Sandford and Repatriation Commission (Veterans' entitlements)

[2017] AATA 2038

Sandford and Repatriation Commission (Veterans' entitlements) [2017] AATA 2038 (1 November 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2016/2591

Re:Raymond Sandford

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:1 November 2017

Place:Brisbane

The decision under review is affirmed.

.......................[SGD]..............................

Senior Member T. Tavoularis

VETERANS’ AFFAIRS – Disability pension – whether post-traumatic stress disorder was war-caused or defence-caused – Tribunal satisfied that Applicant suffers from Post-traumatic Stress Disorder (‘PTSD’) – where Tribunal not reasonably satisfied PTSD was war caused – where Tribunal not satisfied on balance of probabilities PTSD was defence caused - decision under review affirmed.

Legislation

Veterans’ Entitlements Act 1986 (Cth) Part II and IV, ss 6, 9, 13, 68, 69, 70, 120, 120A, 120B

Cases

Border v Repatriation Commission (No. 2) (2010) 191 FCR 163
Parr and Repatriation Commission [2003] AATA 13
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Roncevich v Repatriation Commission (2005) 222 CLR 115

Secondary Materials

Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 83 of 2014)

Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 82 of 2014)

REASONS FOR DECISION

Senior Member T. Tavoularis

1 November 2017

INTRODUCTION

1. This is an application for review of the decision of the Veterans’ Review Board (“the VRB”) dated 23 March 2016. The VRB’s decision affirmed the decision of the Repatriation Commission (“the Respondent”) dated 7 January 2015, which refused a claim by Mr Raymond Sandford (“the Applicant”) for post-traumatic stress disorder (“PTSD”) to be accepted as service-related.[1]

   [1] I note that the original decision also included a claim for bilateral hypermetropia but this condition was withdrawn at the VRB.

   BACKGROUND

2. The Applicant is 65 years old. He served in the Royal Australian Navy from 8 March 1969 to 12 March 1979 (aged 17 to 27).

3. On 20 October 2014, the Applicant lodged a claim for disability pension for disabilities that had not yet been accepted as service related. The Applicant specifically wanted to claim compensation in respect of Posttraumatic Stress Disorder (“PTSD”) and Hypermetropia, which he asserted were war or defence caused.[2]

   [2] See Exhibit 3, “T documents”, T5, pp 43 – 52.

4. On 7 January 2015 a delegate of the Repatriation Commission refused the claim, stating that they had “decided that bilateral hypermetropia and Posttraumatic Stress Disorder are not related to service”.[3]

   [3] See Exhibit 3, T10, p 69.

5. In that decision it was noted that the Repatriation Commission was satisfied that the Applicant had rendered operational service in Vietnam from 16-29 November 1969. Further, he had rendered eligible service as a member of the Defence Forces during the period from 7 December 1972 to 12 March 1979.[4]

   [4] Ibid, p 70.

6. On 13 February 2015, the Applicant lodged an application for review with the Veterans’ Review Board (“VRB”), indicating that further information and detail would be supplied by Dr Holy.[5]

   [5] See Exhibit 3, T11, p 73.

7. On 23 March 2016 the VRB made a decision that: (1) noted the withdrawal of the application in relation to the claim for Bilateral Hypermetropia, and (2) affirmed the decision under review in relation to the claim for PTSD.[6] The Applicant was notified of this decision by letter dated 29 April 2016.[7]

   [6] See Exhibit 3, T2, p B2.

   [7] See Exhibit 3, T2, p B1.

8. On 17 May 2016, the Applicant lodged an Application for Review of Decision with this Tribunal.[8]

   [8] See Exhibit 3, T1, p A1-2.

   ISSUES

9. The issues which fall under my consideration in this matter are as follows:

   1)whether a diagnosis of PTSD is present;

   and if so:

   2)whether that PTSD is war-caused, having reference to the applicable Statement of Principles;[9] or

   3)whether that PTSD is defence-caused, having reference to the applicable Statement of Principles;[10]

   and if so, then:

   4)what the appropriate rate of pension should be.

   [9] See Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014.

   [10]See Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014.

10. I will consider each of these issues and the applicable law in turn.  

    ISSUE 1: WHETHER A DIAGNOSIS OF PTSD IS PRESENT?

11. The first issue to be considered is whether or not I can be satisfied that there is a valid diagnosis of PTSD.

12. Both of the applicable Statements of Principles for PTSD outline the same definition for “Posttraumatic Stress Disorder” in paragraph 3. Helpfully, at the start of the hearing the parties confirmed that the diagnosis of PTSD is no longer in dispute.

13. I will briefly canvass the medical expert opinions in this regard.

    Dr Holm’s Diagnosis

14. The Applicant has been under the care of Dr. Ivan Holm, Psychiatrist, since March 2014. Dr Holm said in his letter of 8 July 2016: “I have diagnosed Mr Sandford as suffering from chronic Post-Traumatic Stress Disorder with prominent anxiety.”[11]

    [11] See Exhibit 12.

    Report of Dr Holm dated 14 December 2014

15. In his report dated 14 December 2014, Dr Holm made a diagnosis of chronic Post-Traumatic Stress Disorder (“PTSD”).[12] He noted psychosocial circumstances included the Applicant recently ceasing work and leading a somewhat restricted life with minimal social contact or recreational interests. He further noted that the Applicant became visibly distressed discussing his difficulties including his past service. 

    [12] See Exhibit 3, T9, pp 64-68.

16. Dr Holm ultimately formed the opinion that the Applicant “… suffers from a significant degree of chronic post traumatic stress disorder. I relate this directly to traumas he has experienced during his 10 years with the Australian navy.”[13]

    [13] See Exhibit 3, T9, p 68.

17. Dr Holm reports that the Applicant told him of significant psychiatric difficulties he experienced over the course of the preceding 14 years (ie. since circa 2000). Dr Holm reports the Applicant told him that:

    “In 2004 while working in Vietnam for Toll Holdings he had what he describes as a severe collapse and was off work for some 3 months. He describes significant symptoms of anxiety and depression at the time. The first obvious suggestion of psychiatric symptoms arose in about 2000 when he was on a cruise around Singapore. He said he became so anxious about being inside the ship that he slept in the foyer.”[14]

    [14] See Exhibit 3, T9, p 64.

    Dr Garg’s Diagnosis

18. Dr Garg was engaged by the Respondent as an independent medical expert to assess the Applicant’s psychiatric symptomology and asserted causes. Dr Garg diagnosed the Applicant as having a recurrent depressive disorder with a differential diagnosis of posttraumatic stress disorder.[15]

    [15] See Exhibit 10, Report of Dr A Garg dated 7 October 2016, p 13.

    Report of Dr Garg dated 7 October 2016

19. In his report of 7 October 2016, Dr Garg noted that the Applicant told him that he “certainly experienced a few life-threatening situations in 1969 during his overseas deployment to Vietnam and in 1974 when he was sent to Darwin to clean up aftermath (sic) of cyclone Tracey (sic).”[16]

    [16] Ibid, p 11.

20. Further, Dr Garg noted the Applicant was duty-bound to inhabit confined spaces throughout his navy service, Dr Garg thought this may possibly have led to the following anxiety symptoms soon after the Applicant’s discharge from the navy on 12 March 1979:

    1.    Recurrent and intrusive nightmares,

    2.    Fear of personal safety,

    3.    Fear of closed spaces,

    4.    Fear and avoidance of public places,

    5.    Social anxiety, and

    6.    Emotional numbness.[17]

    [17] Ibid, pp 11-12.

21. Dr Garg thought there was “…little to suggest that these symptoms affected [the Applicant’s] occupational functioning much as … he was able to get jobs easily but struggled to complete the projects.”[18]

    [18] Ibid, p 12.

22. In diagnostic terms, Dr Garg opined that the Applicant’s clinical history:

    “… fulfils DSM V criteria of a Recurrent Depressive Disorder. He also has clinical features of posttraumatic stress disorder but does not fulfil DSM V criteria of posttraumatic stress disorder due to lack of evidence for clinically significant impairment in his occupational and social functionally (sic) primarily due to clinical symptoms posttraumatic stress disorder. He may also have an additional diagnosis of specific phobia of closed spaces.”[19]

    [19] Ibid, p 12.

23. In addition to providing a diagnosis for the Applicant, Dr Garg was asked to address the diagnostic criteria in DSM V in relation to PTSD.  He responded as follows:

    “DSM V DIAGNOSES

Axis I

Recurrent Depressive Disorder most recent episode Major Depressive Episode – severe, without psychotic symptoms currently in partial remission. 

Differential diagnosis of Posttraumatic Stress Disorder.

Axis II

Nil.

Axis III

Hypertension, Hypercholesterolemia, Low testosterone

Axis IV

Problems in employment,

Axis V

Global Assessment of Functioning (GAF) of 50

…..

1. With respect of the diagnostic criteria of DSM V, Dr Garg listed a number of anxiety symptoms that the Applicant and his wife recounted. Dr Garg went on to note that:

   “It is possible that these symptoms could be due to Posttraumatic Stress Disorder but I could not detect any evidence of dissociative reactions in which he felt as if traumatic events are recurring, intense or prolonge (sic) psychological distress at exposure to internal or external cues associated with traumatic events and clinically significant distress or impairment in social, occupational or other important areas of functioning. He has held multiple jobs after resigning from the navy. His mental state and functioning deteriorated since year 2005 or 2006 when he developed his first depressive episode”.[20]

   [20] Ibid, p 13.

2. Dr Garg was also asked to identify any precipitating events in the development of the condition(s).[21]  He noted two precipitating events were identified in the development of the Applicant’s trauma symptoms (for the purposes of PTSD). Briefly stated, they are as follows:

   (i)the Applicant recounted being in fear of his life whilst on board a navy ship in Vung Tau Harbour, Vietnam, in November 1969; and

   (ii)the Applicant also recounted being in fear of his life whilst diving for the navy in Darwin harbour, in the aftermath of cyclone Tracy, due to the threat of jellyfish, crocodiles and sharks.[22]

   [21] Those conditions comprising: (1) Depressive disorder and (2) PTSD.

   [22] See Exhibit 10, Report of Dr A Garg dated 7 October 2016, p 4 and 14.

3. Dr Garg identified three precipitating episodes for the Applicant’s development of Depressive Disorder, as follows:

   (i)In 2005 or 2006, he became depressed as a result of a workplace disagreement with his then shipping company employer in Vietnam. The disagreement culminated in his resignation. The decision to resign “…. unusually affected him…” and caused him to feel that he had “… let himself down and become very depressed.”[23]

   (ii)In 2012, while working for DHL in Singapore, there was a further workplace disagreement with his employer. Upon resigning from this job, the Applicant told Dr Garg: “…he felt emotionally wrecked….” and “he became depressed again.”[24]

   (iii)In April 2014, while working for IPS Transport and Logistics in Brisbane, the Applicant “…developed depression after an incident with a female employee over a parking space.” Once again, the Applicant resigned from this job “… and developed severe depression soon after…”[25]

   [23] Ibid, p 15.

   [24] Ibid.

   [25] Ibid.

4. In response to a request to determine the date of clinical onset for any condition, Dr Garg thought clinical onset of trauma symptoms occurred soon after the Applicant’s discharge from the navy in November 1979 and the onset of depression symptoms was in 2005 or 2006.

5. In terms of contributory causal factors and/or aggravating factors, Dr Garg said various factors listed in the Applicant’s history of incidents possibly have precipitated his depressive episodes.  Dr Garg also thought the Applicant’s psychological state had been affected by: (1) his second wife developing a major medical condition, and (2) the necessity of having to recount his trauma experience in the navy for instructional purposes to his advocate for this proceeding.[26]

   [26] Ibid, p 16.

   Further Report of Dr Holm dated 15 October 2016

6. Dr Holm prepared a responsive report to Dr Garg’s report dated 7 October 2016.[27]

   [27] See Exhibit 13: Report of Dr Ivan Holm dated 15 October 2016.

   
   

   Dr Holm disagreed with some of the findings of Dr Garg for the following reasons:

   (i)Dr Holm noted that Dr Garg erred in noting the condition claimed was adjustment disorder, which was not the case;

   (ii)According to Dr Holm, the correct “… diagnosis for [the Applicant] is that of chronic posttraumatic stress disorder…” Dr Holm adds: “The essence of my opinion in reviewing this report is that Dr Garg has erred in not confirming the diagnosis of PTSD with associated symptoms of anxiety and depression”;

   (iii)Dr Holm disagrees with Dr Garg’s finding that the Applicant “… does not fulfil DSM V criteria of posttraumatic stress disorder due to lack of evidence for clinically significant impairment in his occupational and social functioning primarily due to clinical symptoms of posttraumatic stress disorder.”  On the assumption that Dr Garg’s findings are predicated on a belief that the Applicant’s anxiety and depression symptoms are unrelated to his PTSD, Dr Holm disagrees and says “I would argue in this regard that [the Applicant’s] chronic anxiety symptoms are in fact symptoms associated with his PTSD.”  He adds: “If one accepts that [the Applicant] fulfils the diagnostic criteria for PTSD, then I assume one would accept that the diagnosis of PTSD is the primary diagnosis with the subsequent symptoms of anxiety and depression being associated with PTSD. This would certainly be my argument.”[28]

   [28] Exhibit 12, p 1.

   (iv)Dr Holm thought that in the history recounted by Dr Garg, there are a number of examples of the Applicant having the clinical symptoms of PTSD following his naval service. For example:

   a.    the Applicant’s cessation of diving activity following an incident in 1978 in the waters off Sydney Harbour and being hit by something, is according to Dr Holm,  “…clearly an indication of avoidance symptoms”;

   b.    as a result of feeling his life was threatened during dangerous situations in  his navy career and subsequently developing a feeling of being unsafe in public places, the Applicant developed a fear of crowds and an avoidance of socialising, Dr Holm thought this “…clearly indicates the commencement of significant anxiety and avoidance as well as affecting social functioning and work performance”;

   c.    as a result of feeling threatened after seeing a butcher doing his usual work and then developing a  fear that the butcher might do him harm with his knife as well as jumping with fear when accidentally touched from behind, Dr Holm thought “This clearly indicated both hypervigilance and increased startle response”;

   d.    as a result of developing nightmares soon after his discharge from the navy in 1979,  Dr Holm thought the Applicant was “…describing the onset of recurrent distressing dreams relating to the events as per the diagnostic criteria.”[29]

   (v)Dr Holm disagreed with Dr Garg’s diagnostic assessment regarding the onset of depressive disorder in 2005 and 2006. In Dr Holm’s view, “While clearly [the Applicant] does indeed describe symptoms of depression occurring in the context of difficulties in his work at that time, it should be noted that these depressive symptoms occurred on a background of preexisting (sic) anxiety and… my opinion is that these depressive and anxiety symptoms should be deemed to be symptoms of [the Applicant’s] PTSD. Similarly subsequent episodes of worsening depressive symptoms referred to as occurring in 2012 and 2014, again I see as being exacerbations of symptoms associated with PTSD”.[30]

   [29] Ibid, p 2.

   [30] Ibid, p 3.

7. Dr Holm makes the further point that Dr Garg’s report constitutes “… an opinion following a single appointment. I, on the other hand, have seen [the Applicant] to date on a total of 29 occasions and over a period of time.”[31]

   [31] Ibid, p 3.

8. The fundamental point of difference between Dr Holm and Dr Garg, according to Dr Holm, is this: “Dr Garg appears to be of the opinion that [the Applicant’s] depressive symptoms are a separate diagnostic entity. I would disagree with this and say that [the Applicant’s] depressive symptoms are part of his PTSD complex and therefore would argue that [the Applicant] has ceased work due to the effects of PTSD alone.”[32]

   [32] Ibid, p 4.

   Report of Dr Garg dated 3 February 2017

9. Dr Garg provided an updated report in February 2017. The majority of his report essentially reflects his earlier report. This time, however, his diagnosis included: (1) Recurrent Depressive Disorder, and (2) Posttraumatic Stress Disorder. Dr Garg was again of the view that the clinical onset of Posttraumatic Stress Disorder occurred soon after the Applicant’s discharge from the navy, and for depression it was in 2005 or 2006.[33]

   [33] Exhibit 11, Report of Dr A Garg dated 3 February 2017.

   Conclusion

10. I again note that the Respondent has now conceded that the Applicant does have a valid diagnosis of Posttraumatic Stress Disorder (“PTSD”). Given the historical connection between the Applicant and Dr Holm, I am inclined to accept the views of Dr Holm and accordingly find that the Applicant suffers from PTSD. In any event, I note Dr Garg’s updated report acknowledged a diagnosis of PTSD.

    THE DIFFERENT TYPES OF SERVICE - OPERATIONAL SERVICE VS ELIGIBLE DEFENCE SERVICE

11. When considering the standard of proof for establishing the causal connection between the Applicant’s PTSD and his service, the difference lies in the type of “relevant service” the Applicant has rendered at the time he suffered his injury or contracted the disease (in this case, PTSD).

12. Broadly speaking, in this case there are two levels of eligibility within the Repatriation system: (1) a veteran with service that is ‘operational service’ and sustained a ‘war-caused’ injury or disease, is entitled to compensation under Part II of the Act, and (2) a veteran is eligible for the pension under Part IV of the Act if they have rendered eligible ‘defence service’ and are incapacitated as a result of a defence-caused injury or disease.

13. Section 6 of the Act broadly defines ‘operational service’ to include overseas service within a defined area by a member of the Defence Forces in a time of war or during warlike operations. Section 68 of the Act defines the concept of ‘defence service’, which includes continuous full-time service rendered by a member of the Defence Forces between 7 December 1972 and 7 April 1994. To be eligible for a pension under part IV of the Act a veteran must have completed three years’ effective full-time service.[34]

    [34] See Veterans’ Entitlements Act 1986 (Cth) s 69(1)(c).

14. As previously mentioned, it has been accepted that the Applicant rendered ‘operational service’ in Vietnam from 16-29 November 1969. Further, he had rendered ‘eligible defence service’ as a member of the Defence Forces during the period from 7 December 1972 to 12 March 1979.[35]

    [35] See Exhibit 3, T10, p 70.

15. The principal significance of the distinction between “eligible service” and “operational service” (aside from the different pensions), is that it is only operational service which attracts the more generous “reasonable hypothesis” standard of proof set out in ss 120 and 120A of the Act. The eligibility for pension of a person who has eligible but non-operational service is to be determined in accordance with the less generous “reasonable satisfaction” standard of proof in ss 120(4) and 120B of the Act. Both standards of proof are assessed by reference to the applicable Statement of Principles.

1. In this case two relevant Statements of Principles exist in relation to Posttraumatic Stress Disorder. Stated briefly they are: No. 82 of 2014 and No. 83 of 2014. The former relates to the Applicant’s operational service, and the latter to his defence service.

2. The Applicant originally relied upon factors 6(a), 6(b) and/or 6(c) in Statement of Principles No. 82 of 2014 as evidencing the connection between his PTSD and relevant service.[36] This position evolved during the hearing and in following written closing submissions, instead, into the Applicant’s reliance upon: (1) the Applicant experiencing a category 1A or 1B stressor during his ‘operational service’ pursuant to factors 6(a) and 6(b) in SoP No. 82 of 2014; or in the alternative, (2) the Applicant experiencing a category 1A stressor during his ‘defence service’ pursuant to factor 6(a) in SoP No. 83 of 2014.[37]

   [36] See Exhibit 1, Applicant’s Statement of Facts and Contentions (“SFIC”), p 4 at [13].

   [37] See Exhibit 17, Applicant’s Outline of Submissions.

3. I will consider the Applicant’s (1) eligible operational service, and (2) eligible defence service, respectively, and his contentions about the corresponding events that he asserts connects his PTSD to his service.

   ISSUE 2: WAS THE APPLICANT’S PTSD WAR-CAUSED?

4. The Applicant primarily contends that his PTSD was caused by events that occurred during his period of operational service in the waters of South Vietnam.

5. It is common ground that the Applicant rendered eligible ‘operational service’ in South Vietnam waters from 16 November 1969 to 29 November 1969, whilst serving on board HMAS Duchess.

   Applicable Law

6. According to section 9 of the Act, an injury suffered by or a disease contracted by the veteran is said to be war-caused if it resulted from an occurrence that happened while the veteran was rendering ‘operational service’.

7. A veteran is eligible for a pension under Part II of the Act where he is incapacitated from a war-caused injury or war-caused disease.[38]

   [38] See Veterans’ Entitlements Act 1986 (Cth) s 13(1).

8. The widely accepted steps that a decision-maker should take to apply s 120A or s 120B, in light of s 120, were described by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92-93 and 97-98, (“Deledio”) and can be summarised as follows:

   (i)The decision-maker must consider the facts raised by the material before it and determine if that material points to a hypothesis connecting an injury, disease or death with the service;

   (ii)Ascertain whether a relevant Statement of Principles is in force;

   (iii)Where a relevant Statement of Principles (“SoP”) is in force, the decision-maker must then form an opinion as to whether the hypothesis raised is a reasonable one. This will be the case, if the hypothesis fits, or put another way, is consistent with the “template” to be found in the SoP; 

   (iv)It is then necessary to consider whether (under s 120(1) of the Act) the decision-maker is satisfied beyond reasonable doubt that the injury, disease or death, was not war-caused. The onus of proof or the application of any presumption is applied at this stage.

   Step 1: Hypothesis connecting an injury, disease or death with the service

9. The hypothesis pursued by the Applicant is that his PTSD was caused by stressful experiences during his service in Vung Tau harbour.[39]

   [39] See Exhibit 17, Applicant’s Outline of Submissions, at [7].

   Step 2: Identify relevant Statement of Principles (“SoP”) in Force

10. In considering whether the Applicant’s PTSD arose from his operational service, it is necessary to consider the relevant Statement of Principles in force at the time of this decision. The Applicant is also entitled to rely on any past Statement of Principles that were in force at the time the Respondent originally processed and decided his claim.[40] In this case it may be necessary to refer to either of the following Statements of Principles for PTSD comprising:

    ·Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014

    ·Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008

    [40] See Repatriation Commission v Gorton (2001) 110 FCR 321.

11. The Applicant relies on the Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014 (“SoP No. 82 of 2014”) in relation to his operational service.[41]

    [41] See Exhibit 17, Applicant’s Outline of Submissions, at [8].

    Step 3: Is a reasonable hypothesis raised consistent with the ‘template’ in SoP?

12. Where the Applicant was engaged in operational service at the time his injury or disease occurred, the decision-maker must be satisfied that a reasonable hypothesis connecting the injury or disease with the circumstances of the service has been raised.[42]

    [42] See Veterans’ Entitlements Act 1986 (Cth) ss 120(3) and 120A, and SoP No. 82 of 2014.

13. As the decision-maker, I must be satisfied that there is sound medical-scientific evidence that indicates that posttraumatic stress disorder can be related to the Applicant’s operational service.[43]

    [43] See SoP No. 82 of 2014 at [4].

14. The relevant Statement of Principles, No. 82 of 2014, sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder with the circumstances of the Applicant’s operational service.[44] [my emphasis]

    [44] See SoP No. 82 of 2014 at [6].

15. The Applicant claims that whilst serving on board HMAS Duchess in Vung Tau harbour he experienced a category 1A stressor before the clinical onset of his PTSD, pursuant to factor 6(a). Specifically, he contends that: “[he] experiences (sic) and heard whilst at his action station with the Squid anti-submarine mortar a series of underwater explosions, causing him to think that the ship was under attack and that he feared for his life and that as a consequence he was unable to verify if the ship was in fact under attack, which further caused him to further fear for his life.”[45]

    [45] See Exhibit 1, Applicant’s SFIC, p 4 at [13(a)].

16. The meaning of “a category 1A stressor” is defined in paragraph 9 of the Statement of Principles to mean one 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.

17. The appropriate tests to be adopted in assessing the category 1A stressors described in paragraphs (a), (b) and (c) of the definition were considered by the Federal Court in Border v Repatriation Commission (No. 2) (2010) 191 FCR 163. In that case, His Honour Justice Reeves made the following observations:

    “Based on these authorities, the answer to the question posed… in relation to the event described in subpara (a): ‘experiencing a life-threatening event’ is this. It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.”[46]

    [my underlining and emphasis]

    Elsewhere in the decision, discussing subparagraphs (b) and (c), his Honour remarked:

    “Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as “experiencing a life-threatening event”, the other two subparas – (b) and (c) – focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it. Thus, they variously refer to: “a serious, physical attack”, “assault”, “rape”, “sexual molestation”, “being threatened with a weapon”, and “being held captive, being kidnapped or being tortured”. Whilst all of these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition…

    It follows, in my view, that there is no subjective element involved in determining whether a veteran’s hypothesis fits within, or is consistent with, one or more of the events described in subpara (b) or (c) of the definition of “a category 1A stressor”.”[47]

    [my underlining]

    [46] Border v Repatriation Commission (No. 2) (2010) 191 FCR 163, 180 at [67] (Reeves J).

    [47] Ibid, 175-176 at [50]-[51].

18. I will turn now to each of the Applicant’s asserted scenarios where he contends he experienced a category 1A stressor.

    Perceived life threatening event(s) in Vung Tau harbour

19. The official record of the passage of both the HMAS Sydney and HMAS Duchess records that the latter vessel entered Vung Tau harbour on 28 November 1969 at 0400hrs and departed at 1147hrs on the same day.[48] The Applicant provides a recollection of his experience at that time:

    “When entering Vung Tau harbour… At the change of watch, 2000 hrs (8pm) upon arrival at the ship’s station, I was startled and I recall hearing helicopter noises and saw a distant light.  My first reaction was to assume the ship was under attack; intense fear overwhelmed me as I had visions of friendly fire and images of TV news of American helicopters …”[49]  

    The Applicant further recalled that: “… a series of underwater explosions engulfed the ship and I was convinced that the ship was under attack and that I was going to die.”[50]

    [48] Exhibit 4, Reports of proceedings HMAS Duchess ‘January 1968 – December 1969’, p /5… at [23].

    [49] See Exhibit 8, Statement of Raymond Sandford, at [6].

    [50] Ibid.

20. At the hearing, the Applicant sought to clarify his evidence in relation to this incident.  He said that he was walking on the open deck from his action station aft of the ship to the seven mess at the completion of his period of duty at his allocated action station, also known as the “squid mortar room”. By way of further clarification, the Applicant confirmed the relevant time was 0400hrs, not 2000hrs as he initially recorded in his Statement.

21. Under cross-examination, the Applicant confirmed that he then ran towards the mess deck but that he did not report the incident to any senior officer on the ship at that time (ie. at 0400hrs).  I think the Respondent fairly makes the point that this acknowledged failure to report the incident to a more senior person in circumstances where the Applicant says he was fearful that the ship was under attack, is somewhat curious.    

22. To be fair to the Applicant, his evidence was not that he failed to report the incident to anyone. He said that his fear that the ship was under attack caused him to go to the mess and while in the company of his peers, told them about the event. The Applicant told the hearing that no further action was taken in relation to this incident apart from him reporting it to the divisional officer at a mandatory debriefing interview whilst the vessel was in transit between Vung Tau harbour and Singapore. At the end of his period of duty, he says that he discussed what he witnessed with his fellow sailors and following that discussion they retired to their sleeping quarters.

23. In his oral evidence, the Applicant confirmed that neither the ship’s siren nor its public address system were utilised during the incident. In addition, none of the ship’s guns were fired.  A further anomaly in the evidence arose in relation to whether any warning had been communicated via the ship’s public address system. Its allocated hours of operation were from 0645hrs to 2200hrs. Despite conceding that the ship’s public address system had not been activated at the time of the asserted attack, the Applicant told the hearing that the time-limited basis of the PA system’s operation could be over-ridden if it was a ‘real emergency’.

24. It is doubtful that the ship’s public address system was activated but not either heard by the Applicant or was otherwise insufficiently audible.  The hearing was told that the ship’s bridge controlled the public address system and that speakers were placed at the entrance to the mess deck facilitating a sharing of those speakers amongst a number of the ship’s compartments. The Applicant agreed that any direction via the public address system to, for example, man action stations, was usually preceded via a loud and distinctive sounding siren. The Applicant’s evidence was not clear as to whether any alarm or siren was sounded or whether any direction or order was delivered by the commanding officers on the bridge who controlled the public address system.

25. To my mind, this is one of a number of factors indicating the asserted attack was not objectively a ‘life-threatening event’ as propounded by the Applicant.

26. The Applicant’s further evidence was that the principal method of communication on board the vessel was by way of the 0815hrs muster of crew. He was not able to provide evidence of any recollection of a mention or discussion of the incident at the muster.   

27. Before travelling towards and entering Vung Tau harbour in late November 1969, the HMAS Duchess was, in October 1969, involved in certain exercises, presumably to test and check its various capacities and facilities as a prelude to combat duties. During the evidence, reference was made to the relevant report of the vessel’s activities during October 1969.[51] Of relevance to the present facts is a reference to two tests or exercises conducted upon the vessel’s “TAS” or Torpedo Anti-Submarine System at that time. The first of those tests was known as “SQUID DRILLS” which involved the bringing of explosive torpedo-type rounds to the magazine loading point of the squid mortar. As best as I understood and recall the evidence, this involved the person working in the squid mortar room loading the explosive projectile/torpedo from a magazine or holding area and on to a carriageway. From there, the projectile/torpedo would be moved into the barrel of the squid mortar, ready for firing. The ship’s record reveals that this exercise ran for a period of four hours under the guise of “LIGHT MORTAR FIRING”.[52] In his evidence, the Applicant told the hearing that he did not recall any such squid drills during the month of October 1969.

    [51] See Exhibit 4, “Annex B to HMAS Duchess – report of proceedings – October, 1969 - exercises during October”.

    [52] Ibid.

28. Also in October 1969, the relevant record of the vessel refers to “SEA CHECK FIRING” exercises as part of “OPERATION AWKWARD”.[53] Once again, the Applicant told the hearing that he could not recall any such firing exercises nor “OPERATION AWKWARD” at all.

    [53] Ibid.

29. Perhaps more telling is the vessel’s “Report of Proceedings for November 1969”.[54]  Paragraphs  23 and 24 of that report deal with the period 27^th and 28^th November 1969: 

    “23. The remainder of the passage to Vung Tau was uneventful although the monsoon blowing at force 6-7 from the North East made conditions unpleasant on board. The ship went to Defence Stations on entering the War Zone at 1600H on 27^th November. DUCHESS was detached to proceed ahead of HMAS SYDNEY for the entry to Vung Tau at 0400H on 28^th November. The ship came to the starboard anchor in position 315 Cape Ganh Rai Light 6 cables at 0535H and assumed operation Awkward State 2.  HMAS SYDNEY anchored 3 cables away at 0600H.  The period at anchor passed without incident. [My emphasis].

    24. Anchor was weighed at 1147H on 27^th 28^th November and DUCHESS preceeded (sic) HMAS SYDNEY out of Vung Tau harbour. Speed was increased to 20 knots on clearing the harbour and the war zone was cleared and defence stations secured at 1600H.”[55]

    [54] See Exhibit 4.

    [55] Exhibit 4, Reports of proceedings HMAS Duchess ‘January 1968 – December 1969’ at page noted as /5...

30. Consistent with his lack of any recollection of participation in “Operation Awkward” exercises in October 1969, the Applicant could not recall or provide any details about the assumption of “operation Awkward State 2” as recorded in the vessel’s report of proceedings.[56] In any event, and as mentioned earlier, this period at anchor passed without incident.

    [56] Ibid.

31. On the specific issue of “Operation Awkward State 2”, the Respondent pointed me to evidence from the Tribunal’s decision in Parr and Repatriation Commission [2003] AATA 13. In that case, the Tribunal received evidence from a Captain H A Josephs as to the deployment of Operation Awkward State 2 by ships in Vung Tau harbour. It is worth recording some of the detail of that deployment:

    “* Armed sentries were posted on the upper deck to watch for signs of any suspicious activity such as air bubbles or suspicious debris.

    * Ship's boats patrolled in the vicinity of the ship towing "home made" anti-swimmer devices constructed from grappling hooks, barbed wire and similar items.

    * Ship's divers searched the anchor cable and the ship's hull from time to time.

    * Scare charges were thrown overboard from the ship and/or the patrolling boat/s at irregular intervals, except when ship's divers were in the water. ….”[57]

    The Tribunal noted the further evidence of Captain H A Josephs in relation to Operation Awkward:

    “12. It was customary for all ships to exercise Operation Awkward periodically during training periods in Australia, and highly likely that [the Applicant] would have experienced such exercises during his earlier service in the training ship…”[58]

    [57] Parr and Repatriation Commission [2003] AATA 13 at [51].

    [58] Ibid at [53].

32. It is a matter of concern to me that this Applicant could not recall being engaged in exercises in October 1969 involving Operation Awkward, nor could he recall any reference to assuming or adopting Operation Awkward State 2 while in Vung Tau Harbour. In the absence of any recollection by him about this at all, one can only default to the much more reliable description of the deployment of Operation Awkward State 2 in Parr. A likely conclusion one could reach from this is that the explosions heard by the Applicant were in fact scare charges set off by his own vessel. Further to that, given the evidence of the ship’s proceedings in October and November 1969, it is quite surprising that the Applicant was not prepared for or aware of the deployment of Operation Awkward (and the resulting scare charges) whilst the HMAS Duchess was in Vung Tau Harbour.

33. The Applicant also recalled severe stress and fear that he experienced as a result of an apprehension that the vessel was under attack and that his life was in danger:

    “When entering Vung Tau harbour, my actions station was the Squid Anti-Submarine Mortar Magazine which was isolated at the aft end of the ship.  At the change of watch, 0400H (4am),[59] upon arrival at the ship’s station, I was startled and I recall hearing helicopter noises and saw a distant flashing light.  My first reaction was to assume the ship was under attack; intense fear overwhelmed me as I had visions of the warning of friendly fire and images of TV news of American helicopters. Sometime later while resting and coming to terms with the helicopters, a series of under-water explosions engulfed the ship and I was convinced that the ship was under attack and that I was going to die. There was no announcement over the ship’s communication system that we were under attack and I felt the ship shake and vibrate. The explosions continued seemingly to be close or attached to the hull. The lighting was dim and during these explosions most of the young crew in seven (7) Mess panicked, further inflaming what I thought was a life threatening environment. Some members were being restrained by others to try and calm them down; some went for the exit to try and escape and as a consequence fights broke out.  After it was all over, order was restored. During this time my immediate thoughts were that I was going to die as a result of the explosions, particularly when no-one told us that it was the real thing”.[60]

    [59] At the hearing the Applicant amended his Statement made on 28 June 2016, such that the time was amended from “2000 hours, (8pm)” to “0400 hours, (4am)”.

    [60] See Exhibit 8, Statement of Raymond Sandford, at [6].

1. While no-one doubts the Applicant’s evidence relating to his duty to specifically attend to the supply of mortars to the “squid mortar” located on the aft deck, it is notable that the subject mortar was not deployed at any stage during the vessel’s period of time in Vung Tau harbour.

2. Contrary to Dr Palazzo’s original assumption, the Applicant was not stationed below deck but in a deck house adjacent to the squid mortar. Dr Palazzo gave evidence that as part of the vessel’s defensive regime, lookouts would be posted along the side of the ship but he could not say how many sailors were involved in that lookout detail. The Applicant’s evidence was that additional sailors were stationed on the aft deck adjacent to the squid mortar during the vessel’s entry into Vung Tau harbour but that he could not recall observing any sailors posted as lookouts as he was walking to his mess at the relevant time.

3. I have misgivings about the Applicant’s evidence in relation to both his perception and the extent of recollection of the attack he asserts lies at the root of his PTSD. While I appreciate the almost 50 year passage of time between the asserted event and now, I am concerned by the Applicant’s inability to accurately recall things such as (1) practicing Operation Awkward in October 1969; (2) whether operation Awkward State 2 was deployed whilst his ship was in Vung Tau Harbour; and (3) the absence of any record of a defensive/offensive response by the vessel on the basis that it was under attack; and (4) the absence of any reporting of the asserted incident by the Applicant to any superior officer until the vessel had departed Vung Tau Harbour and was en route to Singapore.

4. Further evidence of the Applicant’s state of confusion about exactly what did or did not happen in Vung Tau Harbour in November 1969 can, to my mind, be gleaned from what he told Dr Garg. Dr Garg records the Applicant telling him that: “He could not understand what was going on until the next morning; then he found out that the explosions were done deliberately to remove any enemies near the ship under the water. [the Applicant] said, as nothing was explained to him before the explosions, he really thought that his ship was under attack and that he was going to die.”[61]

   [61] Exhibit 10, Report of Dr Garg dated 7 October 2016, p 4.

5. It is important to deal with the assertion, sometimes alluded to by the Applicant at the hearing, that he was not warned or previously told or previously made familiar with a given procedure, including, the release of scare charges as part of an Operation Awkward procedure. I reject this evidence and I do so on the basis of the summary of the significant number of exercises in which HMAS Duchess was involved in the month of October 1969 – the month before entering Vung Tau Harbour. Not only is there reference therein to “SQUID DRILLS” and “SEA CHECK FIRING”, “LIGHT MORTAR FIRING” and “OPERATION AWKWARD” – as outlined above. The ship was involved in a number of other exercises that exactly contemplated potential engagement with the enemy. Those exercises involved: “ACTION STATIONS”, “MAJOR DAMAGE CONTROL EXERCISE”, “SHELTER STATIONS”, “EMERGENCY STATIONS”, and “MAN OVERBOARD”. There are numerals next to these procedures that were practiced or exercised in October 1969. It is clear these procedures were each practiced for a number of hours.

6. Given the independent and reliable evidence of the manner of deployment of Operation Awkward State 2 and the clear record of the subject vessel’s exercise activities in October 1969, it is surely beyond the realms of objective possibility that the Applicant: (a) was then and somehow remains confused about the nature, origin and purpose of the asserted explosions, and (b) was not forewarned, trained or made familiar with a major procedure to be adopted in the event of the ship’s engagement with the enemy.

7. I cannot find that the asserted sequence of events comprising helicopter noises, flashing lights or distant explosions at 0400hrs on 28 November 1969, combined, or alone, caused the Applicant to experience a life-threatening event. Applying the objective test contemplated by the Court in Border, I do not think that a reasonable person in the position of this Applicant, with the knowledge and training he received, would perceive this sequence of events to be life threatening, or alternatively consider they were threatened with a weapon. Consequently, I am not satisfied that the material raises a reasonable hypothesis connecting PTSD with the circumstances of the Applicant’s operational service.  

   Step 4: satisfaction beyond reasonable doubt that the injury or disease was not war-caused

8. In circumstances where an injury or disease relates to operational service rendered by the veteran, a decision-maker shall determine that the injury was a war-caused injury or disease unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.[62] I am so satisfied.

   [62] See Veterans’ Entitlements Act 1986 (Cth) s 120(1).

9. There is no confirmatory evidence supporting a finding that the Applicant did experience a category 1A stressor apparent in the Applicant’s actions subsequent to each of these reported incidents. Similarly, there is no evidence that any aspect of the ship’s command – whether by (1) an announcement over the public address system, or (2) by the sounding of any siren, or (3) by the firing of any of the ship’s guns or other armaments - apprehended any such threat.  Perhaps more significantly, is the Applicant’s inaction after apparently experiencing these asserted stressors. While there was some general discussion about it, both he and his peers retired to their sleeping quarters. There was no reporting of the incident to higher authority until the Applicant’s scheduled debriefing as the vessel was transiting to Singapore.

10. The Applicant’s evidence about the explosions whilst he was in the seven mess seemed unconvincing and illogical. There was no breach of the ship’s physical structure and no consequential alerts, warnings or directions. There is credibility to the Applicant’s evidence about a state of confusion or perhaps panic in the minds of the less experienced sailors resulting in minor physical altercations requiring restoration of control and discipline by more experienced sailors.  The concerning aspect of his evidence is that he was not clear as to whether the explosions constituted friendly fire or whether the vessel was actually under attack from enemy fire. Even a cursory understanding of the method of deployment of Operation Awkward, leads me to the conclusion that the subject explosions could well have been HMAS Duchess’ own scare charges directed at the enemy. This factor, alone, convinces me beyond reasonable doubt that the Applicant’s PTSD was not war-caused as asserted.

    The Applicant’s alternate contention

11. The Applicant claims that if it is not accepted he experienced a category 1A stressor whilst in Vung Tau harbour that he, in the alternative, experienced a category 1B stressor.

12. The meaning of “a category 1B stressor” is defined in paragraph 9 of the relevant SoP to mean one of the following severe traumatic events:

    (a)  being an eyewitness to a person being killed or critically injured;

    (b)  viewing corpses or critically injured casualties as an eyewitness;

    (c)  being an eyewitness to atrocities inflicted on another person or persons;

    (d)  killing or maiming a person; or

    (e)  being an eyewitness to or participating in, the clearance of critically injured casualties.

13. There is a cursory reference to “…or a category 1B stressor” in the Applicant’s outline of submissions in closing, but the issue seems minimally propounded beyond that.[63] 

    [63] See Exhibit 17, Applicant’s Outline of submissions, at [13].

14. I cannot find how the asserted sequence of events in Vung Tau Harbour, recounted above, in any way meets the factors contained within the definition of a category 1B stressor. The Applicant: (a) did not claim to see anyone killed or being critically injured; (b) did not claim to see any corpses or critically injured casualties; (c) was not an eyewitness to atrocities inflicted on other people; (d) was not involved in the killing or maiming of another person; and (e) did not see or become involved in the clearance of critically injured casualties.

15. In conclusion, I am satisfied beyond reasonable doubt that the Applicant’s PTSD was not caused by his operational service. I am not satisfied that a reasonable hypothesis has been raised connecting the asserted events during the Applicant’s operational service with his PTSD. I cannot find that his experience of the asserted events constituted a category 1A or 1B stressor as described in the relevant Statement of Principles (No. 82 of 2014). 

    ISSUE 3: WAS THE APPLICANT’S PTSD DEFENCE-CAUSED?

16. The Applicant alternatively contends that his PTSD arose from events that constitute eligible defence service.

    Applicable Law

17. A veteran is eligible for a pension under part IV of the Act where he is incapacitated from a defence-caused injury or defence-caused disease.[64]

    [64] See Veterans’ Entitlements Act 1986 (Cth) s 70.

18. Specifically, section 70(5) of the Act provides that an injury suffered or disease contracted by a member of the Forces shall be taken to be defence-caused if the injury or disease arose out of, or was attributable to any defence service of the veteran.

19. In Roncevich v Repatriation Commission, the majority of the High Court observed that this subsection requires a causal, and not merely temporal, connection between the claimed injury or disease and the defence service.[65] The High Court went on to say that the legislature intended to give “defence-caused” a broad meaning:

    “… and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”[66]

    [65] (2005) 222 CLR 115, 125 at [23] (McHugh, Gummow, Callinan and Heydon JJ).

    [66] Ibid, 126 at [27].

20. In determining whether the claimed injury or disease is defence-caused, the decision-maker is required to decide the matter to its “reasonable satisfaction”.[67]

    [67] See Veterans’ Entitlements Act 1986 (Cth) ss 120(4) and 120B.

21. Section 120B(3) of the Act relevantly provides that in determining a claim, a decision-maker is to be reasonably satisfied that an injury suffered or disease contracted by an applicant was defence-caused only if: (a) the material before it raises a connection between the injury or disease of the applicant and some particular service rendered by them; and (b) there is in force a relevant Statement of Principles made under s 196B of the Act, that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.

22. In deciding whether the Applicant’s PTSD was defence-caused, it is necessary to consider the relevant Statement of Principles concerning Posttraumatic Stress Disorder in force at the time of this decision. The Applicant is also entitled to rely on any past Statement of Principles that were in force at the time the Respondent originally processed and decided his claim.[68] In this case it may be necessary to refer to any of the following Statements of Principles for PTSD comprising:

    ·Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014

    ·Statement of Principles concerning Posttraumatic Stress Disorder No. 6 of 2008

    94.The Applicant now relies on the Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014 in relation to his defence service (“the relevant SoP”).[69]

    [68] See Repatriation Commission v Gorton (2001) 110 FCR 321.

    [69] See Exhibit 17, Applicant’s Outline of submissions, at [24].

23. The relevant SoP sets out the factors that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder is connected with the circumstances of a person’s defence service.[70] [my emphasis]

    [70] See SoP No. 83 of 2014 at [6], and note definition of “relevant service” in [9] includes defence service.

    Consideration on the Balance of probabilities - Defence Service

24. It was accepted that the Applicant has rendered eligible defence service from 7 December 1972 to 12 March 1979. During this time he qualified as a ship’s diver and was posted with the navy to Darwin to assist with the clean-up of Cyclone Tracy from 25 December 1974 to 30 January 1975.

25. The relevant SoP (No. 83 of 2014) in respect of defence service, specifies the basis for determining the factors that: “on the sound medical-scientific evidence available, the [decision maker] is of the view that it is more probable than not that posttraumatic stress disorder can be related to relevant service rendered …”[71] [my emphasis]

    [71] See SoP No 83. of 2014 at [4].

26. As previously mentioned, the Applicant initially relied on factors (a), (b) and (c) in paragraph 6 of the Statement of Principles. However, during the evolution of the hearing and in final written submissions the Applicant clarified that his position in relation to his defence service was that he experienced a category 1A stressor pursuant to factor 6(a) in the relevant SoP (No. 83 of 2014).[72]

    [72] See Exhibit 17, Applicant’s Outline of Submissions, at [29].

27. The Applicant originally contended that whilst diving in the waters of Darwin Harbour, during the clean-up of Cyclone Tracy, he experienced a category 1B stressor, pursuant to factor 6(b) of the relevant SoP. The Applicant speaks of “being in fear of the attack on his person, whilst diving at night, or in murky waters, from crocodiles, sharks and/or Box Jelly Fish, together with diving in adverse conditions such as changing tides that would carry a diver out to sea because of quick flowing currents.”[73]

    [73] See Exhibit 1, Applicant’s SFIC at [13(b)].

28. For the sake of completeness I will examine whether the Applicant’s duties whilst diving in Darwin Harbour attracted either a category 1A and/or category 1B stressor.

29. The meaning of “a category 1A stressor” is defined in paragraph 9 of the relevant SoP to mean one 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.

30. The meaning of “a category 1B stressor” is defined in paragraph 9 of the relevant SoP to mean one of the following severe traumatic events:

    (a)  being an eyewitness to a person being killed or critically injured;

    (b)  viewing corpses or critically injured casualties as an eyewitness;

    (c)  being an eyewitness to atrocities inflicted on another person or persons;

    (d)  killing or maiming a person; or

    (e)  being an eyewitness to or participating in, the clearance of critically injured casualties.

31. The Applicant gave evidence of being part of a team of five divers tasked with installing a grate as well as clearing the water intakes of the ships moored in Darwin Harbour following the devastation wrought by Cyclone Tracy.  Dr Palazzo gave evidence about this aspect of the Applicant’s eligible defence service. He confirmed “I have been asked by [the Applicant’s solicitor] to make particular reference to the ‘tidal issues’ [the Applicant]  would have encountered while in the water of Darwin Harbour as well as any potential danger from sharks, crocodiles and jelly fish.”[74]

    [74] See Exhibit 9, “Expert Report of Dr Palazzo dated 19 October 2016”, p 7.

32. Firstly, with reference to the risk of being caught up in a tidal change, Dr Palazzo thought a diver tasked with what the Applicant was asked to do, could “… if… caught up in the tidal change he would be washed out to sea and possibly drowned”.[75]  While professing no expertise in professional or recreational diving, Dr Palazzo sought to support this finding by consulting a “Tide Table for Darwin Harbour” for the month of January 1975.  He found that “The tide range varied from day to day but on most days the difference between low and high tide was typically 5 to 6 metres. Swings of 7 metres were not uncommon… The amount of water entering and leaving Darwin Harbour was considerable and [the Applicant] is right to have feared being swept out to sea.”
    

    [75] Ibid, p 8.

    [76] Ibid.

    Dr Palazzo then purports to say “This conclusion is supported by a technical report commissioned by the Parks and Wildlife Commission of the Northern Territory”.[76]

33. Secondly, while professing no expertise in meteorological or hydraulic matters, Dr Palazzo thought “The waters of the harbour also have a reputation for turbidity, as [the Applicant] claimed.”  He further thought “Because of the debris in the water due to Cyclone Tracy the level of water turbidity in the harbour would have been worse than usual. As [the Applicant] stated in his statement, visibility would not have been very good.” [77]

    [77] Ibid.

34. Thirdly, while professing no expertise in zoological or faunal matters, Dr Palazzo also gave consideration to the Applicant’s stated fear about being attacked by crocodiles and sharks or stung by box jelly fish.  Dr Palazzo said “I could not find any reports regarding threats from marine predators for the time that [the Applicant] was in Darwin Harbour.”[78]   Dr Palazzo sought to augment this gap in the evidence by saying “I did locate a publication produced by the Northern Territory’s Department of Arts and Museums on swimming in Darwin Harbour. A few recollections came through clearly. The residents were well aware of the risk of being eaten by sharks and crocodiles if one was to swim in the open water. Jelly fish were also a risk in the wet season, the time of the year when [the Applicant] was in Darwin.”[79]  Dr Palazzo found the Applicant “… did not encounter a crocodile, shark or stinger, nor was he swept out to sea by the tide while he was diving in Darwin Harbour. But he was doing something that locals believed was rather foolish”.[80]

    [78] Ibid.

    [79] Ibid.

    [80] Ibid, p 9.

35. I am mindful of the necessity to find a causal, and not merely temporal, connection between the Applicant’s claimed PTSD and his eligible defence service with particular reference to his allocated tasks in Darwin Harbour. I accept that the activities were, to an extent, hazardous and otherwise challenging for the Applicant to undertake at that time.   As against that, there is evidence from the Applicant that he was keen to obtain diving qualifications and to perform diving work given the relative novelty of this activity to him due to his rural background and consequential lack of exposure to activities involving the sea. I can also appreciate the potentially perilous and adverse consequences of his diving work.

36. Having regard to the Applicant’s defence service and particularly his experiences in Darwin Harbour, I make the following findings with reference to the definition of a category 1A stressor and its three constituent paragraphs:

    (a)  I consider that it is more probable than not that none of his alleged experiences in Darwin Harbour manifested a life threatening event;

    (b)  No evidence was raised in relation to a serious physical attack, assault or sexual molestation during the Applicant’s defence service;

    (c)   Similarly, there was no evidence that at any stage during his defence service, the Applicant was threatened with a weapon, that he was held captive, kidnapped or tortured.

37. Further, I have had regard to the five specifically stated category 1B stressors as defined in paragraph 9 of the relevant SoP.  I am not able to relate or connect any of the aspects of the Applicant’s diving work in Darwin Harbour with any of the category 1B stressors. The evidence simply does not point to the Applicant’s defence service causing him to: (a) be an eye witness to a person being killed or critically injured; (b) view corpses or critically injured casualties as an eyewitness; (c) be an eyewitness to atrocities inflicted on others; (d) kill or maim another person; or (e) be an eyewitness to or participate in, the clearance of critically injured casualties.

1. I am not satisfied that the Applicant’s experiences whilst diving in Darwin Harbour amount to either a category 1A or 1B stressor. I therefore cannot find that the Applicant’s PTSD can be said, on the balance of probabilities, to be casually connected to his defence service. 

   Alternative contention – Factor 6(c) - Working in a hostile environment

2. Out of an abundance of caution, I note that the Applicant initially claimed that he satisfied the criteria of factor 6(c) in the Statement of Principles No. 82 of 2014.[81]

   [81] See Exhibit 1, Applicant’s SFIC, at [13(c)].

3. Specifically, the Applicant contended that he was working in a hostile and/or life threatening environment whilst undertaking diving duties in Darwin Harbour for the duration of the clean-up of Cyclone Tracy from 25 December 1974 to 30 January 1975, which was for a period of more than four weeks before the clinical onset of his PTSD.[82]

   [82] Ibid.

4. I note that the events the Applicant contends satisfy this factor took place during his defence service, not during his operational service, and that a reciprocal factor does not exist in the relevant SoP (No. 83 of 2014). I also note that his operational service in Vung Tau Harbour was only for a period of 13 days, not the required minimum of four weeks pursuant to factor 6(c) in SoP No. 82 of 2014.

5. In conclusion, I am satisfied that this factor does not apply to the circumstances of the Applicant’s service (both – operational or defence service).

   CONCLUSION

6. It was accepted that the Applicant has been diagnosed as suffering from Posttraumatic Stress Disorder (“PTSD”).  However, having regard to the relevant Statements of Principles, I am not satisfied that his PTSD was war-caused or defence-caused for the purposes of the Act.  

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.............................[SGD].........................................

Associate

Dated: 1 November 2017

Date(s) of hearing:	9 February 2017 & 26 April 2017
Counsel for the Applicant:	Anthony Harding
Solicitors for the Applicant:	Terence O'Connor Solicitor
Advocate for the Respondent:	Bruce Williams