Robertson and Repatriation Commission
[2004] AATA 1143
•3 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1143
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/298
VETERANS' APPEALS DIVISION ) Re JOHN MARTIN ROBERTSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date 3 November 2004
PlaceCanberra
Decision The decision under review, that the Applicant’s Generalised Anxiety Disorder is not related to his service is affirmed. In the alternate, the Tribunal finds that the Applicant was disadvantaged by an inability to obtain appropriate clinical management in respect of his anxiety disorder and the matter is referred to the Respondent for assessment ..............................................
Rear Admiral AR Horton AO, Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – claim for anxiety disorder arising from service – inability to obtain appropriate clinical management – RAN service – operational service in Vietnam in HMA ships Yarra and Parramatta – necessity to meet relevant Statement of Principles – reasonable hypothesis – decision under review affirmed – in the alternate, the Tribunal finds that the Applicant was disadvantaged by an inability to obtain appropriate clinical management.
Veterans’ Entitlements Act 1986 – sections 6, 9, 13(1), 120(1), 120(3), 120(4), 120A, 196B(2)
Statement of Principles No 1 and No 2 of 2000
Byrnes v Repatriation Commission (1993) 177 CLR 564
Stoddart v Repatriation Commission (2003) 77 ALD 67
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Yates (1995) 38 ALD 80
REASONS FOR DECISION
3 November 2004 REAR ADMIRAL A R HORTON AO 1. This is an application to review a decision of a delegate of the Repatriation Commission (“the Respondent”) dated 27 August 2002, affirmed on review by the Veterans’ Review Board (“VRB”) on 27 May 2003, that rejected a claim by Mr John Martin Robertson (“the Applicant”) for anxiety disorder.
2. At a hearing before the Administrative Appeals Tribunal (“the AAT”) on 10 and 11 August 2004, Mr Robertson was represented by Mr A Cooley of counsel, being instructed by Mr P Bussoletti of Bussoletti Lawyers. Mr N Bunn, advocate, represented the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T Documents”) and the documents listed in the attachment. The Tribunal heard evidence from Mr Robertson, his wife Mrs Margaret Robertson, Dr Brian White, Psychiatrist, and Commodore Phillip Mulcare RAN (Rtd), as well as by telephone from Dr Michael Robertson, Psychiatrist.
3. At the commencement of the hearing, the parties agreed that Mr Robertson has a condition of anxiety disorder and that the clinical onset was in the early 1970s. The predominant issue before the Tribunal, as stated by Mr Cooley, is whether the condition of anxiety disorder arose from Mr Robertson’s naval service. Should the Tribunal reach a decision that anxiety disorder did not arise from naval service, then the Respondent would raise a second hypothesis that the condition was aggravated by an inability to obtain appropriate clinical management during his eligible Defence Service.
LEGISLATION
4. Section 9 of the Veterans’ Entitlements Act 1986 (“the Act”) provides that:
“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;
…”
5. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
6. Mr Robertson had operational service as defined in section 6 of the Act from 22 February 1970 to 1 March 1970 in HMAS Yarra, and from 15 May 1971 to 24 May 1971 in HMAS Parramatta. He further had eligible defence service on 7 December 1972. The standard of proof in relation to operational service to be applied in respect of determining whether an injury or disease was war-caused is that provided for in sections 120(1) and (3) of the Act, which state relevantly:
"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.”
7. As Mr Robertson’s claim was lodged after 1 June 1994, section 120A of the Act applies. It states:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
...
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196(b)(2) or (11); or
(b) a determination of the Commission under subsection 180(A)(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196(B)(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
8. Section 120(4) provides that except in making a determination to which subsections (1) and (3) apply, the respondent shall decide any other matter arising under the Act or the regulations “to its reasonable satisfaction”. Thus the issue of whether Mr Robertson’s condition was aggravated by an inability to obtain appropriate clinical management, should that arise, is to be decided to the reasonable satisfaction of the Tribunal.
9. Section 120A of the Act applies to anxiety disorder, the condition at issue in this matter. The relevant Statements of Principles (“SoP”) determined by the Repatriation Medical Authority under subsection 196B(2) of the Act, and as agreed by both parties, are No 1 and 2 of 2000.
10. SoP No 2 of 2000 refers to a standard of proof based on the balance of probabilities, and requires one of the factors set out in clause 5 to be related to relevant service. The only relevant factor that might be before the Tribunal is at 5(c) which refers to the “inability to obtain appropriate clinical management for anxiety disorder”.
BACKGROUND AND EVIDENCE
11. Mr Robertson was born in England in 1952, (his surname being Roberts at that time, and remaining so until about 1956 when it was changed to Robertson). He migrated to Australia with his family at the age of 12. Some 3 years later, his parents separated, and for the next 9 months, until he went fruit picking for a year, he lived with his father. He described his childhood as being “pretty average”, but the family suffered from a father who abused alcohol and was very argumentative, and sometimes violent to his mother and brother. Shortly after he turned 17, he joined the Royal Australian Navy. He had previously had 2 years experience in the Naval Cadets.
12. Following recruit training, which encompassed general training, seamanship, some academic instruction and a damage control course, he joined HMAS Yarra as an ordinary seaman in the underwater weapons branch. Exhibit R2 indicates he was originally considered for the clearance diving branch; for reasons unknown, this did not eventuate. Mr Robertson served onboard Yarra from September 1969 to April 1970, and it was during this period, when the ship was deployed to the Far East, that he had his first period of operational service, this being from 22 February to 1 March. Prior to deploying in Yarra, Mr Robertson formed a de facto relationship with his now wife Mrs Margaret Robertson. Mrs Robertson had seven children and the couple subsequently had two children together, Stephen born in April 1970 and Donna born in January 1972.
13. The records indicate that Yarra was at anchor off Vung Tau in South Vietnam from 0625 until 1035 on 27 February 1970. Mr Robertson recalled that his ship had escorted HMAS Sydney and probably HMAS Duchess into the harbour. He recalled the ship being in defence watches whilst at anchor, that is, a state of readiness against attack, involving the closing of hatches, and the arming of upper deck sentries. As a sentry, his duty was to “watch for objects floating in the water” and to call the Duty Petty Officer if he saw anything and to “shoot at it if necessary”. He understood objects in the water could be carrying explosives. Apart from boats from Yarra, smoke on the hills and a couple of shots, the origin of which were unknown, he neither saw nor heard anything. Mr Robertson described his feelings as being “nervous, excited” but he was “not affected at the time”.
14. On return to Australia, Mr Robertson was posted to HMAS Watson for ship’s duties and to undertake the underwater weapons qualifications course. This course involved the preparation of weapons, and practical experience with explosives at Holsworthy. His posting record (Exhibit R2 Attachment 3) indicates that he was posted to HMAS Penguin in October 1970 for disciplinary reasons, and he then joined HMAS Parramatta in November 1970 in the rank of able seaman underwater weapons. The posting record indicates a further short period ashore for disciplinary reasons, rejoining Parramatta on 18 January 1971 and the ship subsequently deploying to the Far East Station.
15. As earlier noted, Mr Robertson had operational service in Parramatta from 15 May 1971 to 24 May 1971. In company with HMA Ships Sydney and Duchess, Parramatta entered Vung Tau Harbour, Vietnam on the morning of 22 May, the Report of Proceedings for that month recording “the three RAN ships anchored off Vung Tau at 0630H Saturday 22nd May. The ship remained in operation awkward state 2 whilst at anchor, although the de-escalation of the Vietnam war was visibly demonstrated by the small number of ships in the Vung Tau anchorage and the single lethargic Vietnamese patrol boat operating in the area, inspecting small craft, with guns covered and crew half dressed” (Exhibit R2 Attachment 8).
16. Mr Robertson stated that almost from the date of joining Parramatta, he had been allocated to the after steering compartment in the ship whenever Special Sea Dutymen (“SSD”) were closed up, these being on occasions of underway replenishment or when entering and leaving confined waters. He described his duties, in company with an older leading seaman, as being responsible for steering the ship, as directed by the Command, should the primary steering position become unserviceable or out of action. He described the after steering position as being at the stern of the ship, below the quarterdeck, partly below the waterline, confined and noisy, with limited headroom and limited access and egress, particularly when the ship was closed up to a higher damage control state, as would be the case when SSD were closed up. He indicated that escape from the compartment in those circumstances was only possible through a small oval hatch overhead, and that there was no access to the upper deck through the door and passage way at the forward end of the steering compartment when SSD were closed up. Communication with the command (bridge) was by voicepipe and telephone.
17. He described a feeling of apprehension about being trapped and an explosive device detonating against the outside hull in the vicinity of this compartment whilst the ship was at anchor. The lighting was not good, it was difficult to move around because of the machinery, and he felt claustrophobic. He recalled an obsession to get out of the compartment, not allayed by Leading Seaman Phillips who said there was nothing to worry about. He was worried and agitated, and sweating “quite a bit”. Initially he stated that he thought he had been in the after steering compartment for 5 to 6 hours, but in cross examination conceded that he might have had a misconception of the time.
18. In response to the Tribunal, Mr Robertson stated that he had no such worries when closed up in the after steering compartment during underway replenishments. On those occasions he knew what was going on, and did not consider himself to be in any danger. Following this period in the after steering compartment at Vung Tau, Mr Robertson spoke “a couple of days later” with the Leading Seaman Medical, when the ship was on passage to Subic Bay, who told him not to worry. However, he continued to do so, becoming agitated at the thought of what could have happened, leading to mood swings, inability to concentrate, a loss of appetite and a move away from his previous easy going manner. It further led to alcohol consumption at sea when he could get it, and abuse of alcohol ashore. He was aware that a medical officer was embarked in the ship, although he thought he was elsewhere from time to time; peer pressure led to him not seeking medical treatment for his anxiety state. There is no relevant medical evidence for that period recorded in Mr Robertson’s Service Medical Documents (Exhibit R3).
19. The ship’s log (Exhibit R2 Attachment 6) records that SSD were closed up at 0545 on 22 May, and that the ship came to port anchor and assumed operation awkward state 2 at 0632, SSD being fallen out 6 minutes later at 0638. The ship remained at anchor until 1059 that morning, with SSD being closed up at 1045 for the passage out of harbour. These times were not disputed, Commodore Mulcare RAN (Rtd) in his oral evidence confirming that they were recorded in the ship’s log. Commodore Mulcare, who was serving onboard Parramatta at that time as the ship’s supply officer, further stated in cross examination that the members of the crew in the after sterring compartment would have had no reason to remain in that compartment after SSD were fallen out. On the evidence before it, the Tribunal accepts that SSD were closed up whilst the ship was at anchor in Vung Tau harbour on 22 May from 0632 until 0638 and again from 1045 to 1059, a total of 20 minutes.
20. The reports of Dr Koller, psychiatrist, dated 16 June 2000 (T6) and Dr Robertson dated 12 November 2003 (Exhibit R1) refer to an incident in Yokohama Harbour when Mr Robertson was armed with a rifle during student riots. No evidence in respect of any such incident was put forward by the Applicant in examination-in-chief, and the Report of Proceedings of Parramatta makes no mention of any such incidents. In cross examination, the Respondent questioned whether the losses of HMAS Voyager and USS Evans following earlier collisions with HMAS Melbourne, had any affect on him during his period of service, the response being in the affirmative in that it increased his concern at being trapped in a compartment.
21. Parramatta returned to Australia in late 1971. Mr Robertson described his circumstances at that time as wanting to get off the ship, abusing alcohol, and suffering anxiety, depression and a lack of concentration. He indicated he had disciplinary problems. In her evidence, Mrs Robertson spoke of a difficult domestic situation on his return from the Far East deployment, because he was moody and impatient, suffering highs and lows, with night sweats, a fear of other people watching him, and a significant drinking problem. This led to a separation for some 2 to 3 months. In January 1972, on return from leave, Mr Robertson went on an extended period of absence which lasted until 4 November that year. Mr Robertson attributed this decision to be absent without leave to a culmination of disciplinary problems, his mental state, alcohol abuse and a severe burns accident to his son Stephen, which he believed at the time could require radical treatment and possibly amputation.
22. Mr Robertson stated that in that ensuing 10 month period of absence, whilst his wife supported the family from her pension, he continued drinking, was depressed, and could not hold down jobs. On return to the Navy, he was treated for kidney problems and after serving 28 days in custody, was discharged “Services No Longer Required”. He initially worked as a caretaker at Kings Cross, then had “lots of jobs all over Australia”, in the fields of mining, steel work and labouring, the longest being of six months duration. He described his symptoms as poor sleeping, irritation, anxiety, and a distrust of people. In about 1980, he saw a psychiatrist, probably in Perth, and was prescribed anti-depressants. At some time he completed a fitter and welder course at Kalgoorlie, then undertook contract work in Sydney until 1992 when “he could not handle it anymore”, his psychiatric condition leading to a “painful sort of life”.
23. Mr Robertson was referred to Dr Koller in June 2000, then to Dr Altman, and since February 2002 he has been seeing Dr B White. He remains on Cipramil. In 2000, and until injured in a car accident, he was employed for 12 months delivering papers for 3 hours daily. He has not worked since, still drinks “quite a bit” and worries, and is easily fatigued. He stated he has few friends, and his tolerance with his grandchildren, of whom there are 27, lasts no longer than about two hours.
MEDICAL EVIDENCE
24. Dr Brian White is Mr Robertson’s treating psychiatrist. He provided two reports dated 23 January 2004 (Exhibit A2) and 6 June 2004 (Exhibit A4), the latter being in response to that of Dr Robertson for the Respondent. In oral evidence, Dr White referred to the “vulnerable background” of Mr Robertson, but found this interesting, rather than conclusive, in respect of his later problems. He further felt that psychiatric conditions of Mr Robertson’s father and brother could have limited relevance, but the relevant stress factors must be present.
25. Dr White considered the implementation of a state of operation awkward at Vung Tau, as occurred when both Yarra and Parramatta visited that port, and as described in the report by Commodore Mulcare, provided an environment of concern as to possible dangers to one’s person, a concern he believed was consistent in his experience with that held by other veterans. When informed that Mr Robertson had only been stationed in the after steering compartment for some minutes rather than 5 to 6 hours as he had claimed, Dr White opined that this was sufficient time to engender a feeling of stress, observing that Mr Robertson’s history had been consistent as to acute distress. He believed the first occasion at Vung Tau in Yarra had “primed him to be aware of the environment of threat”. He confirmed his diagnosis of generalised anxiety disorder. He opined that the issues had to be looked at objectively in the light of an individual’s interpretation of the situation, and that individual responses will vary. In terms of the criteria in SoP 1 of 2000, Dr White considered the circumstances of Mr Robertson in the after steering compartment to be a significant “severe psychosocial stressor”.
26. Dr White placed some weight on the description by Mrs Robertson that her husband was “different” on his return from the deployment in 1971, seeing this as consistent with the onset of an anxiety disorder process. In the circumstances, he considered Mr Robertson should have been treated by the Navy for this condition, and his failure to obtain such treatment had a material contribution to his condition. Under cross examination, Dr White stated that the description of the after steering compartment as given by Mr Robertson provided an adequate scenario to lead to claustrophobia and a feeling of entrapment and possible death. He accepted that the separation from his wife and the injury to his son could have resulted in an increased anxiety condition, but this was a condition already present.
27. Dr White stated that he was not of the same opinion as Dr Robertson (Exhibit R1 refers) that the concept of pseudologica fantastica might be considered, in that myth had become a reality. Dr White believed that Mr Robertson’s history had been consistent and related to the environment in which had been serving. In cross examination, he did not agree with the view of Dr Robertson in his evidence to the Tribunal that “traumatic memories may not be reliable or not as reliable as other kinds of memories”, as the adage generally used in the field is that traumatic memories last forever. That is, the personal or emotional component of memory is preserved.
28. In respect of Mr Robertson’s possible vulnerability as a result of his childhood and family circumstances, Dr White stated that whilst he understood there were no obvious indications of an anxiety condition on recruitment into the Navy, he agreed that had such a condition been present, that would have made him more vulnerable to the experiences in Vung Tau. He did not consider the injury to Stephen Robertson, serious as it undoubtedly was on the history he obtained, was sufficient to meet the criteria for psychosocial stressor as defined in SoP 1 of 2000. He was not aware of the threat of amputation as described by Mr Robertson, but that did not materially change his opinion. As to the short separation from his wife, of which he was not aware, and the later discharge from the Navy, the Tribunal formed the opinion that Dr White considered these events may have contributed to an anxiety condition, rather than being the trigger for that condition.
29. In response to the Tribunal, Dr White opined that the environment at Vung Tau wherein ships took particular anti- threat precautions, combined with the circumstances related by Mr Robertson as to his duties and reaction, led to a “particularly distressing experience”. However, when further questioned as to whether, in his opinion, the environmental circumstances alone, assuming Mr Robertson had no pre-existing condition, were sufficient to meet the severe stressor test, Dr White replied in the negative. Dr White saw the importance of training as fitting an individual for military service, but suggested that any amount of training may not necessarily be sufficient to provide the degree of protection required.
30. Finally, in respect of his earlier voiced opinion that early and appropriate clinical treatment of the anxiety condition would have been appropriate, Dr White accepted the premise put to him that Mr Robertson had not reported to the medical officer and there were no relevant entries in his service records, but attributed this to the social environment extant at that time in the service where it was not considered “manly” to do so.
31. For administrative reasons, Dr Michael Robertson gave evidence by conference telephone for the Respondent prior to the oral evidence by Dr White. He had based his initial report on an interview with Mr Robertson and the T documents. His diagnosis was that of generalised anxiety disorder and he was of the opinion that the family history that he took could suggest a “genetic loading” towards anxiety disorder. From the service history he obtained, he had accepted that Mr Robertson had been stationed in the after steering compartment in Parramatta for most of a 4 day period, with a belief of a substantial chance of the ship being attacked, that threat or the perception of threat being pivotal. Dr Robertson saw family relationships as being contributory factors, and his subsequent periods of absence without leave being evidence of a vulnerable and disturbed individual.
32. Notwithstanding that he had been made aware as to doubts as to the validity of the history given him (presumably the 4 day or more period), which in turn led to a modification of his views in his supplementary report (Exhibit R7), he nonetheless saw the vulnerability of Mr Robertson as being significant in his perception of the ship being attacked, and the onset of his psychological symptoms. In response to Mr Bunn, Dr Robertson addressed the psychiatric concept of pseudologica fantastica which he had noted in his supplementary report. When pressed, he opined that “there is I think reasonable evidence …that the story has developed a life of its own”, this not being the result of any deliberate deceit or wrong-doing. Dr Robertson saw no credible perception of threat resulting from the first visit to Vung Tau in Yarra.
33. Under cross examination, and in respect of his first report (Exhibit R1), Dr Robertson agreed that his initial view of the experiences of Mr Robertson conformed with the opinions of Dr Koller, Dr Altman and Dr White. Whilst the evidence of Mr Robertson was that he did not have any psychological symptoms on entering naval service, Dr Robertson nonetheless considered that he took vulnerabilities into adulthood, later leading to a sensitivity to disproportionate responses to traumatic stressors. Here he alluded to the Humpty Dumpty syndrome. In response to the question as to whether Mr Robertson was exposed to a threat of actual harm in Vung Tau harbour onboard Parramatta, Dr Robertson replied “I believed his experience at that time was one where he was threatened”, given his presumed vulnerabilities, being in a war zone and perhaps being impressionable or naïve. Further he considered this met the criteria for a severe psychosocial stressor in SoP 1 of 2000.
34. In speaking to his second report under cross examination, Dr Robertson confirmed that it followed receipt of service medical records, the Writeway research report and the report by Dr White of January 2004. He considered those reports were emblematic of a troubled and vulnerable person, but there was no direct evidence of a substantive psychiatric disorder. He agreed with Mr Cooley for the Applicant that if the onset of the symptoms described by Mr Robertson dated from the events at Vung Tau in 1971, there would be a “type of causal connection” and the events in Vung Tau precipitated the condition (of a severe psychiatric condition). Dr Robertson agreed that the reference to weight loss in Mr Robertson’s service documents in November 1972, shortly before his discharge, could be consistent with a generalised anxiety condition at that time.
35. In respect of Parramatta taking certain protective measures at Vung Tau, as described in the Writeway report (operation awkward, defence watches, boat patrols, etc), Dr Robertson opined that these measures would “add to the conjecture that you are in peril”, and in those circumstances Mr Robertson, in the after steering compartment, would feel threatened. He considered this would meet the criteria for a severe psychosocial stressor, and that was the case, notwithstanding any discrepancy in evidence as to how long Mr Robertson was closed up in the after steering position.
36. In re-examination, Dr Robertson agreed with Mr Bunn that memories of traumatic events are not as reliable as verbal memory. That other events such as the injury to his child could have led to the same reaction as ascribed to the Vung Tau period in 1971. He further agreed that a reaction in an excessively anxious or traumatised way might be a symptom of an already existing anxiety disorder. When put to him that Mr Robertson did not meet the criteria given in the examples in the SoP in respect of the definition of severe psychosocial stressor such as being “shot at, death or serious injury”, the only relevant references effectively being in respect of injury to a relative, Dr Robertson opined that the SoP did not acknowledge subjective experience, and that whilst legally that might be the requirement, clinically the subjective issues led to the psychiatric condition. In conclusion, Dr Robertson re-affirmed his view that the short periods in the after steering compartment, as detailed in the Writeway report from the ship’s log, (complemented by the circumstances of the environment), were sufficient to meet the severe stressor test.
37. Oral evidence by Commodore Mulcare, the author of the Writeway research report (Exhibit R2), has been earlier referred to. He affirmed that he had no recollection of any incidents whilst Parramatta was at Vung Tau in May 1971, nor had he found any evidence to the contrary in his research. He was also certain that nothing untoward had occurred during the ship’s visit to Japan, and no student rioting had taken place.
38. In response to Mr Cooley, he agreed that the implementation of operation awkward by ships at Vung Tau, was a reaction to the possibility of threat, but that such an operation was not peculiar to Vietnam. He thought there had been a de-escalation of the war in the Vung Tau area as the war drew to a close. He stated that SSD would only be closed up at certain times, and the after steering compartment was not manned in harbour other than for the limited times on arrival and departure as noted in the deck log.
SUBMISSIONS
39. Mr Cooley referred the Tribunal to Woodward v Repatriation Commission (2003) 75 ALD 420 and Delahunty v Repatriation Commission [2004] FCA 309 as being relevant to this matter. Counsel relied on the events of 22 May 1971 as providing the “primary and principal severe psychosocial stressor”, the reasons being the risk of attack as illustrated by the decision to implement operation awkward and other measures, that Mr Robertson was stationed in the after steering compartment and that he experienced a number of psychological symptoms. Counsel maintained that the period of being closed up in the after steering compartment could have been “roughly 2 hours or roughly 4 to 5 hours depending upon whether you accept the ship’s log or you accept the Applicant’s version of his memory”.
40. Counsel submitted that those circumstances, taken in conjunction with the evidence of Drs White and Robertson, objectively supported the argument of a stressful circumstance of a severe type, and that a reasonable hypothesis has been raised. Counsel postulated that the medical evidence supported the notion of causal connection to the events at Vung Tau, the later family events merely conforming his condition. There was no evidence to suggest that Mr Robertson had any anxiety condition prior to joining the Navy, and prior to his deployment to Vietnam in Parramatta.
41. Counsel referred the Tribunal to Delahunty (supra) at 22 where Tamberlin J quotes Mansfield J in Stoddart v Repatriation Commission (2003) 77 ALD 67 at 50 thus:
“ . . . if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceived the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them..”
42. Drawing on Delahunty, and referring to the circumstances of the ship’s precautionary measures at Vung Tau and the stationing of Mr Robertson, aged 19 and somewhat inexperienced in life, in a confined space, Counsel submitted that both objectively and subjectively, Mr Robertson met the severe stressor test. Counsel further submitted that the decision of the Full Court in Woodward (supra) in which their Honours supported the view of Mansfield J in Stoddart v Repatriation Commission (supra) that “experiencing a severe stressor” allows for the event or events to be judged objectively from the point of view of a reasonable person in the position of the applicant, and that experience should be construed as having a partially subjective connotation.
43. In respect of the second limb regarding an inability to obtain appropriate clinical management, Counsel referred to the evidence of Dr White that early treatment may help, but made no particular submission as to his contention that there was an inability to obtain medical treatment.
44. For the Respondent, Mr Bunn submitted that the very event relied upon by the Applicant, namely the possibility of attack whilst Parramatta was in Vung Tau Harbour, did not take place. He also referred the Tribunal to Stoddart (supra) and the aforementioned statement of Mansfield J at 50:
“…That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat…”
In this matter, the circumstances of Mr Robertson “were not those of a man confined to the after steering compartment, but a man who had fallen out for the duration of the period the ship was in Vung Tau apart from the small periods of time at the beginning and end of the journeys. That was his knowledge at the time. They were the circumstances at the time.” In those circumstances, submitted Mr Bunn, it was not reasonable to perceive a threat.
45. The Respondent submitted that the opinion of Dr Robertson that Mr Robertson may have been sensitised during his childhood, was merely speculation and in any event, outside the terms of the SoP. Dr White had agreed that such circumstances fell outside the examples in the SoP. It was submitted that the recollections of Mr Robertson were not reliable, and they were not material that could be relied upon to point to a particular hypothesis. The pattern of symptoms that arose after Vung Tau in 1971, could well have been caused by many other relevant factors such as his family circumstances and the injury to his son. At Exhibit R8, the Respondent’s Statement of Facts and Contentions, it is claimed that the incidents described by Mr Robertson are “exaggerated and inconsistent with reality”.
46. The Respondent drew on the decision in White v Repatriation Commission [2004] FCA 633, a matter in respect of a claim for anxiety disorder with associated alcohol dependence or abuse. Addressing the interpretation to be placed on the term “severe psychosocial stressor”, Spender J stated at 32:
“In my opinion, the submission of 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.”
The Respondent submitted that the stressor in this matter is not of the kind listed in the examples in the SoP.
47. As regards the alternate claim that Mr Robertson was unable to obtain appropriate clinical management of his psychiatric condition, the Respondent submitted that this was only a consideration if the disease was suffered or contracted before or during (but not arising out of) the person’s relevant service vide paragraph 6 of SoP 2 of 2000, and citing Repatriation Commission v Yates (1995) 38 ALD 80. Further, there was no reason to prevent treatment being given had Mr Robertson reported his concerns; of relevance is that Mr Robertson was absent for considerable periods, and on the subsequent one day of eligible defence service, when he was discharged, he did not seek medical treatment. At R8, the Respondent referred to Mr Robertson seeing a psychiatrist in 1972 (Exhibit R1 at paragraph 8.5 refers), and submitted that this event (which was not referred to in the Applicant’s oral evidence) indicated there was no service related inability to obtain clinical management.
48. By way of reply, Counsel stressed that the circumstances in White (supra) were not of the magnitude of those presently before the Tribunal. Secondly, Mrs Robertson gave corroboratory evidence as to her husband’s condition on return to Australia in Parramatta, and finally, the Full Court in Woodward had expressly stated that the reasoning of Mansfield J in Stoddart (supra) was persuasive and should be followed. In this matter, “objectively Mr Robertson was exposed to a severe psychosocial stressor and that combination with his subjective experiences, satisfies the test”.
ANALYSIS OF EVIDENCE AND APPLICATION OF CASE LAW
49. Section 120(4) of the Act defines the relevant standard of proof, that of reasonable satisfaction, that must be applied in determining the appropriate diagnosis of any medical condition. Drs Koller, White and Robertson all diagnosed the condition of generalised anxiety disorder, and such a condition was agreed by the parties at the outset. The Tribunal accords with this diagnosis, and the predominant issue before the Tribunal is therefore whether such condition arose from Mr Robertson’s naval service. Should the Tribunal determine otherwise, then it must address the contention of the Applicant that the condition was aggravated by an inability to obtain appropriate clinical management during eligible defence service.
50. A reasonable hypothesis has to be raised connecting generalised Anxiety Disorder with the Applicant’s relevant service. The High Court considered the proper application of section 120 of the Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:
"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
51. The Full Federal Court has held in Repatriation Commission v Deledio (1998) 83 FCR 82 that, in operational service matters such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim for a war-caused disability, namely:
"(i) 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.
(ii) 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.
(iii) 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.
(iv) The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved".
Does the material point to a hypothesis?
52. The Full Court in Deledio determined that there is no question of fact finding at this initial stage. It is sufficient that evidence is before the Tribunal to show that an event occurred which Mr Robertson believed involved the threat of death or serious injury, and that situation arose in the course of his operational service. He believes that he experienced a severe psychosocial stressor, and the hypothesis put to the Tribunal is that this resulted in a condition of generalised anxiety disorder. The material before the Tribunal in respect of the circumstances of his employment onboard Parramatta at Vung Tau in May 1971, and the environment in that port at that time, points to such an hypothesis. Thus Step I of Deledio is satisfied.
Is there a statement of principles in force?
53. Step 2 requires the Tribunal to determine whether there is in force a Statement of Principles determined by the Repatriation Medical Authority under section 196B(2) or (11) Act. As earlier noted, the parties agreed that SoP 1 of 2000 is the appropriate instrument in respect of Anxiety Disorder, it relating to the reasonable hypothesis criteria. The Tribunal is required to determine that the disease was a war-caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
54. Should the Tribunal find that is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination, then the alternate factor to be considered is at 5(c) in SoP 2 of 2000 (as relevant eligible defence service) in respect of “inability to obtain appropriate clinical management for anxiety disorder”.
Is the hypothesis consistent with the template in the SoP?
55. Step 3 requires the Tribunal to consider whether the hypothesis is reasonable, that is, does it fit and is it consistent with the SoP? The hypothesis raised must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum that must exist, and this factor must be related to Mr Robertson’s naval service.
56. SoP No 1 of 2000 details factors that must be related to service, and states relevantly:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only:
(i) …
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) …
(iv) …
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
(vI) …
Vii) …
(b) …
(c) inability to obtain appropriate clinical management for anxiety disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(a)(v) to 5(a)(vii) and 5(c) apply only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service ….”
57. The relevant factor to be considered, as put before the Tribunal, is 5(a)(ii) in respect of “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”. There is no issue in respect of the date of clinical onset of anxiety disorder, both parties having agreed that onset occurred in the early 1970s. There is no requirement for the Tribunal to further consider this aspect.
58. A “severe psychosocial stressor” is defined at clause 8 of SoP 1 of 2000 as:
“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.”
59. The hypothesis will only be reasonable and be consistent with the template in SoP 1 of 2000 if the conditions of the relevant factor, that is 5(a)(ii) are met, that is, did Mr Robertson experience a severe psychosocial stressor. The position of Mr Robertson is “yes”, based on the threat environment he considered existed at Vung Tau, his station in the after steering compartment, and his belief that he was in danger whilst in that situation. On the contrary, the Respondent takes the view that the threat was minimal and no attack materialised, and that the period during which Mr Robertson was stationed in after steering compartment was not of the 4 to 5 hours he postulated, but a matter of minutes. The Respondents view is that the circumstances did not meet the severe psychosocial stressor definition.
60. Stoddart (supra) has been referred to by both parties. It related to a claim for post traumatic stress disorder (PTSD) and alcoholic liver damage (ALD). In the context of interpreting the phrase “severe psychosocial stressor” , Mansfield J stated at 55 that:
“In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity”.
61. At paragraph 41, Mansfield J held that the tribunal had erred in requiring that a "threat" be one that, judged objectively and remote from the circumstances and state of knowledge of the person experiencing it, has a real or actual prospect of resulting in death or serious injury. His Honour considered that by doing so the Tribunal had thereby imported into the concept of "threat" in the applicable SoPs more than was demanded by their wording and their purpose.
62. Mansfield J also observed (at 47 and 50) that:
"It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to ALD [alcohol liver damage] or PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD. The respondent contends, and the tribunal accepted, that in the former case the conditions are consistent with an hypothesis of being war-caused, but in the latter case they should be seen beyond reasonable doubt as not consistent with an hypothesis of being war-caused. In this matter, if the applicant is believed about the occasions he referred to, his operational service was in an area where his vessel might come under attack (but did not) and battle stations were signalled and he feared for his personal integrity and suffered ALD and PTSD as a result.
...
In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause “that involved actual or threat of death or serious injury” . . . explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word `threat' a range of circumstances, some of which are referred to above, which common sense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of `sound medical-scientific evidence' in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted."
63. In the more recent matter of Woodward (supra), the Full Court addressed the definition of "experiencing a severe stressor" stating at 125 and 126:
“…has three elements that relate to a person's encounter with an event involving death - the person must have "experienced, witnessed or [have been] confronted with an event that involved death...". Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be "confronted with" an event that he or she has neither experienced nor witnessed.
In any event, as a matter of ordinary usage to be "confronted" with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he "confronts". This is no less the case when the confronting event is one involving death or serious injury”.
And at 144:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. …”
64. Counsel for Mr Robertson had referred the Tribunal to Delahunty (supra). That matter was in respect of the member of a ship’s company who had witnessed the sinking of a North Korean vessel which he believed carried a woman and her two children. The veteran claimed PTSD arising from this event, and the issue before the Court was whether he had experienced a severe stressor. In allowing the appeal, Tamberlin J followed Woodward (supra), observing that the Full Court had pointed out (at 80) that “experience” had to be based on an “event”, and that a “real event” had occurred in the case of Mr Delahunty. Counsel for Mr Robertson drew on that decision, on the basis that an “event” had occurred.
65. Returning to Stoddart (supra), and the question of actual or perceived threat, Mansfield J also stated at 51:
“It is consistent with those provisions [section 196B of the Act] that the SoPs should be read as meaning that a claimant experiences “a severe stressor” if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived”.
66. This is a view which he considered accords with the common meaning of “threat”, defined in the Macquarie Concise Dictionary as “an indication of probable evil to come; something that gives indication of causing evil or harm”. Contrary to the precise reference to “threat” in Stoddart and other decisions relating to PTSD, the “severe psychosocial stressor” in SoP 1 of 2000 for generalised anxiety disorder refers to an “identifiable occurrence that evokes feelings …”. The Macquarie Concise Dictionary defines “occurrence” as something less, “an occurring incident or event”. Thus in that context, the level has been lowered. The SoP does however require that the identifiable occurrence evoke feelings of “substantial distress” and hence that must be present if the hypothesis raised is to be considered reasonable.
67. At this point, and still considering Step 3 of Deledio, the following facts may be drawn:
a. Mr Robertson incurred operational service on two occasions, from 22 February 1970 to 1 March 1970 onboard HMAS Yarra and from 20 May 1971 to 24 May 1971 onboard HMAS Parramatta.
b. On each occasion, his ship was anchored for some hours in Vung Tau harbour, South Vietnam.
c. On each occasion, his ship took precautions against the possibility of threat by implementing operation awkward and deploying boat patrols.
d. On the first occasion on 27 February 1970, Mr Robertson was required to act as an armed upper deck sentry. No incidents were recorded.
e. On the second occasion onboard Parramatta on 22 May 1971, Mr Robertson was stationed for one or two periods in the after steering compartment in accordance with his duty as a Special Sea Dutyman.
f. The claim for generalised anxiety disorder is based on the latter occasion, where Mr Robertson believed he was under threat of death or injury because of his station.
68. The evidence as to Parramatta’s movements and the state of the ship is recorded in the Ship’s log and as appropriate in the Report of Proceedings for the month of May 1971, and the Tribunal accepts these documents are official records. No evidence was put to the Tribunal to suggest that the entries were in error either in substance or in time, although Counsel for Mr Robertson maintained the position that his period of being closed up with SSD was “roughly 2 hours or roughly 4 to 5 hours ….”. The log certainly records that SSD were closed up, and hence Mr Robertson would be expected to be in the after steering compartment, from 0545 until 0638, and again from 1045 until 1137, a total of 105 minutes.
69. The submission by Mr Robertson specifically relates to his concerns at the threat to the ship whilst closed up in the after steering position “with the ship at anchor”, these recorded times being from 0632 until 0638 and from 1045 until 1059, a total of 20 minutes. The evidence of Commodore Mulcare is that the after steering party would have no reason to be closed up outside these periods, and the Tribunal therefore assumes that in the intervening period, that is from 0638 until 1045, Mr Robertson was free to move around the ship as his other duties permitted.
70. Given the limited period in the after steering compartment as so determined whilst the ship was at anchor, the question arises as to whether this, in conjunction with any other factors, meets the identifiable occurrence criteria such that it would evoke feelings of substantial distress, resulting in a hypothesis consistent with the template. The predominant “other” factor to be considered are the procedures implemented by Parramatta on arrival in Vung Tau harbour. Commodore Mulcare notes in his report that the principal threat to ships at anchor was that of attack by enemy divers. He notes such threats did not materialise over the years RAN ships visited Vung Tau. Nor did any incidents occur during the visit of Parramatta.
71. From the perspective of Mr Robertson, this was his second deployment to the Far East, and his second period in Vung Tau. His duty as SSD in the after steering compartment was not to meet any perceived threat, but the normal procedure, as his evidence indicated, for entering and leaving harbour and for particular activities a such as underway replenishment. He had been designated as a SSD in the after steering compartment since the ship deployed from Sydney in early 1971. He was therefore quite familiar with his role and any physical constraints associated with the compartment.
72. Mr Robertson had previously been to Vung Tau in 1970 onboard Yarra. His duty was as an armed sentry, his ship also being in an increased state of preparedness (Defence Watches). His evidence is that he neither heard nor saw anything of significance, his feelings being nervous and excited, but not affecting him at that time. No incidents are recorded as affecting the safety of his ship at that time. He had this knowledge behind him when deployed to Vietnam a year later in Parramatta. Aside from his period when closed up at anchor in the after steering compartment, a period considerably less than his evidence indicated, he gave no evidence of concern during the remaining time the ship was anchored in Vung Tau harbour.
73. Mr Robertson based his claim on being closed up as SSD in the after steering compartment for some 4 to 5 hours, that is, throughout the period of Parramatta being at anchor in Vung Tau harbour. That was not the case, and the record indicates that initially, on arrival at Vung Tau, he was only closed up for a few minutes. Given his previous experience, did he develop the symptoms described in that short period? And if he did, he apparently made no attempt to be relieved from the duty when required to close up again for the ship’s departure. And again, this period whilst at anchor was of a limited duration. There is no evidence before the Tribunal that after the visit to Vung Tau, Mr Robertson sought to be relieved from the SSD duty in the after steering compartment.
74. The question is did Mr Robertson experience or was he confronted by an event capable of conveying in his mind the threat of death or serious injury? In terms of the SoP, was there an identifiable occurrence that invoked feelings of substantial distress? Both psychiatrists gave evidence that even the limited period in the after steering compartment was sufficient to meet the criteria of a severe psychosocial stressor. However Dr White subsequently did not consider the environmental circumstances alone to be sufficient to meet the stressor test. In oral evidence, Dr Robertson revised his earlier concerns as to the adequacy of the environmental factors, and placed weight on the possible vulnerability of Mr Robertson resulting from his childhood.
75. The Tribunal cannot be reasonably satisfied that that the material before it points to the circumstances on 22 May 1971 as being such as to convey a risk of death or serious injury. Mr Robertson had previously experienced the environment of Vung Tau harbour, no incidents occurred, or indeed had occurred, and he was well experienced in the environment of the after steering compartment. His period in that compartment whilst at anchor was limited to minutes, and he had means of egress, albeit they were constrained by the layout of the compartment and the water tight integrity state. At all times, communications were available with the command. Further, he indicated to the Tribunal (paragraph 18) that he had no concerns when closed up in the after steering compartment during underway replenishments, as “on those occasions he knew what was going on”. The Tribunal has difficulty with this statement as on those occasions Mr Robertson was in a similar situation to that at Vung Tau, or indeed entering or leaving any other port, whereby he had to rely on the command informing him of any particular concerns.
76. The Tribunal has accepted that Mr Robertson suffers from anxiety disorder, a condition diagnosed by Drs Koller, White and Robertson, and supported by the Applicant’s own evidence and that of his wife. But the evidence indicates other factors such as his family circumstances, the use of alcohol and disciplinary problems which may have had a bearing on his psychological condition. Suffice, the Tribunal cannot be reasonably satisfied that the material before it points to the hypothesis being reasonable and being consistent with the SoP. In reaching this decision, the Tribunal also pays regard to the previously referred to (at paragraph 46) decision in White (supra), wherein Spender J rejects the submission, in that matter in respect of generalised anxiety disorder, that an event that evokes feelings of substantial distress would necessarily satisfy the definition of “severe psychosocial stressor”, his opinion in effect being that such a submission must be substantive otherwise the examples given in the definition of “severe psychosocial stressor” (at clause 8 of SoP 1 of 2000) “would be not only irrelevant and devoid of utility, but positively misleading”.
77. The Tribunal must next consider whether the second hypothesis that the condition was aggravated by an inability to obtain appropriate clinical management (paragraph 5(c) of SoP 2 of 2000 refers). Paragraph 6 of that SoP states that “this consideration applies only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service”. The Respondent’s view that this precluded consideration in the case of Mr Robertson is not agreed, the balance of opinion on the evidence before the Tribunal being that whilst there is no evidence of anxiety disorder before “relevant service”, that condition arose during his later naval service.
78. There is no evidence that Mr Robertson presented to the medical officer in Parramatta with any concerns. The evidence of Commodore Mulcare was to the effect that the medical officer had been onboard at all times, however it cannot be discounted that he may have been deployed on brief occasions as required. Mr Robertson stated that he had reported his apprehensions at being located in the after steering compartment at Vung Tau to the Leading Seaman Medical a few days later whilst on passage to Subic, being told not to worry. There are no medical records to suggest that any psychological condition was evident or identified during his service in Parramatta.
79. His subsequent service was “disrupted” by a separation from his wife, the injury to his son, excessive alcohol consumption, disciplinary problems and the extended period of absence. He was discharged on 8 December 1972, an eligible defence service day, when he made no comment, from the medical records, as to any condition requiring consideration or treatment. Whilst the medical report of 24 November 1972 (Exhibit R3) notes a loss of weight, the consultant surgeon Mr Tinning considers this could be “well due to anxiety about behaviour, and future and to poor nutrition in the past year”. Whilst this comment needs to be seen in the context of a period of absence of 10 months, kidney problems, (and again no indication of an anxiety state is noted) and domestic circumstances, the opinion of Mr Tinning was seemingly not investigated further by his Navy superiors, and Mr Robertson was considered fit for discharge.
80. In the circumstances, and notwithstanding that Mr Robertson had only one day of eligible defence service (7 December 1972), the Tribunal decides, to its reasonable satisfaction, that the criteria in paragraph 5(c) of SoP 2 of 2000 is satisfied and that Mr Robertson was unable to obtain appropriate clinical management for anxiety disorder. The fact that he did not raise the issue of “anxiety” on discharge does not remove the requirement for the Navy to address the issue in light of the observation by Mr Tinning.
81. Mr Robertson’s claim in respect of generalised anxiety disorder fails as it is not a war-caused injury or disease. The decision of the Repatriation Commission dated 27 August 1972, as affirmed by the Veterans’ Review Board on 27 May 2003, is affirmed.
82. In the alternate, the claim in respect of an inability to obtain appropriate clinical management is accepted as being relevant in the period of eligible defence service. The matter is therefore referred to the Respondent for assessment.
Attachment A to the decision in Robertson – A2003/298
Exhibits
A1 Letter from Busselotti Lawyers dated 20 October 2003
A2 Medical report from Dr B White dated 23 January 2004
A3 Letter from Busselotti Lawyers with attachments, dated 27 April 2004
A4 Report from Dr B White dated 6 June 2004-09-03
A5 Applicant’s Statement of Facts and Contentions dated 28 April 2004
R1 Medical report from Dr M Robertson dated 12 November 2003
R2 Writeway Research Service report dated 17 December 2003
R3 Service medical documents of Mr J Roberts
R4 Clinical notes of Dr H Hegazi, General Practitioner
R5 Clinical nots of Dr B White
R6 Transcript of VRB hearing on 27 May 2003
R7 Supplementary report by Dr M Robertson dated 25 February 2004
R8 Respondent’s Statement of Facts and Contentions dated 16 April 2004
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: M. Di Condio
AssociateDate/s of Hearing : 10 and 11 August 2004
Date of Decision : 2 November 2004
Counsel for the Applicant : Mr A Cooley
Solicitor for the Applicant : Mr P Bussoletti, Bussolletti Lawyers
Advocate for the Respondent : Mr N Bunn
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