Smith and Repatriation Commission
[2004] AATA 869
•19 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 869
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/406
VETERANS' APPEALS DIVISION ) Re WILLIAM SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date19 August 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review, and substitutes its decision as follows:
(a) a diagnosis of Post Traumatic Stress Disorder is found to be war caused effective to date 4 July 2002;
(b) accordingly, and as agreed between the parties, Impotence is found to be war caused effective to date 4 July 2002;
(c) the matter is remitted to the Repatriation Commission for assessment of the rate of pension.
[Sgd] Rear Admiral A R Horton AO
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – claim for post traumatic stress disorder and impotence due to psychiatric disorder – if diagnosed whether resulting from operational service in RAN – necessity to meet relevant Statements of Principles – reasonable hypothesis – decision under review set aside.
Veterans’ Entitlements Act 1986 - sections 9, 13(1), 120(1), 120(3), 120(4), 120A
Statement of Principles No 3 of 1999
Byrnes v Repatriation commission (1993) 177 CLR 564
Benjamin v Repatriation Commission [2001] FCA 1879 (21 December 2001)
Gerzina v Repatriation Commission [2004] FCAFC 96 (3 May 2004)
Repatriation Commission v Stoddart [2003] FCAFC 300
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission [2003] FCAFC 160 (30 July 2003)
Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002)
Lees v Repatriation Commission [2002] FCAFC 398
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001)
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Slattery and Repatriation Commission (1998) 52 ALD 90
REASONS FOR DECISION
19 August 2004 REAR ADMIRAL A R HORTON AO 1. This is an application to review decisions of a delegate of the Repatriation Commission (“the Respondent”) dated 25 October 2002, 4 November 2002 and 7 November 2002, affirmed on review by the Veterans’ Review Board (“VRB”) on 25 February 2003, that rejected the claims by Mr William Smith (“the Applicant”) for post traumatic stress disorder and anxiety disorder, ischaemic heart disease and impotence respectively.
2. At a hearing before the Administrative Appeals Tribunal (“AAT”) on 18 May 2004, Mr Smith was represented by Mr B Winship of Counsel. Ms S Kenny, advocate, represented the Respondent. The Tribunal took into evidence the section 37 documents provided by the Respondent pursuant to the Administrative Appeals Tribunal Act 1975. The Tribunal heard oral evidence from Mr Smith and Dr R Haik, Consultant Psychiatrist. The Tribunal also took into evidence those exhibits listed at Attachment A.
3. At the outset, Counsel for the Applicant stated that only the matter of post traumatic stress disorder (“PTSD”) was before the Tribunal. Counsel submitted that should the Tribunal find for a psychiatric disorder, then acceptance of a condition of impotence should follow, it being dependent on the psychiatric condition. The Respondent accepted that impotence would be conceded, on the assumption that the psychiatric condition predates the date of clinical onset of impotence.
LEGISLATION
4. Section 9 of the Veterans’ Entitlements Act 1986 (“the Act”) provides that:
“War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or the disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…”
5. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
6. There is no dispute that Mr Smith had periods of operational service as defined in section 6 of the Act. The standard of proof in relation to operational service to be applied in respect of determining whether an injury or disease was war-caused is that provided for in sections 120(1) and (3) of the Act, which state relevantly:
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
7. As Mr Smith’s claim was lodged after 1 June 1994, section 120A of the Act applies. It states:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
...
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196(b)(2) or (11); or
(b) a determination of the Commission under subsection 180(A)(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196(B)(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
8. Subsection 120(4) provides that except in making a determination to which subsections (1) and (3) apply, the respondent shall decide any other matter arising under the Act or the regulations “to its reasonable satisfaction”.
9. Section 120A of the Act applies to PTSD, the condition at issue in this matter. The relevant Statement of Principles determined by the Repatriation Medical Authority under subsection 196B(2) of the Act, and as agreed by both parties, is No 3 of 1999 as amended by No 54 of 1999.
10. The criteria that must be met for this psychiatric condition under SoP 3 of 1999, (being derived from DSM IV) at 2(b) are:
“(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 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; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startled response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
attracting ICD-9-CM code 309.81.”
BACKGROUND AND EVIDENCE
11.Born in Kyogle in 1945, Mr Smith is one of 12 children. In oral evidence, he indicated his father, with whom he had an unstable relationship due to the latter’s drinking, was away from home most of the time. He stated that the family struggled for money. His mother left the family when he was aged about 11, and he was sent to Westmead Marist Brothers boys’ home. He remained there for 3 or 4 years until aged about 15, and completed his Intermediate Certificate. He considered Westmead regimented and harsh, it being difficult to make friends.
12. He then lived with an aunt, where he felt unwanted, and subject to physical abuse. From his earnings as a fitter and turner apprentice, he paid board. He completed 2 years of his apprenticeship, then decided the Navy was the “way out”. His service in the Navy was from 7 April 1963 until 6 April 1972, when he was discharged at the end of his engagement. Whilst serving in HMAS Vampire in 1966, he had 4 periods of operational service.
13. Mr Smith gave evidence that following 3 months recruit training, he commenced a Clearance Diving (CD) course at HMAS Rushcutter. He did not complete this course, being “weeded out”. Mr Smith thought he had then qualified as a Ship’s Diver, a lesser qualification, before returning to HMAS Cerberus to train as a Cook. Captain Macdonald, (the author of the historian’s report at Exhibit R5) postulates that Mr Smith was initially categorised as a Recruit Seaman Clearing Diving but probably failed the CD aptitude test, and was re-categorised as a Recruit Seaman Cook. The Tribunal accepts this scenario. Suffice from the service records that Mr Smith subsequently served ashore and afloat as a cook, and progressed to the Leading Seaman rank. In early 1966, he was posted to HMAS Rushcutter where he qualified as a Ship’s Diver on 28 January 1966 (Exhibit R5 refers); whilst so qualified, his primary function remained within the Cookery branch.
14. In February 1964, he was stationed at HMAS Penguin. He described being on duty in the galley of the Naval Hospital and seeing survivors of the Melbourne/Voyager collision being brought in for treatment. He described this as “pretty frightening, with the boys in a bad way”. He did not recall any dead bodies. This period did not encompass operational service.
15. That same month he married just prior to joining HMAS Vampire for a 7 month deployment to the Far East. He described the normal role of the ship as patrolling the Malacca Straits, and apprehending suspicious vessels for investigation. Everyone in the ship was involved in some way, and he was at times stationed on the upper deck armed with a rifle. He spoke of chasing gun runners which was “scary but amusing” and “with people shooting at you”, and “enemy” small craft action, but provided no further explanation. He stated he was not anxious. He referred to aircraft mock attacks, which made him realise how dangerous it was.
16. Diving Incident Vietnam On 4 May, Vampire escorted HMAS Sydney into Vung Tau harbour, South Vietnam. The record shows that Vampire rendezvoused with Sydney and other ships some days earlier, and Mr Smith described his feelings on being informed of the forthcoming task as “I didn’t want to get involved – not good”, and being concerned at being in company with an aircraft carrier. Vampire remained at anchor in Vung Tau harbour for some 46 hours, this being in a period of operational service. Mr Smith stated that he could see gun flashes at times during this period. He further described the requirement for his ship to conduct bottom searches by divers given that the enemy could float down mines for attachment to the hull.
17. Mr Smith described a procedure whereby the ship’s divers (and any qualified CDs that might be embarked) would be roped together, about a double arm length apart, and lowered down the side of the ship, the uppermost diver being just below the surface. The group would then work their way from forward to aft, feeling for any device that might have been placed against the hull. These searches took place at slack water, and lasted about 20 minutes. He thought his first such dive at Vung Tau had been in the evening, and he had subsequently made about 3 or 4 further searches.
18. He described the experience as “frightening” and “scary”, with the water being black/dark and the individual diver having no control over events. He was aware that scare charges were periodically and routinely dropped, except when ship’s divers were in the water. In what he thought might have been his last dive at Vung Tau, he was number 2 in the line, that is the second from the surface on one side of the ship, and either going deeper or surfacing, when a charge went off. He described percussion through the water, and being thrown against the hull. The noise was “shocking” and left him with ringing in the ears. Otherwise he was not physically hurt. The divers were pulled out of the water by the controlling boat, with the number 1 on the line, bleeding out of his ears. The divers were sent to the sickbay. Before the VRB, Mr Smith stated that he reported his deafness to the medical staff, but was informed that it would clear up in a few days. There are no relevant medical records available to the Tribunal.
19. Captain Macdonald notes in his report at Exhibit R5, that the orders covering the use of scare charges (as promulgated in 1967/68 but in his view, probably in force in 1966), were quite explicit in stating that charges were not to be exploded within 200 yards of a ship with friendly divers in the water. He observes:
“There was no indication in VAMPIRE’s records of any occurrence of an improper release or errant explosion of a scare charge near a ship’s diver during 4 – 6 May 1966. Had such an incident occurred it could be expected that the diver in question would have been medically examined onboard and his medical record annotated accordingly”.
20. Before the VRB, Mr Smith referred to the explosion having resulted from the explosion of a thunderflash. Before the Tribunal he referred to a thunderflash and scare charge. In his report, Captain Macdonald referred to both these devices, describing the former as a “large fire cracker” or “bunger”, generally used in shipboard damage control exercises, and in his view, unlikely to be used in an operational environment. The Tribunal assumes this to mean “inadequate” in such an environment. The scare charge is a more robust and damaging device, used in the anti-diver role. He opined that the thunderflash would have to explode in very close proximity to a diver to cause any physical injury, whereas the scare charge would have more effect. Whilst the noise of the former would be startling in close proximity, the latter would be more likely to cause injury or disorientation, depending on range, water conditions or other relevant factors.
21. Mr Smith stated that he has had ringing in the ears ever since this incident. He was shaken emotionally, and the incident is frequently replayed in his mind, although he cannot recall whether this started whilst in service or later. He believed the incident had a profound effect on his life; any “bang” will worry him, and he has nightmares involving a “bang” or perhaps bodies (relating to the later Melbourne/Evans collision). He does not like swimming in dirty water, and feels out of control in that environment. Mr Smith further identified adverse conditions associated with Vietnam, such as crankiness, lack of concentration, embarrassment when speaking of service activities, and becoming upset on Anzac Day or other service oriented occasions. In response to the Respondent, he stated that he sometimes dreams of other things, but thoughts of Vietnam start him off.
22. Bangkok Mr Smith described an occasion of Vampire leaving Bangkok when the “bow hit a freighter”. He was stationed on the upper deck for leaving harbour, his reaction being “God, we have hit something”. He recalled a “screaming turn” too close to a United States submarine berthed alongside, and thought Vampire may have hit a shack on the other side of the river. He thought the ship was lucky to get out of it, but whilst it was “a bit frightening, he did not feel he could be injured”. His concern was that he could not do anything.
23. The historians report at Exhibit R5 confirms that Vampire was berthed in the Chao Phraya river at Bangkok on 9 June 1966, this being at the commencement of a period of operational service, and some 5 weeks after the diving incident at Vung Tau. Vampire was involved in a collision whilst leaving her berth at Klong Toey and turning downstream. Her Report of Proceedings for June states:
“…while attempting to turn in the river in a strong ebb the ship got into considerable difficulties which resulted in some damage being caused to the ship and to the Danish ship Emilie Maersk which was at anchor in the river off the berth.”
24. Captain Macdonald gives his view that in the circumstances of leaving a foreign port, Mr Smith could be expected to be on the upper deck for a ceremonial departure, as claimed, and that he could therefore be in a position to observe events at the stern of the ship, but would be restricted in his view forward. He believed Mr Smith would have been aware of propeller turbulence and possibly mud, the river being quite shallow. He confirms from the then Officer of the Watch in Vampire, Commodore N Stoker, that two or three US submarines were berthed at Klong Toey, and that Vampire came close, but did not collide with them. Nonetheless, he (Stoker) recalled evident concern among some submarine crewmen who moved onto the wharf as a precaution. Captain Macdonald observes that the degree of closeness between Vampire and the submarines at the time would be subjective, depending on personal perception and experience. Mr Smith was not a seaman, and would have had little experience in this environment, but the Tribunal notes the observation attributed to Commodore Stoker that “the perceived threat of collision damage was serious enough …”.
25. Mr Smith stated to the Tribunal, as he had to the VRB, that he thought Vampire had gone to Singapore for repairs following the collision in the Chao Phraya River, but it could have been the Melbourne in 1969 after the collision with USS Frank E Evans. As noted in Exhibit R5, Vampire did subsequently make an unscheduled visit to Singapore Dockyard for repairs.
26. On completion of naval service in 1972, Mr Smith was employed as a warehouse storeman/supervisor. More recently he has been working as a travelling salesman for “The Screwman”, a firm that provides nuts, bolts and the like to engineering businesses. He drives a truck, mainly in the Sydney area, but periodically state wide. He told the Tribunal that he was earlier able to block out Vietnam, but now it comes to mind as he drives in the country. He believed the job to be stress free “in some ways”, but would prefer not to work, as he has difficulty in the social environment and in talking to people. He believed people were looking at him. Following heart surgery in 2002, he has given up smoking and exercises twice daily. His hobbies are motorbike riding and breeding birds. Periodically he enjoys a drink with friends at the hotel where his wife works.
Medical Evidence
27. On 7 June 2002, Mr Smith’s treating general practitioner, Dr A Lim, referred him to Dr K Koller for psychiatric assessment. This is the first indication in Dr Lim’s clinical notes of any anxiety or stress condition; in his clinical notes Dr Lim makes no diagnosis and observes that the request by Mr Smith for a referral was related to “putting in a claim for Repat”, but in his report at page 79 of the T documents relating to the claim by Mr Smith, he states a diagnosis of an acute inferior myocardial infarction.. The history given by Mr Smith, as recorded by Dr Koller in his report of 27 August 2002, this being some few weeks after Mr Smith had a heart attack, mentioned the thunderflash in Vietnam, the “hitting of an American submarine on a river in Thailand”, and referred to chasing gun runners in the Malacca straits. But the dominant history was in respect of events relating to the Melbourne/USS Evans collision in 1969, including seeing “blokes dieing”, and “blokes burnt with steam”, and stating “the hatches were closed, we couldn’t get out, I am claustrophobic.” He is recorded as stating that he subsequently has nightmares and flashbacks. Whilst Mr Smith was embarked in Melbourne at the time, this accident occurred outside an operational period, and no evidence in respect of that event was put before the Tribunal.
28. Dr Koller found Mr Smith to be “tense, depressed man, much sighing and resignation. Betrays irritability. Claustrophobic.” He considers Mr Smith had chronic PTSD, a condition he considered resulted from “impressive and cumulative traumatic events whilst serving in the RAN. He experienced, witnessed and was confronted with events in the RAN that involved actual and threatened death and serious injury”. From the recorded history, the Tribunal assumes this causative connection is based predominantly on the events in the Melbourne/Evans collision as described by Mr Smith. There is no evidence of treatment being prescribed.
29. Dr A Hordern, Consultant Psychiatrist, provided a medico-legal report for Counsel on 5 June 2003. He noted on examination that Mr Smith became tearful during the long consultation, that he was in clear contact with reality, fully oriented and attention well sustained, but memory imprecise. A clinical examination indicated that his recent memory was below average. The history recorded refers to Mr Smith often dreaming about the Melbourne/Voyager collision, working as a diver in Vung Tau, and the collision at Bangkok. Mr Smith’s recollection of the chronology of CD and Ship’s Diver training accords more or less with that given the Tribunal, which as earlier noted is not supported by his posting record, nor the evidence of Captain Macdonald. This discrepancy has no significance in the issue before the Tribunal.
30. In respect of the incident at Vung Tau, Dr Hordern records that Mr Smith has intrusive recollections, nightmares at least three or four times a week, but no flashbacks. He was psychologically distressed when seeing Vietnam war television programs. He tried to avoid talking about his experience, “sort of blocked things out“, and for years had suffered insomnia, broken sleep and early awakening. He was hypervigilant, a condition observed by Dr Hordern, and his concentration was impaired. Dr Hordern records that Mr Smith saw the incident in the Chao Phraya river as “a minor incident …just a nudge”, and that he had not been frightened.
31. Mr Smith referred to the Melbourne/Evans collision, where he went from his messdeck, where he was playing mahjong, to the upper deck and observed one man on the upper deck of the stern of Evans. Dr Hordern observes that Mr Smith stated that the top half of his body, red raw, had been burnt or scalded. No other reference is made to this incident other than that his nightmares involving the need to get out of the water had relevance to the thunderflash incident, but he thought this had a lot to do with his period of service in Melbourne.
32. Dr Hordern concluded that Mr Smith had long been suffering from PTSD, resulting from a thunderflash explosion when a diver in Vampire, in the circumstances previously given. He linked the condition of Nicotine Dependence, which is not before this Tribunal, as a consequence and complication of PTSD. He further considered that Mr Smith was vulnerable at the time resulting from the circumstances of his early home life, and his subsequent boarding at the boys home and with an aunt.
33. Dr R Haik, Psychiatrist, examined Mr Smith on 17 July 2003, and provided a report accordingly. He provided a supplementary report on 6 October 2003, following receipt of the historians report by Captain Macdonald, and he gave oral evidence to the Tribunal. Dr Haik postulated that analysis of the causal stressors and subsequent symptoms, and here he noted that Mr Smith now only suffers “bad dreams”, restless sleep and impotence, suggested that they do not meet the SOP criteria of PTSD or other psychiatric diagnoses.
34. Dr Haik noted in his initial report that Mr Smith described bad dreams about two or three times a week, and at interview, requested the door of his interview room remain open and until questioned as to why, looked around at noises. He found no clinical sign of anxiety or depression, and no evidence of irritability, agitation anger or emotional upset. Dr Haik recorded the incidents previously referred to, including that of the Melbourne/Evans collision. The latter history was similar to that given by Dr Hordern, although Mr Smith imagined he had been sleeping when the collision occurred, but was less dramatic than that apparently given Dr Koller the previous year. Dr Haik referred to such inconsistencies and considered they mitigated against acceptance of this incident as a causal stressor. Of the other incidents, Dr Haik considered that only the diving incident bore consideration, and whilst superficially it might be considered a severe stressor, the lack of medical evidence, the nature of the weapon, and the lack of physical damage, meant that it did not conform to any of the Statement of Principles (SOP) causal factors.
35. Dr Haik postulated that the complaints or symptoms experienced by Mr Smith were insufficient to meet the criteria for determining PTSD, as defined in the relevant SOP and derived from DSM-IV. He argued in oral evidence that such symptoms must be measurable and evident. He opined that a person must feel intense fear and horror, that the subsequent symptoms would be quite disabling with recurrent distressing and intrusive memories of the experience, and the person would become debilitated and incapacitated. He did not see these conditions in his examination of Mr Smith, and in particular, he considered that Criterion F, namely disturbance causing clinically significant distress or impairment in social, occupational or other important areas of functioning, was not met. He based this conclusion on the busy and productive life of Mr Smith, his good family relationships, and his friends and recreational interests, and his continuing employment.
36. Dr Haik postulated that the heart incident in 2002 would have been seen by Mr Smith as potentially lethal, and that in itself would have generated fear and distress and a determination to survive. He suggested this might have had a bearing on the timing of the claim for PTSD. In relation to the suggestion by Dr Hordern that Mr Smith may have been more vulnerable to a psychiatric disturbance because of his childhood and his boarding years at the boys’ home, Dr Haik suggested that experience may well have hardened him.
37. In cross examination, Counsel suggested that Dr Haik may not have been told everything of relevance by Mr Smith, this accounting for the discrepancy in symptoms to those reported by Drs Koller and Hordern. Dr Haik discounted this suggestion, and opined that his examination had established the facts on which his assessment of the condition of Mr Smith, and whether a causal stressor was evident, had been based. He acknowledged the definition under “severe stressor” in the SOP in respect of serious injury, which on the evidence was not present. In his supplementary report he had opined that the detonation of a scare charge may have unnerved Mr Smith, but that did not suggest his life was in danger.
38. Dr Haik agreed with Counsel that the diver who suffered a bleeding ear had been exposed to a threat of serious injury. In turn, he agreed that if Mr Smith was immediately taken out of the water with ringing in the ears and a loss of hearing, he too had been exposed to a threat of serious injury. But he went on to suggest that whilst he may also have been fearful when thrown against the hull by the percussion, the threat diminished immediately once out of the water, Further, there was no evidence to support the contention in Mr Smith’s navy records, and he would have been reassured once onboard that he had no injury.
39. In re-examination, the Respondent questioned whether in the view of Dr Haik, the conditions in paragraph 2(b)(A) (ii) of the SOP, that is, a response involving intense fear, helplessness or horror, had been met. Dr Haik responded that may have been the case for “moments, minutes”, noting also that Mr Smith could not see because of the water conditions, but shortly after he found that there was no threat. Dr Haik further stated that there had to be a threat to physical integrity, which he saw as something much more meaningful than just “being there”. Further, the claimed incident of the explosion was a singular incident; once Mr Smith returned onboard, the incident was in the past.
40. In response to the Tribunal, Dr Haik re-affirmed his view that Dr Koller had placed undue weight on the significance of the Melbourne/Evans incident, as given to him by Mr Smith. He acknowledged that nonetheless, Dr Koller had been informed of the scare charge incident in Vietnam. He considered it significant that Mr Smith had not thereafter sought further psychiatric consultation, and was apparently not in receipt of any relevant medication. The Tribunal then sought comment as to whether the heart attack suffered by Mr Smith and/or the resultant medication, had any continuing influence on any disability or had left any residual impairment. Counsel indicated there was no residual impairment based on the evidence of Dr O’Rourke (Exhibit A3) who considered a full recovery had been achieved.
SUBMISSIONS
41. Counsel for Mr Smith submitted that the Full Federal Court decision in Gerzina v Repatriation Commission [2004] FCAFC 96 (3 May 2004) was relevant to the issue of diagnosis of the condition(s), and the diagnosis must be based on a question of fact, taking into account the totality of the evidence before the Tribunal. Mr Winship submitted that the oral evidence of Mr Smith augmented any inadequacies in the medico-legal histories, and the conclusions drawn therein. He further submitted that Dr Haik was alone in his diagnosis that no psychiatric condition was evident. In the view of Counsel, the facts related to the criteria in the SoP.
42. Counsel submitted that Dr Haik had conceded that Mr Smith met the criteria in 2(b)(A) (i) and (ii) in respect of the scare charge incident, wherein he experienced actual or threatened death or serious injury, and his response had shown intense fear, helplessness or horror, albeit Dr Haik had suggested the incident was of a short term nature.
43. He submitted that Mr Smith met the criteria in subsection (B) of paragraph 2 of SoP 3 of 1999. Evidence had been given that he had recurrent and intrusive distressing recollections of the diving incident, and had images “running through his mind”. In respect of (C), where three or more criteria must be shown, the Tribunal had heard evidence of his efforts to avoid thoughts, feelings and conversations about the incident, of avoiding places and people where he might be reminded of the incident, and of avoiding participation in various activities. In respect of (D), wherein two or more criteria must be met, evidence was before the Tribunal that most of the relevant criteria were present.
44. The evidence of Mr Smith was that the duration of disturbances and the relevant symptoms was long term, in years rather than months. In respect of (F), where Dr Haik considered there was no evidence of clinically significant distress or impairment in social, occupational or other important areas of functioning, Mr Winship submitted that the oral evidence of Mr Smith showed adequate evidence of distress in social situations, and because of his Vietnam experiences, a limited social life. In summing up, Counsel drew the attention of the Tribunal to the recent decisions in RepatriationCommission v Stoddart [2003] FCAFC 300 and Woodward v RepatriationCommission [2003] FCAFC 160, which have led to a recognition of perception, rather than being overly objective.
45. Prior to formally making a final submission, the Respondent raised the matter of the unavailability of Dr Hordern for cross examination. Counsel for the Applicant suggested that his attendance had not been sought by the Respondent, but was reminded by the Tribunal that both parties had been informed some time before the hearing that concurrent evidence would be taken from Drs Hordern and Haik. Hence, Dr Hordern’s presence had been called for. In the circumstances, the Respondent requested that the Tribunal place minimum weight on Dr Hordern’s report, given the contradiction of facts in the course of the hearing.
46. The Respondent submitted that whilst the reports of Drs Koller and Hordern diagnosed a psychiatric condition, weight must be given to the reports and oral evidence of Dr Haik. Drawing on the judgment in the New South Wales Supreme Court in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001), the Respondent submitted that the diagnosis by Dr Koller must be questioned as it was based on poor history which was inconsistent with the evidence subsequently given by the Applicant. That evidence was itself inconsistent, particularly in terms of his job history after the Navy, but it revealed that he had good relationships with his family, and his social environment was not abnormal.
47. Referring to the Full Federal Court decision in Benjamin v RepatriationCommission [2001] FCA 1879 (21 December 2001), the Respondent opined that both SoP 3/99 and DSM IV were relevant in law in considering the facts. Referring to the oral evidence of Dr Haik, the Respondent submitted that the effects of the incident upon which the claim was based must be continuous. In response to the Tribunal questioning the authority in respect of a requirement for an incident to have some continuity, the Respondent stated she was guided by the expert opinion of Dr Haik. As to the criteria in subparagraphs (B) to (D), and again based on Dr Haik’s evidence, the Respondent submitted that the requirements were not satisfied. Further, if the symptoms were evident some two years ago, they may well have resulted from the heart condition, the report by Professor O’Rourke only being relevant to the present timescale. The criteria at (F) were not met, as evidenced by long term employment, the hobbies, the motor cycle club and periodic social occasions at the hotel. Finally, Mr Smith had not resorted to psychiatric examination in 30 years, and was not now, or in the past, in receipt of therapy or medication.
48. With the agreement of both parties, Mr Smith sought to address the Tribunal. He expressed difficulty in communicating with Dr Haik. He stated that he had always had problems, and struggled to hide his concerns, and did not know how to raise them until recently. He stated that he would like to give up his employment, but had to continue in order to support his family. At times he was upset by his family, but endeavoured to get on well with them, as was his duty. He made himself cope most of the time, but could not do so always. In regard to psychiatric help, this had never been offered him.
PSYCHIATRIC CONDITION
49. Section 120(4) defines the relevant standard of proof, that of reasonable satisfaction, that must be applied in determining the appropriate diagnosis of any medical condition. PTSD has been diagnosed by Drs Koller and Hordern, and Dr Lim diagnosed PTSD/Anxiety. On the other hand Dr Haik could find few symptoms upon which “could be conferred a psychiatric illness”.
50. The report by Dr Koller, as argued by Dr Haik for the Respondent, is predominantly based on a history that does not reflect that subsequently given to Drs Hordern or Haik, nor to the VRB and nor to the Tribunal in oral evidence. The history recorded by Dr Koller refers at length to the circumstances of the Melbourne/Evans collision in June 1969. Mr Smith was embarked in Melbourne at that time, but the incident did not occur in an operational period of service. The only reference made about Melbourne in his oral evidence to the Tribunal was in respect of the possibility of confusing that vessel with Vampire in regard to his ship needing to make an unscheduled visit to Singapore for repairs.
51. Dr Koller saw Mr Smith some two weeks after his heart attack. He refers to nightmares, flashbacks, impotency, distress in relation to Vietnam, social problems “I find it difficult to mix with people”, poor concentration, lack of tolerance, irritability, and other characteristics, but links some of these characteristics to the Melbourne/Evans collision. His diagnosis of chronic post traumatic stress disorder is supported by an emotional and behavioural worksheet, wherein he considers Mr Smith to be unemployable, a situation at variance with the circumstances at the time, and at present. In forming an opinion as to the veracity of this report, the Tribunal must have reservations given that the report is heavily focussed on an event not under consideration. Nonetheless, the Tribunal acknowledges that Dr Koller reached a conclusion that Mr Smith met the criteria for PTSD.
52. Based on history given to him by Mr Smith, Dr Lim diagnosed a PTSD/Anxiety condition on 7 June 2002, this being the day he referred Mr Smith to Dr Koller for assessment. The Tribunal places no weight on this diagnosis, given that Dr Lim notes his first consultation with Mr Smith in respect of this condition occurred on the same day.
53. Dr Hordern considers his diagnosis of long suffering chronic PTSD resulted from the diving incident in Vung Tau harbour. He completed a diagnostic criteria assessment in the format derived from SoP 3/99, establishing to his satisfaction that all requirements had been met. He accepts that (F), relating to “clinically significant distress or impairment …” had been met, but provides no definitive descriptions against that heading, but refers to relevant impairments in (C), such as avoidance of activities, talking about Vietnam, blocking things out, detachment from others, psychological distress and the like.
54. Dr Haik did not consider that Mr Smith has a psychiatric condition. He placed reservations on the argument that the incident described by Mr Smith could meet the criteria in 2.(b)(A) (i) and (ii) in respect of “experiencing …and responding with intense fear, …”, given that it was of such limited duration. As earlier noted by Counsel, when pressed in cross examination, Dr Haik conceded these points. Dr Haik considered that Mr Smith failed to meet sufficient criteria required under in subparagraph (C), and did not satisfy the criteria in (F) in regard to the effect on social, occupational and other areas of functioning.
55. On the evidence given by Mr Smith, the Tribunal considers sufficient criteria in (C) have been met, namely, avoiding thoughts, conversations, activities and people, and a sense of foreshortened future (as was given to Dr Hordern and in oral evidence). The evidence before the Tribunal in respect of criteria (F) is not strong. Mr Smith has had long term employments for many years, and notwithstanding his evidence that he would like to retire, he remains in employment. His family relationships seem to be generally good, albeit he gave evidence of some difficulties, his impotence, irritability and a withdrawn social outlook. Whilst the opinions of the psychiatrists are at variance, and the evidence of Mr Smith has varied at times, and he is yet to be placed on any medication or therapy, the Tribunal believes there is sufficient material before it to meet the descriptive criteria for PTSD as required under paragraph 2(b) of SoP 3/99, and on balance, and to its reasonable satisfaction, finds that Mr Smith suffers from PTSD.
CASE LAW AND THE SEVERE STRESSOR TEST
56. A reasonable hypothesis has to be raised connecting PTSD with the Applicants’ relevant service. The High Court considered the proper application of section 120 of the Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:
“The position may be summarised as follows: (1) First, sub-s.(3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis”
57. The Full Federal Court has held in Repatriation Commission v Deledio (1998) 83 FCR 82 that, in operational service matters such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim for a war-caused disability, namely:
“(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii)If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii)If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
(iv)The Tribunal must then proceed to consider under 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”.
does the material point to a hypothesis?
58. The answer to this first step in Deledio (supra) must be in the affirmative. The Full Court in Deledio determined that there is no question of fact finding at this stage. It is sufficient that before the Tribunal is evidence that an event occurred which the Applicant believed involved threatened death or serious injury, and which led to a feeling of fear or helplessness, and thus he believes he experienced a severe stressor. The hypothesis put before the Tribunal is that resulting from this severe stressor, he developed post traumatic stress disorder. The material before the Tribunal in respect of the claimed diving incident in Vietnam points to such a hypothesis and thus Step 1 is satisfied.
is there a statement of principles in force?
59. Step 2 requires the Tribunal to determine whether there is in force a Statement of Principles determined by the Repatriation Medical Authority under section 196b(2) or (11) of the Act. The parties agree that SoP 3 of 1999, as amended by SoP 54 of 1999, is the appropriate Instrument, and it relevantly states:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from 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; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
Factors that apply only to material contribution or aggravation
6.Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; …”
60. Clinical onset is not defined in SoP 3/1999. In Re Robertson and RepatriationCommission (1998) 50 ALD 668, the Tribunal described clinical onset thus:
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …”
This definition was followed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750, and acknowledged by the Full Court in Lees v RepatriationCommission [2002] FCAFC 398. It is in turn followed by this Tribunal. The point at issue, apart from the Respondent’s position that the condition of PTSD is not evident, is that Drs Lim, Koller and Hordern diagnosed such clinical condition. SoP 3/1999, unlike the instruments relevant to some other diseases, does not place a maximum time criteria after experiencing a stressor (or psychosocial stressor) on clinical onset.
is the hypothesis consistent with the template in the sop?
61. Step 3 requires the Tribunal to consider whether the hypothesis is reasonable, that is, does it fit and is it consistent with the SoP? The hypothesis raised must contain one or more of the factors which the Authority has determined to be the minimum that must exist, and this factor must be related to Mr Smith’s service. The relevant factor in this instance, and the only factor put before the Tribunal, is that at paragraph 5 (a) of SoP 3/1999, that is experiencing a severe stressor prior to the clinical onset of PTSD.
62. “Experiencing a severe stressor” is defined under paragraph 8 of SoP 54 of 1999 as:
“… 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 severe stressors include
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observance of casualty clearance, atrocities or abusive violence”
63. The significant matter before the Tribunal is therefore whether the Applicant experienced a severe stressor, as defined, this being necessary to establish whether the hypothesis raised is reasonable and is consistent with the template. The position of Mr Smith is that he experienced a severe stressor when undertaking a hull search as a ship’s diver, and an explosion occurred in his vicinity, thereby leading him to believe he was under threat of serious injury or death. He further submits that it engendered a feeling of fear and helplessness. Mr Smith further evidenced the occasion when his ship got into difficulties when leaving a wharf in the Chao Phraya river, collided with a freighter and came close to colliding with some submarines berthed alongside, his concern being one of helplessness. The Respondent’s position is that these incidents were momentary and with no lasting implications. He did not think the incidents as described by Mr Smith met the criteria in 2.(b)(A)(i) and (ii) of the SoP in respect of experiencing or being confronted with the threat of death or serious injury, leading to an appropriate response of fear. As noted earlier, Dr Haik for the Respondent conceded these criteria in cross examination.
64. Repatriation Commission v Stoddart [2003] FCAFC 300 provides an authority on the interpretation of “experiencing a severe stressor”, Mansfield J stating at paragraph 55:
“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 these events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
65. In the recent matter of Woodward v Repatriation Commission [2003] FCAFC 160, the Full Court considered the definition of “experiencing a severe stressor”, concluding that the Tribunal in that matter had considered the expression in too narrow a manner when addressing Deledio (supra) Step 3. Woodward (supra) was in respect of a claim for the acceptance of PTSD as a war-caused disease, resulting form operational service by the Applicant in the Australian Army. The Tribunal in that matter was not satisfied that a reasonable hypothesis had been raised, drawing on Re Slattery and Repatriation Commission (1998) 52 ALD 90, wherein it was stated in respect of experiencing a severe stressor:
“The word “witnessed” suggests that the person was present at the event involving real or present (ie actual) or threatened death. The word “experienced” suggests that the person observed or encountered such an event and the word “confronted” that he or she was faced with such an event.”
Part of the appeal before the Full Court focused on the question of whether the Tribunal properly interpreted and applied the above terms. At the outset, the Full Court said that “to limit the definition of the word “experienced” in this way was plainly at odds with its ordinary and natural meaning”.
66. In considering the appropriate interpretation of these terms, the Full Court stated:
“The definition of “experiencing a severe stressor” has three elements that relate to a person’s encounter with an event involving death – the person must have “experienced, witnessed or [have been] confronted with an event that involved death…”. Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be “confronted with” an event that he or she has neither experienced nor witnessed.
In any event, as a matter of ordinary usage to be “confronted” with something means to be brought face to face with it physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he “confronts”. This in no less the case when the confronting event is one involving death or serious injury.”
By way of example, the Court referred to a member of the armed forces taking part in casualty clearance or attending casualties in a sick bay, albeit the injuries occurred at some other location. In the matter of Woodward, the Court considered the material before the Tribunal to have pointed unequivocally to there having been an event involving death, and that Mr Woodward had been “brought face to face with the reality of death on active service”.
67. Mr Woodward had also claimed that he experienced, or had been confronted with, threat to him, of death or serious injury. Their Honours referred to Stoddart (supra) in which Mansfield J considered that the SoPs did not distinguish between actual and perceived threat. Mansfield J opined the following at 51:
“It is consistent with those provisions [section 196B of the Act] that the SoPs should be read as meaning that a claimant experiences “a severe stressor” if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived”.
68. This is a view which he considered accords with the common meaning of “threat”, defined in the Macquarie Concise Dictionary as “an indication of probable evil to come; something that gives indication of causing evil or harm”. Again at 55:
“… 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.”
The Full Court considered this reasoning to be “persuasive” and that it should be followed, but further stated that it expressed no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.
69. In the circumstances, and taking account of the reasoning by their Honours in Re Stoddart, Re Slattery and Re Woodward, the Tribunal is satisfied that the hypothesis raised is reasonable and is consistent with the template in SoP 3 of 1999 as amended by SoP 54 of 1999.
Consideration under section 120(1) of the Act
70. The facts that may be drawn are :
(a)Mr Smith served in the Royal Australian Navy from 7 April 1963 to 6 April 1972. His primary specialisation was in the cookery branch, but he was qualified as a ship’s diver.
(b)Mr Smith incurred operational service on 4 occasions in 1966, two (28 April 1966 to 9 May 1966 and 9 June 1996 to 16 July 1966) being relevant to the claimed diving and leaving harbour incidents respectively, when he was a crew member of HMAS Vampire.
(c)Vampire was variously in Vung Tau harbour, Vietnam between 4 and 6 May. Ship’s divers carried out bottom searches on each occasion of slack water. As a qualified ship’s diver, Mr Smith would have been required to undertake these tasks.
(d)Scare charges were dropped from Vampire and ship’s boats at irregular intervals. Normal procedure is that they would not be dropped when divers were in the water, and divers were so informed. There is no evidence that charges were dropped when divers were in the water.
(e)Mr Smith claims he was in the water, roped to adjacent divers when a charge went off. He was not hurt and there is no evidence of any onboard medical examination or report.
(f)Vampire collided with a freighter when leaving Bangkok on 9 June 1966, and came close to submarines berthed alongside.
71. In the course of pursuing this claim, the evidence of Mr Smith has varied. Initially, and as recorded in the report by Dr Koller, his emphasise was on his experiences at the time of the Melbourne/Evans collision in 1969. This accident occurred in a non operational period. The subsequent evidence of Mr Smith to Drs Hordern and Haik, to the SSAT and to this Tribunal in respect of the two claimed incidents in operational service, has been relatively consistent, the emphasis being on the diving incident in Vietnam. There is no evidence to support his claim that a charge, which on the evidence would seem to be a scare charge, was dropped whilst he was in the water. Were one to have been “inadvertently” dropped, then it could be argued that such an occurrence would have been recorded in the ship’s log. There is no evidence to that effect, but the Tribunal does not accept that this confirms that such an incident did not happen.
72. So too, there is no evidence before the Tribunal to indicate that Mr Smith was medically examined when he returned onboard, a procedure that Captain Macdonald considers would have been expected. Mr Smith’s evidence is that he was not injured, other than ringing in the ears, but was thrown against the hull by the percussion, the noise of the explosion being “shocking”. In the circumstances, the Tribunal accepts that the absence of a medical report does not confirm that the incident did not happen.
73. It could be that notwithstanding the promulgated orders coordinating diving operations (Captain Macdonald refers to orders extant in 1967/68 which he assumes were also extant in 1966) to control the dropping of scare charges, another ship may have dropped charges at the time of the claimed incident. There is no evidence to suggest this occurred, nor was it raised by Mr Smith. On the evidence given by Captain Macdonald in his report, a scare charge would have to be dropped “close to the swimmer” to result in death or serious injury, but he goes on to say that the noise effect of an explosion would be “startling, particularly when unexpected”, and the damaging effect of underwater concussion can vary widely depending on a number of factors such as bottom type, tidal stream, and the divers aspect to the explosion. He further states that disorientation is common, and even distant explosions can have a deterrent effect.
74. Whilst there is no evidence in support of the contention of Mr Smith that a charge was dropped in close vicinity to him whilst diving, the evidence supports his contention that he dived in Vung Tau harbour, as part of his duty as a ship’s diver, and that scare charges were dropped by ships and boats. Suffice that Mr Smith gave evidence that the jncident had a profound effect on him, both in his attitude to diving, and in his subsequent life. He described the incident as life threatening, leaving him shaken up and emotionally effected.
75. Section 120(1) of the Act requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that the condition of PTSD did not arise from a war caused injury, in this case the effects of an explosion whilst diving on the ship’s bottom. If not so satisfied, the claim must succeed. The Tribunal is not so satisfied, and hence the claim of Mr Smith must succeed. It follows that having accepted a diagnosis of PTSD as resulting from operational service, the condition of impotence is also accepted as war caused, this being the submission by the Applicant and as conceded by the Respondent.
76. The Tribunal does not dwell on the second incident in the Chao Phraya river. Whilst this occurred in an operational period, and the circumstances as given in evidence by Mr Smith generally accord with the evidence given in the research report by Captain Macdonald, Mr Smith himself said “it was a bit frightening” but he did not feel he could be injured. Whilst his concern was that he could not do anything, which might be seen as being in a helpless situation, his concern was not sufficient to meet the criteria of a severe stressor.
77. The Tribunal sets aside the decision under review, and substitutes its decision as follows:
(a)a diagnosis of Post Traumatic Stress Disorder is found to be war caused effective to date 4 July 2002;
(b) accordingly, and as agreed between the parties, Impotence is found to be war caused effective to date 4 July 2002;
(c)the matter is remitted to the Repatriation Commission for assessment of the rate of pension.
Attachment A to the decision in William Smith - N2003/406
A1Letter from P Jones, Rockliffs Solicitors and Attorneys, dated 6 may 2003
A2Report by Dr A Hordern, Consultant Psychiatrist, dated 5 June 2003
A3Report by Professor M O’Rourke, Cardiologist, dated 11 February 2004
R1Clinical Notes from Dr A Lim, General Practitioner
R2Transcript of the VRB Hearing on 25 February 2003
R3Letter from Defence Corporate Services and Infrastructure dated 14 May 2003 and attachments
R4Report by Dr R Haik, Consultant Psychiatrist, dated 17 July 2003
R5Report from Writeway Research Pty Ltd dated 14 September 2003
R6Supplementary report by Dr R Haik , dated 6 October 2003.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDate of Hearing 18 May 2004
Date of Decision 19 August 2004
Counsel for the Applicant Mr B Winship
Advocate for the Respondent Mr S Kenny
0
9
0