Watkins and Repatriation Commission
[2005] AATA 792
•19 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 792
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/306
VETERANS’ APPEALS DIVISION
Re: BARRY MAURICE WATKINS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 19 August 2005
Place: Melbourne
Decision:The Tribunal varies the decision under review to reflect the respondent’s concession that the applicant’s epicondylitis of the right elbow is war‑caused in accordance with s 9 of the Veterans’ Entitlements Act 1986. In all other respects the decision under review is affirmed.
The matter is referred to the Repatriation Commission for the assessment of the appropriate rate of pension.
(sgd) E. A. Shanahan
Member
VETERANS’ AFFAIRS ‑ operational service – depression and alcohol abuse – psychosocial stressors whether present or not – vulnerable individual – satisfaction of Statement of Principles – post‑service stressors.
Veterans’ Entitlements Act 1986 s120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Stonehouse and Repatriation Commission [2004] AATA 707
Re Trigge and Repatriation Commission [2004] AATA 1114
White v Repatriation Commission (2004) 39 AAR 67Re Jenkin and Repatriation Commission (1997) 47 ALD 721
REASONS FOR DECISION
19 August 2005 Miss E.A. Shanahan, Member
1. This is an application by Mr B. Watkins for review of two decisions of a delegate of the Repatriation Commission: dated 22 May 2003, regarding damage to the right elbow; and dated 29 May 2003, regarding the claim for depressive disorder and alcohol abuse. Both decisions were affirmed by the Veterans’ Review Board (the VRB) on 11 February 2004. The VRB found that the applicant’s pilonidal sinus, epicondylitis of the right elbow, depressive disorder and alcohol abuse were not war‑caused in accordance with s 9 of the Veterans’ Entitlements Act 1986 (the Act). The applicant sought review of these decisions by the Administrative Appeals Tribunal on 4 March 2004, but did not pursue the claim for pilonidal sinus. The applicant currently receives a disability pension at 20 per cent of the General Rate for the accepted conditions of bilateral sensorineural hearing loss and chondromalacia patellae of the right knee. He also receives treatment for a depressive disorder, without acceptance of liability for this being war‑caused. At the commencement of the hearing of this matter the respondent accepted liability for Mr Watkins’ right elbow epicondylitis. This condition will not be considered further in this decision.
2. Mr Watkins was represented by Mr A. Larkin of counsel, instructed by Williams Winter Solicitors and the respondent by Mr K. Herman, an advocate for the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents) and the parties tendered the following documentation:
Statement of Mr Watkins dated 25 February 2004 Exhibit A1
A photograph of the Derwent’s Spotlight Exhibit A2
Report of Dr M. Epstein dated 24 August 2004 Exhibit A3
T‑documents Exhibit R1
Transcript of VRB hearing of 11 February 2004 Exhibit R2
Report of Captain J.C. MacDonald dated 28 October 2004 Exhibit R3Report of Captain MacDonald dated 25 January 2005,
with attachments including statement of Commander Ward Exhibit R4
Report of Dr N. Strauss dated 15 November 2004 Exhibit R5
Supplementary Report of Dr Strauss dated 12 January 2005 Exhibit R6
Department of Defence Psychological Records Exhibit R7
Department of Defence Service Details of applicant Exhibit R8Map of the area of deployment of the Derwent supplied
by Captain MacDonald Exhibit R9
3. Mr Watkins, Mrs E. A. Watkins, Dr M. Epstein, Ms J. Watkins, Commander M. Ward, Captain MacDonald and Dr Strauss gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
4. Mr Watkins enlisted in the Royal Australian Navy (the navy) at the age of 15 and served from 10 February 1964 until 9 February 1973. He continued in the Royal Australian Fleet Reserve (the reserve) until 1988 and saw one active deployment in 1981. He had operational service from 17 February 1966 to 30 April 1966, from 26 May 1966 to 13 June 1966, from 8 June 1966 to 5 July 1966 and from 16 July 1966 until 3 August 1966. All his service was on the HMAS Derwent (the Derwent) in South East Asian waters. The Derwent was deployed during these periods to patrol, intercept and where necessary destroy small vessels suspected of gun running, during the Indonesian confrontation with Malaysia from 1962 to 1966. During his service with the navy Mr Watkins had qualified as an Electrical Mechanic Communications and undertook this role on the Derwent.
5. After his service with the navy Mr Watkins was employed as a train driver and continued in this occupation until he took early retirement and ceased work on 18 May 2001. During his employment as a train driver he was involved in two fatalities involving the train he was driving; and witnessed several other similar incidents, including deaths and having his train fired upon and pelted with rocks.
6. The evidence before the Tribunal indicates that at the time of his enlistment, Mr Watkins was an immature school boy who came from a background where his father was a dominant figure, very religious and did not tolerate activities such as smoking and consumption of alcohol.
7. Mr Watkins claims that as a result of the two severe psychosocial stressors experienced during his operational service he has developed chronic depression and alcohol abuse. The two psychosocial stressors that he relies upon are incidents which will be termed “the spotlight incident” and “the ashes incident”.
8. The spotlight incident involves his deputation to man a 20 inch spotlight used to illuminate suspect vessels and the fear he developed in anticipation that the spotlight could be fired upon from a vessel that they were to intercept.
9. The ashes incident relates to his role in assisting the unloading of an intercepted vessel and passing an urn up a rope ladder to the Derwent, during which time the urn discharged some of its contents. He was later told these contents were the ashes of the intercepted ship captain’s wife and relatives. Mr Watkins dates his symptoms of depression from the end of 1966.
EVIDENCE BEFORE THE TRIBUNAL
Mr Watkins
10. Mr Watkins confirmed his statement of 25 February 2004 as to the dates of his operational service and the two stressors which he believed contributed to his psychiatric illness. He had also declared in his statement that he had been involved in two incidents as a train driver in which people were hit and killed by his train. In his evidence he confirmed that the various psychiatric reports were accurate in their description of his upbringing and teenage years and his isolation from other naval personnel during his period on the Derwent.
11. Mr Watkins stated that following the installation of a large spotlight on the Derwent, he had been nominated by the chief electrician to operate this spotlight. This delegation occurred some ten days before the spotlight was first used and during that period he became what he described as “petrified”, anticipating what might happen during his operation of the spotlight. He felt unable to discuss his fears with his superiors as the divisional system necessitated that he consult the chief electrician who was the person who had assigned him the task of manning the spotlight. Mr Watkins also described the ashes incident wherein the contents of an urn discharged over his head and neck while he was assisting in unloading the contents of an intercepted vessel on to the Derwent. He said that he later found out that the contents were the ashes of the wife of the captain of the vessel.
12. Mr Watkins said that he had joined the reserve in order to attract the benefits of the Defence Force Retirement Benefit Fund. During his 15 years in the reserve, he had participated in a four week operation in 1981, two weeks of which were spent on re‑training. .
13. Mr Watkins had joined the National Railways (the railways) as a train driver on completion of his service and found this isolated occupation beneficial. Following service he socialised infrequently and developed a routine of completing his work following which he would have a few beers and go to bed.
14. Mr Watkins agreed he had commenced drinking after his service on the Derwent, initially because this was the only cold beverage available. His intake gradually increased until he was drinking the allotted ration of one large bottle or two stubbies per day. Following his operational service, he relocated to Victoria and his alcohol consumption increased to four or six stubbies per day. He continued to drink while working for the railways; but was careful not to drink before he was on duty.
15. In answer to Mr Herman’s questions, Mr Watkins agreed that he felt very isolated during his service, was not popular and was ignored by his crew mates. He also explained that the beer was colder than the soft drinks because of the refrigeration arrangements on board the Derwent. Mr Watkins had hoped that his drinking of beer would have altered the attitude of his ship mates, but this did not eventuate. While on leave in various ports he did not socialise and went off by himself to hotels and drank alone. Since his retirement Mr Watkins has brewed his own beer to minimise costs.
16. Mr Herman referred Mr Watkins to the “spotlight incident” in some detail. He confirmed that there was only one episode where he was involved in using the twenty inch spotlight and that this incident was totally uneventful. He stated that after ten minutes he felt a great sigh of relief. Mr Watkins also confirmed that this particular spotlight could only be operated up to a distance of 200 metres from the ship but agreed that this may have been 300 to 400 metres. During his period of operational service the Derwent had not intercepted any gun runners and most of the vessels they had dealt with on patrol were fishing vessels or cigarette smugglers.
17. Mr Herman cross‑examined Mr Watkins at some length regarding the size, shape and contents of the urn taken on board the Derwent. This was based on the evidence of Commander Ward, who had reported that he was the person that transferred the urn on to the Derwent. Mr Watkins stated that he had placed his hand around the urn (he could not recall if it was stoppered), and while lifting it some of the contents of the jar fell over him and that some of these contents which he described as “sand like” fell into his mouth. The applicant also said that he did not know that the urn contained ashes until he saw Commander Ward’s report (transcript page 30, line 19). However, at the time of the incident someone had said to him “that’s the captain’s missus you’ve just got all over you” (transcript page 30, line 25). His immediate reaction to that statement was to wonder what the captain’s wife had died from and whether or not it was contagious.
18. Mr Watkins agreed that he had been involved in accidents while a train driver and had also suffered financial loss on the stock market after the events of September 11th 2001.
19. Mr Watkins agreed that while in the reserve in March and April 1981 (Exhibit R8) he had settled in well and rapidly and had been a constructive member of the crew. He attributed his performance to the fact that he was deployed at the same time as other naval personnel that he had served with previously.
20. Mr Watkins stated that he continued to drive a train on the tourist railway at the Mornington Peninsula for the first three Sundays of the month and on Easter Sunday, in a voluntary capacity. However, this railway has not operated since October 2004 because of the cost of public liability insurance. Mr Watkins described his hobbies, apart from his volunteer on the tourist railway line, as operating a hand radio and using his computer.
21. The Tribunal asked Mr Watkins to detail his beer drinking more accurately. He confirmed that during his active service he would be drinking one large bottle or two cans of beer per day; that being the normal naval issue. His alcohol consumption had escalated so that just prior to his discharge from the navy he was drinking three large bottles a day. He had maintained that level of alcohol intake when he commenced working with the railways, and estimated that he would have consumed two to three large bottles per day, four to five days per week. Mr Watkins agreed that it is current railway practice to perform an alcohol blood test on drivers after they are involved in an accident, but said this was not the case when he was driving trains. Likewise, the counselling after an accident was a recently introduced policy. While Mr Watkins did not have total and permanent disability insurance with the railway company he worked for, he does receive a part pension from the Victorian state superannuation system. The Tribunal’s questions led Mr Herman to further ascertain when Mr Watkins started to drink three large bottles of beer per day; and he confirmed that this was when he was posted to the Diamantina on 31 January 1972.
Mrs E. A. Watkins (Applicant’s Wife)
22. Mrs Watkins first met her husband in 1965 and they married in 1967. While he was overseas with the navy he would write to her on a daily basis. From these letters she had deduced that he was not happy in the service and was probably under a lot of stress. He felt ostracized a lot of the time. Mrs Watkins confirmed that her husband drinks every night and has done so for many years. They rarely socialised and he avoided crowds and had only recently, in the past three or four years, commenced accompanying her to do the shopping. Their social activities had also been restricted by the fact that for the past nine years Mr and Mrs Watkins had cared for his father, until the time of his death in 2004. Mrs Watkins believed that her husband drank in order to relax.
Dr M. Epstein
23. Dr Epstein had provided a report dated 24 August 2004 (Exhibit A3) in which he had noted that Mr Watkins had suffered an emotionally deprived childhood as his father was a strict disciplinarian. He noted that Mr Watkins had been bullied and teased at school for being overweight, and that after joining the navy he was unhappy, friendless and felt isolated from the ship’s company. Dr Epstein had described the two claimed psychosocial stressor episodes and Mr Watkins’ commencement of drinking of beer in 1966. Dr Epstein had also obtained the history of fatalities, injuries and near misses while Mr Watkins was employed as a train driver. Dr Epstein recorded that there was a family history of Parkinson’s disease and Huntington’s chorea, which caused Mr Watkins to worry for much of his life that he had inherited the degenerative brain disease. Dr Epstein had diagnosed chronic depressive disorder and stated that Mr Watkins uses alcohol as a form of self‑medication, but not to a level that he suffers from alcohol abuse or dependence. Dr Epstein attributed Mr Watkins’ depressive disorder to the events of his operational naval service. He calculated Mr Watkins’ impairment to be 25 per cent.
24. In his evidence before the Tribunal Dr Epstein adopted his report as true and correct in all respects. In cross‑examination Dr Epstein was of the opinion that the episode involving the ashes did not constitute a severe psychosocial stressor. In contrast he believed that the spotlight incident was a severe psychosocial stressor.
25. In re‑examination by Mr Larkin Dr Epstein agreed that at the time of his enlistment and service in South East Asia, Mr Watkins was a young and vulnerable man, his vulnerability reflecting his upbringing and that his depression had been aggravated by experiences while working for the railways.
Ms J. L. Watkins (Applicant’s daughter)
26. Ms Watkins identified herself as a psychologist who works with the Department of Defence and as the daughter of the applicant. Ms Watkins said that since her father had started to see a counsellor through the Vietnam Veterans’ Counselling Service he had become interested in the tourist railway on the Mornington Peninsula, and had made a positive attempt to see and discuss his problems with both his local general practitioner and his treating psychiatrist. However, when he started his applications for an increase in his veterans’ affairs disability pension he had become more stressed and his drinking increased. Ms Watkins confirmed that her father had always lived an isolated lifestyle, did not go to restaurants or attend public functions and became more outgoing under the influence of alcohol. In answer to Mr Herman’s questioning Ms Watkins said that her father was very reliant on her mother, herself and her younger sister.
Commander M. Ward (by telephone)
27. Commander Ward provided a statement dated 9 January 2005 to Captain MacDonald which is an attachment to Captain Macdonald’s report dated 25 January 2005 on behalf of WriteWay Research Services Pty Ltd (Exhibit R4). Commander Ward stated that he “was the executive officer, second in command and responsible for the fighting of the ship and the preparation of everything” in 1966. In his evidence in chief he outlined the role of the Derwent as a command vessel, in gathering intelligence, patrolling and intercepting vessels suspected of smuggling guns. Commander Ward gave evidence regarding the spotlights installed and used on the Derwent. The spot lights were used to illuminate craft approached by the Derwent; and the particular spotlight manned on one occasion by Mr Watkins would have been used at a range of approximately 200 metres from a vessel.
28. Commander Ward did recall, despite the 40 year lapse, the episode with the Chinese ship Carrina that was boarded by the Derwent in 1966. He recalled the episode where an urn containing ashes overturned and the ashes “descended upon people down in the boat” (transcript page 64, lines 14‑15). Commander Ward described the urn as being 18 inches in diameter and 2 feet in height, with a neck 4 inches in diameter. He had been entrusted with moving the urn from the boarding vessel onto the Derwent. Commander Ward could not recall whether he had carried the urn or a sailor such as Mr Watkins had been given this task.
29. Mr Larkin described the ashes incident as an unhappy one and sought Commander Ward’s opinion on this statement. Commander Ward agreed that “it was unhappy from some points of view but it was also humorous” (transcript page 66, lines 6‑7). The boarding vessel had been greeted on their return to the HMAS Derwent by singing and a makeshift band which greeted them as “lacockraoches” as the boarding crew were covered in cockroaches that had infested them during their search of the Carrina. Commander Ward supported the suggestion that Mr Watkins had been involved in the unloading of the urn, even though he could not recall the exact details of the event.
Captain J. C. MacDonald
30. Captain MacDonald had provided two reports in his capacity as a researcher for Writeway Research Services Pty Ltd (Exhibits R3 and R4). Captain MacDonald had been a Lieutenant on the HMAS Gull, patrolling similar areas to the Derwent in 1966. Captain MacDonald outlined the activities of the Derwent in intercepting craft at night and the use of spotlights on the Derwent. He also explained the system of watches on board both vessels and the system of raising complaints and receiving counselling within the service at that time. Captain MacDonald said that the number of boardings were usually few and, at a maximum, three per night. In fact the Derwent had only ever intercepted cigarette smugglers from the Philippines. In his experience Captain MacDonald said one of the major problem was maintaining “motivation and avoiding boredom because although it was a threat scenario to a degree, it was very tiring and very boring” (transcript page 75, lines 6‑9).
Dr N. H. Strauss
31. Dr Strauss had provided two reports dated 12 January 2005 (Exhibit R6) and 15 November 2004 (Exhibit R5). Dr Strauss had diagnosed Mr Watkins as suffering from a depressive disorder and symptoms of substance abuse in the form of alcohol. He felt both conditions were justified as separate diagnoses, although the alcohol abuse was linked to the depressive disorder. Dr Strauss believed that Mr Watkins was a vulnerable individual before he joined the navy because of his upbringing and his consequent inability to mix with people. During his naval service he had never really fitted in with his colleagues and this caused a level of distress which had been added to by the spotlight incident.
32. In relation to the spotlight incident Dr Strauss said “…he was fearful of being put into that position so there was a lot of apprehension and on the one occasion when it did cause him concern …nothing untoward occurred except that he was very frightened. He was never shot at. He was never involved in any actual military confrontation in that role but it was frightening for him” (transcript page 79, lines 21‑26).
33. Dr Strauss considered Mr Watkins’ alcohol abuse as due to multiple factors. “I certainly think that he has used alcohol as a crutch and as a way of coping with his underlying depression and sense of inadequacy over the years and the various things that have happened to him. The times he had in the navy, which he didn’t enjoy and also particularly the times he had as a railway man” (transcript page 80, lines 18‑22).
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Department of Defence Psychological Records
34. Mr Watkins was assessed prior to his entry into the navy on 12 February 1964, at which time he was 17½ years old. He had previously applied for an army apprenticeship but had not been successful. At the time of the assessment Mr Watkins expressed some doubts about entering service although the assessing officer felt he was acceptable at that time. Mr Watkins was described at the time as “a fat, overweight boy, round face, big eyes. Is still at school – in some ways still acts like a school boy. However nothing against him. Keen to get into FAA but told him his chances are very slim. Told him he would have good chance for L13 ‑ in fact he may be a little too immature to take as yet – although I’d be prepared to take a risk with him and think he will settle in OK.”
City Occupational Health Service
35. The City Occupational Health Service provided medical reports required by Mr Watkins in his role as a volunteer train driver on the Mornington Peninsula tourist train. These reports were made on 8 June 1999 and 5 July 2000. In both these reports Mr Watkins was required to complete a questionnaire, and in both he admitted to high blood pressure, mild deafness, osteoarthrosis of the right knee and the need to wear glasses. In both cases he denied any anxiety, stress reaction, depression, nervous or mental condition.
Reports from Treating General Practitioners
36. Several reports were received from various clinics which Mr Watkins had attended and in general these indicate consultations for minor incapacities and treatment of his blood pressure. On 7 June 1984 Dr O.K. Chan records that the applicant had been involved in a rail fatality and was diagnosed as suffering from “shock and nervous tension”. He was given 10 days of sick leave and prescribed Murelax.
Report of Dr B. Holwill (Psychiatrist)
37. Dr Holwill assessed Mr Watkins on behalf of the Department of Veterans’ Affairs on 12 May 2003 (T10, page 58). Dr Holwill made a diagnosis of moderately severe depression with some elements of post traumatic stress disorder, the latter being insufficient to make that formal diagnosis. The depression had commenced in association with his navy service, which at times had been stressful. The principle etiological agent of his depression was his social isolation within the navy which was largely attributable to his personality construct. Dr Holwill was also of the opinion that his depression had been contributed to by the stressful nature of Mr Watkins’ employment as a railway train driver. Dr Holwill stated that Mr Watkins suffered from chronic substance abuse in the form of alcohol intake, again contributed to by his naval service, but also to his employment in the railways.
Report of Dr J. Cronin (Psychiatrist)
38. Dr Cronin had assessed Mr Watkins on behalf of his Returned and Services League of Australia advocate and saw Mr Watkins on five occasions between 17 July 2003 and 25 September 2003 upon referral from Mr Watkins treating general practitioner. In his report dated 8 December 2003 (T15, page 71) Dr Cronin noted Mr Watkins’ difficult upbringing, vulnerability and social ostracism within the navy. He identified the two traumatic events claimed to be psychosocial stressors. Dr Cronin diagnosed post traumatic stress disorder, major depression and alcohol abuse. He attributed these conditions to the two severe stressors and numerous lesser stressors while serving upon the Derwent. In his opinion all conditions had been exacerbated by further traumas during later employment.
LEGISLATION
39. The relevant legislation is provided by the Veterans’ Entitlements Act 1986 and in particular ss 120(1), (3) and s 120A. These sections state:
120(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.
…
(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.
…
120A(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;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(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 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(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 196B(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.
40. In addition, the Repatriation Medical Authority has provided Statements of Principles which are binding upon the decision‑maker (Re Jenkin and Repatriation Commission (1997) 47 ALD 721).
41. The relevant Statements of Principles are Instrument N°58 of 1998 concerning depressive disorder and Instrument N°76 of 1998 concerning psychoactive substance abuse or dependence.
SUBMISSIONS
The Applicant
42. Mr Larkin submitted that Mr Watkins’ depressive disorder and alcohol abuse had their origins in his period of operational service from 17 February 1966 to 3 August 1966. The applicant’s austere and stern upbringing rendered him more vulnerable to the incidents experienced in his naval service. In general he had a gloomy outlook with respect to any challenges he might face. This is demonstrated by his concern that the ashes to which he was exposed may contain a contaminant leading to ill‑health. It was submitted that Mr Watkins should never have been admitted to service as, by virtue of his education, background and psychological make‑up, he was ill‑suited to the demands of naval life. In the service he was isolated and lonely and had difficulty accessing help in relation to his anxieties. In this setting his delegation to man the spotlight created anxiety in anticipation of what might eventuate, despite the fact that it did not do so.
43. Mr Larkin submitted that Mr Watkins had commenced drinking in response to the two stressors to which he had been exposed, but also in an effort to fit in with the naval milieu. His background and home life were strongly opposed to his alcohol use and he did not drink prior to his enlistment. His excessive alcohol intake continued while he worked as a train driver. Mr Larkin acknowledged the contribution of the number of incidents experienced as a train driver, including the two fatalities, but submitted these were contributory events or aggravating events as opposed to causative events.
44. On the balance of probabilities, the reporting psychiatrists agree that Mr Watkins suffers from a depressive disorder related to his naval service and also alcohol abuse, secondary to his depressive disorder, but now a separate diagnosable condition. The applicant relied on factor 5(b) of Instrument N°58 of 1998 concerning depressive disorder, i.e. experiencing a severe psychosocial stressor or stressors within the two years before the clinical onset of depressive disorder. Mr Larkin addressed the concept of severe psychosocial stressor and submitted there were two identifiable occurrences namely the spotlight incident and the ashes incident. While some people might consider these events as minor, Mr Larkin submitted that given his vulnerable background, the magnitude of the events was far more severe for the applicant.
45. For the first time Mr Larkin raised the possibility of a third psychosocial stressor in the form of the applicant’s entire operational service which resulted in alienation, the isolation and the bullying or being ostracised on the close confines of the ship and the complete inability to be able to sort of turn anywhere to either strike up friends outside the confines, because you can’t go anywhere, or alternatively to speak to somebody within the organisation (transcript, page 92, lines 29‑33).
46. With respect to the alcohol abuse Mr Larkin submitted that while the psychiatric evidence was at variance in that Dr Holwilll and Dr Strauss believed the applicant suffered from alcohol abuse and Dr Epstein did not, on the balance of probabilities the applicant did suffer alcohol abuse and that was linked to his war service, as he was suffering from a depressive disorder arising from his operational service. All the evidence indicates that he commenced drinking in 1966 and continued to do so thereafter. If factor 5(b) of Instrument N° 58 of 1998 was not made out, Mr Larkin submitted that factor 5(a) of Instrument N°76 of 1998 was “made out” (transcript page 94, lines 19‑20).
The Respondent
47. The respondent submitted that Mr Watkins’ claim failed at step four of the Deledio process (Repatriation Commission v Deledio (1998) 83 FCR 82). The respondent acknowledged Mr Watkins’ stern upbringing and suggested that he was a boy physically and psychologically unsuited to a career in the navy. While the respondent accepted that Mr Watkins does suffer from a depressive disorder, it submitted that the spotlight incident and the ashes incident did not meet the requirements of the definition of a severe psychosocial stressor. Indeed there are no objective accounts, in the case of the spotlight incident, to meet the requirements set out in White v Repatriation Commission (2004) 39 AAR 67, despite there being a subjective response to this incident. The respondent’s submission was supported by the evidence of Dr Strauss that the fear of possible exposure to danger does not constitute a severe psychosocial stressor. The respondent concluded that there was no evidence before the Tribunal that Mr Watkins’ response to his navy experience included intense fear, helplessness or horror. In addition, there have been multiple incidents relating to family affairs, the death of his brother in a motor car accident and an attempted sexual assault on the applicant, financial losses in 2001 and 2002 and family health problems, as well as his experiences as a train driver, which would have, according to the psychiatrists, contributed to the development of Mr Watkins’ chronic depression.
TRIBUNAL’S DELIBERATIONS
48. The Tribunal is satisfied that Mr Watkins suffers from moderate chronic depression and associated alcohol abuse in the form of self‑medication (Fogarty v Repatriation Commission [2003] FCAFC 136). While Dr Holwill and Dr Chronin have diagnosed a separate, and therefore by definition unrelated, state of alcohol abuse, the evidence does not support this delineation and the Tribunal therefore accepts the opinion of Dr Strauss.
49. The Tribunal is guided by the decision of the Full Federal Court in Deledio as to the steps it must take in reaching its decision:
1. 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.
2. 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.
3. 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.
4. 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.
50. It is clear that a hypothesis has been raised that the applicant’s chronic depressive disorder and alcohol abuse or excessive intake amounting to self‑medication can be related to his operational service in the navy.
51. The Tribunal is then directed to consider whether there is a SoP relating to the claim in force. The parties and the Tribunal agreed that the relevant SoPs are Instrument N° 76 of 1998 relating to psychoactive substance abuse or dependence, and Instrument N° 58 of 1998 concerning depressive disorder.
52. Step three of Deledio requires the Tribunal to consider whether the facts as presented fit the template provided in the SoP.
53. With respect to the depressive disorder the applicant has relied on factor 5(b) of Instrument N° 58 of 1998 which provides that:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder…
…
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
54. The two incidents which the applicant relies upon are the spotlight incident and the ashes incident.
55. The evidence before the Tribunal relating to the spotlight incident indicates that there was no objective event but merely the applicant’s anticipation that such an event could occur. As such the Tribunal finds there is no evidence of a severe psychosocial stressor in relation to this incident.
56. In respect of the ashes incident, the Tribunal finds that this does not meet the definition of a severe psychosocial stressor, in that the applicant was unaware for some time that the urn contained ashes of a deceased person. In his evidence before the Tribunal Mr Watkins stated he only became aware of the nature of the urn’s contents when he read Commander Ward’s statement of 9 January 2005, although he had previously had some suggestion that the urn might have contained the ashes of a deceased person. The Tribunal notes the consideration of the term severe psychosocial stressor as reported in ReStonehouse and Repatriation Commission [2004] AATA 707). The Tribunal finds that there being no evidence of a severe psychosocial stressor, step three of Deledio is not satisfied. The Tribunal also notes the events after Mr Watkins’ naval service that might be more readily classified as severe psychosocial stressors.
Alcohol Abuse
57. The applicant claimed that his alcohol abuse is, alternatively, secondary to his depressive disorder; or is a stand alone condition consequent upon experiencing a severe stressor within two years immediately before the clinical onset of alcohol abuse (factor 5(b) of Instrument N° 76 of 1998); which attracts a lesser definition of experiencing a severe stressor to the extent that the event or events might evoke intense fear, helplessness or horror (emphasis added).
58. The Tribunal has already determined that neither of the events relied upon by Mr Watkins constitute a severe psychosocial stressor and as a result his depressive disorder is not related to his operational service.
59. In Re Trigge and Repatriation Commission [2004] AATA 1114 the Tribunal considered the effect of a sub‑hypothesis, when the major hypothesis has been found not to be reasonable. Senior Member McCabe said, at paragraph 46:
…An injury or illness that is not war-caused cannot be relied upon to fulfil a factor in another SoP to make another condition war-caused. Where one hypothesis (here, that alcohol abuse is war-caused) includes one or more sub-hypotheses (here, that PTSD or anxiety disorder or depressive disorder is war-caused) the sub-hypotheses must be reasonable for the hypothesis to be reasonable. “A complex hypothesis…can be no stronger than each of its elements or parts”: McKenna v Repatriation Commission [1999] FCA 323, per Branson, Sundberg and Kenny JJ. Here, we have already established the sub-hypotheses are not reasonable.
60. The Tribunal finds that the applicant’s alcohol abuse is not war‑caused. The Tribunal also notes that Mr Watkins stated he commenced drinking beer during his operational service as it was the only regularly cold drink available on the Derwent.
61. With respect to Mr Watkins’ reliance on factor 5(b) of Instrument N° 76 of 1998, of experiencing a severe stressor within two years immediately before the clinical onset of alcohol abuse, and the lesser test in the definition of experiencing a severe stressor to the effect that events might evoke intense fear, helplessness or horror, the Tribunal finds these definitions are not satisfied by either the spotlight incident or the ashes incident.
62. The Tribunal affirms the decision under review that Mr Watkins’ depressive disorder and alcohol abuse are not war‑caused.
I certify that the sixty‑two [62] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
ClerkDates of Hearing: 18‑19 May 2005
Date of Decision: 19 August 2005
Council for the applicant: Mr A. Larkin
Solicitor for the applicant: Williams Winter SolicitorsAdvocate for the respondent: Mr K. Herman
Solicitor for the respondent: Department of Veterans’ Affairs
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