Todd and Repatriation Commission - [2002] AATA 658

DECISION AND REASONS FOR DECISION [2002] AATA 658

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/43

VETERANS' APPEALS DIVISION          )
           Re      GORDON TODD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date6 August 2002
PlaceBrisbane

Decision      The Tribunal decides that the decision of the Veterans' Review Board dated 28 June 2000 is affirmed.
   ....(Sgd) K L Beddoe....
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Veterans' Entitlements – whether applicant suffered a severe stressor - whether applicant's PTSD & alcohol abuse were war-caused

REASONS FOR DECISION

6 August 2002 Mr K L Beddoe (Senior Member)

The respondent refused a claim for nerves, stress and anxiety on the basis that the diagnosis could not be confirmed. The Veterans' Review Board found a diagnosis of post traumatic stress disorder ("PTSD") and alcohol abuse but found there was not a reasonable hypothesis connecting those diagnosed conditions with the applicant's operational service.
At the hearing the issues were confined in effect to whether the applicant had suffered a stressor which came within the terms of the relevant statement of principles.
The applicant's case was conducted by Mr Honchin of counsel and Mr Stoner represented the respondent. Oral evidence was given by the applicant. Documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents tendered were marked as exhibits.
The applicant, who was born on 29 August 1946, served in the Royal Australian Navy from 14 January 1966 to 13 January 1975. In early 1966 while serving on HMAS Anzac the applicant experienced escort of HMAS Sydney to South Vietnam but only as far as the Malacca Straits. His experience of service in South Vietnam came in 1969 while serving on HMAS Vampire which escorted the Sydney into Vung Tau Harbour on 19 May 1969. The Vampire was in Vung Tau Harbour from daybreak until early evening on the same day.
While in Vung Tau Harbour the applicant was on a four hours watch in the boiler room. During the course of the watch the ship dropped scare charges as seems to have been standard practice for Australian Navy ships at anchor in the harbour. One explosion was louder than the others and caused the applicant to attempt to go on deck until he was stopped by a petty officer. He says he envisioned the side of the ship's hull caving in so that he would become trapped by water in the boiler room. During the time in the harbour the applicant witnessed firing by aircraft in the distance and upper deck sentries on Vampire firing on suspicious objects in the harbour.
The applicant also served on HMAS Sydney which left Sydney for South Vietnam on 14 February 1972 and returned to Townsville on 9 March 1972. The Sydney was at anchor in Vung Tau Harbour on 28 and 29 February 1972. In his statement (Exhibit A) the applicant describes his time on Sydney…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Todd and Repatriation Commission

Details

AGLC: Todd and Repatriation Commission [2002] AATA 658
Case: [2002] AATA 658
Decision Date: 6 August 2002

CaseChat Overview and Summary

The case between Todd and the Repatriation Commission involved the determination of whether the applicant, a former naval service member, had suffered a severe stressor during his service that could be attributed to his post-traumatic stress disorder (PTSD) and alcohol abuse. The matter was adjudicated in a relevant Australian court, focusing on the applicant's experiences during his naval career, particularly his time in Vietnam and the incident involving HMAS Melbourne and USS Evans. The court had to decide if the applicant's PTSD and alcohol abuse were related to his war service and if there was a severe stressor that could be linked to these conditions.

The legal issues the court had to address included determining whether the applicant's PTSD and alcohol abuse could be considered war-related, and if the stressor he experienced met the criteria for a severe stressor as defined in the relevant statutory instruments. The applicant argued that the unexpected louder explosion in Vung Tau Harbour constituted a severe stressor. The court had to consider the medical evidence and the applicant's personal testimony to ascertain if the explosion met the legal definition of a severe stressor and if it could be linked to the onset of the applicant's PTSD.

The court found that while the applicant experienced significant stress during his naval service, the louder explosion in Vung Tau Harbour did not constitute a severe stressor as defined in the relevant statutory instruments. The court concluded that there was no objective threat to the ship or its crew during the incident. The court accepted that the applicant reacted to the explosion due to his lack of knowledge about the circumstances, rather than any objective danger. Therefore, the court held that the applicant's PTSD and alcohol abuse were not war-caused, and the claim was dismissed.

The final orders of the court confirmed the dismissal of the applicant's claim for war-related PTSD and alcohol abuse, based on the findings that the stressor experienced did not meet the criteria for a severe stressor, and there was no objective threat to the ship or its crew during the incident in question.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his oral evidence the applicant gave evidence about the collision between HMAS Melbourne and USS Evans on 26 June 1969. He said that bodies were taken on board by Vampire and he was horrified by the sight of these bodies but said he did not recall telling Dr Likely that it was his most difficult experience in his naval service. He said that Vampire was part of the Far East Strategic Reserve at the time of the accident but cannot recall the ship's location at the time of the accident.The Medical Evidence Copies of clinical notes by Navy medical officers in document T4 show a history of headaches variously described as tension headaches, headaches and migraine. The history given at the time indicates a history going back to school days. Document T4 includes a report by Dr Stephenson, Community Psychiatrist, dated 22 June 1998 and addressed to the Department of Veterans' Affairs. Dr Stephenson sets out a history which includes the following:"He married in 1970 by which time he had already been in the Navy for a few years. In the early years of their marriage, the main problems arose because of his service commitments; his wife didn't like being left alone and this was particularly difficult when he had to leave her in Sydney in a property owned by a very odd landlady who was a problem drinker. Mr Todd recalls he got stressed at the time that he went on a binge drinking session and ended up briefly in hospital!In later years, there have been problems in the marriage caused by what he describes as his tendency to rant and rave at the children and at wife. He bitterly regrets that it has impaired his relationship with children quite seriously over many years, and he attributes this to chronic anxiety which started during his naval service.During his naval service, including his time in Vietnam and with the Far Eastern Strategies Reserve, he was never actually under fire but he describes chronic stress and pressure which got to him. Much of his work was done in the engine room in charge of machinery; he was aware that it was a highly responsible job and was also aware of the possible drastic consequences of a mistake. The only highly unusual incident he recalls was one when a helicopter, coming down onto his ship, had its rotor fouled by a loose rope, and crashed onto the deck nearly falling on top of him.When the Melbourne incident occurred, he was on a destroyer that went to the rescue. He and his mates were involved in trying to rescue survivors and also retrieving bodies and equipment from the water. He found this very upsetting and was aware that such things have happened before and could happen again.He says he still remembers his naval service almost daily. He has some bad memories and some good ones; he appears to have spent much time worrying about 'doing the right thing', and the possible consequences of a mistake, being aware that that mistake might cause one to be charged with an offence against discipline, but much worse it could just possibly cause something like the Melbourne incident. Being on watch was very stressful for him."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Dr Likely arrives at a more specific hypothesis in that second report because he attributes the cause of PTSD to the first visit to South Vietnam.Consideration It is now beyond argument that the applicant has an accrued right to have this matter considered in the light of the statements of principle in force at the time of the respondent's determination. That is subject to the applicant also having the right to rely on a subsequent statement of principles which may be favourable to the applicant's case. Here the applicant relies on the statements of principle in force at the time of the Commission's determination and the subsequent instruments as follows:(a)Instrument 3 of 1999 as amended by Instrument 54 of 1999 concerning PTSD;(b)Instrument 15 of 1994 as amended by Instrument 225 of 1995 concerning PTSD; and(c)Instrument 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. The applicant says the relevant stressor is the period the HMAS Vampire was in Vung Tau Harbour. While on an objective basis it is unlikely that scare charges would or could sink the Vampire, the unexpected louder explosion caused by shooting from the deck was an event that may come within "experiencing a stressor" as defined in Instrument 15 if 1994. It is not contended that any other events are relevant. While I did not understand the applicant to rely on the expanded meaning in the definition of "experiencing a severe stressor" in Instrument 54 of 1999 the hypothesis does come within that expanded definition. The proposition is that the unexpected louder explosion caused the applicant to abandon his post and attempt to go on deck until ordered back to his post. He says, in effect, he did so because of a perceived fear for his physical integrity thereby denying motives such as curiosity. Dr Likely's hypothesis linking the PTSD to the explosions in Vung Tau Harbour also comes within the terms of Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. Dr Likely says in Exhibit B that there was intense distress on the part of the applicant as a consequence of the explosions around the ship. The hypothesis also accepts that the applicant experienced a stressor prior to the clinical onset of PTSD and the diagnosed condition of PTSD is a psychiatric condition meeting the description in paragraph 2 of the Instrument. Put at its highest, and in particular, the applicant did not understand what had caused the louder than usual explosion and was therefore not to know that the explosion was a deliberate consequence of firing from the Vampire's deck to maintain the security of the ship. On an objective basis there was minimal danger to the Vampire and its crew. The real cause of the applicant's reaction to the explosion was born out of ignorance of the circumstances of the louder than usual explosion and not any objective danger to the ship and crew. I am satisfied, beyond reasonable doubt, there was no objective threat to the Vampire while the ship was at anchor in Vung Tau Harbour. Given this conclusion the definition of "experiencing a stressor" in Instrument 15 of 1994 and Instrument 54 of 1999 ("severe stressor") cannot be satisfied as a question of fact.