Smith and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 786
•9 October 2015
Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 786 (9 October 2015)
Division
VETERANS' APPEALS DIVISION
File Number
2014/3403
Re
Peter Smith
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 9 October 2015 Place Brisbane The decision under review is set aside and a decision substituted that the applicant’s injury is service related within the meaning of the Veterans’ Entitlement Act 1986 (Cth).
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – defence service with Royal Australian Navy – posttraumatic stress disorder accepted – whether causal link between PTSD and defence service – “test of attributability” – applicant “induced or encouraged” to be at place – injury attributable to defence service – decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 70(5)
Defence Force Discipline Act 1982 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A
CASES
Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308
Holthouse v Repatriation Commission (1982) 1 RPD 287
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Comcare v PVYW (2013) 250 CLR 246
Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder No 83 of 2014
REASONS FOR DECISION
Senior Member Bernard J McCabe
9 October 2015
Peter Smith has developed post-traumatic stress disorder (PTSD). He says that condition was a consequence of his defence service in the Navy. He applied for a pension under the Veterans’ Entitlements Act 1986 (the VE Act) on that basis. The Repatriation Commission rejected the claim: it doubts whether incidents described by the applicant occurred as he alleges. But the Commission has a further problem. It argues that even if I were satisfied the events occurred exactly as described, I should not accept there is a link between the events which triggered the PTSD and the applicant’s defence service.
I am reasonably satisfied both incidents occurred substantially as the applicant described, and I am persuaded at least one of the incidents can be linked to his defence service. I have decided to set aside the decision under review. I explain my reasons below.
Mr Smith suffers from PTSD
The parties accept Mr Smith suffers from PTSD. That condition was diagnosed by Dr Majumdar in 2011. If Mr Smith is to link his condition to his defence service, he must satisfy the relevant statement of principles published by the Repatriation Medical Authority. In this case, the relevant statement of principles is No 83 of 2014. (There is an earlier statement of principles – No 6 of 2008 – but the language is effectively identical for present purposes.)
An individual may satisfy the statement of principles if he experiences either a category 1A or 1B stressor before the onset of PTSD. A category 1A stressor is defined (at clause 9) to include 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;
A category 1B stressor includes 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;
In this case, the applicant refers to two severe traumatic events that occurred while he was a member of the crew of HMAS Brisbane in 1981. He says one event, while he was on shore leave at Trincomalee in Sri Lanka, was a category 1A stressor while a second incident that occurred in Bombay (now Mumbai) was a category 1B stressor. I will make findings in relation to each of these events before I go on to deal with the Commission’s argument that the events were not attributable to the applicant’s defence service.
The encounter with armed paramilitary police in Sri Lanka
Mr Smith provided two statements and gave evidence at the hearing. In his first statement (exhibit one at p 99) he recalled the Brisbane visited Trincomalee in April 1981. The Brisbane was participating in an international task force patrolling the Indian Ocean. When the vessel came into port, members of the crew were permitted to take shore leave. Mr Smith and another shipmate, Michael Tonks, decided to hire motorbikes and visit an historic site just outside the city. Mr Smith explained in his statement that the pair encountered a roadblock manned by gun-toting men in uniform. Mr Smith said he and Mr Tonks were flagged down and confronted by the armed men who were pointing their weapons in a threatening manner. Mr Smith explained in his statement (exhibit one at p 99):
We were ordered off the bikes in broken English and pushed and jabbed with the weapons to force us into the back of the truck. At this time I feared for my life thinking that a gun could go off or one of these men might shoot me. Once in the back of the truck we were driven to a low concrete building where we were separated.
Mr Smith said he was taken to an interview room where he was left alone for about half an hour before he was interrogated by two officers who proceeded to solicit a bribe. Only then was he was released.
Mr Tonks substantially confirmed the applicant’s account in his statement (exhibit one at p 74). It was apparent from the statement and oral evidence that Mr Tonks did not find the incident as stressful as the applicant: in his statement, he suggested he was “surprised” at the behaviour of the armed men, and regarded the incident as “bizarre” (although he also described the behaviour of the men as “intimidating” in the course of his oral evidence). But Mr Tonks also acknowledged he remained outside the room where Mr Smith was being questioned, so he may not have experienced the full-force of their behaviour.
Mr Tonks appeared to be a careful and dispassionate witness. I had no reason to doubt his evidence. I am satisfied it corroborates the essence of Mr Smith’s account. On that basis, I am satisfied the incident occurred as described. I am also satisfied it answers the definition of a category 1A stressor because the applicant was threatened with a weapon.
The traffic accident in Bombay
Mr Smith recalled in his statement (exhibit one at p 100) that the Brisbane docked in the Indian city of Bombay on 20 May 1981. Many members of the crew were given shore leave. But Mr Smith said he was not so lucky: he explained a contingent from the Brisbane was required to travel to a naval base to accept the hospitality of the Indian Navy at a lunch. (Mr Smith said the contingent was to be comprised of volunteers but numbers were short and he was press-ganged into attending.) The contingent left the ship in a bus and travelled to the base where lunch was served. After around 90 minutes, Mr Smith said his superiors told the contingent they were free to return to the ship at their leisure – but they were expected to make their own way back as the bus which brought them to the base would not be returning. Mr Smith said he flagged down a horse-drawn carriage and travelled to the central business district on his own. He planned on buying some toiletries and souvenirs on the way back to the ship. Not long after he arrived in the busy centre of town, he said he witnessed an horrific traffic accident. He recalled seeing a truck run over a pedestrian. The unfortunate pedestrian was killed and his head was decapitated in the incident. Mr Smith recalled (exhibit one at p 100):
I stood there in shock as I watched his body twitch in the middle of the street. I then vomited on the footpath and watched some of the crowd chase the after [sic] the truck as it continued away. The driver of the truck did not stop.
Mr Smith left the scene of the accident in a taxi and returned to the ship. He said he told Mr Tonks about what occurred. Neither he nor Mr Tonks suggested they reported the incident (or the earlier incident in Sri Lanka) to any superior officer.
Mr Tonks provided his recollection of that day in his statement (exhibit one at p 74). He said he recollected Mr Smith going into Bombay to buy gifts and do some sightseeing. He did not recall anything about an official lunch. He did recall Mr Smith telling him he had witnessed an accident. Mr Tonks noted “[the experience] had made Peter sick and it had clearly upset him very much”.
Mr Tonks was not cross-examined in detail about his claim that Mr Smith had gone into Bombay for tourist purposes. Yet that evidence is inconsistent with Mr Smith’s evidence that he was returning (albeit in a roundabout way) from an official engagement. Mr Smith certainly had a detailed recollection of the event: he was able to recall eating a fiery pepper at the luncheon.
At this point, I should mention the evidence of Commodore Dickson. Commodore Dickson provided a statement, which was included in a report commissioned by the Department of Veterans Affairs (exhibit four at p 31). The Commodore also gave evidence at the hearing. He was the captain of the Brisbane at the time. He said he had no recollection of either of the incidents described by Mr Smith and Mr Tonk. Commodore Dickson insisted he would have been aware of both events if they occurred because his officers kept him informed of every incident or matter that related to the welfare of the crew or which reflected on the ship. If he was not told of the incidents, he reasoned, they almost certainly did not occur.
Mr Smith said Commodore Dickson enjoyed an excellent reputation and recalled the Brisbane was regarded as one of the finest ships in the Navy while it was under Commodore Dickson’s command. I do not doubt the Commodore took a keen interest in the welfare of his crew and expected to be kept informed of incidents. But no system is perfect, and I do not accept the events in question did not occur just because they were not brought to the attention of the ship’s captain.
Commodore Dickson’s evidence was interesting for another reason. He said that while he and some other officers were required to call on local officials, it was unusual for sailors from below decks to participate in events like the one described by Mr Smith. He did not go so far as to say it was impossible that Mr Smith would have attended, however.
I accept Mr Smith’s evidence about the traffic incident in Bombay, and I accept his account of how he happened to be there. I acknowledge the different recollection of Mr Tonks, but the inconsistency could be explained by the passage of time – whereas Mr Smith has every reason to remember the event clearly. Commodore Dickson’s evidence called the applicant’s account into question, but I accept Mr Smith’s direct evidence of what did occur is preferable in the circumstances to Commodore Dickson’s evidence as to what should or should not have occurred. Commodore Dickson had a limited recollection of what occurred during the course of the Brisbane’s visit to Bombay, whereas Mr Smith had a detailed and coherent recollection. While Mr Smith’s involvement in a formal lunch was unusual, the evidence of Commodore Dickson does not suggest Mr Smith’s account was so improbable that I should discount his evidence.
I am satisfied the incident in Bombay answers the description of a category 1B stressor because the applicant was an eyewitness to a person being killed.
Are the stressors related to the applicant’s defence service?
It is not enough to establish the applicant experienced stressors that may have precipitated PTSD. If the PTSD is to be compensable, the applicant must establish a causal link between the condition and his defence service. He need only establish the causal link between his condition and one of the two incidents he has described in order to succeed in his claim.
Section 70(5) of the VE Act says the link between an injury and defence service will be established in a number of circumstances, including:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty;
…
I will turn firstly to the question of whether the injury “arose out of, or was attributable to, any defence service”. Mr Harding, for the applicant, argued the entirety of the applicant’s service on the Brisbane after it left Australia and cruised the Indian Ocean was active service. Time spent on shore leave in a foreign port was no exception: Mr Harding noted sailors were required to be in uniform while on shore leave and were told they were representing their country. (There was some question over how the sailors dressed whilst on leave. Mr Tonks produced a commemorative book which corroborated his evidence that sailors mostly did wear their uniforms while on leave in ports like Bombay and Trincomalee. I accept that evidence confirms Mr Smith’s recollection that he would have been wearing his uniform at the time of both incidents.) Mr Harding also cited evidence from Roger Rigby, a senior sailor, who explained in his statement (exhibit 3):
Every serving member aboard a ship, from the Captain to the lowest ranked junior sailor was on duty 24 hours a day. RAN personnel were paid 24 hours a day and could be recalled from shore leave at will. They could be sent back on board by any supervisor and have their shore leave or their pay stopped for minor infractions by defaulter’s table convened by the Captain. At the time of the incidents described in Peter Smith’s statement the Ran operated under the Naval Discipline Act which incorporated some of the Articles of War, as well as many obscure rules and regulations to assist maintaining discipline and order.
Mr Harding argued this view of a sailor’s engagement was consistent with the decision of the High Court in Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308. That case arose out of an incident in which an Australian soldier based overseas was charged under the Defence Force Discipline Act 1982 (Cth) with the rape of a woman while he was on leave. The soldier argued the Commonwealth Parliament did not have power under the Constitution to enact a law making it an offence for an Australian serviceman to commit rape in a foreign jurisdiction while on leave. Mr Harding said the case contemplated a wide view of a serviceman’s engagement. I am not so sure: I do not find a case about the reach of the defence power in the Constitution provides much assistance in the circumstances under consideration here. Mr Williams, for the Commission, appeared to agree: he suggested there was ample authority to show that a serviceman’s mishaps on leave were not connected to his defence service: see, for example, Holthouse v Repatriation Commission (1982) 1 RPD 287.
I acknowledge the applicant’s shore leave on each of the occasions in question was not comparable to annual leave, and that he might be recalled to ship at any moment. I also accept he was wearing his uniform at all material times, and that he was subject to defence discipline. Even so, I think his periods of shore leave (namely, the entire time he was ashore in Trincomalee and the period after he was released from the luncheon engagement in Bombay) constitute intervals in his employment during which he was not working – because he wasn’t working. That being so, Mr Williams urged me to adopt the reasoning in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 which was discussed in Comcare v PVYW (2013) 250 CLR 246. Those cases arose out of the wording of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) which referred to injuries suffered by an employee “arising out of, or in the course of, the employee’s employment”. Mr Williams said the minor differences in wording between the tests in the two statutes were immaterial. Mr Harding disagreed, and referred me to the High Court’s decision in Roncevich v Repatriation Commission (2005) 222 CLR 115. In that case, McHugh, Gummow, Callinan and Heydon JJ observed (at [27]):
The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning …
But the majority in Roncevich went on to explain the “test of attributability” merely required the decision-maker to be satisfied there was a “causal link … or causal connexion” between the circumstances of defence service and the injury.
The High Court’s decisions in Hatzimanolis and PVYW were ultimately concerned with the same task as that required of me in this case, namely establishing the existence of a causal connection. I acknowledge there is a possibility the test of attribution in the VE Act is more generous than that in the SRC Act, but I do not need to reach a concluded view on that question unless the outcome of the case turns on the potential difference in the wording between the two provisions. As a general proposition, it seems to me an applicant who can establish a causal connection having regard to the reasoning in Hatzimanolis and PVYW will almost certainly satisfy the test in the VE Act.
In PVYW, the High Court pointed out the Hatzimanolis principle – namely, that an employee’s injuries might still be found to arise out of, or occur in the course of, his employment even though the injury was sustained while the employee was not engaged in actual work – only applied in defined circumstances. French CJ, Hayne, Crennan and Kiefel JJ explained one must first be satisfied the employee was not working when he was injured. (I have already decided that was so in each of the incidents I have discussed.) The next step is to ask what the employee was doing when injured. As the plurality explained (at [38]):
For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
Mr Harding argued Mr Smith was engaged in an activity – sightseeing – at the time of both incidents which was induced or encouraged by the employer. He relied on evidence led from Commodore Dickson who agreed it was desirable for sailors to avail themselves of the opportunity during shore leave to “blow off steam”. But I do not think the Navy could really be said to have induced or encouraged sailors to engage in sightseeing and shopping during shore leave, even if the opportunity to do so was a valuable perquisite that yielded collateral benefits for the Navy.
The alternative approach is to ask, if the applicant was injured “by reference to place”, did the Navy encourage the applicant to be there? This approach shows more promise, at least in relation to the incident in Bombay. If one accepts – as I do – the applicant was required to leave the ship and attend a luncheon engagement, it could be argued – and Mr Harding does – that Mr Smith was on the road where he might witness the incident because he was induced or encouraged to be there.
Mr Tonks said in his oral evidence that he had the opportunity to take shore leave in Bombay but decided against it because he heard from other sailors that it was not an attractive destination. He was free not to go into town; if he had decided differently and ended up witnessing the same accident that Mr Smith saw, there could be no argument that he was induced or encouraged to be there. But Mr Smith did not have a choice about taking leave. He was transported to the official engagement and required to make his own way back. The fact he was permitted to make the return journey on his own and at his leisure did not change the fact he was wandering the streets of Bombay because it suited the Navy for him to do so. That is enough to satisfy the “test of attributability” referred to in Roncevich.
Conclusion
While I am satisfied the incident at Trincomalee occurred, I am not satisfied that incident could be said to arise from or be attributed to the applicant’s defence service. However, I am satisfied the applicant experienced a category 1B stressor on the streets of Bombay during the course of his shore leave in 1981, and I am satisfied the injury that resulted arose out of or was attributable to his defence service. In those circumstances, I set aside the decision under review and decide in substitution that the applicant’s injury is service related. The question of the rate of pension is remitted for assessment on that basis.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ..............................[Sgd].....................................
Associate
Dated 9 October 2015
Date of hearing 21 September 2015 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Terence O'Connor Solicitor Advocate for the Respondent Mr B Williams Solicitors for the Respondent Department of Veterans' Affairs
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