Robertson and Repatriation Commission
[2006] AATA 366
•26 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 366
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/163
DIVISION ) Re JOHN ROBERTSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date26 April 2006
PlaceCanberra
Decision The decision of the Veterans’ Review Board made 27 May 2003 is set aside and the matter is remitted for determination on the basis that Mr Robertson’s generalised anxiety disorder was war-caused.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
Veterans’ Affairs – War-caused injury or disease – Statements of Principles – Reasonable hypothesis – Date of onset of disorder – Whether veteran rendered operational service – Whether veterans’ generalised anxiety disorder was war-caused – Meaning of “severe psychosocial stressor” – Whether identifiable occurrence is one that evokes feelings of substantial distress.
Administrative Appeals Tribunal Act 1975 (Cth) s 42(1).
Veterans’ Entitlement Act 1986 (Cth) ss 5, 6, 7, 9, 69, 70 120
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Dell and Repatriation Commission (1986) 9 ALD 596
Hardman v Repatriation Commission (2004) 82 ALD 433
Repatriation Commission v Law (1980) 31 ALR 140
Delahunty v Repatriation Commission [2004] FCA 309
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Wedekind [2000] FCA 649
REASONS FOR DECISION
26 April 2006
J.W. Constance, Senior Member
Air Marshal Gration AO AFC, Member
INTRODUCTION
1. Mr Robertson was a member of the Royal Australian Navy from 1969 until 1972. For many years Mr Robertson has suffered a generalised anxiety disorder and he has applied for the payment of medical expenses and a pension on the ground that his condition was caused by his service in the Navy. He is entitled to these benefits if his disorder was either “war-caused” or “defence-caused” within the meaning of the Veterans’ Entitlement Act 1986 (Cth). The decision under review is that his condition was neither war-caused nor defence-caused.
2. As the Members of the Tribunal disagree on the decision which should be made, the decision of the Tribunal will be in accordance with the decision of the Presiding Member, Senior Member Constance.[1] The decision under review will be set aside and the matter will be remitted for determination on the basis that Mr Robertson’s generalised anxiety disorder was war-caused.
SENIOR MEMBER CONSTANCE:
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 42(1).
MATERIAL BEFORE THE TRIBUNAL
3. Mr Robertson left school at age 15 and left home a short time later. He turned 17 on 15 May 1969. On 31 May 1969 he joined the Royal Australian Navy. After enlistment he undertook general recruit training. On 8 September 1969 he was posted to HMAS YARRA.
4. In 1969 Mr Robertson commenced a defacto relationship with Margaret Robertson. They have 2 children, Stephen born 29 April 1970 and Donna born in January 1972.
5. On 22 February 1970 Mr Robertson was on board HMAS YARRA when she sailed from Singapore as an escort to HMAS SYDNEY. The vessels entered Vung Tau Harbour, Vietnam at 0630 hours on 27 February 1970 and left at 1030 hours the same day to return to Singapore. At the time Vung Tau Harbour was part of a war zone.
6. During the 4 hours HMAS YARRA was in the Harbour Mr Robertson was on general watch duty on the upper deck. He was armed with a rifle. He was told that there could be floating mines in the water and that he should look out for floating objects and bubbles which may indicate the presence of divers. He was told to call the Petty Officer if he saw anything suspicious. Boat patrols were sent out from the YARRA and divers searched the cable on a number of occasions whilst the vessel was anchored. Mr Robertson did not take part in these activities. Whilst in the Harbour Mr Robertson felt nervous and did not know what to expect. He was relieved when his ship left the Harbour.
7. On 12 April 1970 Mr Robertson obtained his Helmsman certificate after completing the necessary training. He was appointed to Special Sea Duties. On 23 April 1970 he was posted to HMAS WATSON. On 6 November 1970 he completed a basic underwater weapons training course and was promoted to ABUW2. He was posted to the HMAS PARRAMATTA on 18 November 1970.
8. On 20 May 1971 HMAS PARRAMATTA formed part of an escort to the HMAS SYDNEY and continued this duty until 24 May 1971. During this time Mr Robertson was a Special Sea Dutyman on the HMAS PARRAMATTA.
9. In the early hours of 22 May 1971 HMAS PARRAMATTA entered Vung Tau Harbour which was still a war zone. In his role of Special Sea Dutyman Mr Robertson was closed up in the aft steering compartment of the vessel with Leading Seaman Phillips. Their task was to manually steer the ship if the steering system failed. Crew were stationed in the compartment whenever the ship was in close proximity to other ships and when entering and leaving port.
10. According to the ship’s log Special Sea Dutymen were closed up at 0545 and were fallen out at 0638. It also records that “No1 SSD” were closed up at 1045 and fallen out at 1137. These latter times refer to the ship’s leaving the Harbour. Contrary to the indication from the record in the log, Mr Robertson cannot recall leaving the compartment while the ship was in the Harbour and his recollection is that he spent approximately 5 hours continuously in the compartment on this occasion. He would only have left the compartment when someone came and told him that he was able to do so, although the Leading Seaman had telephone contact with the wheelhouse.
11. There was no requirement for personnel to be closed up in the aft steering compartment when the ship was at anchor. In the opinion of P Mulcare, Commodore RAN Retd, Mr Robertson is mistaken in his recollection that Special Sea Dutymen were closed up throughout the time HMAS PARRAMATTA was at anchor in the Harbour. Mr Mulcare’s opinion is based on the recording in the ship’s log.
12. The aft steering compartment was approximately 6m x 6m and in part below the waterline. It was located directly above the rudder and propellers. Most of the floor space was taken up by the steering machinery, rams and pumps. There was a walkway around the walls. It was very noisy and there was no natural light. There was a deck hatch in the roof of the compartment with an oval escape hatch approximately 50cm x 25cm. Normal entry to, and exit from, the compartment was by a door which was closed with 8 dogs (latches) when the ship was closed up. The door would take approximately 2 minutes to open. Once outside the door a person leaving the compartment would walk along a corridor of approximately 4.5m and then through another door. Prior to being closed up on this occasion Mr Robertson had received training on escaping from the compartment in an emergency on 2 occasions.
13. During the time Mr Robertson was in the compartment on 22 May 1971 he was unaware of what was happening on or around the ship. Leading Seaman Phillips was asleep part of the time. Mr Robertson felt “pretty anxious” and afraid of what may happen to him if something happened to the ship and he could not escape. He was conscious of what he had been told about the possibility of divers and/or mines being in the water on the previous occasion he had been in the Harbour. Mr Robertson was also aware of the maritime disaster involving the USS FRANK E. EVANS and that many of the sailors who died were in bulkhead posts below the waterline. He thought of the compartment as “a coffin” and was scared he was going to die. When the ship left the Harbour he felt extremely relieved.
14. At the times HMAS YARRA and HMAS PARRAMATTA visited Vung Tau the threat of attack by enemy divers or floating mines was taken very seriously. Defensive measures, known as Operation Awkward, were taken when the ships were anchored. Typically, Operation Awkward measures were:
·the ship remained closed up;
·armed sentries were posted on the upper deck;
·ship’s boats patrolled in the vicinity of the ship;
·divers searched the hull and anchor from time to time;
·scare charges were dropped from time to time;
·sonar transmissions designed to disorientate divers were made from time to time;
·the ship remained at short notice to get underway;
·the engines were turned over from time to time to increase the wash under the hull;
·a special arrangement of the anchor was in place to enable the ship to get underway quickly; and
·the ship remained in a high state of watertight integrity.
15. “Propellers and rudders were considered popular target areas for divers to attach limpet mines, but in a frigate sized ship anywhere would be satisfactory. If mines secured by a line were floated down and snagged the anchor cable, they could have ended up anywhere depending on the length of the line, and where it snagged the cable. However in the difficult tidal conditions off Vung Tau, and with the precautions taken by RAN ships, a successful attack on any part of a ship from the anchor cable to a boat secured to the stern would have been a victory for the Viet Cong. The after steering compartment in a frigate in Vung Tau was no more dangerous than any other compartment at the same level in the ship.” [2]
[2] Ex. 2 p. 248.
16. No untoward incidents were recorded during the visit to the Harbour.
17. Prior to 22 May 1971 Mr Robertson was loving and caring towards his family, and did not experience difficulty relating to others. He played sport and did not drink excessively. He did not experience difficulty in sleeping. When HMAS PARRAMATTA arrived at Subic Naval Base in the Phillipines two days after leaving Vung Tau Mr Robertson did not socialise with others as much as he had done previously and his alcohol consumption increased. As soon as the ship left Subic Naval Base he noticed he was not sleeping as soundly as previously and that he felt anxious. He sought treatment from medical personnel on board but none was given.
18. Towards the end of 1971 the HMAS PARRAMATTA returned to Australia. On 6 December 1971 Mr Robertson commenced a period of 5 weeks leave. Whilst on leave his mood would change suddenly, he was impatient, his appetite decreased and his alcohol consumption increased. He suffered from hot and cold flushes and his hands trembled. He experienced difficulties in his relationship with Mrs Robertson and they separated whilst he was on leave.
19. Sometime in January 1972, after Mr Robertson returned to duty, his son Stephen was badly burned and was hospitalised. Mr Robertson’s request for special leave to be with Stephen was refused. On 17 January 1972 Mr Robertson left his posting without leave and remained AWOL until 4 November 1972.
20. Stephen was hospitalised for 6 weeks during which time there was a suggestion from those treating him that his arm may need to be amputated. This caused Mr Robertson additional distress and he threatened to take his son to HMAS PENGUIN for treatment. Ultimately Stephen’s arm was not amputated.
21. On 10 November 1972 Mr Robertson was sentenced to 28 days detention which, by reason of his medical condition, he served at HMAS PENGUIN rather than at Holdsworthy. Whilst at HMAS PENGUIN Mr Robertson had access to medical officers and underwent a number of medical examinations prior to his discharge.
22. On 7 December 1972 Mr Robertson completed his period of detention and was discharged from the Navy as “his services were no longer required”.[3] It is agreed between the parties that Mr Robertson’s only “defence service”, as defined by section 68 of the Act, was on 7 December 1972. I am satisfied that there is a proper basis for this agreement.
[3] Ex. A2 p 264.
23. Following his discharge Mr Robertson worked in a number of different jobs, mainly as a contract worker. He suffered from anxiety and a fear that he would lose control of his own circumstances. Working in confined spaces caused him to become very anxious. Mr Robertson has been unemployed since 1995.
24. Mr Robertson sought medical assistance in relation to his problems of feeling depressed, interrupted sleep and excessive drinking. He was treated for depression by a general practitioner as an outpatient in 1974 and 1975.
25. Dr White, Psychiatrist, gave evidence. In his opinion the enviroment of visiting Vung Tau Harbour in the circumstances described by Mr Robertson and with the state of knowledge described by him would be very distressing to a large percentage of the population.
26. Dr M.D. Robertson, Psychiatrist, also gave evidence. His opinion was that the events described by Mr Robertson and with his knowledge at the time would evoke feelings of substantial distress in an individual.[4]
LEGISLATIVE BACKGROUND
[4] Ex.A2 p.162.
War-caused injury
27. Section 9 of the Act sets out the circumstances in which an injury is taken to be “war-caused”. The relevant parts of that section are:
“9 War‑caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, 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:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”
It is properly conceded that on both occasions Mr Robertson entered Vung Tau Harbour he was rendering “operational service”.
Standard of proof
28. Section 120 relevantly 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.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease; or
(c)that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
Reasonable hypothesis and a Statement of Principles
29. Subsection 120A(3) provides:
“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
APPLYING THE LAW
30. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this,:
“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 a 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.”
ISSUES FOR DETERMINATION
31. The issues I have to determine are:
1) has Mr Robertson suffered an “injury” or “disease”?
2) did Mr Robertson render “operational service” and if so when?
3) considering all the material before the Tribunal, does it point to a hypothesis connecting the injury or disease with the circumstances of the operational service?
4) if such a hypothesis is raised, is there a relevant Statement of Principles in force?
5) if a Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
6) if so, are we satisfied beyond a reasonable doubt that the incapacity claimed did not arise from a war-caused injury?
Has Mr Robertson suffered an “injury” or “disease”?
32. The Commission concedes that Mr Robertson suffers from anxiety disorder and that this is a “disease” within the meaning of the Act. On the basis of the medical evidence I am satisfied that this is proper concession.
Did Mr Robertson render “operational service” and if so, when?
33. There is no dispute that Mr Robertson rendered operational service in Vietnam on 27 February 1970 and 22 May 1971. This is confirmed by a statement from the Department of Defence.[5]
Considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?
[5] Ex.A2 p14.
34. In past matters the Tribunal has adopted the following definition of “hypothesis” from The Concise Oxford Dictionary:
“a proposition made as basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts”.[6]
[6] Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615.
35. In deciding this issue I must consider all the material, not only that which supports the hypothesis: Hardman v Repatriation Commission (2004) 82 ALD 433 at 445.
36. Taking into account all the material before me I determine that the material does point to a hypothesis which connects the Anxiety Disorder suffered by Mr Robertson with his operational service in Vietnam on 22 May 1971. The hypothesis, as propounded by Mr Robertson, is that:
· his experience of being in a war-zone in February 1971, closed up in the aft steering compartment of a warship and fearful of being killed or being injured and unable to escape, caused him to become anxious;
· this anxiety was manifested in disturbance to his sleeping pattern, difficulty in relating to others and an increase in alcohol consumption all within two weeks of the incident; and
· he became depressed, worried obsessively and withdrew socially and his anxiety developed into a continuing anxiety disorder.
37. I have taken into consideration the other factors which may account for Mr Robertson’s condition, namely issues relating to his childhood, his son’s serious injury and the time spent by Mr Robertson AWOL when he was worried about being apprehended. In my view these factors are not such as to prevent the determination of the hypothesis set out in the preceding paragraph.
Is there a relevant Statement of Principles in force?
38. There is no dispute that Instrument No. 1 of 2000 “Statement of Principles concerning Anxiety Disorder” is in force and relates to the disease from which Mr Robertson suffers.
Is the hypothesis referred to above consistent with the “template” in the Statement of Principles and therefore a reasonable one?
39. The Statement of Principles provides that at least one of a number of factors must exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder with the circumstances of a person’s operational service. The only relevant factor in this case is in paragraph 5 (a)(ii) which provides:
“experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”.
40. “Severe psychosocial stressor” is defined to mean:
“an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.” [7]
Instrument No. 1 of 2000, “Statement of Principles concerning Anxiety Disorder” para. 8.
41. The first step in deciding whether the hypothesis is consistent with the template set out in the preceding paragraph is to decide whether Mr Robertson’s experience in accordance with the hypothesis comes within the meaning of ‘a severe psychosocial stressor”. To answer this question it is at first necessary to determine whether, within the hypothesis, there was an “identifiable occurrence” as the term is used in the definition.
42. In Repatriation Commission v Law (1980) 31 ALR 140 the Full Court of the Federal Court considered the meaning of “occurrence” used in an earlier Act in the same context as the Act under consideration in this matter. As in Mr Robertson’s situation there was no entitlement unless there had been “an occurrence.” In the context of the earlier Act the Full Court held that “occurrence” referred to an “event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life”.[8] In that case the Court was of the view that neither repeated acts of smoking nor the formation of a smoking habit could properly be regarded as “occurrences.” This contrasts with the application before me. The visit to Vung Tau Harbour in the circumstances described is properly characterised as an “occurrence” within the definition of severe psychosocial stressor. In my view it could not be said to be part of the “ordinary course of life”.
[8] Repatriation Commission v Law (1980) 31 ALR 140, p.149.
43. The more difficult question which now arises is whether the occurrence is one “that evokes feelings of substantial distress in an individual”. The Federal Court put it this way:
“The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran’s position and knowledge was.
The term “stressor” denotes something which leads to stress. It is inherent in the notion of “stress” that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. It is clearly not a purely objective construct such as is applied in negligence cases. It is not a case of deciding how “the man on the Clapham omnibus” might react. There is more. The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.”
-- Delahunty v Repatriation Commission [2004] FCA 309 at [26]-[28].
44. I am mindful also of what was said by Spender J in White v Repatriation Commission [2004] FCA 633 at [32] :
“In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of “severe psychosocial stressor” has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a “serious psychosocial stressor”, means that the examples given in the definition of “severe psychosocial stressor” would be not only irrelevant and devoid of utility, but positively misleading.”
45. The hypothesis does come within the template in that it meets the requirement of Mr Robertson’s “experiencing a severe psychosocial stressor”. The occurrence of entering a war-zone as a 19 year old, closed up in the aft steering compartment of a warship and knowing of the risk of attack by enemy mines, is one which would evoke feelings of substantial distress in an individual and did so in Mr Robertson. The objective possibility of attack is consistent with the manner in which the Navy treated ships in Operation Awkward and with what Mr Robertson was told on his first visit to the Harbour. It does not matter that this threat had not previously materialised - to use the words of Mr Mulcare, “they were always taken very seriously”. [9]
[9] Ex. A2 p. 245.
46. This is not to ignore the examples of “severe psychosocial stressor” given as part of the definition, but by reason of their diversity they are of only limited assistance in any particular case. Within the examples given there is a huge range of situations which could arise ranging from “being shot at” and “the death of a close friend or relative” on the one hand and “experiencing……legal problems.” The situation which is said to evoke the feeling of substantial distress in the hypothesis comes within the range of the examples given. It is at least as likely, if not more so, to evoke substantial distress in an individual than the experiencing of “legal problems”.
47. When asked to specifically address the application of the Deledio principles, in relation to step 3 Counsel for the Commission argued that I should question the existence of “an occurrence” and Mr Robertson’s account of his subjective distress. For the reasons stated above I am satisfied that the event on which the hypothesis is based is within the meaning of “identifiable occurrence”. There is material before me as to Mr Robertson experiencing substantial distress after the occurrence. To embark on an evaluation of that material at this stage would be contrary to the principles set out by the Federal Court in Deledio.
48. Paragraph 5(a)(ii) requires that the experiencing of the severe psychosocial stressor take place within the two years immediately before the clinical onset of the anxiety disorder. The Commission has conceded that this is properly part of the material before me and I am satisfied that this is a proper concession to be made.
Am I satisfied beyond a reasonable doubt that the incapacity claimed did not result from a war-caused injury?
49. I now turn to the fourth step in the process set out in Deledio which requires the application of subsection 120(1). As was pointed out in that decision it is only at this stage that findings of fact are necessary. Neither party bears an onus of proof in this regard: subsection 120(6).
50. As I have already noted there is no dispute that Mr Robertson suffers from anxiety disorder and that the clinical onset of that condition was within 2 years of the day on which Mr Robertson entered Vung Tau Harbour on board HMAS PARRAMATTA.
51. The Commission has argued that Mr Robertson was not a credible witness, particularly in relation to his description of what happened when he was in Vung Tau Harbour, how he felt at that time and his subsequent reaction. Counsel for the Commission has referred us to the various accounts Mr Robertson has given to various medical practitioners and earlier decision makers.
52. There was conflict between the evidence of Mr Robertson that he recalled being closed up in the aft steering compartment from the time the ship entered the Harbour until it left and the evidence of Mr Mulcare who said that Mr Robertson was mistaken in this regard.[10] Although Mr Mulcare stated his opinion as a fact, he was expressing an opinion based on his interpretation of the ship’s log.[11] Mr Mulcare was on board HMAS PARRAMATTA when she was in the Harbour but he did not claim to have any personal knowledge of the whereabouts of Mr Robertson. Mr Robertson gave evidence that his being released from his duty in the steering compartment was dependent upon that message being conveyed to him. The log does disclose that the time between the Special Sea Dutyman being closed up as the ship entered the Harbour and being fallen out after the ship departed was just over 5 1/2 hours. In any event the hypothesis is not based on Mr Robertson being confined to the aft steering compartment for the whole of the time for which the ship was in the Harbour.
[10] Ex. A2 p. 246.
[11] Ex. A2 pp 272-273.
53. Mr Robertson was examined by Dr Koller, Psychiatrist, on 13 June 2002. This examination was carried out at the request of the Department of Veterans Affairs. Dr Koller’s report of this examination[12] does not refer to the second visit to Vung Tau Harbour. Counsel for the Commission relied upon this alleged failure to describe the second visit to Dr Koller as indicating that the event was not as stressful as Mr Robertson now claims and that it follows that Mr Robertson’s evidence in this regard should not be accepted. I do not accept this argument. Mr Robertson’s recollection is that he did tell Dr Koller about the incident. Dr Koller did not give oral evidence nor did he provide a further report indicating his recollection of what he was told or not told by Mr Robertson. Dr Robertson, whose evidence was heavily relied upon by the Commission, acknowledges the limitation of medico legal assessments by reason of “the incapacitating effects of the setting and lack of rapport”.[13]
[12] Ex. A2 p. 30.
[13] Ex. A2 p. 237.
54. Counsel for the Commission also referred to Mr Robertson’s attempt to rely on stress arising from his first visit to Vung Tau Harbour, when he was on deck on armed guard duty. However whilst he said in evidence that he was relieved to leave the Harbour on the first occasion he also said that he did not find that trip stressful.
55. Dr Koller confirmed in his report of 16 June 2000 that Mr Robertson suffered a generalised anxiety disorder but he did not state his opinion as to its cause. He simply recorded that Mr Robertson had reported this disorder “[s]ince his RAN days” and that Mr Robertson reported ‘RAN service to Vietnam as particularly stressful”.[14]
[14] Ex. A2 p. 32.
56. Dr White, Consultant Psychiatrist, provided written reports of 20 February 2003[15] and 23 January 2004[16] and I have before me a transcript of his evidence given on a previous occasion.[17] Dr White has experience as a consultant to the Vietnam Veterans Counselling Service in Canberra. He is a member of the Australian Military Medicine Association, the Australasian Society for Traumatic Stress Studies and the International Society for Traumatic Stress Studies. He has extensive experience with patients who suffer from war service related Post-traumatic Stress Disorder.
[15] Ex. A2 p. 75.
[16] Ex. A2 p. 209.
[17] Ex. A2 p. 170.
57. In Dr White’s opinion Mr Robertson’s disorder is related to the stressful event of entering Vung Tau Harbour in the circumstances in which he did.[18] He also was of the opinion that “this environment [of heightened tension and alertness and anxiety], combined with the type of experience that John Robertson has described, has as a combination, produced what [he considered] to have been a particularly distressing experience.”[19] He reported that Mr Robertson’s “history identifies that he had feelings of substantial distress”[20] arising from the incident.
[18] Ex. A2, Medical reports of 20/2/2003 and 23/1/04.
[19] Ex. A2 p. 187.
[20] Ex. A2 p. 211.
58. Dr Robertson, Consultant Psychiatrist, assessed Mr Robertson for the Department of Veterans Affairs on 6 November 2003. He provided reports of 12 November 2003[21] and 25 February 2004.[22] In the Diagnosis and Opinion section of his report of 12 November 2003 Dr Robertson says:
“……the perception held by the Veteran [Mr Robertson], at the time of his service [on 22 May 1971] was that he was at high risk of being placed in a situation where there was potential harm.”
[21] Ex. A2 p. 228.
[22] Ex. A2 p. 372.
Later in the same report he states his opinion that “there is a causal nexus between his subjective experience of military service and the development of Generalised Anxiety Disorder……”.
Dr Robertson also said that, if Mr Robertson’s description of his experience in the steering compartment was accepted, he had no doubt about the traumatic nature of that experience.[23]
[23] Ex. A2 p. 162.
59. Dr Robertson provided his second report in response to a series of detailed questions from the Department. In response to one of those questions Dr Robertson stated:
“I would agree with the proposal that Mr Robertson may [emphasis added] have incorrectly attributed his visit to Vung Tao as the sole cause of his anxiety disorder.
Again there appear to be equally plausible [emphasis added] psychosocial aetiological factors accounting for the development of the condition.”[24]
[24] Ex. A2 p. 376.
The factors to which Dr Robertson was referring were childhood experiences, domestic conflicts and the injury to Mr Robertson’s son.
60. In view of the qualifications which Dr Robertson placed on his opinions and the clear opinions of Dr White, who is very well qualified to express such opinions, there is no medical evidence which would justify a finding beyond a reasonable doubt that Mr Robertson’s condition was not war-caused. Looking at the medical evidence put forward by the Commission, it is difficult to understand the Commission’s argument that this standard of proof could be met.
61. I have had the benefit of hearing and seeing Mr Robertson recall what happened to him and how he was affected by what happened. He gave his evidence in a straightforward manner and I accept him as a truthful person who gave his evidence to the best of his recollection. Giving due consideration to Mr Robertson’s testimony along with the medical opinions and other evidence of the events in Vung Tau Harbour and Mr Robertson’s reaction to those events, I am not satisfied beyond a reasonable doubt that the Generalised Anxiety Disorder suffered by him was not war-caused.
DECISION
62. The decision of the Veterans’ Review Board made 27 May 2003 is set aside and the matter is remitted for reconsideration in accordance with the foregoing reasons.
AIR MARSHAL GRATION AO AFC MEMBER:
CLAIM HISTORY
63. Mr Robertson first applied to the Department of Veteran Affairs (DVA) for a disability pension in late 1999, almost 30 years after the events on which he based his claim as a veteran. Apparently the original claim was for ‘stress and nerves’. Following assessments by Dr Koller on 13 June 2000 and Dr Altman on 27 July 2001, the claim was considered by the Veteran’s Review Board (VRB) under the various diagnoses of anxiety disorder, post traumatic stress disorder, depressive disorder, and alcohol dependence or alcohol abuse. That claim was rejected on 28 September 2001. Mr Robertson then saw Dr White on 15 February 2002 and subsequently submitted a new claim for anxiety disorder on 16 August 2002. That claim was also rejected by a decision of a delegate of the Repatriation Commission dated 27 August 2002. On 11 September 2002 Mr Robertson then requested review of his case by the VRB. On 27 May 2003 the VRB affirmed the decision of the Repatriation Commission rejecting the claim.
64. Armed with a reviewable decision, Mr Robertson then applied to the AAT for review of the VRB decision. The Tribunal handed down its decision on 3 November 2003. It affirmed the VRB decision rejecting operational service as a cause of disease but found liability in respect of defence service, being an inability to obtain appropriate clinical management. On 23 November 2004 the Repatriation Commission appealed to the Federal Court in respect of defence service and on 9 December 2004 Mr Robertson cross-appealed in respect of the operational service decision. The Federal Court remitted the matter to be re-heard by a separately constituted Tribunal. The matter was duly heard on 1 March 2006.
OPERATIONAL SERVICE
65. Evidence of the Department of Defence establishes that Mr Robertson was allotted for duty in an operational area (Vietnam) on two occasions, namely 20 February 1970 and 22 May 1971.[25]
[25] Ex. A2 p. 14.
66. The Veterans’ Entitlements Act (1986) at Schedule 2 defines ‘Vietnam – southern area’ as an operational area. Mr Robertson’s service in that operational area is considered ‘operational service’ by virtue of section 6 of the Act and such operational service is taken to be ‘eligible war service’ pursuant to subsection 7(1)(a). Hence, Mr Robertson is a ‘veteran’ by definition of section 5.
THE ‘DELEDIO’ STEPS
67. The steps for determining a war-caused injury or disease were outlined by the Federal Court in Repatriation Commission v Deledio (1998) FCR 82. The first of the Deledio steps involves enunciating an hypothesis. The principal element of Mr Robertson’s case is his claim that his experience of being ‘closed up’ in the aft steering compartment for 5-6 hours during entry to, anchoring in, and departure from Vung Tau Harbour was sufficiently stressful to precipitate a general anxiety disorder. The key features of that hypothesis are the unusually long time spent ‘closed up’ during his special sea duties function, and the fact that the ship was operating in an area of heightened risk. On the basis of Mr Robertson’s claim, therefore, an appropriate hypothesis appears to be:
The circumstances of a young, inexperienced seaman undertaking special sea duties when his ship enters harbour in an operational area could be sufficiently stressful to trigger a generalised anxiety disorder.
68. The second step requires ascertaining the existence or otherwise of an appropriate Statement of Principles (SoP). All medical evidence supports a diagnosis of ‘general anxiety disorder’. Instrument No1 of 2000 concerning General Anxiety Disorder (GAD) is the relevant SoP for present purposes.
69. The third step requires confirmation that the hypothesis ‘fits the template’. Reference to the various clauses of SoP 1 of 2000 confirm that:
·the diagnosed condition of GAD fits the requirement of clause 2;
·in the opinion of the Repatriation Medical Authority (RMA) the disorder can be related to relevant service rendered by a veteran (clause 3);
·factor 5(a)(ii) is the relevant factor to be demonstrated as being related to relevant service (clause 4);
·Mr Robertson’s symptoms are consistent with the defined features of GAD (clause 8);
·Mr Robertson’s relevant service as a veteran is operational service (clause 8); and
·the requirements for the ‘severe psychosocial stressor’ of factor 5(a)(ii), defined in clause 8, need to be met.
CLINICAL ONSET
70. In considering factor 5(a)(ii), the first task is to establish the clinical onset of the anxiety disorder. If the 1971 Vung Tau experience is to be the basis for the claim of war-caused trigger for GAD then, in accordance with SoP 1 of 2000, the clinical onset of the psychiatric condition would need to occur not later than 22 May 1973. According to Mr Robertson, he first suffered anxiety and sleep interruption soon after the 1971 Vung Tau experience and before arriving at Subic naval base in the Philippines on 24 May 1971. He claims that he consulted the sick berth attendant on two occasions but was told not to worry about it – that the feelings would go away in time. There is no independent evidence before the Tribunal to corroborate this claim.
71. Mr Robertson’s de facto partner, Mrs Robertson, also stated in her evidence to the AAT on 10 August 2004[26], that after Mr Robertson returned to Australia in October 1971 following his second Far East cruise he was moody, suffered night sweats, cramps and tension, poor appetite, hot and cold flushes, trembling hands, impatience, and his alcohol intake virtually doubled. However, I have reservations about the weight to be given to this evidence. The witness appears to have been led quite strongly by counsel and was uncertain about the timing of her observations.
[26] Ex. A3, Transcript of Examination in Chief of Margaret Robertson, 10 August 2004, p. 56.
72. The first occasion on which Mr Robertson appears to have sought treatment for a psychological condition (depression) was in early 1974 in Perth.[27] However, Dr Robertson, in his report of 12 November 2003 recorded Mr Robertson as stating that ‘in 1972, he presented with psychological distress’ which was treated with Diazepam.[28] However, in his evidence to the AAT on 10 August 2004, Dr Robertson clarified that his ‘presumed date’ of onset (1972) was based on Mr Robertson’s history of reporting his anxiety to the sick berth attendant between Vung Tau and Subic Bay.[29] Thus, his recording of treatment with Diazepam in 1972 is almost certainly a confusion with the date of first GP treatment in 1974, as recalled by Mr Robertson. Similarly, Dr Robertson recorded that in 1975 Mr Robertson ‘again presented for psychiatric treatments … managed with Diazepam’. Dr Robertson also recorded a possible ‘third presentation perhaps, in 1981 or 1982, which was managed with a trycyclic anti-depressant.’ This would be consistent with Mr Robertson’s evidence of his first visit to a psychiatrist in the early eighties.[30] Dr White, in his report of 22 January 2004 records that Mr Robertson was ‘treated for depression by a general practitioner as an outpatient in 1974 and 1975.’[31]
[27] Ex. A2 p. 127.
[28] Ex. A2 p. 230 see para 2.4.
[29] Ex. A2 pp 143-144.
[30] Ex. A2 p. 128.
[31] Ex. A2 p. 210.
73. Thus the Tribunal has before it no independent evidence (other than that sourced from Mr Robertson or his de-facto) on which it can safely determine a precise date for the onset of the GAD, a diagnosis both parties accept. Based on Mrs Robertson’s evidence, it seems likely that Mr Robertson was, indeed, suffering some kind of ailment on his return from the Far East in October 1971; but it is not at all clear to me that his condition at that point was necessarily a general anxiety disorder. Perhaps his symptoms merely reflected the binge drinking and alcohol abuse which Mr Robertson reported occurred during the cruise. Moreover, Mr Robertson suffered a series of adverse personal events in the following 12 months which, according to Dr Robertson may, on their own, have precipitated GAD[32]: he separated from his de facto for two months at the end of 1971; his daughter was born in January 1972; his 2-year-old son was badly burnt soon afterwards; he went AWOL on 17 January 1972 to avoid rejoining his ship for a further tour in the Far East; he remained ‘on the run from the Navy’ for the next ten months, moving his family all over Australia; he was finally caught out in Perth, turned himself in to the Navy, was given 28 days’ detention and then discharged from the Navy Services No Longer Required on 7 December 1972.
[32] Ex. A2 p. 374.
74. As an aside, Mr Robertson’s period of some ten months ‘on the run’ in 1972 might, in itself, have brought on the habit of looking over his shoulders – as reported by Mrs Robertson[33] and ‘being anxious about anything. People approaching me from behind or the side, not being able to control the situations I was in.’[34] Such a possibility would not only detract from operational service being a causal factor but also would add to my concern about the evidence of Mrs Robertson.
[33] Ex. A3, Transcript of Examination in Chief of Margaret Robertson, 10 August 2004, p. 56.
[34] Ex. A2 p. 124.
75. I also note Mr Robertson’s medical records two weeks before his discharge show Dr Tinning observing that Mr Robertson’s weight loss ‘could well be due to his anxiety about behaviour and future and to poor nutrition in the past year,’ having the previous week noted ‘Lost 2 stone since April. ? anxiety re absence etc. ? some disease.’[35] From this reference I conclude that the anxiety observed related to Mr Robertson’s adverse AWOL record and his imminent likely discharge, together with his daunting family responsibilities while being out-of-work; rather than to any unobserved, deeper psychological problems.
[35] Ex. A2 pp 298-299.
76. In view of the absence of satisfactory evidence to support a conclusive finding as to the date of onset of GAD, I accept that Mr Robertson was suffering both medical and psychological symptoms of distress by the end of 1972, but leave any definitive link with the claimed war-service-related disease of GAD subject to factual examination of the operational service circumstances. Nevertheless, if the date of onset were to be taken as the date of first treatment (for depression), which occurred in 1974, it would be outside the 2-year period required by the SoP for any link with the 1971 operational service. In my view, this uncertainty as to the date of onset of the GAD places Mr Robertson’s claim in some jeopardy. However, as the Commission did not address this uncertainty, I shall proceed to examine the hypothesis itself.
THE STRESSFUL EVENT
77. Mr Robertson’s evidence describes his ship approaching Vung Tau Harbour and the ‘special sea duty’ men being ordered to their respective positions: in his case, along with a leading seaman, in the aft steering compartment with the door and hatch made water-tight. He describes that compartment as being hot, cramped and noisy, with conversation difficult. The leading seaman soon falls asleep after desultory conversation peters out. Mr Robertson then begins ruminating and imagining what might happen if a mine were to detonate near the stern of the ship, close to the aft steering compartment, part of which was below the water line. He pictures the difficulty he might have using the escape hatch because of its small size. He begins to feel claustrophobic in the confined space. He knows nothing of what is going on outside the aft compartment, and the only form of communication is with the wheelhouse and the bridge. This experience seems to last five or six hours before the ‘special sea duty’ men are released to their normal duties as the ship departs Vung Tau Harbour. Mr Robertson’s evidence is that he became quite distressed and anxious during this long confinement in the aft steering space: he discussed this distress with the leading seaman (Phillips) but was told ‘just forget it, don’t worry about it.’[36] Later, en-route to Subic Bay, Mr Robertson told the Leading Sick Berth Attendant how he felt pretty uptight, pretty agitated, bit depressed, dry in the mouth, moody and not good.[37] The Attendant’s response was: ‘don’t worry about it, it will go away’.
[36] Ex. A2 p. 116.
[37] Ex. A2 p. 119.
78. Mr Robertson’s recounting of this experience has been generally consistent to Drs Altman, Rosenman, White and Robertson and all those doctors seem to have accepted that account as providing a credible stressor for triggering GAD. However, The Commission’s counsel has drawn attention to Dr Koller’s report of 16 June 2000 which, surprisingly, omits any reference to this experience during the second visit to Vung Tau, while recording the later call in Yokohama on the same ship.[38] As I consider it most unlikely an examining doctor would, in the circumstances, forget to include such an experience in recording Mr Robertson’s history, I conclude that Dr Koller was not given such history. That conclusion, of course, then raises the possibility that Mr Robertson had, at that time at least (13 June 2000), not recalled the second Vung Tau experience as a potential trigger for GAD; which tends to undermine the credibility of that event subsequently being considered a ‘severe psychosocial stressor’.
[38] Ex. A2 pp 30-32.
79. With this doubt in mind, the Tribunal must therefore examine closely the significant elements of the claimed experience for factual support.
SPECIAL SEA DUTIES
80. Firstly, it will be useful to describe the normal procedures for protecting escorts entering, anchoring and leaving an operational area Harbour. The Tribunal’s understanding of this procedure is based principally on the evidence of CDRE Mulcare.[39] Whenever ships are manoeuvring in confined spaces or situations of heightened collision risk (for example, entering or leaving Harbour, replenishment at sea, or exercising in close company of other vessels) safety procedures include securing water-tight compartments and ‘closing up’ emergency parties such as Special Sea Duties (SSD) men in case of collision or some other steering emergency. In Mr Robertson’s case, his SSD required him to man the aft steering compartment together with a leading seaman. The leading seaman would receive and respond to commands from the bridge or wheel-house in the event of normal steering failure. Mr Robertson would then action the emergency steering commands as directed by the leading seaman. This was a normal procedure, undertaken every time a ship entered Harbour, berthed/anchored and departed Harbour, irrespective of the presence or otherwise of other additional risks. Accordingly, this same procedure would be followed when entering an operational area Harbour.
[39] Ex. A2 pp 244-249.
81. Once a ship has berthed/anchored, there is no longer need for safety procedures in respect of steering or other under-way emergencies. Accordingly SSD parties are then ‘fallen out’.
82. In Vung Tau Harbour, the Navy considered there was a risk to ships at anchor from concealed floating mines or charges attached to ships by under-water swimmers. To guard against this risk, armed sentries were mounted and small boats/divers were deployed to discourage attempted attack. These and other related defensive measures were encompassed in ‘operation awkward’. Note that ‘operation awkward’ defensive measures were implemented only when ships at anchor were deemed to be at risk and that such defensive measures were unrelated to special sea duties. Mr Robertson participated as an armed sentry on HMAS Yarra in February 1970, but was not so involved on HMAS Parramatta in May 1971.
83. Once an anchored/berthed ship is ready to depart, the SSD parties are then ‘closed up’ again for the departure until the confined waters are cleared, whereafter the SSD parties are ‘fallen out’.
84. Reference to a copy of the ship’s log for Parramatta on 22 May 1971 records the SSD being ‘closed up’ at 0545 hours, the port anchor being ‘let go’ and ‘operation awkward’ being assumed at 0632 hours, ‘come to anchor’ at 0635 hours, and the SSD being ‘fallen out’ at 0638 hours.[40] All of this would indicate an entirely normal approach and anchor at Vung Tau. The log then goes on to record the SSD ‘closed up’ again at 1045 hours, ‘anchors away’ at 1059 hours, and SSD ‘fallen out’ again at 1137 hours. The Captain’s Report of Proceedings for May 1971 at paragraphs 14 and 15 indicate that the approach, anchoring and departure all proceeded uneventfully, noting that ‘the de-escalation of the Vietnam war was visibly demonstrated …’. [41]
[40] Ex. A2 pp 272, 273.
[41] Ex. A2 p. 276.
85. As the ship’s log clearly indicates that the SSD parties were in place for 53 minutes during entry to Harbour and 52 minutes during departure, the accuracy of Mr Robertson’s recall of ‘five to six hours’ is placed in doubt. Mr Robertson’s response to this suggestion was simply that, whatever the actual time spent in the aft steering compartment on that day, it was his perception that it was five to six hours.
86. The Tribunal questioned Mr Robertson closely on this matter. Mr Robertson had no recall of ‘falling out’ after either anchoring or departure; nor of being at anchor. It is possible, therefore, that somehow both sailors remained in the aft steering compartment for the entire 5 hours 52 minutes. Perhaps they both slept through the entire period. However, 6 hours would be an extraordinarily long time for SSD men to be kept ‘closed up’, covering as it would one-and-a-half watches. And it is hard to believe that the significant reduction in noise after the ship anchored would not be noticed by at least one of the two sailors. Communication was always available to both the bridge and wheel-house so, if there were any concerns, the question could always be asked. Moreover, even if the two sailors had inadvertently overstayed their ‘closed up’ period, certainly the next SSD party would have discovered the main entrance to the aft steering compartment already secured and queried the command.
87. For all these reasons, I conclude that such a happening is so extremely unlikely as to be rejected. Furthermore, if they both, incredibly, did sleep through the ‘fall out’ at 0638 until the ‘close up’ at 1045, then one would have to conclude that no ‘severe stressor’ affected Mr Robertson.
88. It therefore seems far more likely that Mr Robertson was only in the aft steering compartment for 53 minutes before being ‘fallen out’, but that it ‘seemed like’ five to six hours to him. And that a separate watch – not necessarily including Mr Robertson - performed the leaving Harbour special sea duties; for which the log entry at 1045 hours states ‘No 1 SSD and CP closed up.’[42] The Tribunal speculated that the term ‘No 1’ might have meant the first – as in first eleven or most experienced watch – which may, or may not, have included Mr Robertson.
[42] Ex. A2 p. 273.
89. However, it is my opinion that Mr Robertson simply has no detailed memory of the events at all. At most, therefore, Mr Robertson probably spent at least one period of 53 minutes on the normal ‘entering Harbour’ special sea duties and possibly a second period of 52 minutes on departure.
90. Thus, the extraordinarily long period of 5-6 hours in the aft compartment claimed by Mr Robertson, which might reasonably be accepted as a credible stressor, is likely to be a retrospectively constructed memory of an ill-informed understanding of events. Therefore, with this aspect of the hypothesis being found unsustainable beyond reasonable doubt, attention turns to the second aspect of the claim for which the question must be asked:
is the SoP requirement for Mr Robertson ‘experiencing a severe psycho-social stressor’ met by the circumstances in which a young, inexperienced sailor undertaking his normal SSD function in the ‘closed up’ aft steering compartment while the ship is entering Harbour in a declared operational area, becomes distressed thinking about what might happen to him if the ship were to suffer an explosion and he became trapped in that compartment partially below the water line?
SEVERE PSYCHOSOCIAL STRESSOR
91. With the evidence of the ship’s log contradicting Mr Robertson’s account of his time in the aft steering space, the Commission put that evidence to Drs White and Robertson for supplementary comment.
92. In his supplementary report of 25 February 2004, Dr Robertson recognised that the history provided to him by Mr Robertson was inconsistent with the record of the ship’s log. He said that: ‘There is clear evidence from independent sources you provided, that this represents a gross distortion of the facts.’[43] He also acknowledged the possible psychological impact of other events immediately following the 1971 Far East cruise noting, ‘that his six month old son [actually almost 2 years old!] suffered a serious full thickness burn and there were significant interpersonal stressors in his marriage. These could easily have comprised precipitating factors to the more florid psychiatric disorder of Generalised Anxiety Disorder.’[44] He went on to say that ‘there appear to be equally plausible psychosocial aetiological factors accounting for the development of the condition.’[45] Subsequently, in evidence to the AAT on 10 August 2004, Dr Robertson seemed to resile somewhat from those views, accepting that the Vung Tau experience would, at least, have been one of several stressful events which could have contributed to the onset of GAD. In respect of the 1971 Vung Tau experience he said: ‘That was one of two or three factors that were evident at the time that he presumably developed his, what now seems chronic, psychiatric problem.’[46] And in the same context, he said that ‘…it’s either been a precipitant or an aggravating factor.’[47] And finally, he concluded: ‘Yes, I’ve never had any doubt about the traumatic nature of his experience.’[48]
[43] Ex. A2 p. 375.
[44] Ex. A2 p. 374.
[45] Ex. A2 p. 376.
[46] Ex. A2 p. 153.
[47] Ex. A2 p. 157.
[48] Ex. A2 p. 162.
93. In his report of 23 January 2004, Dr White maintained his understanding of Mr Robertson’s ‘… being locked in the aft steering space with limited lighting as special watch keeper, for five or six hours …’.[49] However, in his last report of 6 June 2004, following Dr Robertson’s supplementary report of 25 February 2004, Dr White focused on the subjective reaction of the individual. [50] ‘The crux of such a concept is based on the individual’s reaction to the experience.’[51] In response to the effect of other stressors, he said: ‘The question is not whether this was the only thing that has ever been distressing in his life, but whether this was a distressing experience and was a significant contribution to the onset or aggravation of an Anxiety Disorder.’[52]
[49] Ex. A2 pp 209-211.
[50] Ex. A2 pp 226,227.
[51] Ex. A2 p. 227.
[52] Ex. A2 p. 227.
94. While respecting these expert opinions from both doctors, I believe that they both have overlooked the significance of the discrepancy between Mr Robertson’s recollection and the ship’s log. I consider the significance to be threefold. Firstly, the credibility of Mr Robertson’s recollection is placed in doubt. Secondly, objectively speaking, the time spent by Mr Robertson in the aft steering space – of 53 minutes and possibly a further 52 minutes – was entirely normal procedure without any extrinsic unusual features other than the ship’s passage through operational waters. That is, objectively there was no external ‘identifiable occurrence’ outside Mr Robertson’s mind which could be considered a stressor. Thirdly, while confinement in the aft steering space for five or six hours without relief or external communication would be, objectively, an extraordinary, and undoubtedly potentially stressful experience, that same confinement for only the routinely experienced period of less than an hour could hardly be described as other than ordinary.
95. The question then is whether such normal duties undertaken in an operational area could be considered to be the ‘severe psychosocial stressor’ required by SoP No 1 of 2000.
96. Commission’s counsel referred the Tribunal to White v Repatriation Commission [2004] FCA 633. In that case Spender J said:
“I accept the submissions on behalf of The Commission that the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements.
The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated…. In my opinion, the ordinary language of the definition makes it clear that the examples given are of the "identifiable occurrences" contemplated, not of "substantial distress". The examples are of "occurrences", not emotions.
The reference to "experiencing" a severe psychosocial stressor has a subjective element…. An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element…”.[53]
[53] White v Repatriation Commission [2004] FCA 633, [27]-[29].
97. Spender J goes on to say:
“In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”[54]
[54] Ibid, [30].
98. And finally the learned judge concludes:
“In my opinion, the submission…that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition of "severe psychosocial stressor" would be not only irrelevant and devoid of utility, but positively misleading.”[55]
[55] Ibid, [32].
99. In following the reasoning of Spender J in White when assessing the reasonableness of Mr Robertson’s hypothesis, I consider his crucial point is that the “identifiable occurrence” must objectively be more than trivial or innocuous to fulfil the requirement for a “severe” event similar in seriousness to the examples of the definition. Even accepting that a naïve and impressionable young sailor might subjectively imagine all sorts of distressing possibilities associated with passage through operational waters, while ruminating in a hot, cramped and noisy compartment in the course of his normal duties. I conclude that the ‘identifiable occurrence’ of undertaking normal – and frequently experienced – special sea duties when sailing into Harbour in the absence of any extrinsic adverse event is objectively simply not of the severity contemplated in the definition. It does not fit the examples provided, namely ‘being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, etc’. Mr Robertson’s own evidence was that he had been trained for, and had experienced many times before and after 22 May 1971, his special sea duty in the aft steering compartment.[56] So, irrespective of whether or not Mr Robertson subjectively experienced ‘feelings of substantial distress,’ I conclude that the objective ‘identifiable occurrence’ does not ‘fit the template’ of SoP No 1 of 2000.
[56] Ex. A2 pp 112-113 and 136-137.
100. Having reached the above conclusion, Mr Robertson’s claim based on the SoP factor 5(a)(ii) should fail. Such failure on its own is sufficient to dismiss the claim for war-caused disease. Consequently, the unresolved issue related to the uncertain date of ‘clinical onset of anxiety disorder’ need be considered no further.
DEFENCE SERVICE
101. I turn now to the second ground for appeal brought in relation to Mr Robertson’s defence service in the RAN, during which Mr Robertson claims ‘inability to obtain appropriate clinical management for anxiety disorder’. The relevant service period is only one day; ie 7 December 1972, the day on which Mr Robertson was discharged. However, I note that s 69(1)(c)(ii) of the Act requires completion of 3 years’ effective full-time service before becoming eligible under Part IV of the Act. As Mr Robertson joined on 31 May 1969 and was AWOL for probably in excess of ten months, he would not have achieved the necessary 3 years by 7 December 1972. If this is correct then Mr Robertson is ineligible for access to Part IV of the Act.
102. Assuming Mr Robertson had completed 3 years’ service, the applicable SoP would be No 2 of 2000 and the necessary factor would be 5(c).
103. The Commission’s counsel referred the Tribunal to Repatriation Commission v Wedekind [2000] FCA 649, particularly paragraph 12 where Kenny J listed the matters on which the Tribunal in that case needed to be satisfied. The approach adopted by the learned judge would seem to be directly relevant to Mr Robertson’s case.
104. Mr Robertson suffers generalised anxiety disorder which arose before his relevant defence service; ie, before 7 December 1972, meeting the requirement of s 70(5)(d)(ii). There is no evidence before the Tribunal suggesting that the one day of relevant service contributed materially to, or aggravated, the pre-existing condition. The appeal therefore would fail on this ground, not meeting the concluding requirement of s 70(5)(d).
105. For both reasons, therefore, in my opinion Mr Robertson’s claim based on defence service should be dismissed.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Air Marshal Gration AO AFC, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 1 March 2006
Date of Decision 26 April 2006
Counsel for the Applicant Elizabeth Wood
Solicitor for the Applicant NSW Legal Aid
Counsel for the Respondent Rhonda Henderson
Solicitor for the Respondent Australian Government Solicitor
0
8
0