defined as:
“The person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of services in the defence forces, or other services where Veterans Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observance of casualty clearance, atrocities or abusive violence.”
27. In respect of the condition of hypertension, the relevant Statement of Principle requires as a minimum factor:
“Consuming an average of at least 200gm per week of alcohol which cannot be decreased to less than an average of 200gm per week, at the time of the clinical onset of hypertension.”
28. Given what appears to be common ground between the parties, that one standard drink represents 10gm of alcohol, the applicant’s evidence satisfies the requirement of the Statement of Principle.
29. Therefore in relation to the conditions of anxiety disorder and depressive disorder and alcohol abuse, the hypothesis is consistent with the template. It contains the factors the authority has determined to be a minimum in that the applicant claims that the incident in Indonesian waters in January/Febraury 1965 caused him great distress and horror, thus arguably bringing him within the definition of both “severe psychosocial stressor” and “severe stressor”. It is therefore a reasonable hypothesis.
30. It is true that Dr Burges Watson’s most recent analysis set out in his report of 21 May 2003, would suggest that on his view of the evidence before the Tribunal and the history and presentations given by the applicant in sessions with him and his wife, that Mr Snadden’s development of psychiatric illnesses or disorders did not occur for a good many years after his discharge from the Navy, and thus do not qualify in terms of the requirement of clinical onset of each condition within 2 years of the relevant experience.
31. It is clear however, that at this stage of the Tribunal’s enquiry, a conflict between medical opinions is not sufficient to require the Tribunal to reject an hypothesis as unreasonable.
32. As Mrs McTaggart submitted in her closing submissions:
“It is not the function of the Tribunal to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. A hypothesis may still be reasonable, although it is unproved and opposed to the weight of informed opinion.”
33. An hypothesis which is consistent with the relevant Statement of Principle will not be reasonable if it is contrary to proved or known scientific facts or fanciful, impossible or untenable. That is not the case in the present appeal. Proof of facts is not the issue at this point in the inquiry.
34. The hypothesis being reasonable means that the applicant’s claim will succeed unless one or more of the facts necessary to support it are disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. That has not occurred in this case.
35. The crucial aspects of the applicant’s evidence and that of his wife, and his two expert witnesses was not shaken in cross-examination and the Tribunal accepts it.
36. Insofar as the evidence of Dr Burges Watson conflicts with that of the applicant concerning Dr Burges Watson’s view of the history given by the applicant to him, the Tribunal prefers the evidence of the applicant.
37. The principal reason for doing so is that Dr Burges Watson appears to place a good deal of emphasis on the fact that when he first saw the applicant, his emphasis had very much been on how he left the Navy, with less importance placed on the event in Indonesian waters. The applicant however did, on the first occasion he saw Dr Burges Watson, tell him that “although he had never ‘fished any dead bodies out of the water’ himself, this had distressed him when the Vampire was in Indonesian waters”.. In fact in his later report of 21 May 2003, Dr Burges Watson sets out what he had recorded the applicant as saying in his notes when he had been asked about his three most vivid memories of his time in the Navy. The response was:
“Having to go away from wife.
Incident tied up in Indonesia – threat they were going to blow up the two boats.”
38. Moreover, the applicant in his evidence explains, quite satisfactorily in the Tribunal’s view, that whilst it was true that his wife broke down when he went away, this was only a fabricated reason to cover up his true feelings of desperate fear and anxiety at the prospect of going back to sea after the events on the HMAS Vampire. This evidence was unshaken, and the Tribunal accepts that the applicant is truthful in this respect.
39. Insofar as any differences of opinion between Dr Burges Watson and Dr Ratcliffe exist, the Tribunal prefers the evidence of Dr Ratcliffe. The difference between the two doctors is really that Dr Ratcliffe accepts the history now given by Mr Snadden, and Dr Burges Watson doubts it. Given that the Tribunal accepts the applicant’s evidence, it follows that Dr Ratcliffe’s medical opinion is to be preferred.
40. It is true that Mr Castle, in cross‑examination of Dr Ratcliffe, succeeded in having the doctor accept that prior to the incident involving the recovery of the bodies of Indonesian sailors, the applicant was a “more than averagely anxious young sailor” and that “in a nut shell” Dr Ratcliffe’s opinion was that it was the applicant’s “overall service rather than the specific incident on this particular occasion that has created his problem”.. It is clear however from cases such as Repatriation Commission v Bendy (1989) 18 ALD 144 at [6], that it is sufficient if an event was one of a number of causes of a disease, provided that it was a contributing cause, and not a contribution which is de minimus or so tenuous as to be immaterial.
41. The respondent also submits that the evidence falls short of establishing the clinical onset of depressive disorder or anxiety disorder or alcohol abuse within the 2 year period required by each relevant Statement of Principle. The Tribunal is satisfied however, that the unshaken evidence of the applicant establishes that the onset of the relevant symptoms was within the required time period and the evidence of Dr Ratcliffe confirms that those symptoms represent the relevant conditions within the meaning of each Statement of Principle.
42. The respondent further contends that the applicant did not suffer a severe “psychosocial stressor” or a “severe stressor” for the purposes of the Statements of Principle relevant to anxiety disorder, depressive disorder and alcohol abuse.
43. In relation to “severe psychosocial stressor”, the respondent submits:
“That the witnessing of the event of the recovery of unknown corpses from a distance cannot fall within this category and that the distress felt by the applicant at the time does not constitute a factor within the meaning of the SOP …”.
44. In relation to “severe stressor”, the respondent submits:
“That the applicant neither experienced, witnessed, nor was confronted by an event involving death by the mere viewing at a distance of unidentified corpses.”
45. As earlier indicated, the Tribunal accepts the evidence of the applicant, that he could see the bodies on the HMAS Vampire’s sea boat at a distance of some 10 metres away, accompanied by an awful putrid smell associated with their decomposition, that he noticed the bodies were very bloated and that he felt sick and horrified as the ship drifted closer to the bodies and that his feelings of horror were such that he could not stand the thought of witnessing the taking of the bodies on board the vessel, and therefore went below deck feeling shaken and horrified.
46. This evidence of the applicant well meets the description, in the Tribunal’s opinion, of “an identifiable occurrence that evokes feelings of substantial distress in an individual”. The remainder of the definition of “severe psychosocial stressor” in the relevant Statements of Principle merely sets out examples. Those examples are not intended to displace the principal ingredients of such a stressor, namely that there be an identifiable occurrence and the evocation of feelings of substantial distress.
47. This evidence in the case of the term “severe stressor”, well meets the definition which requires a person to have experienced an event that involved actual death and includes witnessing casualties or observation of casualty clearance. (The Tribunal notes in passing that events involving “actual death” include being confronted with dead bodies. Mrs McTaggart referred the Tribunal to Slattery v Repatriation Commission [1998] AATA 427 [77]-[79], where Deputy President Forgie and members Brumfeld and Way so held.)
48. In rejecting the respondent’s submissions that the incident in Indonesian waters is incapable of amounting to a “severe psychosocial stressor” or a “severe stressor” within the meaning of the relevant Statements of Principle, the Tribunal is fortified not only by the medical opinion of Dr Ratcliffe that the event qualifies, but also by the decision of the Full Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160 at [142]. There the Court said:
“Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SOP’s by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the events said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.” (emphasis added)
49. As Dr Ratcliffe put it, the applicant was “a young sailor, naive to the reality of death and casualties of naval action”. The Tribunal is satisfied that judged objectively from the point of view of a reasonable person in the position of the applicant, the occurrence was capable of conveying both “feelings of substantial distress” and “intense fear, helplessness or horror” and did in fact convey to the applicant substantial distress and intense horror.
50. In respect of the claim for hypertension, the respondent submits that the applicant’s alcohol abuse ought not to be accepted as due to his service, and thus the nexus to hypertension for the purpose of the relevant Statement of Principle cannot be established. As the Tribunal has accepted the applicant’s evidence as to the cause of his alcohol abuse and as to the pattern of his drinking, and as the Tribunal has accepted the diagnosis of alcohol abuse, which is conceded, the respondent’s submission is rejected.
51. It follows from the facts and opinions accepted by the Tribunal in support of the reasonable hypothesis advanced by the applicant and from the rejection of the respondent’s relevant contentions, that the Tribunal is not satisfied beyond reasonable doubt that the applicant’s conditions were not war-caused. As a result, the applicant’s claim in respect of each of the conditions of anxiety disorder, depressive disorder, alcohol abuse and hypertension succeeds.
52. The order of the Tribunal is that the decision under review be set aside and in substitution therefor, there is a decision that the applicant is suffering from anxiety disorder, depressive disorder, alcohol abuse and hypertension, which are war caused within the meaning of the Veterans Entitlements Act 1986.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 9 May 2003, 30 July 2003
Date of Decision 6 February 2004
Counsel for the Applicant Mrs Olivia McTaggart
Solicitor for the Applicant Mr R Benson, Ogilvie Jennings
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans' Affairs
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