Sly and Repatriation Commission

[2004] AATA 958

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 958

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/767

VETERANS' APPEALS  DIVISION		)
Re		ROBERT SLY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date15 September 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................Sgd...................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions and benefits – applicant claims PTSD is war-caused – whether PTSD Statement of Principles is satisfied – whether alcohol dependence or alcohol abuse Statement of Principles is satisfied – whether anxiety disorder Statement of Principles is satisfied – decision affirmed

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

Stoddart v Repatriation Commission (2003) 197 ALR 283

Benjamin v Repatriation Commission [2001] FCA 1879

Re Benjamin and Repatriation Commission [2004] AATA 738

Re Stonehouse and Repatriation Commission [2004] AATA 707

White v Repatriation Commission [2004] FCA 633

REASONS FOR DECISION

15 September 2004 Senior Member McCabe    

Introduction

1. This is an application for review of a decision of the Veterans’ Review Board (the VRB) of 22 July 2003. The VRB decided to vary an earlier decision of the Repatriation Commission, determining the applicant suffered post traumatic stress disorder (PTSD) instead of generalised anxiety disorder (GAD). The VRB then decided PTSD was not “war-caused” within the meaning of s 9 Veterans’ Entitlements Act 1986, and otherwise affirmed the decision.

2. The matter was heard on 24 May 2004. The applicant was represented by Mr Richards. The respondent was represented by Mr McAninly, a departmental advocate. The Tribunal had before it the documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 (the T-documents).  Also in evidence were:

·Reports of Dr Freed dated 10 July 2002; 27 January 2003; 10 April 2003; and 23 March 2004;

·The employment history (including naval history) of the applicant;

·Two daily medical records of the applicant dated 25 February 1963 and 29 December 1963;

·Three sets of employment information supplied by Castlemaine Perkins Pty Ltd (the applicant’s former employer);

·Australian Taxation Office returns of the applicant dated 5 December 2003;

·An historical research report compiled by Writeway Research Service dated 10 January 2004;

·Three supplementary research reports of Writeway Research Service dated 12 March 2004, 12 March 2004, 18 April 2004;

·Information from Workcover Queensland dated 18 February 2004 concerning the applicant’s past claims;

·A statement of the applicant dated 15 November 2000;

·Statutory declarations of the applicant dated 15 December 2003, 13 January 2003 and 14 April 2002;

·Three statements of Kevin Bevridge dated 12 December 2003; 15 December 2003; 17 December 2003;

·A further three reports of Dr Freed dated 22 April 2001; 9 October 2001; 5 April 2002;

·A photograph taken by the applicant of one of the alleged incidents;

·A statement of Dr Dickman dated 20 January 2003.

3.      Mr Sly had operational service in the Royal Australian Navy from 25 May 1966 to 11 June 1966 and from 14 September 1970 to 8 April 1971 (aboard the HMAS Perth).  He says his conditions were caused by several incidents he experienced during these periods.

The Incidents as described by the Applicant

4.      Mr Sly claims two incidents caused his PTSD.  I will refer to them as the “prisoner incident” and the “oil leak incident”.

The Prisoner Incident

5.      In February 1971, the HMAS Perth intercepted a fishing boat.  The occupants of the boat were detained on board the Perth.  They were stripped and forced to lie down on the deck of the boat with their hands tied behind their backs. Mr Sly says the deck was extremely hot.  An amateur photographer, Mr Sly retrieved his camera from his locker and took some photographs of the incident.  He says he was witnessing an atrocity.  Then the prisoners were handed over to a South Vietnamese coast guard vessel, and (he thought) “certain death”.

6.      Mr Sly says he has recurring dreams and flash-backs about the incident.  He says he “feels rage boil up inside” him when he is overcome with the memory.  The incident is recounted in two of the applicant’s statements (exhibits 15, 17).

The Oil Leak Incident

7.      The oil-leak incident also occurred while the applicant was serving on the Perth.  He describes it in one of his statements (exhibit 16):

One evening during the first watch (2000 hours – 2359 hours) when I was in charge of the No 2 Fire Room, a hot oil filter blew out during a routine maintenance operation.  This sprayed hot fuel oil (150 – 160 degrees Fahrenheit) over exposed metal, unlagged boiler filters and valve bonnets carrying super heated steam at 1275 p.s.i. and 1000 degrees Fahrenheit.

I immediately ordered an emergency shutdown, activated CO2 fire extinguishers which quelled the small fire and smoke that had started, then ordered all personnel to exit via the escape hatch.

How there was not an explosion and or major fire, we have no idea…I should have supervised the junior sailor, but was distracted by another urgent problem…

The Law

8. The first step is to identify the type of disease suffered by the veteran. The Tribunal is required to decide this matter to its reasonable satisfaction: s 120(4) Veterans’ Entitlements Act 1986.

9.      The Tribunal must then follow the steps identified in Repatriation Commission v Deledio (1998) 83 FCR 82. Firstly the Tribunal must identify a hypothesis connecting the veteran’s injury with the circumstances of his or her war service. Next the Tribunal must examine whether a Statement of Principles (SoP) exists in relation to the claimed condition. The third step of Delidio requires the Tribunal to assess whether the facts as stated by the applicant “fit” the SoP.  It is not open to the Tribunal to make ultimate findings of fact at this point.  If the applicant’s story is consistent with the SoP, the hypothesis is deemed reasonable.  The injury will be considered war-caused unless the respondent can prove a fact inconsistent with the hypothesis, or disprove a necessary fact in the applicant’s story, beyond a reasonable doubt.  This fact-finding exercise is the fourth step in the Delidio process.  I will follow this process below.

Diagnosis

10.     I am reasonably satisfied Mr Sly suffers alcohol abuse or dependence in light of the medical evidence.  I have more difficulty with the diagnosis of PTSD. For reasons I will explain, I am not satisfied the events described by the applicant constitute severe stressors. DSM-IV requires the existence of a severe stressor before a diagnosis of PTSD can be made. While I do not think the diagnosis is available, for the sake of completeness I will proceed with the analysis as if the applicant did suffer from PTSD.

Delidio step #1 - Hypothesis

11.     I accept there is a hypothesis connecting PTSD with the circumstances of Mr Sly’s service.

Delidio step #2 – Statement of Principle

12.     Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999 deals with PTSD.  It relevantly states:

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder…with the circumstances of a person’s relevant service are:

(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder…

13.     The key term is also defined in the instrument:

“experiencing a severe stressor” means the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s , physical integrity.

In the setting of service in the  Defence Forces, or other service where the Veteran’s Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…

Delidio step #3 – does the story “fit” the SoP?

14.     The Tribunal must answer one discrete question: does either the prisoner incident or the oil leak incident represent a severe stressor within the meaning of the SoP?  I am not satisfied either do.

The Prisoner Incident

15.     I turn to the prisoner incident.  Did it involve actual or threat of death or serious injury to the prisoners?  The applicant says the incident disturbed him in two ways. 

16.     Mr Sly says making the prisoners lie naked on a hot steel deck represented a kind of atrocity.  While I can accept the experience would have been very unpleasant to watch, I do not think it qualifies as an “atrocity” in the sense intended by the SoP.  It certainly did not involve a threat of death or serious injury.  In that sense the incident falls short of the definition of “severe stressor”.

17.     Mr Sly also says he believed the prisoners would be shot after they were handed to the South Vietnamese Navy.  In Stoddart v Repatriation Commission (2003) 197 ALR 283 Mansfield J explained at 294 that the alleged stressor need not involve an actual threat:

…it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs.

18.     Mansfield J went on to explain the requirement, at 296:

In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity."

19.     The reasoning of Mansfield J was upheld on appeal in Repatriation Commission v Stoddart [2003] FCAFC 300.

20.     There is an objective and a subjective element to the test.  (As I am not allowed to make ultimate findings of fact at this stage, I accept Mr Sly’s account on its face).  Judged objectively from the point of view of a reasonable person in Mr Sly’s position possessing his knowledge, was the prisoner incident capable of conveying the requisite impression?  I do not think it was.  When the incident occurred in 1971 Mr Sly was a seasoned sailor of some 10 years experience.  Accepting the facts as presented to me I cannot see how there were any grounds for his assumption the prisoners would be shot.  I note the evidence suggests other sailors on board the ship apparently made the same assumption, but that does not change the situation. Mr Sly made an assumption that was simply not warranted on the basis of what he (or his shipmates) knew – an assumption a reasonable person in Mr Sly’s position would not have made.  He cannot rely on obviously baseless gossip amongst the some members of the crew as a foundation for his belief in what happened to the captives after they were taken away. The prisoner incident does not qualify as a severe stressor.

The Oil Leak Incident

21.     Mr Sly says the oil leak incident disturbed him because there was very nearly “an horrific explosion” or “a major fire” (exhibits 16-17) in which he or his fellow sailors may have been injured or killed.  The applicant also tendered two statements of a Mr Beveridge in support of his claim (exhibit 18, 19).  Apparently Mr Beveridge also witnessed the incident.  His statement is more detailed than the applicant’s.  The applicant does not dispute Mr Beveridge’s version of events, so I will reproduce it here:

There was a major oil spill on HMAS Perth, caused by a faulty valve…The oil was from one side of the [room] to the other, heated oil above flash point all over hot machinery boilers, hot steam lines…if it would have ignited we were in big trouble, while you are trying to clean it up you are mindful it could ignite.  There was a small fire which was extinguished.

22.     This incident is not of sufficient intensity to qualify as a “severe stressor” under the SoP.  Objectively speaking I do not think the incident is capable of conveying the threat or risk of death to a reasonable person with Mr Sly’s knowledge and experience: Stoddart v Repatriation Commission (2003) 197 ALR 283. He was a sailor of 10 years experience. He was also an experienced mechanic, and reacted according to his training. This brings me to my next point. It requires explanation of the definition of PTSD under Instrument 3 of 1999. Part 2 of the instrument says:

(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM- IV):

(A) 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 threat of 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.     Mr Sly has described his response to the incident.  He says (in his statutory declaration of 13 January 2003):

I immediately ordered an emergency shutdown, activated CO2 fire extinguishers which quelled the small fire and smoke that had started, then ordered all personnel to exit via the escape hatch.

He repeated this in oral evidence.

24.     I do not think this reaction is one of “intense fear, helplessness or horror”.  I can accept he experienced some fear.  It was an alarming incident, after all. But the evidence does not suggest he experienced “intense fear”.  By his account he reacted to the incident in a rational and considered way.  His training ‘kicked in’ and he acted, perhaps saving his ship from serious damage.  As he did not experience “intense fear, helplessness or horror”, the incident cannot be relied upon to support a diagnosis of PTSD.

25.     I also note in oral evidence Dr Freed indicated the prisoner incident was the one that had “moulded” Mr Sly’s life.  He thought the oil leak incident “has not had the same effect”.

Conclusions Regarding PTSD

26. Neither of the incidents can qualify as a “severe stressor”. It follows PTSD is not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986.

Alcohol Abuse or Dependence

27.     I am reasonably satisfied Mr Sly suffers alcohol abuse or dependence.

28.     The relevant SoP is Instrument No. 76 of 1998.  It relevantly states:

5.The factors that must as a minimum exist before it can be said that a

reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse…with the circumstances of a person’s relevant service are:

(a)suffering a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;

(b)experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse…

29.     The definition of “severe stressor” is identical to the definition in Instrument 3 of 1999 (reproduced above).

30.     I have already concluded neither incident qualifies as a severe stressor, so factor 5(b) is not satisfied.  I have also concluded Mr Sly’s PTSD is not war-caused, so it cannot be relied upon to satisfy factor 5(a).  Mr Sly’s alcohol abuse is not related to service.

Conclusions re: PTSD and Alcohol dependence or Alcohol abuse

31.     I have concluded that the stressors experienced by Mr Sly are not “severe stressors”.  That makes the diagnosis of PTSD impossible (DSM IV requires a person to have experienced a severe stressor). It also means his condition of alcohol dependence or abuse is not related to service.  

32.     The Tribunal must not limit its inquiry to the case put before it: that is the lesson from Benjamin v Repatriation Commission [2001] FCA 1879; ReBenjamin and Repatriation Commission [2004] AATA 738. Does Mr Sly suffer some other compensable psychiatric condition?

33.     Here one alternate diagnosis has been suggested: anxiety disorder.  At one point Dr Freed suggested Mr Sly suffered that condition (exhibit 2).  That condition is covered by Instrument No. 1 of 2000.  It relevantly states

Factors

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder…with the circumstances of a person’s relevant service are:…

(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder…

34.     “Severe psychosocial stressor” is defined later in the instrument as meaning:

An identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems

35.     Can either incident be characterised as a severe psychosocial stressor?  I do not think either can.  The oil leak incident is more akin to a “severe stressor” – it was a sudden shocking event that caused Mr Sly to fear for his life.  It lacks any psychosocial element: see Re Stonehouse and Repatriation Commission [2004] AATA 707 at par 17 - 19.

36.     I think the stress of the prisoner incident can be characterised as psychosocial.  The applicant’s description of the event reveals a sense of empathy he felt for the prisoners as well as a sense of personal guilt at the event.  But I do not think it was sufficiently severe – his connection to the prisoners was too shallow (i.e. far from “close friend or relative”). 

37.     Mr Sly also expressed his guilt and horror at the idea that the prisoners had been handed over to “certain death” at the hands of the South Vietnamese navy.  The evidence at hearing revealed this never happened.  That is irrelevant: we are concerned with the applicant’s perception of the events.  That perception must however be reasonable.  Spender J in White v Repatriation Commission [2004] FCA 633 clarified the definition of severe psychosocial stressor. He said it involved both objective and subjective elements (like the test in relation to “severe stressor” in Stoddart v Repatriation Commission (2003) 197 ALR 283).

38.     I accept the event subjectively distressed Mr Sly.  But objectively I do not think it was an incident of a type that should create those feelings in a person like Mr Sly (i.e. with his experience).  He was an experienced sailor.  Seeing the prisoners being tied up and forced to lie on the hot deck and searched is not, in my opinion, an event of sufficient intensity when considered alongside the examples in the SoP.  That is especially so when considering it was standard practice to deal with prisoners in this way (although I acknowledge that Mr Sly said he had not previously dealt with prisoners).  As for Mr Sly’s perception the prisoners were then shot, there was little evidence (aside from a few rumours) to suggest this actually happened.  I do not think a reasonable person with Mr Sly’s experience would have concluded the prisoners had been summarily executed.

39.     The incident does not qualify as a severe psychosocial stressor.  A condition of anxiety disorder could not therefore be related to Mr Sly’s service.

conclusion

40.     The decision under review must be affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date of Hearing: 24 May 2004.
Date of Decision: 15 September 2004.
The applicant was represented by Mr Richards.
The respondent was represented by Mr McAninly, a departmental advocate.