Re Mulvany and Repatriation Commission
[2000] AATA 535
•30 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/205
VETERANS' APPEALS DIVISION )
Re DANIEL MULVANY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr P A Staer, Member
Date30 June 2000
PlacePerth
Decision The decision under review is affirmed.
..........(sgd S D Hotop)..........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Australian Army from 1968 to 1970 – applicant rendered operational service in Vietnam in 1969 – applicant subsequently diagnosed as suffering from post traumatic stress disorder ("PTSD") and Irritable Bowel Syndrome – whether PTSD and Irritable Bowel Syndrome war-caused – whether reasonable hypothesis connecting each condition with applicant's operational service – whether Statements of Principles satisfied – whether applicant experienced a stressor prior to clinical onset of PTSD – interpretation of phrase "experiencing a stressor" – whether applicant suffering from "post traumatic stress disorder , ICD code 309.81" within 6 months immediately before clinical onset of Irritable Bowel Syndrome.
Veterans' Entitlements Act 1986 ss9, 120, 120A, 196A
Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 15 of 1994, as amended by Instrument No 225 of 1995)
Statement of Principles concerning Irritable Bowel Syndrome (Instrument No 103 of 1996)
Re Budworth and Repatriation Commission [2000] AATA 127
Re Jehn and Repatriation Commission [2000] AATA 484
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
30 June 2000 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr P A Staer, Member
This is an application by Daniel Mulvany ("the applicant") for review of a decision made by a delegate of the Repatriation Commission ("the respondent") on 21 April 1998, as affirmed by the Veterans' Review Board ("VRB") on 17 May 1999, that the applicant's conditions of Post Traumatic Stress Disorder ("PTSD") and Irritable Bowel Syndrome are not war-caused injuries or war-caused diseases within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing the applicant was represented by Mr M Clarke, solicitor, and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents') lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered by the parties:
Statement of Evidence of the applicant, dated 11 August 1999 (A1)
Statement of Agreed Facts, lodged on 24 March 2000 (A2).
The applicant gave oral evidence. There were no other witnesses.
The Facts
The Statement of Agreed Facts tendered in evidence (Exhibit A2) reads as follows:
"1. The Applicant was born on 25 October 1947.
2.The Applicant served in the Australian Army from 1968 to 1970 and rendered operational service in Vietnam from 16 April 1969 to 19 December 1969.
3.On enlistment, the Applicant's mental capacity and emotional stability were considered normal and he was assessed as Class A. (T6/14)
4.At discharge, the Applicant stated that he had not suffered sleepwalking or frequent nightmares, frequent severe depression, mental illness or a nervous breakdown. He had suffered heartburn after dietary indiscretion but no recurrent diarrhoea or dysentery. He had suffered from severe headaches or migraine and the examining doctor noted that he had had sinusitis. (T6/17) At his discharge medical examination, his emotional stability and mental capacity were assessed as normal. He was noted to have an elevated systolic blood pressure reading and the doctor assessed him as being intense and apprehensive. (T6/18)
5.In his claim for acceptance of stress-related symptoms and chronic diarrhoea (dated 22 April 1997), the Applicant stated that he had suffered from these symptoms since 1969 and considered that they were due to the stress of combat. (T7/24) He stated that the symptoms he suffered caused him problems at work due to irritability, difficulty relating to people, poor memory and poor concentration. (T7/25)
6.In a lifestyle questionnaire dated 16 July 1997, the Applicant stated that he suffered mood swings and that his intolerance made his family edgy. He was suspicious of strangers, felt insecure and suffered anxiety when attending functions. He generally avoided parties or gatherings. (T7/29) He had ceased involvement in sports and social events. (T7/31)
7.On 25 March 1998, Dr Lance Risbey, a psychiatrist, recorded that the Applicant had served in Vietnam, mostly as Troop Storeman. He had not had combat experience as such but had experienced an extremely traumatic event, which was all the more significant because he was in a war zone and the aim of the enemy was to destroy him and his colleagues and their base, (T7/38). During his service, the Applicant had suffered the most terrifying experience of his life when he was sleeping in his bunk at the back of the store. In contrast to most soldiers, he slept alone, under a mosquito net. There was a pet monkey which belonged to the troop but it was his job to look after it. It slept at night tied to his bed. One night it suddenly screeched and its chattering woke him up. He grabbed his torch and looked up in the torch light, seeing something protruding into his mosquito net. This protrusion pushed the net towards his face and he felt it with his forehead before his torch was on. He panicked, not knowing at first what it was. His mind worked very quickly and his first assumption was that he was under attack by the enemy and that this meant certain death. He grabbed his machete and started slashing at the mosquito net. Within moments he had realised that the monkey's screech had been due to rats, which had been running on a ledge and had collided with one another, falling under his mosquito net. He had suffered an extremely high arousal state, typical of the horror of major trauma and had felt intensely helpless and terrified, all of this taking place very quickly. His recollections of events had arisen occasionally, six to twelve times over the years. (T7/41)
8.Dr Risbey opined that, despite the traumatic event not involving literal danger to the Applicant, it constituted a traumatic stressor event in the strictest sense and diagnosed the Applicant as suffering from post traumatic stress disorder. (T7/43) Dr Risbey stated that:
'Despite his traumatic experience not involving literal danger to him (and he is happy to acknowledge this) it does, in my opinion, constitute a traumatic stressor event in the strictest sense, based on his participation in the war effort and his being in a type of war where enemy could be anywhere at any time. According to DSM IV Criterion A1, he experienced an event which involved threatened death, the threat being reasonable and, in his mind at the time, extremely real. In regard to Criterion A2, his response involved intense fear and helplessness, manifesting in his military trained speed of response in his wild slashings with his machete. He has persistently re-experienced aspects of the event, or the related setting, through recurring dreams, dissociative episodes when in fights, involving amnesia (probable flashback episodes), becoming upset with television or movie portrayals of war, especially the futility of war, and sweating of the palms (indicating adrenaline arousal) with events which trigger his recall of the event.'
9.In a report dated 10 November 1998, Dr Peter Burvill, a psychiatrist, concurred that the Applicant is suffering from post traumatic stress disorder. Dr Burvill opined that:
'Although the episode with the monkey and rats is a most unusual major stressful event relative to most war experiences, it certainly did occur in a war zone in Vietnam, and was a particularly sudden, extremely frightening, unexpected and unaccustomed episode, which caused him to react violently in panic, and he was quite disturbed afterwards. In fact upon (sic) this single event upon his psyche is such that it has formed the basis of nightmares and flashback experiences since Vietnam.' (T7/67)
10. In a report dated 2 February 1999, Dr Burvill stated that he agreed
'…with Dr Risbey's attention (sic) in his report of 2 June 1998 that the word "threat", as used in DSM IV, allows for the interpretation of the subjective, as well as the objective, and that such a threat can take many forms, for example, the hold up with an empty gun' (T7/84-85)
11.On 11 August 1999, the Applicant provided a statement of evidence in which he stated:
'9.While I was in Vietnam, my duties were of a Storeman Technician. This involved providing the servicemen with explosives and other equipment. I would also serve in the routine army patrols when I was needed.
10.As the Storeman Technician, I lived in the storeroom on my own, separate from the rest of the servicemen. I would spend the nights alone in the storeroom.
11.One of the duties that a Storeman Technician carried out was taking care of the troop's monkey. Monkeys were used as bartering tools in Vietnam, however when we received the monkey it became a pet to the servicemen.
12.The monkey slept tied by my bed and did so from the time we obtained him in May 1969. The monkey would normally sleep all night without making any type of screeching sounds. The monkey would only screech when it was intimidated or frightened.
13.In July 1969 I had tied the monkey to the bedpost and went to sleep. During the night I was awakened by the monkey screeching. I was in total darkness and was in the cabin alone separated from the rest of the servicemen. I slept with a mosquito net covering me.
14.I felt a pressure over my face and mouth. I immediately thought that the enemy, namely the Viet Cong, had placed their hands over my mouth in an attempt to kill me.
15.I was extremely terrified and instantaneously jumped out of my bed and reached for my machete. I proceeded to slash openly at the mosquito net for a long period of time. I stopped finally when I knew that I was not hitting anything.
16.I reached for my torch and shone it in the direction of my bed. I saw two adult rats caught up in the mosquito net. They were both still alive.
17.I was shaking uncontrollably and had broken out into a heavy sweat. I sat down for 30 minutes unable to move due to my frightened state. I did not go back to sleep as I was too scared. I stayed awake for the rest of the night with my machete in my hand.'"
The Applicant's Evidence
The applicant's Statement of Evidence dated 11 August 1999 (Exhibit A1) described the incident involving the rats in July 1969 in the terms set out in paragraph 11 of the Statement of Agreed Facts (above) and then referred to subsequent events as follows:
"18.I had difficulty sleeping after the night of the incident. I would often consume alcohol to try and help me forget about the incident that occurred.
19.I instantly took an immense dislike to rats. A few days later I came across a rats nest with numerous baby rats inside. My first reaction was to immediately burn the nest.
20.From the night of the incident I began to experience recurrent dreams of the incident. I would have sensations of suffocation and become short of breath.
21.I would see the flashbacks of the monkey's face, the rats and images of the Viet Cong in my dreams. This would cause me to become agitated and very frightened.
22.When our time in Vietnam was coming to an end, individual troop members would receive 'Posting Orders' which notified them of their imminent discharge. I was very anxious and worried about receiving my Posting Orders. I was scared that the Army would forget about me and that I would have to stay in Vietnam.
23.This played on my mind a lot and I subsequently went on an 'informal strike' and would not obey my orders that were given to me by Staff Sergeant Pritchard because he had received his 'Posting Orders'. I was very frightened that I would be left behind in Vietnam.
24.These dreams have occurred repeatedly from the time of the incident. I currently still have dreams that include visualisations of the monkey's face, images of the rats, images of the Viet Cong and the feeling of suffocation. I also dream that I am still in Nui Dat, Vietnam and that I am trapped there alone while the rest of the troops have gone home to Australia.
25.These dreams have occurred since the time that I was in Vietnam and have repeatedly occurred since I returned from Vietnam.
26.After the incident I also started to lose control of my bowel habits. I suffered from diarrhoea while over in Vietnam and continue to have difficulty with my bowels. I also suffer from indigestion.
27.I did not attend the Regimental Aid Post for my condition, as it was 'common knowledge' amongst the members of the troops that you would only attend if the complaint were of a serious nature. That is, you would only go if your life depended on it.
28.In 1971 I married and I currently have two children. My marriage suffered as a consequence of the problems associated with my time spent in Vietnam.
29.I avoided seeing doctors in the time after my return from Vietnam. I did not want to believe that there was anything wrong with me. After persistent persuasion from my family and my local doctor, my doctor referred me to see numerous specialists.
30.In May 1997 I saw Dr Murray, a Gastroenterologist who examined me and described me as having a bowel dysfunction which related to an irritable bowel syndrome.
31.In March 1998 I saw Dr L. C. Risbey, Consultant Psychiatrist who diagnosed me as suffering from chronic Post-traumatic stress disorder relating to my war service.
32.In November 1998 I saw Dr P. W. Burvill, Consultant Psychiatrist who also diagnosed me as suffering from Post-traumatic stress disorder.
33.Since my return from Vietnam I continued to work in the Mains Road department. This allowed me to work in fairly isolated working conditions, with minimal contact with other people. I preferred working on my own and did not socialise with many people. In July 1998 I took a voluntary redundancy.
34.I continue to suffer from the effects of the incident that occurred in Vietnam at the present time.
35.I make this statement to the best of my knowledge and ability and am aware that if I have knowingly made any false or misleading statements that I shall be guilty of a criminal offence."
In his oral evidence the applicant, in response to questioning by the Tribunal, described generally the conditions in the task force base camp at Nui Dat, Vietnam where he was stationed at the time the abovementioned incident involving the rats ("the rats incident") occurred, the security of the base camp, and the nature of the operational activities which were being conducted at that time. It is unnecessary for present purposes to summarise that evidence here. The applicant also described the rats incident itself and his immediate reaction to it in terms similar to those contained in paragraphs 14-17 of his Statement of Evidence (see paragraph 3 above), although he was more precise about the period of time that elapsed before he came to the realisation that what had caused him to awake suddenly and immediately fear for his life was the movement of the rats rather than the enemy. He estimated that period of time to be 3-4 minutes.
The LawSection 9(1) of the Act relevantly provides:
"Subject to this section, for the purposes of this Act, any injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
...".
The relevant provisions of the Act relating to the appropriate standard of proof in the present case are as follows:
"120 (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A
...(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-causeddisease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
...
120A (1) This section applies to any of the following claims made on or after 1 June 1994:(a)a claim under Part II that relates to the operational service rendered by a veteran;
...
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority ("RMA") and s196B sets out the functions of the RMA. Section 196B(2) provides:
"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping services rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."
The RMA has, pursuant to s196B(2) of the Act, determined a Statement of Principles ("SoP") in respect of each of the relevant conditions in this matter, namely, PTSD and Irritable Bowel Syndrome. In accordance with the decision of the Federal Court of Australia (Full Court) in Repatriation Commission v Keeley [2000] FCA 532, the Tribunal is required to apply the relevant SoPs as in force at the date of the respondent's decision (namely, 21 April 1998). In the present case, the relevant SoPs which were then in force were:
Instrument No 15 of 1994, as amended by Instrument No 225 of 1995, concerning PTSD;
Instrument No 103 of 1996 concerning Irritable Bowel Syndrome.
The SoP concerning PTSD relevantly provided:
"1.Being of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of that service, are:
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
…
2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1 (c) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
…'DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
'experiencing a stressor' means the following (derived from DSM-IV):(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror;
'post-traumatic stress disorder' means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
…".
The SoP concerning Irritable Bowel Syndrome relevantly provides:
"…
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that irritable bowel syndrome can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
4.Subject to clause 6, the factors set out in the paragraphs in clause 5 must be related to any relevant service rendered by the person.
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person's relevant service are:
…
(b)suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
…
7.For the purposes of this Statement of Principles:
'a specified psychiatric condition' means:
…
(a) a psychiatric condition with features of anxiety, including:
…(iv)post traumatic stress disorder, ICD code 309.81; or
…
'relevant service' means:
(a) operational service; or
…".
In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pp 97-98) the approach to be taken by the Tribunal in cases like the present in which s120A of the Act applies:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
The Submissions
It was common ground between the parties that the applicant has at all material times been suffering from a condition diagnosed as PTSD and that that condition (as diagnosed) was precipitated by the rats incident. It was also common ground that the applicant has at all material times been suffering from Irritable Bowel Syndrome and that if the applicant satisfies the SoP concerning PTSD he also satisfies the SoP concerning Irritable Bowel Syndrome on the basis that he was "suffering a specified psychiatric condition [namely, PTSD] within the six months immediately before the clinical onset of irritable bowel syndrome" (see para 5(b) of the latter SoP). It was likewise common ground that if the applicant fails to satisfy the SoP concerning PTSD, he necessarily also fails to satisfy the SoP concerning Irritable Bowel Syndrome.
Mr Clarke (for the applicant) addressed his submissions to the issue of the proper interpretation of para (a) of the definition of the phrase "experiencing a stressor" in cl 4 of the SoP concerning PTSD. He submitted that the phrase "threatened death or serious injury, or a threat to the person's, or other people's, physical integrity" in that definition should be interpreted subjectively – that is, on the basis of the person's subjective perception of the relevant threatened harm. Mr Clarke submitted that, although the rats incident did not in fact – that is, objectively – involve "threatened death or serious injury" to the applicant, in the applicant's mind – that is, subjectively – that incident did involve threatened death or serious injury to him in that he believed at that moment that he was going to be killed or at least seriously injured by the enemy. He further submitted that that belief was reasonable in the sense that a reasonable person in the same situation as the applicant would have had the same belief. Alternatively, Mr Clarke submitted that, even if the abovementioned phrase were to be interpreted as referring to purely objective threats of harm, it was satisfied in this case because rats can bite, scratch and spread disease and, accordingly, the rats incident in fact involved a threat to the applicant's "physical integrity".
Mr Ponnuthurai (for the respondent) submitted that para (a) of the definition of the phrase "experiencing a stressor" was to be interpreted as referring to events involving threatened death or serious injury in a purely objective sense – that is, where the threat of death or serious injury was real, and not merely subjectively perceived or imagined. He submitted that only para (b) of that definition referred to the person's subjective reaction to the relevant event in terms of "intense fear, helplessness or horror". He referred to dictionary definitions of the words "threat" and "threatened" and cited various authorities, in particular, Re Budworth and Repatriation Commission [2000] AATA 127.
Consideration of Submissions and Issues
PTSDAs regards the PTSD issue, the Tribunal notes that both Dr Risbey and Dr Burvill diagnosed the applicant as suffering from PTSD as a direct result of the rats incident and the Tribunal is satisfied that that medical evidence (which was uncontradicted), together with the applicant's evidence, points to a hypothesis connecting that condition (as diagnosed) with the circumstances of the applicant's operational service.
The question then arises whether that hypothesis is a reasonable one. That depends on whether the hypothesis fits the "template" in the SoP concerning PTSD – that is, whether it contains at least one of the factors that, according to that SoP, "must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting" PTSD with the circumstances of the applicant's operational service.
The relevant minimum factor in the present case is that referred to in para (a) of cl 1 of the SoP, namely:
"experiencing a stressor prior to the clinical onset of post traumatic stress disorder."
The phrase "experiencing a stressor" is defined in cl 4 of the SoP to mean
"the following (derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror;".
The crucial issue in this case is whether the rats incident falls within that definition.
The Tribunal finds, on the basis of the applicant's evidence, that his subjective response to the rats incident involved "intense fear" on his part in that his immediate belief was that he was about to be killed or seriously injured by the enemy. Paragraph (b) of the abovementioned definition is, therefore, satisfied.
Did the rats incident, however, constitute "an event that involved actual or threatened death or serious injury, or a threat to the [applicant's] physical integrity", within the meaning of para (a) of the abovementioned definition?
The Tribunal accepts Mr Ponnuthurai's submissions regarding the appropriate interpretation of para (a) of the definition of the phrase "experiencing a stressor" – that is, the Tribunal accepts that para (a) refers exclusively to objective considerations, namely, events which in fact involve actual or threatened death or serious injury or a threat to one's physical integrity, whereas para (b) refers exclusively to subjective considerations, namely, the particular person's own subjective response to the relevant event. In the Tribunal's opinion the following definitions in The Macquarie Dictionary are apposite:
"threat … 2. an indication of probable evil to come; something that gives indication of causing evil or harm."
"threaten … 2. to be a menace or source of danger to … 4. to give an ominous indication of … 6. to indicate impending evil or mischief."
"physical … 1. pertaining to the body; bodily … ".
"integrity … 2. the state of being whole, entire, or undiminished … 3. Sound, unimpaired, or perfect condition …".
In Re Budworth and Repatriation Commission [2000] AATA 127 the Tribunal (Deputy President BJ McMahon) quoted (at paragraphs 60 and 61) the diagnostic features and diagnostic criteria for PTSD stated in the Diagnostic and Statistical Manual of Mental Disorders (4th ed) ("DSM-IV") – from which the definition of the phrase "experiencing a stressor" in cl 4 of the SoP concerning PTSD is derived – and commented (at paragraph 62):
"… 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'." (original emphasis)
More recently, in Re Jehn and Repatriation Commission [2000] AATA 484, the Tribunal (Senior Member M T Lewis and Member Dr J Campbell), referring to the definition of the phrase "experiencing a stressor" in cl 4 of the abovementioned SoP, said (at paragraph 77):
"The Tribunal is of the view that as well as taking into account the nature of the stressor (which is an objective assessment) it must also consider the reaction that the Applicant had to that stressor (which essentially is subjective)."
It is not clear from that statement, however, whether the Tribunal was referring to the whole definition of the phrase "experiencing a stressor" (that is, both paras (a) and (b)), or merely to para (a) of that definition. If (as seems likely from context in which that statement appears) the Tribunal was referring merely to para (a) of that definition and thereby expressing the view that that paragraph should be interpreted as involving both the relevant objective stressor and the person's subjective reaction to it, the Tribunal in the present case respectfully disagrees with that view. This Tribunal prefers the contrary view of Deputy President McMahon in Re Budworth (above) – which was not referred to in Re Jehn – to the effect that criterion A(1) of the diagnostic criteria for PTSD stated in DSM-IV (corresponding with para (a) of the abovementioned definition of "experiencing a stressor") refers to objective stressors and that only criterion A(2) of those criteria (corresponding with para (b) of that definition) is concerned with subjective reactions thereto. In this Tribunal's opinion Deputy President McMahon's view reflects an accurate understanding of the relevant diagnostic features and diagnostic criteria stated in DSM-IV on which the abovementioned definition of the phrase "experiencing a stressor" is closely modelled.
Adopting an objective interpretation of para (a) of the definition of the phrase "experiencing a stressor" in cl 4 of the SoP concerning PTSD, the Tribunal finds that the rats incident was an event that did not in fact involve "threatened death or serious injury" within the meaning of that definition, because there is no evidence to suggest that the probable or impending death of, or serious injury to, the applicant was indicated by that event.
Alternatively, did the rats incident in fact involve a threat to the applicant's "physical integrity"? The phrase "physical integrity" is one of potentially wide connotation, its ordinary meaning being: bodily wholeness or soundness. In the Tribunal's opinion, however, the connotation of that phrase, as appearing in the definition of "experiencing a stressor" in cl 4 of the SoP concerning PTSD, is limited by the context in which it appears. That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely, death or serious injury. Accordingly, the Tribunal is of the opinion that the phrase "threat to … physical integrity" in the abovementioned definition should be understood as referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only. Adopting that interpretation, the Tribunal finds that the rats incident was an event that did not in fact involve a "threat to the [applicant's] … physical integrity", within the meaning of the definition of "experiencing a stressor" in the abovementioned SoP, because there is no evidence to suggest that that event involved impending or probable harm of an extreme kind to the applicant's bodily wholeness or soundness. The only kinds of relevant bodily harm referred to by Mr Clarke in his submissions were the biting, scratching and spreading disease by rats but there was no evidence to suggest that any of those kinds of harm could be regarded as extreme. Nor was there any evidence regarding the likelihood or probability of any such kind of harm being inflicted on the applicant in the rats incident.
The Tribunal finds, therefore, that the factor referred to in para (a) of cl 1 of the SoP concerning PTSD does not exist, or is not satisfied, in the present case because the rats incident did not involve the applicant's "experiencing a stressor" within the meaning of the definition of that phrase in cl 4 of that SoP.
None of the other minimum factors referred to in cl 1 of the abovementioned SoP being relevant in this case, it follows that the raised hypothesis connecting the applicant's diagnosed condition of PTSD with the circumstances of his operational service – specifically, the rats incident – is not a reasonable one, and the Tribunal so finds.
Accordingly, the Tribunal finds, pursuant to subss (1) and (3) of s120 of the Act, that the applicant's diagnosed condition of PTSD is not a war-caused injury or a war-caused disease within the meaning of s9 of the Act.
Irritable Bowel SyndromeAs regards the Irritable Bowel Syndrome issue, it was common ground between the parties that that issue would only arise if the minimum factor referred to in para (b) of cl 5 of the SoP concerning Irritable Bowel Syndrome existed or was satisfied in the present case. That factor is:
"suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome".
The phrase "specified psychiatric condition" is defined in cl 7 of that SoP to mean certain specified psychiatric conditions, including:
"post traumatic stress disorder, ICD code 309.81".
That condition is itself defined in cl 4 of the SoP concerning PTSD (see paragraph 10 above) in terms derived from DSM-IV. Subparagraph (a) (i) of that definition is in terms very similar to para (a) of the definition of "experiencing a stressor" in cl 4 of that SoP and, in the Tribunal's opinion, should be interpreted in the same way – that is objectively and not subjectively, as discussed in paragraphs 19-20 above.
Accordingly, the Tribunal finds – consistently with its findings in paragraphs 21-23 above – that, notwithstanding that the applicant has been diagnosed by Dr Risbey and Dr Burvill as suffering from PTSD as a direct result of the rats incident, the rats incident does not satisfy the description of a traumatic event contained in subpara (a) (i) of the definition of "post traumatic stress disorder" in cl 4 of the SoP concerning PTSD. The Tribunal also finds that the applicant was not, and is not, suffering "post traumatic stress disorder, ICD code 309.81", as defined in cl 4 of the SoP concerning PTSD, by reason of the rats incident. Since none of the other psychiatric conditions specified in the definition of "specified psychiatric condition" in cl 7 of the SoP concerning Irritable Bowel Syndrome is applicable in this case, the Tribunal finds that the factor referred to in para (b) of cl 5 of that SoP does not exist, or is not satisfied, in the present case. None of the other minimum factors referred to in cl 5 of that SoP being relevant in this case, it follows that there is no reasonable hypothesis connecting the applicant's condition of Irritable Bowel Syndrome with the circumstances of his operational service – specifically, the rats incident – and the Tribunal so finds.
Accordingly, the Tribunal finds, pursuant to subss (1) and (3) of s120 of the Act, that the applicant's condition of Irritable Bowel Syndrome is not a war-caused injury or a war-caused disease within the meaning of s9 of the Act.
DecisionFor the above reasons, the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Brigadier R D F Lloyd, Member
Dr P A Staer, MemberSigned:
......................(sgd S Railton)........................
AssociateDate/s of Hearing 13 April 2000
Date of Decision 30 June 2000
Counsel for the Applicant Mr M Clarke
Solicitor for the Applicant Kott Gunning
Counsel for the Respondent Mr C Ponnuthurai
Solicitor for the Respondent Department of Veterans' Affairs
8
3
0