Rhoades and Repatriation Commission
[2006] AATA 386
•4 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 386
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/353
VETERANS' APPEALS DIVISION ) Re HELEN MARY RHOADES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date4 May 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............(Sgd)..............
MJ Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – widow’s entitlement – suicide – severe psychosocial stressor – severe stressor - death of veteran not related to operational service – decision affirmed
Veterans’ Entitlements Act 1986 ss 8, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Davies and Repatriation Commission [2006] AATA 305
Repatriation Commission v Towns [2003] FCA 1262
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Hill (2002) 69 ALD 581
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300Hardman v Repatriation Commission [2005] FCAFC 83
Delahunty v Repatriation Commission [2004] FCA 309
East v Repatriation Commission (1987) 16 FCR 517REASONS FOR DECISION
4 May 2006 Ms MJ Carstairs, Member 1. This is an application by Helen Mary Rhoades (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 17 February 2005 affirming a decision of the Repatriation Commission to refuse her claim that the death of her husband David Henry Gibson Rhoades (the veteran) was related to his service in the Royal Australian Naval Reserve and that she was entitled to receive pension in respect of his death.
2. On 4 August 2003 Mrs Rhoades made her claim to have the veteran’s death accepted as due to war service. This claim was rejected by the respondent’s delegate and by the Veterans’ Review Board and the applicant sought review with this Tribunal on 6 June 2005. At the hearing the applicant was represented by Mr J Crosby of Justin Crosby Solicitors. Mr M Smith, a departmental advocate, represented the respondent.
3. The documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (number T1-T6) as well as exhibits marked A1 for the applicant and R1-R2 for the respondent were in evidence.
4. The applicant and the veteran were next door neighbours in childhood and commenced going out together about 1956 or 1957 when he was about nineteen and she was about seventeen. The veteran undertook National Service in the Navy Reserve between 9 July 1956 and 9 December 1956 on a full-time basis, and then part-time until 30 June 1960. I was told by the respondent that this included a period of 22 days as operational service, in accordance with the Veterans’ Entitlements Act 1986 (the Act), from 21 September 1956 to 13 October 1956 with the Far East Strategic Reserve aboard HMAS Sydney.
5. The veteran and Mrs Rhoades married on 24 January 1959.
6. The veteran died on 19 October 2001 as a result of severe brain damage caused by a self inflicted gunshot wound. On the post mortem examination report (T4, p34-35), severe brain damage was recorded as the disease or condition directly leading to death and gunshot wound was recorded as the antecedent cause. When he died the veteran had two medical conditions accepted by the respondent as due to his Navy service - bilateral sensorineural hearing loss and bilateral tinnitus.
EVIDENCE
7. The applicant prepared a written statement dated 28 July 2003 (T4 pp21-27) in support of her original claim to the respondent. From her oral and written evidence it was apparent that the applicant and the veteran were casual friends and neighbours during their teenage years. Mrs Rhoades described the veteran prior to joining the Navy Reserve as a happy well-liked young man, who had excelled at sport at school. Their relationship commenced shortly after the veteran returned from overseas service. On his return she said that she noticed a change in his behaviour; he no longer played sport; he had begun drinking; and was often moody, morose and depressed. She wrote a detailed history of the veteran’s behaviour over a period of more than 40 years, including excessive alcohol and drug use, abuse of her, suicide attempts and bouts of depression, culminating in the veteran’s suicide on 19 October 2001.
8. In her statement dated 28 July 2003 at T4, Mrs Rhoades described what occurred on the night the veteran committed suicide as follows:
I recall that on the evening of the 19 October 2001, early on in the evening David was sitting in the backyard drinking straight rum with beer chasers whilst taking Valium. We had a conversation about how he was not loved as a child and about things that had gone wrong during our marriage. I could not understand what he was trying to say to me as most of the time he wasn’t making sense. A short time after I went inside as he was starting to get angry.
While I was watching TV, David went in and had a shower and came out in his pyjamas. He sat down for a short time before going to the kitchen. I could hear paper moving.
I thought he had gone to bed, when I heard a rifle shot.
The veteran was found dead soon afterwards.
9. The respondent accepts that at the time of his death the veteran suffered from major depressive disorder and chronic substance abuse or dependence involving alcohol, but disputes that he suffered from post traumatic stress disorder (PTSD).
10. The veteran suffered severe burns when he was aged three years after upsetting a kettle of boiling water. In an undated statement (T4 p47) the veteran’s older brother, Peter Rhoades, said that the veteran:
Did badly scald himself at the age of three (3) by pulling a large iron kettle of boiling water onto himself from a gas stove … It was many weeks before David could move his right arm. The accident left him with life long severe scarring down his right arm, armpit and chest. It traumatised him all of his life, the scarring really bothered him, especially in his earlier years.
11. In her written statements (T4, p22 and p48) Mrs Rhoades said that the veteran had permanent scars on his arms, torso, chest and legs as a result of the incident. She believed that because of this the veteran suffered from Post Traumatic Stress. Elsewhere in her statement at T4 she said she believed that her husband was suffering PTSD for a period of 10 years before his suicide, but she corrected this in the later statement and maintains that he had symptoms from the time of his service (T4, p49). Mrs Rhoades said she provided Queensland Police with a written statement after his suicide (referred to at T4 p26) within which she stated that in the late 1970’s the veteran had been diagnosed as a manic depressant. She said that between 1991 and 2000 when she and the veteran lived at Hervey Bay, the veteran had numerous hospital admissions, which, she said, usually resulted in his discharge without any ailment of significance being found. She said hospitals quickly learned his phobia/anxiety disorder illness (T4, p24).
12. Mrs Rhoades stated that the veteran attended numerous medical practitioners and was obsessed with his health, taking a large number of prescription drugs in addition to alcohol. She said that he would wake in the night with severe pain and would require her to take him to the hospital for pain injections. It was implied in her written statement, however, that she believed that the veteran was not beyond faking pain symptoms in order to deceive medical practitioners into providing him with drugs.
13. Mrs Rhoades said that her husband described to her an incident that took place when he was on the HMAS Sydney in early October 1956. This is the stressful incident upon which her claim essentially rests. The veteran, as stoker, was working in the ship’s boiler room, when a friend of his, another stoker known as “Shorty”, suffered blisters to his arm from a leaking steam valve. The veteran was working near Shorty and heard him scream. Shorty was then escorted to the sick bay for treatment, and was able to resume duty after a few days. The veteran had told the applicant that he had freaked out after the incident and was excused from boiler room duties for 48 hours. The applicant said the veteran’s reaction was due to the post traumatic stress he had suffered as a result of being burnt as a youngster.
14. The applicant recalled that in the years prior to his death she observed her husband crying daily, sometimes several times a day. She stated (T4, p24) that when she asked him what was wrong he usually said he did not know, however on two occasions he said:
no matter what I do – it goes wrong, right back to my Navy days when I couldn’t help my mate ‘Shorty’ when the Boiler Room seemed to burst into flames. I panicked and got out as fast as I could. I can still hear his screams of pain – God it was awful.
15. In her oral evidence, Mrs Rhoades said that the veteran also referred to the boiler room incident in one of his suicide notes. Mrs Rhoades stated that the veteran had attempted suicide using prescription drugs at least a dozen times. She said that she had opened two or three of his suicide notes, although she no longer had these notes. In her written statement (T4, p23) Mrs Rhoades wrote:
The only suicide note I remember opening and reading quote “I don’t blame anyone for my miserable life, except my miserable self, especially the trauma involving my mate ‘Shorty’ on HMAS Sydney.
16. Mrs Rhoades daughter, Kathryn Rhoades stated that she recalled her father leaving one suicide note stating he was not happy and could not continue, and another stating that everything was too difficult and it would be better if he was not here (T4 p28).
17. According to Mr P Mulcare (Commodore Rtd), who, on behalf of Writeway Research Service, investigated reports of burns accidents aboard HMAS Sydney during September/October 1956 (T4 pp32-33), the Medical Officer’s Journal revealed three incidents. These were:
·a burnt leg caused by hot tea;
·burns to a back caused by a hot iron in a mess deck; and
·an incident on 9 October 1956 when a rating fell backwards in the engine room and grabbed a hot valve with his left hand. He was treated in the Sick Bay for burns to his hand.
18. No doctors were called to give evidence at the hearing.
19. In a report dated 3 March 2004 (T4, p39-40) Dr P Jacobs, general practitioner, stated that he treated the veteran between 2000 and 2001. The veteran had presented with a history of depression and chronic back pain, and Dr Jacobs said it was soon apparent that the veteran was therapeutic drug dependant. After the veteran’s suicide and having had conversations with Mrs Rhoades, Dr Jacobs said he concluded that the symptoms were consistent with PTSD.
20. In a letter dated 8 March 2004 (T4, p36) Dr K McKeon, general practitioner, stated that she had treated the veteran between 1996 and 2000. She commented that he attended on numerous occasions for various complaints, the most significant of these being chronic spinal pain, chronic anxiety and episodic depression. She stated that she believed that his mental state was affected by his somatic symptoms, including back pain, chronic left arm pain, recurrent chest pains, and gastro-intestinal pain and for this reason she had referred the veteran to pain specialists and had organised psychiatric assessment with a Dr Gibson at Greenslopes Hospital. Dr McKeon stated that she considered the veteran was a chronic worrier and she prescribed him low dose anti-depressives.
21. In a report dated 5 June 2003 (T4, pp8-10) Dr Philip Bird considered that from information provided by the applicant, the veteran met the criteria according to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) for PTSD. He opined that because of the temporal relationship of the incident aboard the HMAS Sydney and the nature of the veteran’s symptomatology, it was very probable they were related. Dr Bird considered the veteran also met the criteria for a major depressive disorder and alcohol dependence. He considered that the veteran was suffering from depression, chronic PTSD, and psychoactive substance dependence involving alcohol at the time of his suicide.
22. Dr Bird was subsequently asked to comment on the incident in which the veteran was burnt as a child. In a further report dated 1 September 2004 (T4 pp43-44) Dr Bird reiterated that he considered the history provided by the applicant about the veteran was consistent with symptoms of being exposed to a severe potentially life threatening trauma and that the veteran’s behaviour was consistent with PTSD. Dr Bird then stated:
One would consider that Mr Rhoades reaction to the burns of the stoker would have occurred in the context of the burns he himself previously experienced and the trauma which would have occurred to him as a child. He would have been unable at the time, I believe, to logically deal with the situation and thus panicked, leaving his shipmate. I believe this, to a large extent, caused the guilt and remorse and regret associated with the accident, resulting in both his symptoms of Post Traumatic Stress Disorder and his subsequent depression, violence and alcohol dependence.
23. In a report dated 16 August 2005 (exhibit R1) Dr Peter Mulholland, psychiatrist, stated that what the applicant described to him of the veteran was chronic substance abuse with alcohol, psychiatric medications and narcotic analgesics occurring in the setting of chronic depression. Mrs Rhoades described to Dr Mulholland that the veteran was a chronically heavy drinker; that he was taking psychiatric medications from about 1963 or 1965; that he was taking excessive narcotic analgesic medication from about 1985 or 1990 until his death; and that he was unable to handle stress. Mrs Rhoades told Dr Mulholland that the veteran had chronic back symptoms for which he was prescribed narcotic analgesics and developed chronic abdominal symptoms, which Dr Mulholland said may have been the result of excessive narcotic analgesic use.
24. Mrs Rhoades also described to Dr Mulholland that the veteran had disturbed sleep and frequent nightmares, during some of which he cried out about Shorty burning his arm. She also told Dr Mulholland that the veteran had made repeated suicide notes and she told him that there had been ten of these, only one of which she opened and which referred to letting Shorty down.
25. Dr Mulholland concluded (exhibit R1) that the evidence revealed chronic substance abuse with alcohol, psychiatric medications and narcotic analgesics occurring in the setting of chronic depression. He said that there were some features of post traumatic stress; however it was not possible to make the full diagnosis of PTSD retrospectively if only because of lack of accurate information regarding criterion A issues (‘criterion A’ refers to the requirement, when diagnosing the presence of the condition, for the person to have experienced, witnessed or been confronted with an event involving death or serious injury).
26. Dr Mulholland went on to say that the incident involving Shorty did not seem to be a criterion A event. Dr Mulholland also stated that the history he received was not one consistent with the veteran having experienced a severe stressor as necessary for the Statement of Principle for substance abuse/disorder. Dr Mulholland also reported that:
the incident as described hardly seems sufficient, putting aside SOP requirements, to result in a subsequent life time of psychiatric disorder even taking into account that there may have been some cross-connection between some sort of burns incident in or about 1956 to the burns incident he had as a child. It is possible that because he had had a burns accident as a child then he was going to have a greatly increased vulnerability or susceptibility to psychological reactions to subsequent accidents involving burns. However it seems implausible that an apparently relatively minor accident … could of itself be the cause or even a significant contributing factor to later problems.
27. Dr Mulholland noted there was little doubt the veteran had a severe problem with alcohol probably dating from 1957 onwards. He opined that alcohol abuse may have been the primary problem which led to the veteran’s other problems, such as his depressive illness. Dr Mulholland concluded his report (exhibit R1) as follows:
In summary it appears quite definite that the late Mr Rhoades committed suicide as a consequence of psychiatric illness with his being co-morbid for:-
a)chronic substance (alcohol, psychiatric medication, narcotic analgesic medication) abuse/dependence
b)chronic major depressive disorder.
He said that causes of those conditions were unclear, however there did not appear to have been a severe psychosocial stressor nor a severe stressor as required by SOPs (Statements of Principle).
CONSIDERATION OF THE ISSUES: ARE THE RAISED HYPOTHESES REASONABLE?
28. Mr Crosby, on behalf of Mrs Rhoades, submitted that the material before the Tribunal showed that the veteran suffered from depression, alcohol abuse and most probably PTSD and these related to his service and caused his death. The thrust of his submission was that the incident in the boiler room was of a kind that led to the development of psychiatric conditions and/or the worsening of PTSD if the veteran had that condition as a result of his own burns experienced in childhood.
29. Section 8(1) of the Veterans’ Entitlements Act 1986 provides:
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran….
Under sub-paragraph 8(1)(e) of the Act, a death will be war-caused if the injury or disease from which the veteran died was suffered or contracted before service and was contributed to in a material degree or aggravated by service.
30. The Tribunal must determine that a veteran’s death was war caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Section 120(3) of the Act is affected by s120A which deals with the standard of proof required in claims made after 1994 where a veteran has rendered operational service. Section 120A relevantly provides:
….
(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)…
31. The principles to be applied, in cases where s120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:
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. …
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). …
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. …
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused … If the Tribunal is so satisfied, the claim must fail. …
32. As the Federal Court in Repatriation Commission v Hancock (2003) 37 AAR 383 pointed out, before applying those steps from Deledio where a veteran has died, certain preliminary findings must be made. These were set out in Hancock by Selway J, at p386, as follows:
(a)First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out….
(b)Next, the AAT was required to determine on balance of probabilities what “kind of death” Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other “kinds of death” which were applicable to that death.
(c)If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.
…..
33. In following the approach laid down in Hancock, I concluded that the pre-conditions, other than causation, have been made out here because the applicant’s husband was a veteran, the veteran had died and Mrs Rhoades was his widow.
34. Next I must decide the cause of death or the kind of death. As the Tribunal pointed out in Davies and Repatriation Commission [2006] AATA 305, the expression kind of death, found at s 120B(4) of the Act, must be established in order to ascertain which Statement of Principles, if any, might apply. The expression kind of death was considered by the Federal Court in Repatriation Commission v Towns [2003] FCA 1262 where the Court said:
…… the expression "kind of death" is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring "suddenly" or in a particular location or set of circumstances. The expression "kind" does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense.
35. I am reasonably satisfied in accordance with s120(4) of the Act that the kind of death suffered by the veteran was suicide by gunshot wound. This is confirmed by the post mortem report. The kind of death was not a matter of dispute between the parties. This kind of death, by suicide, is dealt with in the Statement of Principles for Suicide or Attempted Suicide, Instrument No 71 of 1996, as amended by Instrument No 177 of 1996. That Statement of Principles provides for the following in clause 5, referring to possible factors which would underpin reasonable hypotheses connecting suicide with the veteran’s service:
……
(b) suffering from depression at the time of suicide or attempted suicide; or
(c) suffering from post traumatic stress disorder at the time of suicide or attempted suicide; or
(d) suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide…..
36. I note that the Statement of Principles for Suicide does not encompass as a factor, psychoactive substance abuse or dependence other than alcohol related dependence/abuse. Several doctors in reports in evidence referred to the veteran’s drug dependence, as did Mrs Rhoades, but this medical condition is not encompassed as a factor within the Statement of Principles for Suicide.
37. As there is a Statement of Principles in force in regard to suicide, the Tribunal is required to apply the methodology in Deledio to the kind of death. Steps 1 and 2 can be dealt with briefly as the Statement of Principles is identified above, and Mr Crosby articulated the material pointing to the hypotheses as relating to the incident in the boiler room when a burst of steam scolded (sic) a fellow national service reserve, ‘Shorty’. Mr Crosby referred to the veteran abandoning his post in the belief that the boiler was about to explode. The evidentiary basis for that submission as part of any hypothesis was unclear to me. The presence of PTSD prior to service was an alternative basis of causation.
38. Clause 5 of the Statement of Principles for Suicide refers to several psychiatric conditions (depression, PTSD, alcohol dependence), each of which provide a potential link between the veteran’s death and his service. These are sub-hypotheses relying on the presence of other medical conditions, and as such it is necessary to apply the Statements of Principles for those conditions to establish if their requirements are met: McKenna v Repatriation Commission (1999) 86 FCR 144. McKenna’s case has the effect that for a claim to succeed I must be satisfied that the veteran’s depression and/or PTSD and/or alcohol dependence were also war caused.
39. It is fair to say, as is set out more fully below, that each of the Statements of Principles for the three psychiatric conditions (depression, PTSD, alcohol dependence) provide for the impact of stressors related to service as underpinning reasonable hypotheses connecting psychiatric disturbance with service. Those other than that for PTSD, also provide for the impact of existing psychiatric conditions.
40. The term stressor appears in different forms, variously defined, in the relevant Statements of Principles and is used in Clause 5 of the respective Statements of Principles as follows :
Depression: Statement of Principles No 58 of 1998
§ experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder - where 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 …. severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial ..or legal problems;
Alcohol Abuse or Dependence: Statement of Principles No 76 of 1998
§ experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse – where experiencing a severe stressor is defined as meaning:
….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.
.. 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 observation of casualty clearance, atrocities or abusive violence;
Post-traumatic stress disorder: Statement of Principles No 3 of 1999; No 54 of 1999.
§ experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
§ experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder – where experiencing a severe stressor is defined as meaning:
….. 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 another person’s, physical integrity….
41. Mrs Rhoades referred to the possibility that the veteran had PTSD as a result of sustaining burns as a child and that hypothesis may be encompassed within the stated factor referring to clinical worsening of PTSD.
42. Having dealt with the first two steps, Step 3 in Deledio requires that I form an opinion on whether any of the hypotheses raised by the evidence are reasonable.
43. As part of the sub-hypotheses, the matter of diagnosis of these three psychiatric disorders requires no more than that the evidence points to this. That is, it is not required that the conditions are established on the balance of probabilities. This is because Step 3 of the Deledio process does not entail findings of fact, including on matters of diagnosis. All that is necessary is that there is material supporting this: Hardman v Repatriation Commission [2005] FCAFC 83.
44. In this case the psychiatrists agree that the veteran suffered depression and an alcohol disorder – Dr Bird characterised it as dependence; Dr Mulholland as alcohol abuse (nothing turns on the distinction). With PTSD that is pointed to as part of a sub-hypothesis by Dr Bird’s evidence, although that diagnosis was not favoured by Dr Mulholland.
45. There was evidence pointing to the clinical onset of alcohol abuse or dependence within two years of the veteran’s service, albeit more directly in Dr Mulholland’s report than in either of Dr Bird’s reports. There was some evidence, implied rather than stated in the medical reports, that the veteran suffered from depressive symptoms from the time of his service.
46. If an hypothesis is consistent with the template in the relevant SoP, then it will be reasonable. In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated at 596:
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…
47. Turning then to the other requirements of the sub-hypotheses, that rely on the veteran’s experience of a stressful event on board HMAS Sydney involving burns to Shorty, which then resulted in the veteran developing depressive disorder, and/or alcohol abuse or dependence and/or PTSD (or that existing PTSD was worsened by the stressful event). It is necessary, for the hypothesis to be reasonable, that the material points to an experience that would come within the definitions of stressors.
48. The analysis of experiencing a severe stressor for PTSD (a similar definition appears in the Statement of Principle for alcohol abuse/ dependence) as well as that of experiencing a severe psychosocial stressor, involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. In Stoddart the Full Federal Court (at paragraph 30) adopted the following from Woodward’s case in regard to severe stressor:
…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event 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.
49. In White Spender J put the matter in regard to severe psychosocial stressors as follows:
28. The reference to “an identifiable occurrence” is objective. The examples given in the definition are of the kinds of “identifiable occurrence” that are contemplated. Counsel for the applicant….referred to Lees v Repatriation Commission [2002] AATA 98 at par 90, where the Tribunal stated that the examples given in the SoP are “examples of what is meant by ‘substantial distress’”. In my opinion, the ordinary language of the definition makes it clear that the examples given are of the “identifiable occurrences” contemplated, not of “substantial distress”. The examples are of “occurrences”, not emotions.
29. The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
50. I do not accept the submission that the incident in which Shorty was scalded, even taking into account that the veteran’s relative youth, that he had been burned as a child, and his short term of naval experience, points to a situation being one where a reasonable person would experience feelings of substantial distress or feelings of fear, helplessness or horror. This third stage of the Deledio process is not concerned with fact-finding, but I do note the inconsistencies in the descriptions of what took place. It seems quite clear from the evidence as a whole that in the incident a naval rating sustained an uncomplicated and minor burn. This is not in the category of objective events contemplated within examples in any of the definitions in the Statements of Principles.
51. The components of the definition of experiencing a severe stressor relate to an event that involved actual death or serious injury; threat of death or serious injury; or threat to the veteran’s or another person’s physical integrity. I was mindful that definitions of stressors should not be approached in an unduly restrictive manner (Delahunty v Repatriation Commission [2004] FCA 309), but concluded that the material before me in relation to the veteran is not consistent with the template of experiencing a severe stressor in the Statement of Principles for PTSD or alcohol abuse/ dependence and the incident was not one capable of causing substantial distress as is required by the Statement of Principles for depression.
52. There was little evidence regarding the remaining hypotheses, which in part relied on the veteran having PTSD prior to his service as a result of sustaining burns himself. It seemed to me that this remained as a possible suggestion by Mrs Rhoades, which drew some mild support from Dr Bird in his second report, but only if Dr Bird was concluding therein that the veteran had PTSD as a result of burns as child. But if so, his second report would be inconsistent with his first report, where he clearly identified the incident with Shorty as the initiating cause of PTSD. Another problem with this as an alternate hypothesis was its inconsistency with Mrs Rhoades evidence that the veteran was a normal happy person prior to his navy service. I concluded that this hypothesis was one left open, but not pointed to by the evidence: East v Repatriation Commission (1987) 16 FCR 517.
53. However the better view of Dr Bird’s second report was that it goes no further than stating that the veteran may have been more susceptible to reacting to any occurrence involving burns because of his own childhood experience. Dr Bird’s reiteration in his second report (T43 pp43-44) that the veteran’s symptoms of post traumatic stress disorder commenced after his service on HMAS Sydney resolves any ambiguity in his report and confirms that he did not adopt the view that the veteran had psychiatric disturbance as a result of childhood burns.
54. This means that any reliance on the alternative hypotheses presented by factors 5(c) of Statement of Principles No 58 of 1998 for depression (experiencing a clinically significant psychiatric condition within two years before the clinical onset of depressive disorder) or factor 5(a) of the Statement of Principles for alcohol abuse or dependence (suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse) are not pointed to by the evidence.
55. For these reasons Mrs Rhoades claim must fail because the sub-hypotheses are not reasonable hypotheses.
ARE THE HYPOTHESES DISPROVED BEYOND REASONABLE DOUBT?
56. Even if I am wrong in regard to the hypotheses raised in the case conforming to Statements of Principles, I am satisfied beyond reasonable doubt that the assumed facts on which the hypotheses are based have been negated beyond reasonable doubt. This is the fourth of the Deledio steps, where I am required to make findings of fact and consider whether I am satisfied beyond reasonable doubt that the evidence demonstrates that the hypotheses cannot be sustained.
57. A number of Tribunal cases have acknowledged that the widow of a veteran faces particular difficulties in regard to evidence on their claims and their circumstances usually mean they rely on secondary information. The legislation assists in addressing these issues at a number of points. I took into account s120(6) of the Act (an absence of onus), s119 (taking account of difficulties ascertained with the existence of any fact, matter, cause or circumstance, including the passage of time and availability of witnesses), and a beneficial approach to interpreting and applying the Act. I nevertheless concluded that Mrs Rhoades’ claim must fail.
58. Mrs Rhoades’ claim notably lacked medical evidence that related to the veteran while he was alive, which is surprising with his history of suicide attempts, and his general practitioners’ evidence that the veteran presented to them as suffering chronic pain and as being therapeutic drug dependant, and had been appropriately referred to specialists. I note that Dr Bird made no reference to the veteran’s drug dependence. Dr Bird’s first report predated Mrs Rhoades’ comprehensive written statement where she referred to the veteran’s drug taking, including morphia in the presence of alcohol, and her references to the veteran being diagnosed as manic depressive during the 1970’s. Dr Mulholland was in a far better position when completing his report in 2005 than was Dr Bird reporting (firstly) in 2003, because Dr Mulholland had access to more documentary material than was available to Dr Bird.
59. One factual discrepancy relates to what Dr Bird believed the Shorty incident entailed. I concluded that the medical officer’s journal from HMAS Sydney shows careful record keeping, including as it does entries about a range of reported incidents, some quite minor. Having such a record available enables me to conclude that if the more extreme suggestions of what happened in the Shorty incident were true, including that the veteran’s references to the boiler room seeming to explode in flames, such an incident would certainly be recorded. I note that Mrs Rhoades told the Veterans’ Review Board that the veteran never gave a clear account, and she pieced it together over time. She had said much the same to Dr Bird.
60. The medical officer’s journal from HMAS Sydney is more likely to be accurate about what happened in the incident than what Mrs Rhoades could relay about it, long after the event. Clearly, she was not present, and she acknowledged the veteran did not talk to her about it, except, as she said to Dr Bird, when intoxicated.
61. I agree with Dr Mulholland that the incident involving Shorty was not significant enough to be a severe psychosocial stressor or severe stressor as would underpin a lifetime psychiatric disturbance. Dr Bird thought otherwise, however Dr Bird’s report indicates that the incident as he understood it was one where a leaky steam valve blistered Shorty’s arm. There is nothing in Dr Bird’s two reports to indicate that he had access to the ship’s records of reported burns, and it seems that Dr Bird was presented with a different set of facts to consider than those of a rating grabbing a hot valve with his hand. Dr Bird, in any event, gives no sound medical basis for concluding that even a steam burn could possibly fulfil the requirement for the occurrence of a traumatic event or that the event had the level of severity required for a severe psychosocial stressor. Dr Bird’s conclusions about the veteran’s psychiatric conditions do not have a sound basis in fact, and do not show that he had access to a comprehensive medical history.
62. Even if it was the case that the veteran was suffering from PTSD at the time of his death, it was not possibly related to the incident involving Shorty, which was not a stressor of the level of severity required by DSM-IV. I was not presented with any other evidence that would link a possible diagnosis of PTSD to the veteran’s operational service. The suggestion that the veteran had PTSD as a result of burns as a child was speculative, and was countered by Mrs Rhoades’ evidence of how normal and well-adjusted he was when she knew him in his teenage years. Furthermore, for an incident to have worsened the veteran’s PTSD, if he had it, still requires that the incident is of the severity of a traumatic event, which I am satisfied beyond reasonable doubt was not the case. I was satisfied beyond reasonable doubt that the incident involving Shorty was not a criterion A event as required by the diagnostic tool DSM IV. Dr Bird’s views about the veteran’s psychiatric conditions have no sound basis in fact, nor were they grounded in a comprehensive medical history
63. For similar reasons I was satisfied beyond reasonable doubt that the veteran’s alcohol disorder and depression were not war-caused, for reasons as set out above relating to the absence of a sufficient stressor.
64. The case rested on a proposition, which I was satisfied beyond reasonable doubt was implausible, that the Shorty incident could result in a lifetime psychiatric disturbance. Mrs Rhoades said that her husband referred to the incident with a description of the boiler room bursting into flames. However that, as a description, was well beyond what took place.
65. An aspect of Mrs Rhoades’ evidence which I concluded that I could not accept as true was her reference to the veteran’s suicide note which, she said, detailed the Shorty incident as his reason for attempting suicide. Apart from the inconsistent evidence given about suicide notes (Dr Bird makes no mention of suicide notes; Dr Mulholland took from Mrs Rhoades’ history that there were ten of which she only opened one; Mrs Rhoades told me that she opened two or three suicide notes, a different number than stated in her written statement at T4, that there had only been one), Mrs Rhoades’ evidence on suicide notes was at odds with what her daughter stated about their contents.
66. The Tribunal finds that there is material, as outlined above, which establishes beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death from suicide was war-caused within the meaning of s8(1)(b) of the Act.
DECISION
67. The Tribunal affirms the decision under review.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: ............(Sgd).................................................................
Robert Hayes, AssociateDate of Hearing 15 December 2005
Date of Decision 4 May 2006
Solicitor for the Applicant Mr J Crosby
Solicitor for the Respondent Mr M Smith, Departmental Advocate
0
17
0