Robert Breakspear v Repatriation Commission
[2011] AATA 524
•28 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 524
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos 2008/4150,
VETERANS' AFFAIRS DIVISION ) 2009/1360 )
Re ROBERT BREAKSPEAR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Egon Fice Date28 July 2011
PlaceMelbourne
Decision The Tribunal affirms the decisions made by the Veterans’ Review Board on 7 July 2008 and on 10 March 2009.
..........[sgd] Egon Fice...............
Senior Member
VETERANS’ AFFAIRS – Royal Australian Air Force – South Vietnam – War service – Disability Pension – Depression – Generalised anxiety disorder – Alcohol abuse – Adjustment disorder – Post Traumatic Stress Disorder – Traumatic event – Standard of proof – Operational service – Defence service
Repatriation Act 1920
Veterans’ Entitlements Act 1986 ss 5C, 6F, 7, 9, 13(1), 68, 69(1), 70(1), 120, 120(1), 120(3), 120(4), 120A, 120A(2), 120A(3), 120B, 120B(2), 120B(3) 196B(2), 196B(3), 196B(11), 196G
Byrnes v Repatriation Commission (1993) 177 CLR 564
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
McKenna v Repatriation Commission (1999) 86 FCR 144
Mines v Repatriation Commission [2004] 86 ALD 62
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Smith (1987) 15 FCR 327
Re Raymond Bowd and Repatriation Commission [2011] AATA 59
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 218 ALR 733
Walsh v Rother District Council [1978] 1 ALL ER 510
Statement of Principles – Alcohol Dependence and Alcohol Abuse – Instrument No 1 of 2009
Statement of Principles – Alcohol Dependence and Alcohol Abuse – Instrument No 2 of 2009
Statement of Principles - Anxiety Disorder – Instrument No 101 of 2007
Statement of Principles - Anxiety Disorder – Instrument No 102 of 2007
Statement of Principles – Post Traumatic Stress Disorder - Instrument No 5 of 2008
Statement of Principles – Post Traumatic Stress Disorder - Instrument No 3 of 1999 as amended by No 54 of 1999
4th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders
Ham, Paul ‘Vietnam: The Australian War’ (Harper Collins Publishers, 2004)
REASONS FOR DECISION
28 July 2011 Senior Member Egon Fice 1. Mr Robert William Breakspear served in the Royal Australian Air Force (RAAF) between 9 January 1967 and 8 January 1987. After completing apprentice training, he qualified as an airframe fitter in June 1969. He commenced duties as a Loadmaster on Caribou aircraft with 38 Squadron at Richmond in November 1973. Mr Breakspear was posted to Butterworth Transport Support Flight (TSF) on 16 October 1974, remaining there until April 1977. In the course of his posting to Butterworth TSF, where he carried out loadmaster duties associated with TSF operations of a C47B (Dakota) aircraft, he was involved in a flight which conveyed the Australian Ambassador to South Vietnam on a tour of Vietnam. The tour took place between 28 January 1975 and 5 February 1975, which was shortly prior to the war in South Vietnam coming to an end. His mustering was subsequently classified as Crew Technical in July 1978 and he became a Flight Engineer in January 1983. After leaving TSF, Mr Breakspear served in a number of positions in Australia until his discharge in 1987.
2. The period Mr Breakspear spent in South Vietnam between 28 January 1975 and 5 February 1975 is regarded as operational service under s 6F of the Veterans’ Entitlements Act 1986 (VE Act). Although Australia ceased its engagement in South Vietnam in January 1973, on 19 July 2006 Mr Bruce Billson, Minister for Veterans’ Affairs for the Minister of Defence, made a determination of warlike service for the purposes of s 5C of the VE Act. The Minister determined that a member of the Australian Defence Force who rendered service between 12 January 1973 and 29 April 1975 in Vietnam (southern zone) had rendered warlike service. Section 6F of the VE Act provides that a member of the Defence Force is taken to have been rendering operational service during any period of warlike service. The balance of his time with the RAAF is to be regarded as defence service as that expression is defined in s 68 of the VE Act. I point to the fact that Mr Breakspear had operational service and defence service because the standard of proof required under s 120 of the VE Act differs for each type of service.
3. Mr Breakspear lodged a claim for the disability pension and/or application for increase in disability pension with the Department of Veterans’ Affairs (DVA) on 4 April 2007. The disabilities mentioned by Mr Breakspear in his claim were:
(a) lower back pain;
(b) left ankle (pain and instability); and
(c) severe depression.
4. The severe depression described by Mr Breakspear was diagnosed by Dr Michael Baker, his general practitioner, as depression/anxiety. Following a psychiatric report provided by Dr Hillol Das dated 20 July 2007, Mr Breakspear was also recognised as suffering from an alcohol problem. On 17 September 2007 a delegate of the Repatriation Commission (the Commission) accepted Mr Breakspear’s claim for lumbar spondylosis and chronic left ankle collateral ligament laxity but found that his invertebral disc prolapse, alcohol abuse and adjustment disorder (originally claimed as depression/anxiety) were not related to his service with the RAAF. Mr Breakspear applied to the Veterans’ Review Board (VRB) for a review of the delegate’s decision. In the course of that review, Mr Breakspear withdrew his claim for invertebral disc prolapse.
5. In a decision made on 7 July 2008 the VRB varied Mr Breakspear’s psychiatric diagnosis from adjustment disorder to depressive disorder and anxiety disorder. It affirmed the delegate’s decision regarding his psychiatric claim. The VRB also determined (incorrectly) that it did not have jurisdiction to review Mr Breakspear’s alcohol abuse claim.
6. This resulted in Mr Breakspear lodging a second claim with the DVA on 11 August 2008 for incapacity due to alcohol abuse. On 23 September 2008 a delegate of the Commission refused Mr Breakspear’s claim for alcohol abuse. Mr Breakspear applied to the VRB for a review of that decision. On 10 March 2009 the VRB affirmed the delegate’s decision regarding alcohol abuse.
7. On 4 September 2008 Mr Breakspear lodged an application with the Tribunal for a review of the VRB decision made on 7 July 2008 regarding his mental disorders. He also lodged a second application with the Tribunal on 3 April 2009 seeking review of the VRB decision made on 10 March 2009 regarding his alcohol abuse claim.
8. The issues which I must determine are:
(a)whether Mr Breakspear suffers from depressive disorder, anxiety disorder or any other psychiatric condition;
(b)whether Mr Breakspear suffers from alcohol abuse;
(c)if the answers to (a) and (b) or either of them is in the affirmative, the date of onset of those conditions; and
(d)if Mr Breakspear suffers from the above conditions, whether those conditions were war-caused or defence-caused as those expressions are defined in the VE Act.
DIAGNOSIS – MENTAL DISORDER
9. Mr Breakspear has been diagnosed with a variety of mental disorders since joining the RAAF in 1967. These have variously been described as anxiety, depression, adjustment disorder with anxiety and depression, major depressive disorder, acute stress disorder, depressed mood, emotionally distressed, dysphoria, chronic adjustment reaction, personality disorder, general anxiety disorder and post traumatic stress disorder (PTSD). The more recent assessments of Mr Breakspear’s mental disorders were made by Dr Michael Epstein and Dr Stuart Wild, both of whom are psychiatrists. Their assessments were made between April 2009 and July 2010. Both psychiatrists agreed that Mr Breakspear suffered from alcohol abuse; that Mr Breakspear exhibited some obsessional personality traits and that there was evidence of some depression. Where the two psychiatrists differed was whether Mr Breakspear suffered from PTSD. Dr Wild was of the opinion that he did not. He preferred a diagnosis of generalised anxiety disorder (GAD) with features of a cluster-C personality disorder with obsessive-compulsive and avoidant traits. Dr Epstein disagreed with the diagnosis of GAD although he agreed with a diagnosis of anxiety disorder because PTSD is an anxiety disorder.
10. This case involves reference to Statements of Principles (SoPs) made by the Repatriation Medical Authority (RMA) under s 196B(2) of the VE Act. There are some differences in the factors which must be found to exist which connect the disease with Mr Breakspear’s military service. As a result, it is appropriate that I deal discretely with what appear to be the principal diagnoses put forward by Dr Epstein and Dr Wild.
Post-Traumatic Stress Disorder (PTSD) - Diagnosis
11. The process of determining whether a disease or injury is war-caused or defence-caused involves an antecedent decision about the disease or injury from which a veteran claims he or she suffers. The problem with cases involving PTSD is that the question whether that disease is suffered by the veteran is bound up with the question of connection with war service or defence service. A diagnosis of PTSD requires identification of a traumatic event which is of such a nature that it could give rise to the disease in question. As Gray J explained in Mines v Repatriation Commission [2004] 86 ALD 62, in cases involving PTSD, the diagnosis involves two questions. The first is whether the person is suffering from symptoms which, if the traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
12. Gray J also suggested that there might be more than one possible traumatic event and that there might be a question as to which event is responsible for the PTSD claimed. If any one of those possible traumatic events is not associated with a veteran's war service, the decision maker needs to resolve the question whether the symptoms result from the events associated with the veteran's war service, or with the other event or events.
13. Before outlining the two possible processes of reasoning suggested by Gray J in Mines case, one needs to understand the operation of s 120 of the VE Act dealing with standard of proof. Relevantly, s 120(1) of the VE Act provides:
120 Standard of proof
(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.
. . .
14. Section 120(4) of the VE Act provides:
. . .
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
. . .
15. Because the decision regarding diagnosis is distinct from the decision about whether the disease is connected to a veteran's operational service or defence service, the standard of proof which must be applied to the diagnosis is that set out in s 120(4) of the VE Act. In other words, I must decide the question of diagnosis to my reasonable satisfaction (see Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) of the VE Act . . . decide the matter to its reasonable satisfaction, was comprehensively analysed by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. . . .
This means that I am required to decide the question of diagnosis on the balance of probabilities.
16. Gray J in Mines case stated that more than one process of reasoning was possible when determining the question regarding the diagnosis of PTSD. He said, at 71-72:
. . . The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD. If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran’s operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt. It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt. The steps required by Deledio [Repatriation Commission v Deledio (1998) 83 FCR 82] would be satisfied without difficulty. . . .
17. The alternative process of reasoning suggested by Gray J is to treat all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered by a veteran, on the reasonable hypothesis basis required by s 120(1) of the VE Act. According to his Honour, a decision-maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent with the finding of PTSD. The question of whether there was PTSD would be determined on the reasonable hypothesis basis, using the four steps referred to in Repatriation Commission v Deledio (1998) 83 FCR 82.
18. Gray J said, despite what was said in Byrnes v Repatriation Commission (1993) 177 CLR 564, the Full Court of the Federal Court has consistently followed the first process of reasoning to which I have referred above. The process, he said at 73-74, was:
'The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.’
19. I accept what Gray J said about the process of reasoning in PTSD cases. However, since he decided Mines’ case the SoP concerning PTSD has altered, the current SoP relating to operational service is Number 5 of 2008, taking effect from 9 January 2008. That SoP is significantly different to that with which Gray J was concerned. I have previously expressed my concerns about those differences and the problems I perceive exist with the use of the current SoP in Re Raymond Bowd and Repatriation Commission [2011] AATA 59 at [15-17]. However, because the Commissioners decision regarding Mr Breakspear’s mental disorders was made on 17 September 2007, before the commencement of the current SoP, in accordance with the Federal Court’s decision in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton (2001) 110 FCR 321, I may have regard to the predecessor of Instrument Number 5 of 2008, which was Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999. In those instruments, the description given of PTSD derive from DSM-IV-TR (4th Ed American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) is consistent with the description of the factors which must exist before a reasonable hypothesis is said to have been raised connecting PTSD with a Veteran’s service.
20. Although the earlier SoPs refer to DSM-IV, and the current SoP refers to DSM-IV-TR, the description of the disease is identical. DSM-IV-TR describes the following diagnostic criteria:
(A) the person has been exposed to a traumatic event in which both of the following were present:
1. the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
2. the person's response involved intense fear, helplessness, or horror.
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (e.g., unable to have loving feelings);
(vii)sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
21. I am mindful of the fact that the diagnostic criteria in DSM-IV-TR should not be used in a cookbook fashion. Chapter IV of DSM-IV-TR dealing with the evaluation process says this about diagnosis in case formulation:
The DSM classification and the specific diagnostic criteria are meant to serve as guidelines to be informed by clinical judgement in the categorisation of the patient’s condition(s) and are not meant to be applied in a cookbook fashion.
22. The introduction to DSM-IV-TR also contains a number of caveats regarding the use of the diagnostic criteria set out in the manual. The introduction acknowledges that although the manual provides a classification of mental disorders, it admits that no definition adequately specifies precise boundaries for the concept of mental disorder. In fact, it states that:
The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. All medical conditions are defined on various levels of abstraction … .
The introduction then states:
In DSM-IV, each of the mental disorders is conceptualised as a clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (eg, a painful symptom) or disability (ie, impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one. Whatever its original cause, it must currently be considered a manifestation of behavioural, psychological or biological dysfunction in the individual.
23. By definition, PTSD requires a person to have been exposed to a traumatic event as is set out in Criterion A of DSM-IV-TR. The traumatic experiences recounted by Mr Breakspear in his evidence comprised one event which occurred while Mr Breakspear was rendering operational service in Vietnam. The remaining six events occurred in the course of his defence service. The following accounts are taken from Mr Breakspear’s written statement which was attached to a letter dated 13 June 2008 written by the RSL Advocate who appeared on behalf of Mr Breakspear at the VRB hearing and from other statements made by Mr Breakspear.
operational service
24. This event is described as the Vietnam incident. Mr Breakspear said that he was in Butterworth, Malaysia, in January 1975, with TSF. He said members of TSF were advised of possible short notice trips to Vietnam as the fall of Saigon was imminent. All aircrew were updated with weapons training. Between 28 January 1975 and 5 February 1975 he was a member of the crew which conveyed the Australian Ambassador to Vietnam to meet the tribal chiefs and military heads prior to the fall of Saigon on 29 March 1975 (the correct date in fact is 30 April 1975) (see Vietnam the Australian War by Paul Ham 2007, (HarperCollins) at page 603). Mr Breakspear said that at each destination the crew was required to leave one engine running while the Ambassador made short visits to prearranged appointments. As the loadmaster, he was required to remain outside the aircraft on an intercom lead to scan the outside of the aircraft while the engine was running. He said he felt very lonely and numb.
defence service
25. Between 2 March and 8 March 1975, while Mr Breakspear was with TSF, he was a member of the crew of a Dakota aircraft which was required to relocate tribes’ people in Laos (the first Laos incident). Mr Breakspear said that the aircraft seats had been removed to allow additional passengers to be carried. He said up to 52 persons were carried on any one flight. The only restraints available to passengers were cargo straps stretched across the aircraft. Mr Breakspear said that on one landing, the aircraft became asymmetric because of a malfunction in a propeller control unit. He said the aircraft was controlled and remained on the landing strip area. He was very concerned because he had been told that either side of the landing strip area had been mined. Mr Breakspear also said that passengers were physically ill, aggressive, reluctant (presumably to travel) and frightened. He said that made control of many passengers extremely difficulty and stressful.
26. In his statement of 27 August 2008, Mr Breakspear said that following a flight in March 1975 when Laotian villagers were transported, the crew was invited to an official function which was held to thank them for transporting the villagers. He said that Squadron Leader Stott arranged to illegally purchase supplies of cigarettes and alcohol and he accompanied Squadron Leader Stott to a warehouse. At the warehouse, they were confronted by local troops and threatened with guns, believing their lives were in danger (the second Laos incident).
27. The third event relied on by Mr Breakspear involved a flight in a Caribou aircraft which was being flown by Flight Lieutenant Cassebohm as pilot in command, and Flight Lieutenant De Kievit as co-pilot (the short take-off incident). Mr Breakspear’s said that on take-off out of Laverton airbase on 12 February 1980, when the aircraft had no passengers or cargo, Flight Lieutenant Cassebohm decided to demonstrate the short take-off capability of the Caribou. He said he was standing between the pilots and the aircraft became airborne more quickly than he had ever previously experienced, and it went into a very steep climb. He said he was monitoring the instruments and he could see that the climb was dangerously steep. He then said that at the same time as he secured himself in a seatbelt at the rear of the aircraft, Flight Lieutenant De Kievit made a comment about the angle of attack. Mr Breakspear said it seemed that the aircraft was initially out of the pilot’s control but he managed to regain straight and level flight. As a result of the incident, Mr Breakspear said Flight Lieutenant Cassebohm was grounded for a period and lost his captaincy. He said he continued to relive this incident in the form of crashing or a falling aircraft in his sleep. He said this incident prompted him to apply for a ground position at Air Movements’ Training and Development Unit (AMTDU).
28. According to Mr Breakspear, the next event occurred when he was a flight engineer on a Caribou aircraft tasked to carry prisoners from Santos Island to Port Vila in Vanuatu between 31 August 1980 and 23 September 1980 (the Vanuatu incident). This incident occurred during the conflict in the area and was in support of the Papua and New Guinea Defence Force (PNGDF) which had been requested to subdue the uprising. He said the sorties involved taking prisoners detained by the PNGDF from Santos to Port Vila. He said that the prisoners’ hands had been secured by plastic cable ties and they were restless and aggressive. Mr Breakspear had to fasten their seatbelts and he said that the prisoners would spit in his face and lash out with their feet. The PNGDF guards which accompanied each sortie retaliated with their rifle butts. The weapons carried by the PNGDF military personnel were loaded while on board. He said the inadvertent discharge of a weapon on the aircraft could create a dangerous situation.
29. The fifth event referred to by Mr Breakspear occurred between 13 November 1982 and 23 November 1982 when Mr Breakspear was the loadmaster on a Caribou aircraft on a training exercise in Papua and New Guinea. He said the aircraft was captained by Squadron Leader Calvert and was carrying a film crew for John Laws’ World. Mr Breakspear claimed that after taking-off from a Highlands strip, one of the cameramen filming between the pilots’ seats on take-off inadvertently caused his camera lead to wrap around the port engine fire handle and discharged the fire extinguisher (the first PNG incident). Mr Breakspear said this caused the engine to automatically shut down. The aircraft was extremely heavy and at high altitude and they were lucky to avoid impacting high ground. They descended along valleys and landed safely at Lae. He said he was physically sick on landing.
30. Mr Breakspear had previously conducted air movement courses for the PNGDF and in September 1984 he was attached to the PNGDF to route check loadmasters he had previously trained. He said he was flying in a Dakota aircraft crewed by PNGDF pilots in whom he lacked confidence. He said their ability and casual attitude in unforgiving country for flying was absolutely frightening. At one stage, while the co-pilot was asleep and the captain needed to use the toilet, he was asked to take over control of the aircraft in a descending circuit in cloud (the second PNG incident). He said that following the attachment to PNGDF, he applied for a posting back to 38 Squadron.
31. The final event relied on by Mr Breakspear involved a task described as low altitude parachute extraction system (LAPES) airdrop (the LAPES incident). This required the aircraft to be configured for landing with the ramp level and the rear cargo door open. The load to be extracted was on a pallet. When the aircraft was over the drop zone at a height between eight to ten feet, a parachute was deployed by a pendulum device designed to cause the parachute to swing outside the aircraft into the airstream which caused the parachute to deploy and extract the payload from the rear of the aircraft. In the incident which occurred on 16 March 1986, Mr Breakspear said when the parachute left the pendulum it fell onto the aircraft floor. It did not deploy. He said the parachute was bouncing around and could have deployed at any second. Mr Breakspear then had to make a decision about securing the load and cutting the parachute free, he was concerned that with the load re- secured, if the parachute then deployed it would prevent the aircraft from climbing away and it would invariably crash. He also said he did not believe that the emergency restraints applied to the cargo would prevent it from being extracted if the parachute deployed while he was attempting to cut it free. He managed to cut the parachute free from the load without it deploying and the rear doors of the aircraft were closed. The aircraft climbed away safely. He said it was this incident in particular which caused him to seek a discharge from the RAAF.
ANALYSIS OF EVENTS
32. Each of the events I have referred to above needs to be more carefully analysed in order to determine whether it is an event of such significance that it can properly be described in the terms set out in Criterion A of DSM-IV-TR. In addition to that, as will presently become apparent, Mr Breakspear’s evidence about the events which I have described above changed significantly from previous evidence he had given about these incidents. While, for the purposes of diagnosis, it is not my task to determine which description of an event should be preferred, where Mr Breakspear has admitted that the description of the events previously given were not accurate, I have relied on his more recent evidence for the purposes of determining diagnosis. I have also relied on my 12 years’ experience as a RAAF pilot, which included flying the Dakota aircraft, to establish the technical accuracy and significance of Mr Breakspear’s account of the events. I informed the parties of my RAAF history at the commencement of the hearing of this matter.
33. The first thing that needs to be said about the Vietnam incident is that the flight Mr Breakspear embarked upon from Butterworth in January 1975 to Vietnam was taken during the period after the Paris Agreement was signed on 27 January 1973 and the fall of Saigon. The signatories to that agreement, North and South Vietnam, the USA and the Provisional Revolutionary Government of South Vietnam agreed to a cease fire on that day. According to Paul Ham, there was no peace with honour as the then President Nixon described it. Neither Hanoi nor Saigon had any intention of abiding by the terms of the Paris Agreement. The North Vietnamese forces replenished their military supplies, sending them down Ho Chi Minh Trail. However, the North Vietnamese did not launch their final invasion of South Vietnam until the first week of March 1975 (see Ham at 584-587). Therefore, during the week that Mr Breakspear spent in Vietnam in 1975, Australia was not involved in the Vietnam War nor was there much, if any, resumption of open conflict.
34. In the course of his cross-examination by Ms Casamento, who appeared on behalf of the Commission, Mr Breakspear’s attention was drawn to a report prepared by Writeway Research Services Pty Ltd dated 18 August 2009. The researcher, Mr MJ Brennan, had contacted Squadron Leader DK Stott who was the Commanding Officer of TSF at the relevant time. Apparently Squadron Leader Stott said that flights to South Vietnam at that time carried an element of risk because of potential hostile activity in the area. There was no record of any attack on any Australian aircraft during that period. Squadron Leader Stott also apparently said that it was neither standard operating procedure nor a unit policy for an engine to be left idling to facilitate rapid departure from an airfield and he was not aware of this procedure ever being adopted. He said it was usual for meetings which the Australian Ambassador attended to last in excess of an hour and the engine would not be left idling for such a period. The only circumstance where an engine might be left idling was for a quick turnaround, where following the landing and disembarkation or embarkation of passengers, the aircraft departed immediately. When this was put to Mr Breakspear by Ms Casamento, he said I agree. I totally agree with that, yes. He said he had signed his statement without properly reading it. Mr Breakspear added that the pilots would start an engine in advance of the Ambassador returning to the aircraft but only in anticipation of an immediate departure. He agreed it was wrong where he had stated that the engine was left idling for an hour. Mr Breakspear then said he felt threatened because he was required to be outside the aircraft, irrespective of the time he spent in that situation. However, Mr Breakspear did not so much as suggest that he was under threat on any occasion while in Vietnam for that week.
35. In his statement made on 27 August 2008, Mr Breakspear also referred to being fearful while at Saigon, where stringent curfews were in force. According to Writeway, an examination of the TSF unit history sheet for January 1975 records the flight to Vietnam on 28 January 1975 and the fact that Mr Breakspear was a member of that crew. Squadron Leader Stott said there were areas which were off limits in Saigon and that there were curfews in force. He was unaware of any TSF crew member being threatened while in Saigon. Mr Breakspear did not refer to any specific threatening incident while in Saigon.
36. Mr Breakspear was cross-examined about the Laos incident and in particular the landing where he claimed the aircraft became asymmetric due to the malfunction of the propeller control unit on one of the engines. He said the aircraft veered to one side on landing. He claimed that was the result of reduced power on one propeller. As I understood Mr Breakspear’s evidence about this incident, the aircraft was on the ground or in the landing roll at the time this occurred. At that time, both engines would have been reduced to idle power and the propellers would have been in the full fine pitch position. The propeller control unit controls the pitch of the propeller; it does not affect the power which is delivered to the propeller by the engine. If in fact the propeller had gone into coarse pitch, which would be unlikely in the circumstances described by Mr Breakspear, there may have been a slight increase in drag on one side of the aircraft. However, with the aircraft on the ground at that time, not only would it have barely been noticeable, it would not be difficult to control.
37. Mr Breakspear also said in evidence that he was required to repair the faulty propeller control unit. The TSF history sheet for March 1975 records the detachment to Laos. I notice that an engine fitter, LAC Wyndham, was part of that detachment. It makes no sense that Mr Breakspear would have had to repair the propeller control unit when there was an engine fitter on that flight.
38. The Writeway report records that Squadron Leader Stott, while recalling that TSF was tasked to transport refugees from Vientiane to the Plain of Jars, did not recall any propeller problem on landing. He said it was his practice to record such events in his logbook but there was no logbook entry of such an incident. He also described being told by Air America aircrews and airfield officials that there were mines adjacent to the airstrip. Squadron Leader Stott also said that the aircraft were tightly packed with refugees seated on the floor and that the opportunity for persons to move around or to engage in any violent activity was restricted. He also recalled that overwhelmingly, the refugees were women and children. There were no young men amongst the refugees.
39. The next incident described by Mr Breakspear was the short take-off incident at Laverton airbase. Flight Lieutenant De Kievit, who was the co-captain on that flight, was spoken to by Ms Casamento and Mr Breakspear. He did not recall the incident at all. In his witness statement made on 27 August 2008, Mr Breakspear said that in demonstrating the Caribou’s short take-off capability, the pilot put the aircraft in a dangerously steep climb and at one point lost control of the aircraft. In his evidence to the VRB, Mr Breakspear said that the artificial horizon was off the clock and that the co-captain made comment of it. He said he had to go down from between the seats and strap in. He also told the VRB that he had a few drinks with Flight Lieutenant De Kievit that evening who told him that he was going to file a report regarding that incident. However, as the Writeway report indicates, there is no evidence of any report being filed or any evidence of the pilot, Flight Lieutenant Cassebohm, losing his captaincy. In the course of cross-examination, I asked Mr Breakspear whether the aircraft stalled. He said the aircraft did not stall. I then suggested to Mr Breakspear that the aircraft was not out of control as he had previously stated. Mr Breakspear’s response was:
Well, probably – putting “stalled” in the report I thought was not going to be – nobody is going to understand it. Little did I know that you were going ...
He accepted that the aircraft did not stall and that it was flying normally.
40. The next incident referred to by Mr Breakspear is what I have described as the second Laos incident. Squadron Leader Stott’s account of the second Laos incident was quite different to that given by Mr Breakspear. He said that the Americans operated a Post Exchange (PX) (a canteen service) in Vientiane and they were expecting the Pathet Lao to take control of the PX and its supplies. The Americans invited RAAF crews to obtain supplies from the PX before it was taken over. Squadron Leader Stott said that he took advantage of the offer and the crew acquired mainly alcohol and cigarettes which were loaded into a van and into the boot of a taxi. On reaching the gate of the PX, they found it was manned by armed Pathet Lao troops who made it clear that the RAAF crew was to hand over to them the supplies that had been acquired. The RAAF crew offered no resistance and was compliant with the request. He said that although the troops were armed, the RAAF crew was not threatened with weapons. He said they lost all of the supplies that were in the van but they got away with what was in the boot of the taxi as this was not searched. When I put this to Mr Breakspear in the course of the hearing, he simply said that because Squadron Leader Stott didn’t feel threatened, did not necessarily mean he didn’t feel threatened by what was happening. With respect to Mr Breakspear, in his witness statement he said that he was threatened, not that he felt threatened. Whether or not Mr Breakspear felt threatened by the incident is another matter.
41. The next incident Mr Breakspear referred to was that which I have described as the Vanuatu Incident. In cross-examination, Mr Breakspear said that his concern was that the soldiers accompanying the prisoners were armed and he was worried that there might have been the discharge of a weapon on board. It should be understood that the accidental discharge of a weapon on board an aircraft such as the Caribou, which is not pressurised, is unlikely to affect the safety of the aircraft itself, if that is what Mr Breakspear was suggesting.
42. Also, in his evidence to the VRB, Mr Breakspear said that the work was so hard and that the hours so long that the crew had a couple of days on Norfolk Island because they were extremely fatigued. However, the 38 Squadron Unit history sheets relating to that operation state: an overnight stop was made at Norfolk Island.
43. The next event referred to by Mr Breakspear was what I have described as the two PNG incidents. The first involved the inadvertent discharge of a fire extinguisher into the port engine of a Caribou aircraft; and the second involved Mr Breakspear flying the Dakota aircraft during a decent in cloud while the co-pilot was asleep.
44. In his statement of 27 August 2008, Mr Breakspear simply said that the fire extinguisher discharge caused the engine to shut down and because of the skill of the pilot, the aircraft landed safely on one engine. He recalled being ill after landing. In his evidence to the VRB, he was asked by one of the Members of the Board what a fire handle was. He said:
Fire handles are a handle you pull when you have got a fire warning, and that automatically shuts the engine down.
When he was asked whether that happened, that is, the engine was shut down, Mr Breakspear said: the engine shut down. When asked what happened after that Mr Breakspear said that the engine could not be restarted and so the aircraft descended to a lower altitude because, being at a heavy weight, it didn’t fly very well and he said that they were lucky enough to get over the edge and just creep into the Markham Valley and flew low level back to Lae. He again said that he was physically ill and vomited after the flight. He described the situation as very, very touchy. I asked Mr Breakspear some questions about that in the course of his cross-examination. I said:
Now, it seems to me, particularly of the fire extinguisher issue, where you said that that caused and engine to shut down ... ?
Without waiting for me to complete the question, Mr Breakspear responded: Well, it didn’t cause the engine to shutdown ... I then explained to Mr Breakspear that because of my RAAF experience as a pilot, I was aware of that and Mr Breakspear then acknowledged I was correct. Mr Breakspear then said:
I know that this is – I’ve been miswritten in this, saying that the engine was shut down. We put one shot – or the cameraman put one shot of the fire extinguisher into the engine, the engine, coughed, and continued to operate normally. Yet Squadron Leader Calvert did reduce the power on it, which he had to consider carefully because we were extremely heavy, in a high area of New Guinea ...
Following those questions from me, Ms Casamento began to ask a further questions in relation to the issue of the fire extinguisher when Mr Breakspear said: I’m not relying on it. Mr Breakspear maintained that his statement had been poorly written. However, that does not account for the clearly incorrect detailed account he gave of this incident to the VRB. Furthermore, in the course of his research, Mr Brennan contacted the Directorate of Defence Aviation and Air Force Safety regarding the incident. He was informed that the incident is recorded in the Air Incident File and that the engine was not shut down but continued to operate normally. The crew made a normal landing after which the aircraft was checked, the fire extinguisher replaced and the task continued.
45. The second PNG incident is not mentioned at all in Mr Breakspear’s written statement of 27 August 2008. In his evidence to the VRB, Mr Breakspear explained that he was responsible for training loadmasters of the PNGDF. He said that the pilot and co-pilot on those aircraft, which were Dakotas, were also from the PNGDF. He said that on one flight the co-pilot went to sleep and the captain needed to use the toilet. Mr Breakspear said the captain asked him to fly the aircraft in a descending fashion through cloud while the captain used the toilet. Mr Breakspear said:
I had spent two years over in Transport Support [Flight] Butterworth’s where you do swap around with the pilots. Whether that be right or wrong and you fly the aircraft and if you are lucky.
Mr Breakspear said he was simply told to kick the rudder if anything happened or if he felt uncomfortable. He said the captain was down in the toilet for a good 15 minutes and he felt very threatened but continued in a circling descent in cloud. When he was asked why he didn’t wake the co-pilot, he answered: Just wasn’t the done thing. With respect to Mr Breakspear, his statements regarding changing positions with pilots on Caribou aircraft and taking control of the Dakota are simply fanciful. In my 12 years with the RAAF as a pilot nothing of this nature ever occurred to my knowledge. Furthermore, to be able to fly competently in cloud or under the instrument flight rules requires significant and detailed training. There was no evidence of Mr Breakspear ever having undergone any formal flying training. The risk of disorientation and loss of control is extremely high in those circumstances. Furthermore, flight under instrument flight rules in Papua New Guinea is limited due to the very high lowest safe altitudes in that country. It should be remembered that the Dakota, being a non-pressurised aircraft, does not ordinarily fly above 10,000 feet. The mountains, particularly between Port Moresby and Lae, exceed 14,000 feet in altitude. Assuming the aircraft was at 10,000 feet, even at a very modest rate of descent of 667 ft/min, if the aircraft continued to descend for 15 minutes, it would have reached sea level or, if over higher ground, struck a hill.
46. There was also some inconsistency in Mr Breakspear’s account of the low altitude parachute extraction supply (LAPES) incident. In his evidence before the VRB, Mr Breakspear said that the load was secured by three, five thousand pound straps on three different points in the aircraft. Those straps were taped together so that if anything went wrong, the load could be re-secured. However, in Mr Breakspear’s opinion, if the parachute deployed while the load was secured by the straps, the straps would simply give way. There was no objective evidence about that. In his evidence before the Tribunal, Mr Breakspear said that after the parachute failed to deploy normally, the load was temporarily secured using the three, five thousand pound straps on a single 10 thousand pound point. He said that if the parachute had deployed, it would have pulled the attachment point out of the aircraft and the load would have moved. He then said that if the load had jammed and the parachute deployed, the aircraft would not be able to fly away with the 22 foot parachute deployed behind it. At the VRB hearing, Mr Breakspear said: You crash ahead. Plainly, if Mr Breakspear was correct that the three, five thousand pound straps would simply rip out from the aircraft attachment point, then the load would simply depart the aircraft, although not perhaps in the location it was intended. If that were to occur, it is difficult to understand why the aircraft would crash which is what he explained to the VRB. Nevertheless, irrespective of that anomaly, there are obvious dangers associated with dealing with this unusual situation.
MEDICAL EVIDENCE
47. Bearing in mind the above anomalies and changes to Mr Breakspear’s evidence regarding incidents which he said he found stressful, in order to establish whether Mr Breakspear suffers from PTSD, I have principally examined the evidence of Dr Michael Epstein and Dr Stuart Wild. I will also refer to a report prepared by Dr Kaveh Monshat, a psychiatrist with Heidelberg Repatriation Hospital, on 4 April 2008. In fact it was Dr Monshat who first made a diagnosis of PTSD. This is despite the fact that Mr Breakspear had previously been examined by a number of psychiatrists in relation to a Workcover claim where there was only a passing reference to his service in the RAAF. I will also briefly refer to a report prepared by Mr J Richard B Ball, a psychiatrist, made on 25 September 2007.
48. Dr Monshat did not record a detailed service history although he referred to traumatic incidents Mr Breakspear apparently recited to him in the course of interview. He described these as:
1)Evacuating villagers from Laos and his plane being overloaded leading to his fearing that if any technical problems occurred they would crash.
2)Being left alone on an airfield in Vietnam while transporting Australian Embassy staff and feeling exposed and frightened that he may be shot. He has detailed several other stressful situations in his printed statement.
The printed statement referred to by Dr Monshat is the statement from which I have taken details of the incidents referred to above.
49. According to Dr Monshat, Mr Breakspear reported suffering nightmares between two and seven times per week in the preceding four years. They involved seeing the faces of villagers packed into his aircraft and images of their plane crashing. He reported strong intrusive memories of these scenes that at times may have had a flashback quality. He said these occurred most weeks for the previous 18 months. He also reported avoidance of all reminders of the defence forces and that he does not attend ANZAC day parades. According to Dr Monshat, Mr Breakspear reported depressive symptoms such as low mood, suicidal ideation, lowered motivation, fatigue and difficulty in concentration. He told Dr Monshat that he had two psychiatric admissions because of depressive symptoms where the major stressor was issues with Workcover and DVA. This was the first occasion on which Mr Breakspear gave an account of his time with the RAAF as a flight engineer, and there is no evidence in the Workcover claim psychiatric reports of his service experiences, other than a brief reference to that in Mr Ball’s report of 25 September 2007. Mr Ball simply recorded that Mr Breakspear joined the RAAF when he was 16 and trained as an airframe fitter, later remustering to flight engineer. Mr Ball said that Mr Breakspear flew with the RAAF on Caribous throughout New Guinea and South East Asia and he also taught on DC-3s in Papua New Guinea. He also said:
He was present in Vietnam at the time of the fall of Saigon. He was in some “pretty hairy” situations but he was never wounded or anything like that.
Mr Ball then recorded that Mr Breakspear left the RAAF after the completion of his normal 20 years engagement. He said Mr Breakspear told him he could have stayed on but he wanted to leave, as he felt it was time to move on. He told Mr Ball that he was offered a commission as an engineering officer but he rejected that because it would have meant going backwards.
50. The first thing that needs to be said is that Mr Breakspear’s statement to Mr Ball about Vietnam was simply incorrect. Mr Breakspear was not present in Vietnam at the time of the fall of Saigon on 30 April 1975. He was there some two months prior to that event. There was also no evidence of Mr Breakspear being offered a commission.
51. Dr Monshat recorded Mr Breakspear feeling angry at DVA/ADF for not recognising his one week in Vietnam as qualifying him for “medals and honours” or for providing him with healthcare entitlements including his back pain.
52. Dr Monshat had a conversation with Dr Hillol Das, a psychiatrist who had previously treated Mr Breakspear for depressive symptoms. The report prepared by Dr Das dated 20 July 2007, while referring to Mr Breakspear having left the Army (sic) in 1987, and making reference to Mr Breakspear suffering back pain and aggravation of back pain in the course of work as a loadmaster on Dakota aircraft and lifting a toolbox into the aircraft, makes no other reference to service related stressful incidents. Dr Monshat said that in the six months prior to seeing Mr Breakspear, he, for the first time, revealed his history of service related nightmares to Dr Das. I have no record of that.
53. Dr Monshat diagnosed Mr Breakspear as suffering from PTSD. He also said Mr Breakspear suffered from chronic symptoms of anxiety, depression, pathological gambling and alcohol abuse. Dr Monshat said:
His traumatic experiences did not appear to pose an extreme threat of death or serious injury but are indeed likely to have caused severe distress at the time and formed the basis for re-experiencing symptoms.
Dr Monshat concluded that it was quite conceivable that Mr Breakspear’s RAAF service damaged him emotionally and rendered him more vulnerable to mood, anxiety and addictive behaviour symptoms. Other than that, it is difficult to understand the basis for Dr Monshat’s diagnosis of PTSD as he makes no reference at all to Criterion A of DSM-IV-TR. In fact, the statement I have quoted above appears to accept that Mr Breakspear’s RAAF experiences do not satisfy Criterion A of DSM-IV-TR.
54. Although Dr Epstein examined Mr Breakspear in March 1997, and Mr Breakspear mentioned joining the RAAF as an apprentice and working as a flight engineer, spending three years in Malaysia between 1971 and 1974 [sic], Dr Epstein did not record any of the stressful incidents subsequently recounted by Mr Breakspear. In fact, on his reasons for leaving the RAAF, Dr Epstein recorded:
He was an instructor, he taught mathematics full time for four years at an RAAF school but he felt that he wanted a change and he had also met his second wife who was in the Air Force and they both decided to leave.
At that time, Dr Epstein diagnosed Mr Breakspear of suffering from an adjustment disorder with depressed mood. Following that consultation, Dr Epstein did not see Mr Breakspear again until 31 March 2009.
55. On his second consultation, Mr Breakspear gave Dr Epstein a detailed history of his RAAF service. Dr Epstein recorded the following:
He was often detached to Papua New Guinea where he remained for three months at a time. During those episodes he was flying long hours in bad weather and terrain and experienced several frightening engine failures.
It should be noted that Mr Breakspear did not give evidence of any event in which he was involved while flying in PNG where the engine failed.
56. Regarding Mr Breakspear’s trip to Vietnam in January 1975, Dr Epstein recorded that some of the locations attended were in the enemy zone and one engine was kept running as a safety measure. Mr Breakspear apparently told Dr Epstein that his duties were to scan the area from the tarmac and maintain constant communication via an intercom lead with the crew. He described himself as feeling lonely and frightened on these occasions. As I have already explained, in cross-examination, Mr Breakspear significantly modified his account of the Vietnam trip.
57. Dr Epstein also recounted the flights conducted in Laos. He recorded Mr Breakspear as telling him that some people were hostile, unwell and fearful and that he feared sudden movements could unbalance the aircraft and cause a crash. Dr Epstein recorded Mr Breakspear as telling him he feared for his life during one of these relocation flights when one of the propeller control units malfunctioned and the aircraft became unbalanced and could have landed outside the airstrip where there were potential landmines. Once again, this is a significant embellishment of the evidence he gave to the Tribunal and the reality of that event.
58. As to the incident where the crew went to the American PX to collect cigarettes and alcohol, Dr Epstein recorded that these items were illegal. He also recorded that the crew was threatened by local troops at gunpoint and he found that very frightening. After being confronted with Squadron Leader Stott’s evidence of that event, Mr Breakspear simply said that the troops were armed and in any event he felt threatened even though there were no overt threats made to him.
59. As for the demonstration short take-off which occurred at Laverton air base, Dr Epstein recorded that event as taking place at East Sale and described it as a terrifying experience where the pilot lost control of the Caribou aircraft in a steep climb. Dr Epstein said Mr Breakspear subsequently had nightmares of plane crashes. This is a very significant embellishment of what in fact occurred.
60. Regarding the transport of prisoners from Santo to Port Vila in Vanuatu, Dr Epstein recorded that the passengers were restless and aggressive. He said Mr Breakspear was concerned by the PNGDF soldiers who had fully loaded weapons as he did not trust them. He was worried about a possible outbreak of violence and inadvertent weapon discharge that would have put his life at risk. Again, that is a significant overstatement of the circumstances as I have indicated above.
61. Regarding the inadvertent discharge of the fire extinguisher on a Caribou aircraft, Dr Epstein recorded Mr Breakspear as telling him that the engine fire extinguisher was accidentally discharged and it caused the engine to shut down. He later agreed that the engine was not shut down. Dr Epstein then recorded that the pilot managed to land the aircraft safely but Mr Breakspear and others had vomited when they landed. He thought he was going to be killed. This is plainly a gross overstatement of that event.
62. Dr Epstein also recorded the occasion Mr Breakspear claimed he took over the control of a Dakota aircraft in PNG. He said Mr Breakspear told him that he was requested to take over the aircraft during a decent through cloud because of the unavailability of the co-pilot who was asleep and the captain who needed to use the toilet. This statement is clearly fanciful.
63. Mr Breakspear also told Dr Epstein about the LAPES incident. Dr Epstein simply recorded that a low altitude parachute extraction system airdrop malfunctioned and that a fatal crash was avoided although Mr Breakspear feared for his life.
64. Dr Epstein also recorded a detailed history of Mr Breakspear’s employment following completion of 20 years’ service in the RAAF. There were a number of claimed stressful events which took place between 2000 and 2006 when Mr Breakspear was first examined by Dr Das. Dr Epstein indicated that Mr Breakspear had seen Dr Das for treatment some 20 times by July 2007. Dr Epstein stated that on 17 September 2007 the Repatriation Commission refused Mr Breakspear’s claim regarding incapacity from adjustment disorder and alcohol abuse. It was after this event, apparently, that Mr Breakspear began brooding about his experiences in the RAAF. Dr Epstein recorded that this seemed to take precedence over the experiences which he had described when employed by Gippsland Grammar School. Mr Breakspear was admitted to Pine Lodge psychiatric clinic on 7 November 2007 and while there he described nightmares about the school and about the RAAF. Dr Epstein also recorded that Mr Breakspear began working for a company called Airflite Proprietary Limited on 19 January 2009 as a data controller responsible for scheduling maintenance for aircraft at the RAAF Base in East Sale. This was a full time position. He has retained that employment.
65. Dr Epstein said this about Mr Breakspear’s RAAF experiences:
He does describe a number of distressing experiences whilst he was serving in the RAAF. The events that occurred during his period of war service from 28 January 1975 to 5 February 1975 do appear to have been frightening but do not meet the requirement with regard to being significant stressors, although they may well be contributing to both his alcohol abuse and his post traumatic stress disorder. He described a number of other events where he thought his life was at stake that have also contributed to his alcohol abuse and post traumatic stress disorder. In my view these two appear to be significant stressors, especially the last two episodes in which he was terrified that the aircraft in which he was travelling was going to crash.
I understand the two significant stressors referred to by Dr Epstein to be the incident which Mr Breakspear claimed the Caribou lost an engine due to the inadvertent discharge of a fire extinguisher and the LAPES incident where the extraction parachute failed to deploy.
66. Dr Epstein provided a supplementary report dated 5 July 2010 after he had been provided with a copy of Dr Wild’s first report dated 1 May 2010 and his supplementary report dated 29 May 2010. In order to understand Dr Epstein’s report, it is necessary to deal first with those two reports prepared by Dr Wild.
67. Dr Wild also recorded a detailed history of Mr Breakspear’s RAAF service. Once again, the accounts given by Mr Breakspear to Dr Wild are not only inconsistent with the accounts he gave to Dr Epstein, but they are seriously embellished. For example, regarding the trip to Vietnam in 1975, Dr Wild recorded Mr Breakspear as telling him that his commanding officer’s aircraft had come under fire while on a previous mission. Squadron Leader Stott, who was the commanding officer, simply said that on one occasion, the airfield at which the Australian aircraft was parked came under a rocket attack. Airfields are of course, by their very nature, generally large in area. He did not suggest that the crew or the aircraft was targeted and had, as Mr Breakspear put it, come under fire. He said that he had missed a curfew in Saigon and described the experience as uncomfortable. He also said that when outside the aircraft on the tarmac he was in fear of his life although he did not record any incident which might give rise to the belief that his life was threatened. In fact, Dr Wild recorded that no actual adverse event occurred during Mr Breakspear’s flying in Vietnam.
68. Dr Wild also referred to the other matters which I have discussed above. He noted that Mr Breakspear’s response to those events did not describe him as experiencing intense fear, helplessness or horror. However, Dr Wild did refer to Mr Breakspear’s description of the short take-off incident as a very frightening experience. That was of course based on the statement that the aircraft stalled and the pilot had lost control, which, on Mr Breakspear’s subsequent evidence, it did not. Mr Breakspear also described the incident of taking control of the Dakota aircraft in New Guinea which he described as very frightening. Dr Wild said that he found that account implausible. That of course comes as no surprise. As I have indicated above and as Dr Wild has said, there was no reason why the pilot, if he needed to use the toilet at the back of the aircraft, would not have woken the co-pilot. Dr Wild noted that Dr Epstein did not record any further information regarding the event and so he said he was unable to express a further opinion on it.
69. As for the LAPES incident, Dr Wild accepted that while incident was professionally dealt with by Mr Breakspear, it was associated with anxiety which left him feeling washed out after the event. He said it was not clear to him to what extent the situation Mr Breakspear found himself in was routine and reasonably safe and to what extent the situation involved a real and reasonable risk of injury or death.
70. Dr Wild also recounted other events which occurred in Mr Breakspear’s life which were unrelated to service. There were a number of these which caused Mr Breakspear stress and anxiety. Dr Wild referred to Dr Das’ report of 22 November 2006 in which he referred to Mr Breakspear’s posttraumatic symptoms. Dr Wild said that Dr Das clearly was referring to Mr Breakspear’s acute emotional reaction to being dismissed from his work at Gippsland Grammar School. It was not service related.
71. Dr Wild also referred to Dr Monshat’s assessment of PTSD. Dr Wild said, following his examination of all of the preceding psychiatric assessments, there was nothing in Mr Breakspear’s recorded history to suggest signs of PTSD prior to the interview with Dr Monshat. He also referred to Mr Breakspear’s full-time employment with Airflite since January 2009, where Mr Breakspear indicated he was apparently content.
72. Dr Wild concluded that he did not find evidence of PTSD related to service experience, even though he accepted that some of Mr Breakspear’s anxiety and alcohol related symptoms were coloured by his service experiences. He referred to Mr Breakspear’s description of problems with disturbed sleep and waking in a sweat in the middle of the night. He said that this symptom is sometimes treated as if it was pathognomonic of PTSD, but in fact is a common symptom of excessive alcohol consumption independent of any psychiatric disorder. He also said that the content of Mr Breakspear’s dreams regarding his RAAF experiences did not suggest a diagnosis of PTSD because dreams require content and that content usually reflects the person’s experiences. In his opinion, chronic alcohol ingestion was the likely cause of Mr Breakspear’s sleep disturbance. He also noted that Mr Breakspear had a criminal conviction for theft; that he gambled heavily and spent a great deal on alcohol. In his opinion, Mr Breakspear suffered from GAD and he exhibited features of a cluster-C personality disorder with obsessive compulsive and avoidant traits. He was of the view that Mr Breakspear’s personality disorder was not due to his service experiences. He also described Mr Breakspear as suffering with chronic alcohol misuse causing psychiatric symptoms.
73. Dr Wild provided a supplementary report dated 29 May 2010 after he had been provided with a statement by Mr Gavin Secombe, who was the co-pilot of the Caribou aircraft when the LAPES incident occurred. Having read Mr Secombe’s statement, Dr Wild accepted that the LAPES incident was very unusual and potentially very dangerous. He said that Mr Breakspear’s subsequent immediate anxiety could be understood in light of that. He again repeated that Mr Breakspear’s feeling immediately after the event, being washed out and tired, was a normal response to anxiety. However, he said that Mr Breakspear had pre-existing problems with anxiety and alcohol abuse. He noted that Mr Breakspear had complained to Dr Tony Austin, a RAAF medical officer, in 1985 about increasing feelings of tension both at work and in his domestic environment. He was also then advised to reduce his alcohol consumption. Therefore, according to Dr Wild, Mr Breakspear’s anxiety and alcohol abuse were not caused by the LAPES incident. Dr Wild also recorded that Mr Breakspear told him that after his service in Vietnam in 1975, he was anxious, irritable, moody, depressed, short-tempered, suffering nightmares and sleeping restlessly. He also indicated that the short take off incident in 1985 was not causative.
74. Dr Wild was of the opinion that the LAPES incident did not cause an aggravation of any of Mr Breakspear’s clinical conditions. He explained that general anxiety disorders most commonly commence when a person is in their teens or twenties and it runs a chronic relapsing course with a tendency to worsen over the life span. Treatments were often partial and of inconsistent benefit. Comorbidity with other disorders, including alcohol abuse and dependence, was common and while alcohol relieved anxiety in the moment, it aggravated it in the long term. He said that one estimate suggested that more than one third of the patients who sought advice regarding anxiety experienced resolution of their anxiety when they ceased drinking alcohol. That suggested alcohol abuse alone was the cause of the anxiety. Dr Wild concluded that he could not say on the balance of probabilities that the LAPES incident would have caused anything more than a brief exacerbation of Mr Breakspear’s anxiety and he could not separate out the effect of that stressor from the confounding variable of alcohol abuse. He said it was unlikely that the LAPES incident caused a significant, non-temporary clinical worsening of Mr Breakspear’s GAD or alcohol abuse and that it was unlikely to have had any effect on his personality disorder.
75. Dr Epstein provided a further report dated 5 July 2010, after he had been provided with copies of both of Dr Wild’s reports and the statement made by Mr Secombe. Dr Epstein said that in his opinion, the events which Mr Breakspear described on his trip to Vietnam in 1975 did appear to have been frightening but did not meet the requirement with regard to being significant stressors, although they may well be contributing to both his alcohol abuse and PTSD. In his view, the two episodes in which Mr Breakspear thought the aircraft was going to crash, presumably the short take-off incident and the LAPES incident, appeared to be significant stressors.
76. Dr Epstein also acknowledged that Dr Wild referred to a number of matters of which he was not aware, including the treatment of Mr Breakspear’s father for war related neurosis and the fact that his father appeared to be a heavy drinker. He also referred to events outside Mr Breakspear’s RAAF service. Dr Epstein noted that Mr Breakspear did not tell him or Dr Entwisle, another psychiatrist who had examined Mr Breakspear, about having any prior psychiatric treatment or counselling at the time of his divorce, his father’s ill health and a new relationship which he had formed.
77. Dr Epstein concluded that despite the opinions expressed by Dr Wild, while understandable, they did not lead him to altering his own opinion. He considered Mr Breakspear did have PTSD, a major depressive disorder and alcohol abuse. He was not of the view that Mr Breakspear had GAD because his symptoms were not consistent with that condition.
78. In the course of the hearing concurrent evidence was taken from Dr Epstein and Dr Wild. Dr Epstein was referred to his earlier report of 26 March 1997 where he recorded a brief history of Mr Breakspear’s RAAF service. Despite that, it appears Mr Breakspear made no mention at all about any stressful events in the course of serving with the RAAF. Dr Epstein agreed that nothing emerged from that history which related to his claim for PTSD as a consequence of his RAAF service. When asked why that might be the case, Dr Epstein agreed that it may have been because at that time, the focus was on a work injury or, he suggested, it may be that Dr Wild was correct.
79. Dr Epstein also explained that sometimes people who have had things go wrong with their life later reflect on those things and make a connection with some of their earlier experiences. Therefore, after Mr Breakspear got to talking with other veterans about their earlier experiences, it may have only been then that he sought an explanation from his RAAF experiences. In other words, it was only after the event and discussing the problems he was experiencing with other persons, he was able to join up the dots. However, Dr Wild said that the striking thing about what Mr Breakspear now claims is that on each occasion he has seen other doctors, including psychiatrists, he said there were no previous psychiatric problems. Dr Epstein said that the impression he got was that what seemed to be the source of concern for others about Mr Breakspear was his alcohol consumption. Although Mr Breakspear denied it at times, he was drinking heavily. Dr Epstein said that the impression he got was that Mr Breakspear regarded himself as a person who intermittently may have drunk more, but in the context of the service environment, that may not have been exceptional. He may not have seen himself as having psychiatric problems but rather as in intermittently getting on the grog too much.
80. When Dr Wild was asked about his diagnosis of GAD, he explained that it was an emotional disorder which had a tendency to cluster in families, alone or with other emotional disorders such as major depression and alcohol abuse. In his view, it was significant that his family situation, particularly his father’s conditions, had not been previously mentioned. He said that Mr Breakspear’s father had a significant psychiatric disorder which involved him being anxious and at times, depressed. He said it appeared that Mr Breakspear’s father had deep sleep therapy and, when it was fashionable, electroconvulsive therapy. Despite that, he appeared to cope, he functioned and worked, but alcohol was a significant prop to help him manage his anxiety. Dr Wild was of the view that familial transmission was common between parents and children for generalised anxiety, major depression and alcohol abuse. Dr Wild said there was an ongoing history that Mr Breakspear had some degree of anxiety and tension and an obsessional kind of personality style which later developed.
81. When reminded by Dr Epstein that Dr Wild said that Mr Breakspear had features of a personality disorder, Dr Wild agreed. Dr Wild explained that obsessionality is a way of managing anxiety. Dr Epstein did not disagree that there was an obsessional personality style. However, he said that there was a tendency to pathologise behaviour which was normal. In his opinion, the only issue was whether Mr Breakspear’s obsessional personality style had become dysfunctional. Dr Epstein agreed that he had observed some features of obsessional personality style in his examination of Mr Breakspear but not necessarily clearly. Although he did not have much information about the problems Mr Breakspear experienced at Gippsland Grammar School, he suggested that some of the features may well have led to conflict which occurred with people there. Nevertheless, Dr Epstein said that did not necessarily indicate that his major problem is an obsessional personality disorder. He agreed that Mr Breakspear’s obsessionality was a way of trying to manage anxiety. Dr Epstein also said that he had seen many people who had left a very structured environment, such as the police force, who subsequently had difficulty adapting to a more fluid extra-service life.
82. Ms Casamento referred to a psychiatric assessment made following Mr Breakspear’s conviction on theft charges. Dr Andrew B Pettigrew, a psychiatrist, said:
He presented with a history of anxiety symptoms and depression in the context of life changes. There is no underlying psychiatric disorder. There is an unblemished record of high achiever with the Air Force. ... He made a very successful transition to civilian life, but also that in adjusting to civilian life he developed a pattern of giving to his work and neglecting his family. He got caught in vicious circle of stress and was found that he could not please everyone. I diagnosed adult adjustment disorder.
Dr Epstein commented that in his experience, people who retire or who move from a very structured, rigid sort of lifestyle to one which is much freer; certainly have a period of adjustment. He was of the view that the adjustment period lasted between six and twelve months and then settled down.
83. Dr Wild also explained that about two-thirds of people have one of the Criterion A stressors for PTSD in their life and if a person has had one of such events, chances are they have had several. However, only a small proportion of people go on to develop PTSD. Dr Epstein generally agreed with that and said people he had seen with clear cut PTSD were people who either had an accumulation of a number of stressors or who have had quite an extreme stressor. He also agreed that some people are very resilient while on the other hand, some are not.
84. In concluding, Dr Wild maintained that Mr Breakspear suffered from GAD and that there had probably been depression along the way. He said his difficulty was that a lot of the symptoms or the non-specific symptoms which psychiatrists put together as GAD or PTSD are similar, or overlapping, and can all be secondary to alcohol abuse alone. Dr Epstein agreed with that statement, as I understood him, particularly with the overlapping nature of the symptoms and the fact that they can be secondary to alcohol abuse. While Dr Epstein did not disagree with what Dr Wild had said, he added that when he saw Mr Breakspear in April 2009, he was still having nightmares most nights, some of which were about his RAAF experiences, particularly with regard to Vietnam. Unfortunately, the variations to Mr Breakspear’s evidence in the course of the hearing were not put to Dr Epstein in the concurrent evidence session.
85. Finally, Dr Epstein said that the only word he disagreed with was the word generalised. He agreed with everything else and said Mr Breakspear had an anxiety disorder. When asked where PTSD came into his diagnosis, he simply stated that PTSD is an anxiety disorder.
86. To clarify matters, Dr Epstein said that Mr Breakspear had a variety of non-specific symptoms which are manifestations of PTSD but may be caused by other factors. Nevertheless, the particular aspects of it more strongly suggested PTSD rather than GAD. When Dr Wild asked Dr Epstein as to what the PTSD was secondary to, Dr Epstein replied that there were a number of factors that apparently occurred during Mr Breakspear’s RAAF service which caused him to be in fear of his life when he was in an aircraft. He also referred to Mr Breakspear’s Vietnam trip where he was standing guard outside the aircraft for a while. He referred to several major stressors that may have been significant, including the overloaded aircraft involved in the Laos incident, the loss of control of a Caribou in the Laverton incident and the LAPES incident. He then responded that he was not saying necessarily that if Mr Breakspear had PTSD, which he thought was the case, it was caused exclusively by his experiences in Vietnam.
87. Dr Wild indicated that he agreed with Dr Epstein about the LAPES incident being a severe stressor and that Mr Breakspear found it frightening. He also said that he subsequently had dreams about the event and similar dreams of aircraft crashing. Mr Breakspear did not say they were recurrent, intrusive or frequent but just that there was an emotional reaction to it at the time; that it was frightening; that he felt washed out; and that, subsequently, he had dreams about it, or thematically similar kind of dreams.
88. In my opinion, Dr Wild and Dr Epstein were not particularly far apart in their diagnosis. They simply attached more or less significance to the nature of the events described by Mr Breakspear and his subsequent reaction to those events. In my view, Dr Wild’s diagnosis is more likely to be correct. That is because Mr Breakspear subsequently, in his oral evidence in the course of the hearing, significantly modified his description of those major events which Dr Epstein described as major stressors. I refer particularly to Mr Breakspear’s trip to Vietnam where he agreed he did not have to stand outside the aircraft for lengthy periods of time feeling alone and vulnerable. In the short take-off incident, the pilot, Flight Lieutenant Cassebohm, did not lose control of the aircraft because it did not stall and accordingly there was no risk of the aircraft crashing. The accidental discharge of the fire extinguisher on the Caribou in New Guinea did not cause the engine to shut down and the aircraft was never in any danger of crashing from that event. The LAPES incident, while quite likely frightening, resolved in a very short space of time and there was no risk of the aircraft crashing. I have little doubt that had Dr Epstein been given a more accurate account of the incidents described as major stressors, he would have agreed with Dr Wild that the appropriate diagnosis was GAD. Accordingly, I find on the balance of probabilities, that Mr Breakspear does not have PTSD.
Generalised Anxiety Disorder – Diagnosis and Clinical Onset
89. As I have stated above, Dr Wild diagnosed Mr Breakspear as suffering GAD although Dr Epstein did not agree that Mr Breakspear suffered GAD, he agreed that Mr Breakspear suffered from an anxiety disorder, which he believed was appropriately described as PTSD. The current Statement of Principles (SoP) concerning anxiety disorder is No 101 of 2007. The SoP in fact deals with GAD, anxiety disorder due to a general medical condition and anxiety disorder not otherwise specified. The diagnostic criteria for GAD as described in DSM-IV-TR are:
113. While it is extremely difficult to determine the clinical onset of Mr Breakspear’s alcohol abuse, I accept what Dr Epstein says about the complaints made by Mr Breakspear’s wife in 1985 about his service drinking. That is because it would seem that at that time, recurrent alcohol use resulted in Mr Breakspear failing to fulfil major obligations at home. That fits within the diagnostic criteria set out in DSM‑IV‑TR. As a result, I find that the clinical onset of Mr Breakspear’s alcohol abuse was in 1985.
WAS MR BREAKSPEAR’S GENERALISED ANXIETY DISORDER AND ALCOHOL ABUSE WAR-CAUSED OR DEFENCE-CAUSED?
114. Because Mr Breakspear had both operational service and defence service, his claims need to be examined under Part II and Part IV of the VE Act. Because different criteria apply to war-caused and defence-caused injuries, and different standards of proof apply, it is necessary to deal discretely with the events which occurred while Mr Breakspear was on his trip to Vietnam and the other events during the course of his service with the RAAF.
Operational Service
115. Where a veteran is incapacitated from a war-caused injury or a war‑caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension to the veteran by way of compensation (s 13(1)).
116. Section 9 of the VE Act relevantly provides that, subject to s 9A (which does not apply in this case):
… an 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:
…
(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; …
117. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service (s 7, VE Act).
118. Mr Breakspear contended that his generalised anxiety disorder (GAD) and alcohol abuse can be attributed to his operational service, which is eligible war service for the purposes of the VE Act.
119. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has arisen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437, where Barwick CJ said, at 443:
Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". …
120. Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510. Regarding the expression attributable to, Donaldson J said, at 514:
… these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.
121. Toohey J said, in relation to the 1920 Repatriation Act, at 72:
In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.
122. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where the veteran rendered operational service, that the injury, death or disease of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given that Mr Breakspear rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his GAD and alcohol abuse.
123. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth.
124. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP, determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply to a claim for incapacity resulting from injury or a disease or the death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2), nor declared that it does not propose to make a SoP.
125. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There, Beaumont, Hill and O’Connor JJ said:
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 ss 196B (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 s 120(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.
hypothesis
126. Mr Breakspear contended that his flight to Vietnam from Butterworth between 28 January 1975 and 5 February 1975 was very stressful. He said that trip occurred when the fall of Saigon was imminent and it involved carrying Embassy and Military Personnel to a number of locations in Vietnam from Saigon. He said that some locations visited had surrounding signs of recent fighting and of potential threat. He also said it was the practice to keep one engine idling on the aircraft in case the aircraft needed to leave immediately, and it was his task to stand outside the aircraft monitoring the engine and to keep a look out, while communicating with the flight crew via an intercom system. He described to Dr Wild that he felt threatened, worried and scared, because there was a war going on. Mr Breakspear also told Dr Epstein that his duties were to scan the area from the tarmac and maintain constant communication with the crew. He explained that he felt very lonely and frightened on these occasions. In a letter to the then Minister for Veterans’ Affairs dated 2 May 2007, Mr Breakspear referred to the fact that there was small arms fire and louder explosions in the background wherever he went on that trip, including Saigon which had a curfew in place.
127. Mr Breakspear contended that his alcohol consumption increased significantly as a consequence of his trip to Vietnam. He described heavy drinking on extended trips and overnight stays. On the trip to Vietnam, Mr Breakspear said that on one occasion, the crew was entertained by Embassy staff and he was so drunk that he missed the curfew and had to remain at the residence of the Embassy staff until the following morning. He said after the flight returned to Butterworth on 5 February 1975 he became anxious, irritable, moody, depressed, short tempered and had difficulty sleeping with nightmares, often waking in a sweat. Mr Breakspear claimed he began drinking alcohol heavily because of his anxiety and his marital relationship began to deteriorate because of his drinking and moodiness.
128. In my opinion, the material to which I have been referred does point to a hypothesis connecting Mr Breakspear’s GAD and alcohol abuse to the circumstances of his operational service.
sop in force
129. The RMA has made a SoP concerning GAD. The current SoP is Instrument No 101 of 2007 which came into effect on 19 September 2007. It has subsequently been amended by Instruments No 42 of 2010 and No 15 of 2011 but those amendments are not relevant to Mr Breakspear’s claim. The current SoP concerning alcohol dependence and alcohol abuse is Instrument No 1 of 2009. Because the Commission’s decision regarding Mr Breakspear’s alcohol abuse claim was made on 23 December 2008, Instrument No 1 of 2009 is the relevant SoP (see Keeley and Gorton ).
is the hypothesis reasonable?
130. The hypothesis raised by a veteran will be reasonable if it is consistent with the template found in the SoP. In other words, the hypothesis must contain one or more of the factors which the RMA has determined must exist and be related to the person’s service. Although Mr Breakspear, being unrepresented, did not specify which factors he relied upon, given his evidence, it seems to me that the applicable factor is 6 (a) (i) which provides:
(a)For generalised anxiety disorder or anxiety disorder not otherwise specified only:
(i)experiencing a category 1A stressor within two years before the clinical onset of anxiety disorder; or
. . .
131. Instrument No 101 of 2007 defines a category 1A stressor in the following way:
A category 1A stressor means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
. . .
132. Mr Breakspear’s Vietnam experience occurred in 1975. I have found that the clinical onset of his GAD was in 1985. Clearly, Mr Breakspear’s claim does not satisfy factor 6(a)(i) of the SoP. Even if I am wrong about the timing of the onset of his GAD, I would nevertheless find that Mr Breakspear cannot be said to have experienced a category 1A stressor within the two years before the clinical onset of GAD. Putting aside the time element involved in satisfying this factor, although Mr Breakspear said he was frightened and concerned about many things while on the trip to Vietnam, nothing which he has said falls within the definition of a category 1A stressor. There was no life threatening event, he was not subject to a serious physical attack nor was he threatened with a weapon, held captive or tortured. For those reasons I find that Mr Breakspear’s GAD was not war-caused.
133. As far as Mr Breakspear’s alcohol abuse is concerned, the relevant factor which needs to be satisfied in Instrument No 1 of 2009 is 6(b) which provides:
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
. . .
134. The problem for Mr Breakspear is that the category 1A stressor is defined in precisely the same terms as that which applies to the SoP for anxiety disorder. For the reasons I have stated above, Mr Breakspear cannot satisfy factor 6(b) even though it refers to a five year period before the clinical onset of alcohol abuse. The Vietnam incident occurred some 10 years prior to the clinical onset of alcohol abuse. It follows I must find that Mr Breakspear’s hypothesis is not consistent with the template set out in Instrument No 1 of 2009 and therefore must be deemed to be unreasonable. Mr Breakspear cannot succeed on this claim based on operational service.
Defence Service
135. The Laos, short take-off, Vanuatu, New Guinea and LAPES incidents all occurred at a time when Mr Breakspear was rendering defence service rather than operational service. Therefore, Mr Breakspear’s claim in respect of these incidents is governed by Part IV of the VE Act. Part IV applies to persons who have served in the defence forces for a continuous period commencing on or after 7 December 1972 and before 7 April 1994 (s 69(1) of the VE Act). There was no question about the fact Mr Breakspear served on a continuous full time basis as a member of the Defence Force after 6 December 1972 and completed three years effective full time service as a member.
136. Section 70(1) of the VE Act provides that where a member of the forces is incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is, subject to the VE Act, liable to pay, in the case of incapacity of the member, a pension by the way of compensation to the member, in accordance with the VE Act.
137. A different standard of proof also applies where the claim is made under Part IV of the VE Act. Section 120(4) provides that the Commission must decide the matter to its reasonable satisfaction.
138. Section 120B of the VE Act also applies to claims made on or after 1 June 1994 under Part IV which relates to defence service rendered by a member of the forces. Section 120B(2) of the VE Act is in identical terms to s 120A(2) of the VE Act which applies to claims made in respect of operational service. That is, where the RMA has given notice under s 196G of the VE Act that it intends to carry out investigation in respect of a particular kind of injury, disease or death, the Commission must not determine a claim in respect of the incapacity of a person from an injury or a disease unless the Authority has determined a SoPs under s 196B(3) of the VE Act in respect of that kind of injury, disease or death; or it has declared that it does not propose to make such a SoPs.
139. Section 120B(3) of the VE Act provides that in applying s 120(4) to determine the claim, the Commission must be reasonably satisfied that an injury suffered by a person, disease contracted by a person or the death of a person is defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
140. Eligibility for a pension under Part IV of the VE Act is governed by s 70. Insofar as it is relevant, s 70(5)(a) provides:
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence caused, an injury suffered by such a member shall be taken to be a defence caused injury or a disease contracted by such a member shall be taken to be a defence caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
. . .
141. While the SoPs issued by the RMA which refer to making a connection between the service rendered by a member of the forces and the disease or injury use the broad expression is connected with the circumstances of the person’s relevant service, s 70(5)(a) of the VE Act points strongly to a causal connection because it uses the words arose out of, or was attributable to. The High Court (McHugh, Gummow, Callinan and Heydon JJ) in Roncevich v Repatriation Commission (2005) 218 ALR 733 said, at 741-742:
[27] The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
142. The High Court in Roncevich also cited with approval what was said by Aickin J in Repatriation Commission v Law (1981) 147 CLR 635 where he said, at 647‑648:
They said that the words “arising out of” in that paragraph require a consequential relationship of the incapacity or death with the service out of which it is said to arise. They also said that the expression “arising out of” or “arisen out of” is satisfied by some less proximate causal relationship than the expression “caused by” or “resulting from” and that it was not useful “to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ . . .
143. In order for Mr Breakspear to establish that his GAD is connected with the circumstances of his defence service, he must be able to establish that one or more factors set out in paragraph 6 of Instrument No 102 of 2007 exists. Although Mr Breakspear did not refer to this SoP or to the factors contained therein, the only factor which appears to me to be relevant is 6(a)(i) which provides:
Experiencing a category 1A stressor within the two years before the clinical onset of anxiety disorder; or
. . .
144. A category 1A stressor is defined in paragraph 9 of that SoP in precisely the same terms as the SoP which deals with the reasonable hypothesis and to which I have referred above.
145. Regarding Mr Breakspear’s alcohol abuse, Instrument No 2 of 2009, which contains the factors which must be determined on the balance of probabilities for the purposes of connecting Mr Breakspear’s defence service with alcohol abuse, is the relevant SoP. There are be two factors which may be relevant. They are:
6. The factor that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service is:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
. . .
146. Because I have found Mr Breakspear’s clinical onset of GAD was in 1985, which was also the time of onset of his alcohol abuse, I have included factor 6(a). However, it should be borne in mind that the clinically significant psychiatric condition referred to in factor 6(a), in this case Mr Breakspear’s GAD, constitutes a sub-hypothesis which must also be connected with Mr Breakspear’s service. This was explained by the Full Court of the Federal Court (Branson, Sundberg and Kenny JJ) in McKenna v Repatriation Commission (1999) 86 FCR 144. In that case, Mr McKenna had made claims for ischaemic heart disease and atherosclerotic peripheral vascular disease. His hypothesis included the link of hypertension. As the Full Court explained, in each case the hypothesis linking the two end positions comprised two sub-hypotheses: one which linked Mr McKenna’s ischaemic heart disease or as the case may be, his atherosclerotic peripheral vascular disease, with his disease of hypertension; and the other which linked his disease of hypertension with the circumstances of the particular service rendered by him. The Full Court said, at 152:
However, the sub-hypothesis linking Mr McKenna’s hypertension with stress and anxiety attributable to his service was crucial to the hypotheses raised by the material before the tribunal. In our view, neither of these hypotheses could be said to be upheld unless the sub-hypothesis was also upheld.
hypothesis
147. I have outlined the stressful events relied on by Mr Breakspear in the course of his defence service which he said had a causal connection with his GAD and alcohol abuse. Mr Breakspear described those events as being stressful. Given that the relevant SoPs for GAD and alcohol abuse connect experiencing a stressful event with both GAD and alcohol abuse, I am satisfied that the material before me does point to a hypothesis connecting Mr Breakspear’s GAD and alcohol abuse with his defence service.
sop in force
148. The SoPs dealing with anxiety disorder and alcohol abuse are Nos 102 of 2007 and 2 of 2009 respectively. They are the relevant SoPs for the purposes of Mr Breakspear’s claim.
reasonable satisfaction
149. The Commission, and this Tribunal standing in its place, must be reasonably satisfied that a disease contracted by a person was defence-caused where the material raises a connection between the disease and the service rendered by the person; and the relevant SoP upholds the contention that the disease is, on the balance of probabilities, connected with that service. In order to establish the relevant connection with service, the factors, one of which must exist to establish that connection, are those set out in paragraph 6 of both SoPs. Both of the SoPs refer to experiencing a category 1A stressor within two years before the clinical onset of anxiety disorder or alcohol abuse. Instrument No 2 of 2009 also refers to having a clinically significant psychiatric condition at the time of clinical onset of alcohol abuse.
150. There is one other factor which may be relevant because the final incident referred to by Mr Breakspear, the LAPES incident, occurred on 16 March 1986, which was after the clinical onset of his GAD and alcohol abuse. The factor that may be relevant for GAD is factor 6(c)(i) which refers to experiencing a category 1A stressor within two years before the clinical worsening of anxiety disorder and, under the alcohol abuse SoP, factor 6(g) which refers to experiencing a category 1A stressor within two years before the clinical worsening of alcohol abuse.
151. I will deal chronologically with the incidents which Mr Breakspear said occurred during his defence service.
152. The Laos incident occurred between 2 March 1975 and 8 March 1975. The problem for Mr Breakspear in relying upon this incident is that it occurred well outside the two years prior to the clinical onset of either GAD or alcohol abuse. It does not fit within factor 6(a)(i) of the anxiety disorder SoP nor within factor 6(b) of the alcohol abuse SoP. Because the relevant SoPs do not uphold Mr Breakspear’s contention regarding the Laos incident, I find that I am not reasonably satisfied that this particular incident is connected with his GAD.
153. The next incident relied on by Mr Breakspear is the short take-off incident which occurred at Laverton Air Base on 12 February 1980. Again, this incident suffers from the same problem as the previous one. That is, even if the incident satisfied the definition of a category 1A stressor, Mr Breakspear did not experience that stressor within the two years before the clinical onset of either his GAD or alcohol abuse. I therefore find I cannot be reasonably satisfied that this aspect of Mr Breakspear’s defence service is upheld by the relevant SoPs.
154. The Vanuatu incident occurred between 31 August 1980 and 23 September 1980. Once again, it should be immediately apparent that this incident does not satisfy the relevant factors for anxiety disorder or alcohol abuse because the event took place outside the two years required by the relevant SoPs. Therefore, I find that I cannot be reasonably satisfied that this aspect of Mr Breakspear’s defence service is upheld by the relevant SoPs.
155. The first PNG incident, which involved the inadvertent discharge of a fire extinguisher into an engine, occurred between 13 November 1982 and 23 November 1982. Once again, this incident occurred outside the two year limit set out in the relevant SoPs for anxiety disorder and alcohol abuse. I therefore find that I cannot be reasonably satisfied that this aspect of Mr Breakspear’s defence service is upheld by the relevant SoPs.
156. The second PNG incident, which Mr Breakspear described as taking over the flight controls of a Dakota aircraft while in a descent through cloud, appears to have occurred in September 1984. It therefore does not suffer from the problems associated with the preceding events to which I have referred. The only issue in this case is whether Mr Breakspear can be said to have experienced a life-threatening event. Quite plainly, even if the incident occurred as described by Mr Breakspear, it could not be described as a life-threatening event. Although the co-pilot was said to have been asleep, if any concern arose regarding the safety of the flight, I have no doubt that the co-pilot would have been awoken and the problem immediately resolved. I find that I cannot be reasonably satisfied that this incident which occurred in the course of Mr Breakspear’s defence service is upheld by either of the relevant SoPs.
157. Because I have found that the incidents referred to by Mr Breakspear before the March 1986 LAPES incident do not satisfy the relevant SoPs, I also find that Mr Breakspear does not satisfy factor 6(a) of the alcohol abuse SoP regarding a clinically significant psychiatric condition at the time of clinical onset of alcohol abuse. In order to satisfy that particular factor, as the Full Court of the Federal Court said in McKenna’s case, the sub-hypothesis (GAD) needed to be upheld by the SoP concerning that particular disease. I have found that it was not.
158. Finally, the LAPES incident occurred in the year following the clinical onset of Mr Breakspear’s GAD and alcohol abuse. Therefore, only those factors that refer to a clinical worsening of anxiety disorder or alcohol abuse are relevant because I have found that the clinical onset of both diseases occurred in 1985. Factor 7 in both SoPs applies and it is in identical terms in both SoPs. It provides that the relevant factors in paragraph 6 of the SoPs apply only to material contribution to or aggravation of the disease in question where it was suffered or contracted before or during, but not arising out of, the person’s relevant service. As I have found that Mr Breakspear’s GAD and alcohol abuse cannot be said to have arisen out of his defence service because those diseases do not satisfy the relevant SoPs, the possibility of those diseases being aggravated by the LAPES incident remains alive, subject to there being evidence of a clinical worsening of those conditions.
159. Mr Breakspear applied for discharge from the RAAF in August 1986 after taking some long service leave. His application for discharge was in evidence. He requested discharge having completed 20 years of service. The section commander’s comments on the discharge application state:
His departure, at the 20 year point, is motivated by both opportunity and compassionate family reasons. He has been given the opportunity to manage a hotel near his family and his father is suffering from a terminal illness. His employment opportunity also provides the means by which he can give support to his family before and after his father succumbs.
160. Mr Breakspear’s former Commanding Officer, Wing Commander GD Weekes, said:
WOFF Breakspear has strong personal reasons for electing discharge at this point in his career. They include family support in relation to his father’s terminal illness, re-marriage in the near future, and a firm employment offer.
161. Despite those statements, Mr Breakspear told Dr Epstein that he was having nightmares and flashbacks regarding his experiences in Vietnam and also his other RAAF experiences. He also told Dr Epstein he ceased having contact with RAAF and former work colleagues in an attempt to forget the traumatic experiences he had experienced.
162. Under cross-examination, Mr Breakspear said that he had no intention of retiring at 20 years and said that in his application for retirement, he would not have put down the fact that he had been scared stiff because of the LAPES drop. He agreed that it was not just the LAPES drop which caused him to leave but it was a reason he decided to end his career after 20 years. Although I suggested to Mr Breakspear that many people, after 20 years of service, took retirement because of the pension, he said that he intended to stay for longer. He subsequently agreed that all of the matters which were referred to above were part of his reasons for leaving.
163. After leaving the RAAF, Mr Breakspear worked at a hotel for a short time and, after a brief period of time at the Shoalhaven Hospital he went to work for Shoalhaven Advance Industries. It was in the course of that employment that he wrote cheques, cashed them for himself and used the funds for gambling and drinking. He was subsequently convicted on 92 charges of obtaining financial advantage by deception. After completing some 400 hours community service, Mr Breakspear moved to Victoria and commenced work with Beresford Homes. After some four years, he ran his own small business described as Bob’s Corner Store. He then worked with Wellington Shire and in 2003 got a job with Gippsland Grammar School where he worked until 2006 when he was dismissed, according to Mr Breakspear, unfairly.
164. It appears from the documents that Mr Breakspear had consulted a psychiatrist, Dr Pettigrew, for help with his emotional difficulties. He had been referred by Mr Breakspear’s GP, Dr Doug Jameson. In a report dated 9 December 1993, Dr Pettigrew said Mr Breakspear presented with a history of anxiety symptoms and depression in the context of life changes. He also said: There is no underlying psychiatric disorder. Dr Pettigrew said Mr Breakspear made a very successful transition to civilian life by taking on responsibilities for administering the local sheltered workshop. He coped with divorce, remarriage and establishing himself as the caring family man to his new family. He coped with the death of his father. None of this material suggests any psychiatric effect whatsoever on Mr Breakspear of the LAPES incident in 1986.
165. While there is reference in Dr Pettigrew’s letter to increasing stress, that was because of intense pressure at his then workplace and him being falsely accused of sexual impropriety with clients. There seems to be no connection between Mr Breakspear’s RAAF defence service and the subsequent events which took place in his life after leaving the service. Furthermore, Mr Breakspear was also examined by Dr Epstein in March 1997 following a Workcover claim. While Dr Epstein took a brief history of Mr Breakspear’s RAAF service, including what he described as a variety of experiences including teaching in Papua New Guinea for four months of the year for four years and as an instructor in the RAAF, he simply then recorded that Mr Breakspear felt he wanted a change and that he had also met his second wife who was in the RAAF and both decided to leave. There is no suggestion of Mr Breakspear suffering any clinical worsening of either GAD or alcohol abuse. There is certainly no mention of the LAPES incident at all.
166. Mr Breakspear also began to see Ms Smith in about 1999. In a report dated 11 April 1999, Ms Smith said:
Robert has no pre-existing psychological problems, and has not been diagnosed as suffering stress, anxiety, or depression prior to the injury (this is a reference to the back injury).
167. Having examined all of the medical reports prepared by various psychiatrists and Ms Smith which were written after the LAPES incident in 1986, there is no evidence whatsoever of clinical worsening of GAD or alcohol abuse. Therefore, I find that Mr Breakspear does not satisfy factors 6(c)(i) or 6(g) of the SoPs for anxiety disorder and alcohol abuse respectively. In those circumstances, I find that I cannot be reasonably satisfied that the LAPES incident referred to by Mr Breakspear upholds his contention that on the balance of probabilities, his GAD and alcohol abuse are connected with his defence service.
CONCLUSION
168. Mr Breakspear claimed that he suffered from PTSD or another significant psychiatric condition as well as alcohol abuse as a consequence of operational service and defence service with the RAAF. After examining all of the medical evidence, I have found that Mr Breakspear does not have PTSD. However, I have found that he has GAD. I have also found that Mr Breakspear suffers from alcohol abuse. The clinical onset of both of those conditions was, as best I can determine from the evidence, in 1985.
169. Mr Breakspear relied on a number of stressors which he said occurred while he was performing service with the RAAF. One of those stressors occurred while he was on operational service in Vietnam in 1975 and the others occurred at various times after his Vietnam experience. After analysing the incidents he described in Vietnam on operational service, I have found that the claimed stressors on operational service do not fit the description of events required for diagnosis of PTSD as set out in Criterion A of DSM-IV-TR. Furthermore, they do not satisfy any of the factors which must, as a minimum exist, before it can be said that a reasonable hypothesis was raised by Mr Breakspear connecting his GAD or alcohol abuse with his operational service.
170. After examining the stressful incidents referred to by Mr Breakspear which he said he experienced in the course of his defence service, I have found that those incidents do not satisfy the factors set out in the relevant SoPs to establish that GAD or alcohol abuse were connected with the circumstances of his defence service. For the sake of completeness, I have also examined whether there was any clinical worsening of GAD or alcohol abuse following what Mr Breakspear described as the LAPES incident in 1986, a year after the clinical onset of both of Mr Breakspear’s complaints. There was no medical evidence before me at all which indicated that there was a clinical worsening of Mr Breakspear’s GAD or alcohol abuse following the LAPES incident. It necessarily follows that Mr Breakspear’s claims based on PTSD or another significant psychiatric disorder as well as alcohol abuse cannot succeed.
171. The decision made by the VRB on 7 July 2008 affirming the delegate’s decision regarding Mr Breakspear’s psychiatric claim was correct. The VRB’s decision of 10 March 2009 affirming the delegate’s decision regarding alcohol abuse was also correct. I affirm both decisions.
I certify that the one hundred and seventy one [171] preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member Egon Fice
Signed: ...[sgd]...................................................................
E. Montalto, Associate
Date of Hearing 6 May 2011
Date of Decision 28 July 2011
Representative for the Applicant Self-representedRepresentative for the Respondent R. Casamento, Repatriation Commission
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