Speirs and Repatriation Commission

[2011] AATA 240

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 240

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2010/0482

VETERANS’ APPEALS DIVISION		)
Re		KEITH SPEIRS

Applicant

And REPATRIATION COMMISSION   

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date11 April 2011

PlaceHervey Bay

Decision The Tribunal affirms the decision under review.

.....................[sgd].......................

Senior Member 

VETERANS’ AFFAIRS – benefits and entitlements – no reasonable hypothesis of a relationship between the applicant’s anxiety disorder and his operational service – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth), s 9

Border v Repatriation Commission [2010] FCA 1430

Repatriation Commission v Bey (1997) 149 ALR 721

Repatriation Commission v Deledio(1998) 49 ALD 193

Repatriation Commission v Hill [2002] FCAFC 192

Stoddart v Repatriation Commission (2003) 197 ALR 283

REASONS FOR DECISION

11 April 2011   M J Carstairs, Senior Member

1. The applicant, Mr Keith Speirs, enlisted in the Royal Australian Navy on 9 February 1964 and later rendered operational service during several discrete periods from February 1966 to May 1967. Mr Speirs took his discharge in February 1974. Mr Speirs suffers from two medical conditions, anxiety disorder and irritable bowel syndrome, which he contends are “war-caused” as that expression is used in s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

THE ISSUES

2. In order to decide under the Act whether medical conditions are war-caused the Tribunal applies a series of steps as set out by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 183. Applying that process, I must identify any applicable Statement of Principles (“SoP”) and consider whether any hypothesis raised by the material conforms with one or more of the factors set out in the SoP as it applies to the claimed condition.[1]   

[1]   Repatriation Commission v Hill [2002] FCAFC 192

3.      The matters not in issue in Mr Speirs’ case, because of concessions made by the respondent, were:

(a)matters going to diagnosis, it being agreed now that Mr Speirs’ medical condition is an “anxiety disorder not otherwise specified”; and

(b)the onset of this anxiety disorder being within 5 years of events identified by Mr Speirs as being stressful to him, which is a timeframe required by the SoP.

4.      I have satisfied myself that these concessions are appropriate in the light of the medical evidence now to hand.  The evidence, as now agreed between Dr G Antoce[2] and Dr S Jenkins[3], is that Mr Speirs suffered, and has suffered since about 1966-1967, with the symptoms of an “anxiety disorder not otherwise specified”.

[2]   Exhibit R2

[3]   T4 pp 51-53

5.      In practical terms these concessions mean that the issues may be conveniently confined within factor 6(a)(ii) of the SoP for Anxiety Disorder (Instrument 101 of 2007[4]), applying to a veteran’s operational service, and requiring that the veteran has experienced:

[4]   As amended (immaterially) by Statements of Principles No 42 of 2010 and 15 of 2011.

… a category 1A stressor within the five years before the clinical onset of anxiety disorder.

A category 1A stressor is further defined within the SoP as experiencing:

one or more of the following severe traumatic events:

(a) experiencing a life-threatening event;

(b) being subject to a serious physical attack or assault including rape and sexual molestation; or

(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.

6.      It is accepted that the SoP sets out the only available hypotheses of causation that can provide the possible links connecting an aspect, or aspects, of the veteran’s service with manifestations of disease or injury.

7.      It is worth noting at this juncture that acceptance of the other claimed condition, irritable bowel syndrome, was dependent upon Mr Speirs succeeding in his claim for anxiety disorder. 

8.      Therefore, it was necessary to consider the evidence as it related to two stressful events, which came to be the focus of the hearing. 

is anxiety disorder war-caused?

9.      Mr Speirs’ main hypotheses, to be considered against the provisions of the SoP, were that:

§he experienced a Category 1A stressor when HMAS Vampire was departing Bangkok and came into collision with the merchant ship Emilie Maersk, anchored midstream in the Bangkok River; and  

§he experienced a Category 1A stressor (or stressors) when HMAS Melbourne was in Vung Tau Harbour.

the collision between hmas vampire and emilie maersk

10.     The collision in question, that between HMAS Vampire and Emilie Maersk, is reported upon by Mr AHR Brecht (Commodore RAN, ret) for Writeway Research Services.  He placed the incident as happening on 9 June 1966, the first day of one period of Mr Speirs’ operational service with the Far East Strategic Reserve[5].  In the course of manoeuvring down the Bangkok River to make departure, the bow of HMAS Vampire came down on Emilie Maersk causing damage to both ships, but not such damage as to prevent HMAS Vampire continuing its journey.

[5]   9 June to 17 July 1966.

11.     Mr Speirs, who ordinarily would have been on the Flag Deck, had been told, along with others, to line up on the fo’c’sle, in order to create a better show of troops for their departure.   In the Report of Proceedings, the Commanding Officer noted:

At 1430 VAMPIRE cast off and proceeded from alongside DEVONSHIRE but whilst 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 berth alongside … At 1605 having successfully turned VAMPIRE set course down river, arriving at the Bangkok Bar at 1818 when the pilot was disembarked.

12.     The collision tore a hole in Emilie Maersk’s deck plating; HMAS Vampire’s bow stem was buckled about 4 feet above the level of No 2 deck.  Damage was considered to be comparatively “small”.[6]

[6]   Exhibit R1, pp 5-6

13.     Mr Speirs stated that he could not say that the incident was the start, or cause, of his anxiety.  Rather, his main contention was that it was one of a number of events which cumulatively made his service unduly stressful to him. He said he was constantly in a state of worry, from the earliest time after his enlistment. This was because the day after he enlisted (at the age of 17 in 1964) HMAS Voyager and HMAS Melbourne collided, with great loss of life.  Mr Speirs said he had signed up for 9 years, but was immediately anxious about what he had got himself into.

14.     In the course of his claim Mr Speirs had relied upon other stressors that he could remember from his service. Certain of these proved to be events that had not taken place during periods of operational service, and as a result are not covered by the legislation.  There is no need to go into those here, except to observe that the legislation does not readily allow for an incident to simply be one of a number of incidents that cumulatively are taken to result in a medical condition being present, without regard being had to whether the events relied upon did, or did not, occur during periods of operational service. 

15.     It is necessary, insofar as is relevant for the condition of “anxiety disorder not otherwise specified” for Mr Speirs’ hypothesis of connection to entail an event that meets the definition of a Category 1A stressor.

16.     In a recent decision of the Federal Court, Border v Repatriation Commission (No 2) [2010] FCA 1430, Reeves J considered the proper analysis of a Category 1A stressor, observing that the definition focuses on the nature of the event, and is limited to a nominated list of events. However, the Court observed that the first of these, namely experiencing “a life threatening event” required consideration both of the subjective and objective aspects of the incident. It is necessary, in other words, to assess whether the event as experienced by the veteran was life threatening, without sole focus being on the nature of the event itself.

17.     It seems to me that the evidence did not point to Mr Speirs experiencing a life threatening event, on either account.  Mr Speirs acknowledged in his oral evidence that he did not feel that his life was at threat during the collision with Emilie Maersk.  That frank acknowledgement, taken in the context of the Report of Proceedings relating to the incident, indicates that neither objectively nor subjectively could it be said of the event that it was “life threatening” as is required by the definition at clause 9(a) of the SoP for Anxiety Disorder. 

18.       As the Full Court of the Federal Court said in Repatriation Commission v Deledio (1998) 49 ALD 193, a hypothesis will not be reasonable if it is not consistent with the “template” found in the SoP, by containing one of more of the factors set out. In Mr Speirs’ case, the material advanced in the evidence did not support the existence of a hypothesis of causation expressed as a factor in the SoP and thus, the third of the Deledio steps is not satisfied. 

experiences in vung tau harbour

19.     Mr Speirs mentioned to Dr G Antoce, as recorded in Dr Antoce’s medical report dated 7 October 2010, but not in other psychiatrists’ reports, that his experiences unloading stores in Vung Tau Harbour had been particularly worrying to him.

20.Dr Antoce described it thus:

They had to anchor up in Vung Tau and they were all in the water checking the boats around.  He was worried that his crew was just sitting there open to attack.  Mr Speirs indicated that he spent most of the time on deck and not inside the ship while they were there. 

21.     Mr Speirs said in evidence that when HMAS Melbourne was travelling to Vung Tau they had been warned of the need to be vigilant.  He was aware that clearance divers were being used to scour the bottom of the ship while they were in harbour, and was aware of the presence of sentries with SLR rifles positioned on deck in case of attack.  He also said that while he was on watch he was startled by a scare charge being set off, and his “heart raced”.

22.     Mr Stoner questioned Mr Speirs further on this aspect which had not been elaborated upon before by Mr Speirs nor discussed at the Veterans’ Review Board hearing.  Mr Speirs acknowledged that he had been trained at HMAS Castlemaine in scare charges so he knew what the sound was like, although the sound of the explosion in Vung Tau Harbour in fact was more muted than what they had heard in training.  Mr Speirs said that when he heard the noise he did briefly think they were under attack, but within moments, he said, “common sense took over.”  Mr Speirs said he believed that he would have discussed the event with those who were present on the scene with him in the Map Reading Office.  He said he believed they would all have discussed it and laughed it off as being just a scare charge and then returned to their work.

23.     Mr Speirs made plain in his evidence that his main recollection was that he was anxious and concerned all the time while they were in the Harbour, as they “could have been attacked” and were likely to have been in range of mortars fired by enemy troops.

24.     Once again the meaning of “life threatening event” takes on critical importance.  In his evidence with respect to the scare charge in Vung Tau Harbour, Mr Speirs said that momentarily his heart raced but this settled quickly when he (and others around him) realised what had occurred and returned to their work.  This account does not point to Mr Speirs considering this event as life threatening.

25.     As I have mentioned above, it is settled law that the nature of stressful events entails that the veteran subjectively perceive that there was threat of death or serious injury in circumstances judged objectively taking into account the knowledge and experience of the veteran.[7]

[7]   Stoddart v Repatriation Commission (2003) 197 ALR 283

26.     No reasonable hypothesis of a relationship between Mr Speirs’ anxiety disorder and his service is here raised through the incidents in Vung Tau Harbour.  The claim for anxiety disorder does not succeed.

27.     For the sake of completeness, as to other grounds of review sought in Mr Speirs’ application to the Tribunal:

(a)Mr Speirs withdrew his requested review of chronic bronchitis, and will pursue a new claim based upon exposure to passive smoking; and

(b)Mr Speirs’ claim for irritable bowel syndrome fails because it was necessary for him to first succeed in his claim for anxiety disorder to have irritable bowel syndrome accepted.

DECISION

28.The Tribunal affirms the decision under review. 

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:         .................[sgd].............................
  Dominique Mayo, Associate

Date of Hearing  17 March 2011
Date of Decision  11 April 2011
Applicant  Self-represented
Respondent  Repatriation Commission