Robinson and Repatriation Commission
[2008] AATA 786
•3 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 786
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601095
VETERANS' APPEALS DIVISION ) Re NEIL ROBINSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date3 September 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Robinson is incapacitated as a consequence of post traumatic stress disorder and that his incapacity should attract compensation in accordance with s 13 of the Veterans’ Entitlements Act 1986. As to the degree of incapacity, the Tribunal is satisfied that the Impairment Assessment attached to Dr Strauss’ report of 30 October 2007 should be adopted.
(sgd) Egon Fice
Member
VETERANS’ AFFAIRS ‑ Veterans Entitlements – Post Traumatic Stress Disorder – diagnosis applying DSM IV – operational service in Singapore Straits – interception of Indonesian vessels – consistent contemporaneous documentary evidence – category 1A stressor – life threatening event – intense fear – objective and subjective elements – sequential approach to superseded SoP
Veterans’ Entitlements Act 1986
American Psychiatric Association’s and Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)
Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
3 September 2008 Mr Egon Fice, Member 1. Mr Neil Robinson served in the Royal Australian Navy (the Navy) between March 1963 and March 1972. He had operational service, as that term is defined in the Veterans’ Entitlements Act 1986 (VE Act) in Malaysia, Singapore, Brunei and Vietnam. He was trained and employed as a Tactical Operator in the Communications Branch.
2. Mr Robinson was receiving the disability pension at 20 per cent of the general rate. In December 2005 Mr Robinson submitted a claim for an increase in the disability pension for what he described as stress/anxiety and emotional problems. The Repatriation Commission (the Commission) rejected Mr Robinson’s claim. He applied to the Veterans’ Review Board (the VRB) in May 2006 for a review of the Commission’s decision. The VRB affirmed the Commission’s decision. He now seeks a review of the VRB’s decision by this Tribunal.
3.The issues before me are:
(a)whether Mr Robinson suffers from post traumatic stress disorder (PTSD) or any other psychiatric condition;
(b) the date of clinical onset of the diagnosed condition; and
(c)whether any diagnosed condition is causally related to Mr Robinson’s operational service in the Navy.
RELEVANT BACKGROUND
4. Mr Robinson was born on 19 July 1945. He enlisted in the Navy on 10 March 1963 and was discharged on 9 March 1972.
5. Mr Robinson’s enlistment medical indicated that he had not suffered from any mental illness at the time of enlistment. His discharge medical examination also noted normal mental capacity and that he did not suffer from any disabilities at discharge.
6. Mr Robinson’s naval records disclosed that he served on HMAS Derwent (the Derwent) between the following dates:
·23 October 1964 – 18 January 1965
·22 January 1965 – 2 May 1965
·2 December 1965 – 15 August 1966
7. Mr Robinson also served on HMAS Teal (the Teal) between 19 January 1965 and 21 January 1965. He served on HMAS Vendetta (the Vendetta) between 30 July 1969 and 20 April 1970.
8. Navy records also disclosed that the Derwent, an anti-submarine Type 12 frigate, served in the Far East Strategic Reserve including the following:
·18 November 1964 – 22 January 1965 Malaysia, Singapore and Brunei
·27 January 1965 – 8 February 1965 Malaysia, Singapore and Brunei
·11 March 1965 – 21 April 1965 Malaysia, Singapore and Brunei
·17 February 1966 – 30 April 1966 Malaysia, Singapore and Brunei
·26 May 1966 – 13 June 1966 Vietnam,
·8 June 1966 – 5 July 1966 Malaysia, Singapore and Brunei
·16 July 1966 – 3 August 1966 Malaysia, Singapore and Brunei
LEGISLATIVE SCHEME
9. Section 9 of the VE Act provides that, subject to s 9A (which does not apply in this case):
…an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(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; …
10.Section 13(1) of the VE Act provides that where:
…
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
11. There is no issue in this case about Mr Robinson satisfying the definition of veteran under s 5C of the VE Act, having rendered eligible war service; which is defined in s 7 to include operational service. Mr Robinson’s service in Malaysia, Singapore and Brunei, while part of the Far East Strategic Reserve, was clearly operational service.
12. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where operational service was rendered by the veteran, that the injury, death or disease of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given Mr Robinson rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war-service and his PTSD or other psychiatric condition.
13. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply in relation to a claim for incapacity resulting from injury or a disease, or death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2) nor declared that it does not propose to make a SoP in respect of the kind of injury, disease or death, as the case may be.
14. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
DIAGNOSIS
Post Traumatic Stress Disorder
15. In approaching the question of diagnosis were the claim involves PTSD, the process needs to be different to other veterans’ cases because the presence or absence of the claimed disease is dependent upon whether the person has experienced a traumatic event of the kind set out at Criterion A in the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV. As Gray J pointed out in Mines v Repatriation Commission [2004] FCA 1331 at paragraph 39:
It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
16. After examining the many cases dealing with the process of reasoning when a diagnosis is dependent upon a traumatic event occurring, Gray J concluded, at paragraph 48:
It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.
17. The authorities establish that where there is an issue as to whether a veteran is suffering from a claimed injury or disease, the Tribunal must decide that issue to its reasonable satisfaction, as required, by s 120(4) of the VE Act (Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) …decide the matter to its reasonable satisfaction, was comprehensively dealt with by the Full Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation…
This means that I am required to decide the question of diagnosis on the balance of probability.
18. Mr Robinson was examined by Dr Christopher J Percival, a psychiatrist, on 22 February 2006 and, as Dr Percival was unable to complete the assessment on that occasion, again on 8 March 2006. In his report dated 8 March 2006 Dr Percival said Mr Robinson presented as a manifestly anxious and distressed 60 year old man. Mr Robinson described his symptoms to Dr Percival as an increased level of anxiety that varied significantly on a daily to weekly basis but which, at its worst, led him to worry excessively about almost any and every event in his life. On questioning, Mr Robinson acknowledged intermittent episodes of lowered mood which lasted for a couple of days. He described a disturbed sleeping pattern and dreams which, in general, were anxiety laden but there was no reference to any specific events in his naval service. Mr Robinson described to Dr Percival a pattern of episodic binge drinking throughout his adult life associated with exacerbations in his level of anxiety. According to Mr Robinson, there were no problems arising from his pattern of alcohol consumption. Dr Percival was provided with Mr Robinson’s medical record regarding a diagnosis of anxiety state which was made by a Navy Medical Officer on 23 October 1969.
19. Dr Percival asked Mr Robinson about specific incidents which may have occurred in the course of his naval service and which might account for his symptomology. Dr Percival recorded that Mr Robinson told him that while serving on the Derwent, when that ship was on patrol off the coast of Borneo during the period of the Indonesian Confrontation with Malaysia, his role was to man a 10 inch signal lantern which was used as a searchlight to illuminate suspect vessels intercepted after dark. Mr Robinson told Dr Percival that on the first intercept in which he was involved, while manning the signal lantern, he crouched down low behind the lantern when he was told to strike up the light so as to illuminate the target vessel. He did this because he feared that the vessel being intercepted might be armed and those on‑board would almost certainly attempt to shoot at the light. When he crouched down, an officer on the bridge told him to stand up behind the light; which he did, but with a feeling of intense fear that somebody might shoot at the light. He also told Dr Percival that on one occasion the Derwent was sent out to protect a tramp‑steamer loaded with cattle which had run aground. Mr Robinson was part of the boarding crew put on the stranded vessel overnight while the vessel was surrounded by locals attempting to board it throughout the night. He described that experience as pretty scary.
20. Dr Percival also recorded a history of Mr Robinson’s first marriage in 1972, which lasted for approximately five years. According to Mr Robinson, his first wife was relatively unstable and the marriage ended following his decision to leave. He re-married in 1979 and has a very good relationship with his present wife. Dr Percival diagnosed Mr Robinson as suffering from a generalised anxiety state in the terms of the DSM-IV. However, Dr Percival commented that the DSM-IV tends to more than a little dumb down the process of clinical diagnosis and in his opinion, Mr Robinson’s fundamental illness was probably affected with anxiety representing depressive agitation in the setting of an illness with a symptom of depression of mood, as opposed to a range of other depressive symptomology, which was far less marked than one would usually find at an equivalent level of agitation.
21. Dr Percival re-assessed Mr Robinson on 17 May 2006. In his report of that date Dr Percival said that he continued to see Mr Robinson after the first occasion on a referral basis from his general practitioner for the purposes of treatment. He said that it became obvious to him that Mr Robinson had not given him a complete account of his symptomology, which he put down to a pattern of typical avoidance behaviour. He saw Mr Robinson again on 27 March 2006 accompanied by his wife, who Dr Percival said was able to supply a range of significant clinical details that had not been spontaneously offered by Mr Robinson. Mr Robinson also provided Dr Percival with two written documents setting out his reflections after having seen Dr Percival previously and to report on what followed after the incident regarding the signal lamp on the Derwent. Mr Robinson wrote the following:
My life up until this period [HMAS Derwent incident] was happy with lots of positives. Passionate, about what we were doing, believing it to be right. Then, things change. …
I certainly haven’t got all the answers, but I do know for sure two things. Firstly, what started the difference in my life and secondly that I now know more clearly why I am like I am. This has effected/changed my whole adult life. I seemingly, have never had any rest or peace.
…
I constantly re lived the incident, the officer yelling out, “bloody well stand up behind the light and do it properly” then slowly stretching my frame from being crouched to standing. The time span seemed like an eternity. These thoughts either stopped me from sleep or woke me from sleep, like a nightmare. They continued for the rest of the return trip, occurring when I was due for a night watch or when I felt very tired. …
22. Dr Percival reported that Mr Robinson clearly described a pattern of intrusive thinking about the episode of the searchlight and the subsequent occasions when he had to stand behind the light in similar circumstances; and intrusive thoughts which were triggered by television programs or films about war in general, to which he would respond by, in his own words, tensing up ‑ wandering away – and coming back when I have settled. Dr Percival also recorded that in contrast to Mr Robinson’s original statement, on this occasion he not only repeated his account of a significant level of insomnia but confirmed that, at least on many occasions, his dreams were in fact specific to the incident in question. Dr Percival also stated that in the setting of what Mr Robinson clearly regarded as intrusive and persistent questioning, he became increasingly distressed, finally to the point of being almost in tears and it was evident he was in fact displaying a very clear and obvious resistance to allowing himself to think of the episode in question. Dr Percival then opined that it was now clear to him that the historical evidence adequately supported a diagnosis of PTSD with Criterion A being met. Criterion A in DSM-IV provides:
The person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror.
23. Dr Percival was also satisfied that Criterion B was met by Mr Robinson’s recurrent, intrusive, and distressing recollections and dreams of the event, and by an intense psychological distress, and physiological reactivity, on exposure to internal or external cues that symbolise or resemble any aspect of the traumatic event. He was also satisfied that Criterion C was met by Mr Robinson’s efforts to avoid thoughts, feelings, conversations, activities, places, or people that aroused recollections of the trauma; specifically with respect to his obvious levels of denial in the initial stages of the assessment; his avoidance of veteran’s organisations; his reluctance to display the Navy memorabilia produced by his daughter; and his feelings of detachment and estrangement from others. These phenomena were also described by Mr Robinson’s wife. Dr Percival was also satisfied that Criterion D was met by Mr Robinson’s persistent symptoms of increased arousal in the form of poor sleep, irritability and outbursts of anger, difficulty in concentrating, hypervigilance, and exaggerated startle response.
24. Mr Robinson was also examined by Dr Nigel Strauss, an occupational psychiatrist, on behalf of the Commission. Dr Strauss took a detailed history from Mr Robinson which was not inconsistent with the history he gave to Dr Percival. Mr Robinson told Dr Strauss that after his experience with the signal lantern on the Derwent, he was found to be anxious and that he was placed on a minor tranquiliser but not for very long. When questioned by Dr Strauss about how his experiences on the Derwent continued to affect him, Mr Robinson said that for many years he did not tell anyone about those experiences and had only recently confided in his psychiatrist and his wife. Dr Strauss recorded that Mr Robinson told him with great reluctance that he still had reasonably frequent recollections of his experiences on the Derwent and that they came back to him when he was very tired or near sleep. He also said he had nightmares about those experiences. Dr Strauss recorded:
He was a reluctant witness who was not happy talking about how he felt. He was moderately anxious but not particularly depressed. His thinking was negative but there was no evidence of any psychosis or delusions or thought disorder. Insight seemed a little limited. He showed no evidence of any physical abnormality and he was heavily tattooed reasonably well presented man with normal speech. There was no evidence of any memory or concentration problems.
25. Dr Strauss accepted that Mr Robinson was suffering from PTSD as a consequence of his experiences during his operational services in the Navy. Dr Strauss said that:
Mr Robinson struck me as being a genuine man who has had trouble talking about the effects of those experiences on his life over the years and it has only been recently that he has been able to volunteer this information but he still has great difficulty.
Dr Strauss was also of the view that the episodes described by Mr Robinson were potentially life-threatening for him or at least he perceived them to be so at the time.
26. In order to be satisfied with the diagnosis offered by both psychiatrists, I must also be satisfied, on the balance of probability, that the event described by Mr Robinson which led to his being diagnosed with PTSD, in fact occurred.
27. Commodore AHR Brecht of Writeway Research Services Pty Ltd conducted research into Mr Robinson’s navy history. That research clearly records Mr Robinson was on board the Derwent during the periods that ship served in the Far East Strategic Reserve in Malaysia, Singapore and Brunei between November 1964 and April 1966. Commodore Brecht attached copies of the ship’s Reports of Proceedings for the months between December 1964 and February 1965. During that period, the Derwent undertook a total of four patrols and spent a short time at Tawau, in Borneo, as the guardship. In the Derwent’s Report of Proceedings it is recorded that on 8 December 1964, the Commander, Far East Fleet, Vice Admiral Sir Desmond Dreyer, addressed the ship’s company explaining the current situation in the Far East with particular emphasis on Malaysia and the importance of the contribution which the Derwent would make during her five month tour of duty in the Strategic Reserve. The report records that the Derwent sailed from Singapore on 12 December 1964 for patrol duties in the Singapore Straits. The report notes:
The Singapore Straits patrol proved to be exacting owing to the confined waters and the volume and concentration of shipping which had to be avoided while the ship was darkened. It also proved somewhat of a challenge to the ship’s company, who were called upon sooner than expected to perform what could have been hazardous duties. The value of training simulated exercises which had been carried out on passage from Sydney was soon to be illustrated. During the first night of patrol, in the early hours of the morning of Sunday 13th December, a darkened boat was pursued and stopped. On investigation, it proved to be an unregistered sampan, approximate length 30 feet, fitted with an outboard motor which the crew had obviously covered with an old sack in an effort to disguise. The crew of 3 were Indonesian. They were arrested, placed in custody on board, and the craft towed to the vicinity of Outer Shoal buoy were both craft and crew were handed over to police.
The following night, DERWENT was in Singapore Straits, on an adjacent patrol to that on which Her Majesty’s Australian Ship TEAL was fired upon, returned fire and arrested an Indonesian craft and its armed crew. The third night of patrol passed without incident, although several craft were investigated.
28. The Report of Proceedings goes on to describe the Derwent’s role as guardship at Borneo. It records the fact that a total of 19 Indonesian craft were searched by the Derwent between 19 and 31 December 1964. The report records that, with one exception, all crew and passengers of crafts searched were well‑behaved and caused no trouble.
29. Quite clearly, the Derwent’s Report of Proceedings for December 1964, combined with the fact that Mr Robinson was on board the Derwent during that period as a Tactical Operator, supports his statement of the events which occurred regarding intercepting Indonesian craft in the hours of darkness. Although Mr Robinson did not provide an exact date of the event that has troubled him, he did say it was the first time that the Derwent had intercepted another vessel. That seems to accord with his first tour of duty on‑board the Derwent when it was part of the Far East Strategic Reserve.
30. Commodore Brecht also commented on Mr Robinson’s duties as a Tactical Operator. Commodore Brecht had personal experience as a Communications Specialist Officer and had served on the Derwent as well as other Type 12 frigates. He said it was common practice in the Communications Branch for the very junior sailors to operate the 10 inch signalling lantern which was used for communications between ships in company. In his opinion, it would have been normal for Mr Robinson to have been allocated the duty of manning the lantern during the ship’s time on patrol.
31. Commodore Brecht said that the 10 inch lanterns were mounted in Derwent on the metal superstructure of each bridge wing, which was about chest height. He said that sailors using the light normally stepped up onto a duckboard box in order to operate it more easily but it was possible to do so without using the box. Commodore Brecht provided a colour photograph of a sailor operating a 10 inch lantern and it shows a sailor, standing on the box, such that he is exposed above the superstructure onto which the lantern is fixed, from his waist up. Clearly, if the sailor was not standing on the duckboard box and was crouching below the superstructure, there would be some protection from gunfire.
32. Commodore Brecht contacted Rear Admiral RC Swan AO, CBE who was the Derwent’s Commanding Officer during the December 1964 patrols. According to Rear Admiral Swan, the ship was sometimes shadowed by Indonesian warships while on patrol and was therefore kept on high alert at all times. The ship was in a darkened state with no lights showing. The crew was brought to action stations when an intercept was made and selected personnel were armed. It was normal procedure for the Derwent to come close to intercepted small boats and to illuminate them with a single lantern which assisted identification and facilitated any necessary investigation. Rear Admiral Swan commented upon the need for vigilance in the course of making an intercept even though, for the most part, boats did not resist or hinder the search activities.
33. Although Mr Robinson commented on the grounding of the tramp-steamer, that was not relied upon, as I understood it, in respect of this claim. Nevertheless, his account of that incident seems to accord accurately with the reports provided by Commodore Brecht. In fact, Commodore Brecht enclosed photographs of the Panamanian registered SS Carina aground on a reef surrounded by dozens of Dyak boats. The Executive Officer who led the boarding party to render assistance to the SS Carina was Commander M Ward, who had previously provided a report and the photographs. According to Commander Ward, he took a boarding party of four sailors armed with .303 rifles across to the SS Carina, where they remained until eight members of the local Marine Police arrived. The Dyaks were attempting to recover cattle, as was stated by Mr Robinson.
34. It is clear that the account given by Mr Robinson of his service on‑board the Derwent when it was part of the Far East Strategic Reserve is substantially true and accurate. It is supported independently by contemporaneous documentary evidence.
35. Perhaps the most contentious issue about the diagnosis is whether the event described by Mr Robinson, when he was first required to illuminate a fishing vessel in the Singapore Straits, could be described as a traumatic event in accordance with the Diagnostic Criterion A set out in DSM-IV. There are two parts to this. The first is whether Mr Robinson was confronted with an event that involved actual or threatened death or serious injury or a threat to the physical integrity of himself or others. Secondly, I must determine whether his response involved intense fear, helplessness, or horror.
36. The description set out in Criterion A of DSM-IV is precisely the same as the definition of the term experiencing a severe stressor as that is used in many SoPs including the SoP for alcohol dependence or alcohol abuse. The Full Court of the Federal Court of Australia in Woodward and Another v Repatriation Commission (2003) 131 FCR 473 was required to determine whether that expression contained an objective component. The Full Court noted that the definition was comprised of three elements that related to a person’s encounter with an event; that is the person must have experienced, witnessed or have been confronted with the required event. The Court said, at page 495.
… 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.
[123] 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.
37.The Full Court concluded, at 498:
[139] Mansfield J concluded that the AAT erred in law in its understanding of the expression "experiencing a severe stressor" in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.
38. The Full Court in Woodward also cited with approval Mansfield J’s decision in Stoddart v Repatriation Commission (2003) 197 ALR 283 where he said, at paragraph [50]:
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.
39. The Full Court of the Federal Court in Repatriation Commission v Stoddart (2003) 134 FCR 392 at 399-400 endorsed the approach adopted by Mansfield J at first instance.
40. The question then is whether Mr Robinson can be said to have been confronted with an event which threatened serious injury to himself or others. In my view, the event described by Mr Robinson, that is being told to stand up when manning the searchlight in the circumstances he described, viewed objectively by a reasonable person in the position of and with the knowledge of Mr Robinson, was capable and did convey the risk of serious injury to his physical integrity. This event occurred at a time when there was open military confrontation between Indonesia and Malaysia. The main purpose of conducting the patrols which the Derwent did in the Singapore Straits was to prevent the smuggling of arms by Indonesians into Malaysia. In those circumstances, it is certainly not unreasonable to expect some resistance from smugglers if they were caught. In fact, as is recorded in the Derwent’s Report of Proceedings for December 1964, personnel involved in those exercises were aware that they could be hazardous.
41. As if to underscore this point, the Derwent’s Report of Proceedings notes that on the second night of patrolling in the Singapore Straits, the Teal, which was on an adjacent patrol, was fired upon and returned fire, subsequently arresting an Indonesian craft and its armed crew. It is therefore, in my opinion, entirely reasonable from an objective point of view that the person who was required to illuminate a suspected Indonesian vessel carrying arms, should there be any resistance which was likely, would be exposed to gunfire directed initially at the searchlight so as to enable the suspect boat to slip away in the darkness. If the operator of the lantern was required to stand up as is depicted in the photograph provided by Commodore Brecht, that sailor was clearly exposed to any attempt to shoot out the lantern. The order Mr Robinson said was given to him: Bloody well stand up behind the light and do it properly, was remarkably stupid. It clearly exposed Mr Robinson to a serious and real threat of death or serious injury.
42. As to the second limb of Criterion A in DSM-IV, Mr Robinson said his reaction to the order to stand up straight behind the lantern was one of intense fear. Again, that seems to me to have been a perfectly understandable reaction. There is also some objective evidence that this event had a serious and ongoing effect on Mr Robinson. In October 1969 he presented to the sickbay on the Vendetta and was diagnosed with anxiety state. He was said to be in a nervous condition and was treated with medication for what appears to be three weeks.
43. I am also satisfied that the evidence discloses Mr Robinson does satisfy Criterion B, C and D of DSM-IV. There is evidence of Mr Robinson persistently re‑experiencing the event, his avoidance of stimuli associated with the traumatic event and persistent symptoms of increased arousal. I also find that he satisfies Criterion E and F; that is the duration of the disturbance was more than one month and it caused clinically significant distress and impairment in social, occupational or other important areas of functioning. It follows that I am satisfied, on the balance of probability, that Mr Robinson does suffer from PTSD.
WAS MR ROBINSON’S PTSD WAR-CAUSED?
44. Although, as Gray J said in Mines case, the four steps in Deledio hardly need be considered if the conclusion is reached that the Veteran suffers PTSD, out of an abundance of caution, I have decided to do so.
45. The first step which I am required to take is to determine whether, after considering all the material before me, I am satisfied that the material points to a hypothesis connecting Mr Robinson’s PTSD with the circumstances of his operational service.
46. Mr Robinson’s hypothesis is that while on‑board the Derwent in the course of participating in searches of Indonesian vessels for possible arms smuggling to Malaysia, Mr Robinson was required to operate a 10 inch high-powered lantern to illuminate intercepted vessels. On his first encounter with such a vessel, he was ordered to stand up properly behind the light rather than crouch down so as to seek some protection in the event that the Derwent was fired upon. He felt exposed to the possibility of gunfire directed at the searchlight and it caused him to experience intense fear for his life. In my view, there clearly is a hypothesis which connects Mr Robinson’s diagnosed PTSD with his operational service.
47. The second Deledio step is to ascertain whether there is in force a SoP determined by the RMA under s 196B(2) or s 196B(8) of the VE Act. The current SoP for PTSD is No 5 of 2008, which revoked Instrument No 3 of 1999 as amended by Instrument No 54 of 1999.
48. The third Deledio step requires me to form an opinion whether the hypothesis raised is a reasonable one. The hypothesis must contain one or more of the factors which the RMA has determined to be the minimum which must exist and be related to Mr Robinson’s service.
49. SoP No 5 of 2008 came into effect on 20 December 2007. This was some time after Mr Robinson first lodged his claim. In these circumstances, the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321 said that the approach mandated by a combination of the VE Act and the Full Court’s decision in Repatriation Commission v Keeley (2000) 98 FCR 108 required a sequential approach to be taken be taken by the Tribunal. That is, I must first apply the current SoP to determine if Mr Robinson’s hypothesis is upheld. If it is, I need not examine the superseded SoP. However, if his hypothesis is not upheld by Instrument No 5 of 2008, I should then examine SoP No 3 of 1999 as amended by No 54 of 1999, in order to determine whether his hypothesis is upheld.
50. One of the factors which must exist before it can be said that a reasonable hypothesis has been raised is that Mr Robinson has experienced a category 1A stressor before the clinical onset of PTSD. A category 1A stressor is defined at paragraph 9 in the following way:
“a category 1A stressor” means one of more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
51. While it is clear that the definition of a category 1A stressor is narrower than the definition in the superseded SoP of experiencing a severe stressor, there nevertheless remains the common trauma of experiencing a life-threatening event. The narrowing of the definition of a category 1A stressor also seems to be at odds with Criterion A of DSM-IV which must be met in order to establish a diagnosis of PTSD. The definition of the phrase, experiencing a severe stressor, is clearly based on Criterion A, using the same language. It seems that although one can be diagnosed with PTSD because a person witnessed or was confronted with an event that involved threat of death or serious injury or to the physical integrity of the person or others, that no longer falls under the definition of a category 1A stressor. The definition of a category 1B stressor in SoP No 5 of 2008 includes a traumatic event which involves being an eyewitness to a person being killed or critically injured; but, again, that is much narrower than the traumatic event described by Criterion A or the definition of the expression experiencing a severe stressor set out in Instrument No 3 of 1999.
52. Be that as it may, the material discloses that Mr Robinson did experience a life threatening event. Standing up, exposed from the waist up, while directing the searchlight onto the intercepted vessel, with the distinct possibility that persons aboard that vessel may attempt to shoot out the light, quite clearly fits the definition in SoP No 5 of 2008. However, even if I am wrong about that, in accordance with what the Full Court said in Gorton, I am able to rely on the definition of the phrase experiencing a severe stressor in Instrument No 3 of 1999. Because that definition has been extensively examined in Stoddart and Woodward, and because the Federal Court has accepted that being confronted with the events described in the definition means either brought face to face with such an event physically or in the person’s mind, I am satisfied that the template set out in SoP No 3 of 1999 has been met in this case.
53. The final step according to Deledio requires me to proceed under s 120(1) of the VE Act and determine whether I am satisfied beyond reasonable doubt that Mr Robinson’s incapacity did not arise from a war-caused injury. It is at this stage that I am required to make findings of fact from the material put before me. However, for the reasons explained by Gray J in Mines case, to do so would simply be repeating what I have already found in relation to the facts when addressing the diagnosis. As I have indicated above, I entirely accept Mr Robinson’s evidence regarding the incident on‑board the Derwent while in the process of intercepting Indonesian vessels in the Singapore Straits. Mr Robinson’s evidence is fully supported by his naval records, the contemporaneous Reports of Proceedings made in respect of the Derwent’s operations at that time and Mr Robinson’s naval medical records. It follows that I am satisfied beyond reasonable doubt that the events as described by Mr Robinson in fact occurred. Therefore, in accordance with s 120(1) of the VE Act, I am satisfied that Mr Robinson’s PTSD was war-caused as I cannot be satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
CONCLUSION
54. My clear view is that Mr Robinson’s PTSD was war-caused as that expression is defined in the VE Act. It follows that the decision of the VRB made on 30 August 2006 must be set aside. In substitution for that decision, I find that Mr Robinson is incapacitated as a consequence of PTSD and that his incapacity should attract compensation in accordance with s 13 of the VE Act. As to the degree of incapacity, I am satisfied that the Impairment Assessment attached to Dr Strauss’ report of 30 October 2007 should be adopted.
I certify that the fifty-four [54] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
Signed: Olympia Sarrinikolaou
ClerkDates of Hearing 18 April 2008 and 9 May 2008
Date of Decision 3 September 2008
Counsel for the Applicant Mr Gary Moore
Solicitor for the Applicant Peter Liefman
Counsel for the Respondent Robert Douglass
Advocate for the Respondent Jean McCulloch, Veterans' Affairs
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