Watson and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 408
•20 June 2016
Watson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 408 (20 June 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/0553
Re
Peter Watson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 20 June 2016 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Senior Member P W Taylor SC
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for disability pension – post traumatic stress disorder – depressive disorder – whether disorders were “war caused” – diagnosis of disorders – whether the veteran experienced a life threatening event – “exposure to a traumatic event” – “intense fear, helplessness or horror” – “experiencing a severe stressor” – “experienced, witness or was confronted with” – “confronted with” – Tribunal not satisfied that the Veteran has post traumatic stress disorder – Tribunal not satisfied that the veteran has major depression – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 13, 120, 120A, 196B
CASES
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622
Bull v Repatriation Commission [2001] FCA 1832; (2001) 188 ALR 756; 66 ALD 271; 34 AAR 326;
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536
Deledio v Repatriation Commission (1997) 47 ALD 261
Ellis v Repatriation Commission [2014] FCA 847; (2014) 142 ALD 352
Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122
Forrester v Repatriation Commission [2013] FCA 898
Hunter v Repatriation Commission [2010] FCA 145
McKerlie v Repatriation Commission [2010] FCA 1127
Paddon v Repatriation Commission [2010] FCA 1147
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609
Repatriation Commission v Hill [2002] FCA 192; (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v McKenna (1998) 52 ALD 72
Repatriation Commission v O’Brien (1985) 155 CLR 422
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 12 ALD 798
Repatriation Commission v Warren (2008) 167 FCR 511
Rayson v Repatriation Commission [2012] FCA 648
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 75 ALD 420
SECONDARY MATERIALS
Statement of Principles concerning Depressive Disorder No 27 of 2008
Statement of Principles concerning Depressive Disorder No 83 of 2015
Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008Statement of Principles concerning Posttraumatic Stress Disorder No 82 of 2014
REASONS FOR DECISION
Senior Member P W Taylor SC
20 June 2016
Commander Watson served in the Royal Australian Navy from January 1963 until June 1984. From 1994 until 2001 he was on active reserve. From 2001, until he stopped work at the end of June 2012, he was a full time Naval reservist, working either in the Department of Defence (apparently between 2005 and 2010) or in the Navy.
In 1969 (as a member of the crew of HMAS Vampire) and from March to September or October 1970 (as member of the crew of HMAS Hobart) Commander Watson had periods of operational service. In August 2012 he lodged a disability pension claim for post traumatic stress disorder (“PTSD”). The application stated that he had been diagnosed with PTSD in 2004 and, more recently, in July 2012. It also attributed the condition to his service in Vietnam, “including a number of traumatic incidents”. His more specific claim was expressed in the history recorded in an 11 October 2012 report from his psychiatrist. That report attributed his condition to an incident when he was serving as a petty officer on HMAS Hobart, during its third deployment to Vietnam from 28 March 1970 to 26 September 1970. The incident occurred off the coast of Vietnam (on 24 April 1970) and involved the Hobart ramming and sinking a Vietnamese fishing boat.
The 11 October 2012 psychiatric report recorded that Commander Watson’s diagnosed conditions were PTSD and an associated Major Depression. The Commission, and the Veterans’ Review Board (in its 30 August 2013 decision) accepted that Commander Watson was suffering from those conditions, but nevertheless rejected his pension compensation claim. They were satisfied, beyond reasonable doubt, there was no sufficient ground for determining that Commander Watson’s diagnosed disorders were “war caused” within the meaning of that expression in ss 9, 13 and 120(1) of the Veterans’ Entitlements Act 1986 (the “VE Act”) (ie they did not result from an occurrence during his operational service – VE Act s 9).
THE VRB DECISION – AUGUST 2013
The VRB considered that, on the most favourable view of the available information (ie Commander Watson’s own account of the April 1970 fishing boat incident) he had not himself faced any peril. The VRB’s reasons said that, in those circumstances Commander Watson’s claim did not involve “experiencing a life-threatening event” and therefore did not fall within the Statement of Principles then relevant to PTSD. (The then relevant Statement was No 5 of 2008 – see paragraph 7 below.) The VRB considered that observation of threats to, or more accurately observation of the aftermath of incidents that had involved threats to, other people’s lives did not constitute “experiencing a life threatening event”. The VRB also decided that the same reasoning, and the absence of any other required factor, also precluded Commander Watson’s associated diagnosis of Major Depression from coming within the Statement of Principles relating to depression. (The then relevant statement was (SoP No 27 of 2008 and SoP No 40 of 2010 – see paragraph 7 below). As a result of those findings Commander Watson’s disability pension claim could not succeed.
The VRB decision particularly relied on the decision of the Federal Court in Hunter v Repatriation Commission [2010] FCA 145. The veteran’s claim in Hunter had concerned two service occurrences (night naval patrols and bomb damage to another vessel) and also involved the potential application of one of the PTSD Statements of Principle on which Commander Watson relied (SoP No 5 of 2008 – see paragraph 63 below). The decision proceeded on the (apparently uncontested) basis that the relevant stressor “factor” identified in SoP No 5 of 2008 (“a category 1A stressor”) relevantly required the claimant veteran to have been physically confronted with the postulated actual or threatened, death or injury: see [2010] FCA 145; (2010) 114 ALD 89 at [5] & [22].
The basis for the apparent lack of contest in Hunter about the potential application of SoP No 5 of 2008, and for the VRB’s August 2013 decision, was the view that the “category 1A stressor” definition in SoP No 5 was more specific, and more prescriptive, than the “factor” definition in the predecessor Statement of Principles that it revoked (SoP Nos 3 & 54 of 1999). Those earlier Statements of Principle had described the relevant “factor” only as “experiencing a severe stressor” – rather than “experiencing a life threatening event”. Subsequent to the decision in Hunter, a similar view was also regarded as uncontentious in Paddon v Repatriation Commission [2010] FCA 1147 at [19]. Later the amendments made in January 2014 to SoP no 5 of 2008 (amendments to which no reference was made by the parties at the present hearing) appear to confirm the view taken in Hunter and Paddon.
COMMANDER WATSON’S SUBMISSIONS
Commander Watson relied on three Statements of Principle to characterise as reasonable one or other of the hypothesised connections between his psychiatric conditions and his operational service. Unknown to the parties at the time of the hearing were (i) the amendments referred to in the preceding paragraph, and (ii) a new Statement of Principles that had become effective in July 2015. The four, ultimately material, Statement of Principles were:
(a)Statement of Principles concerning Posttraumatic Stress Disorder No 82 of 2014 (“SoP No 82 of 2014”) – effective from 22 September 2014.
(b)(alternatively) Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008 (“SoP No 5 of 2008”) – effective from 9 January 2008 (including its amendment by SoP No 19 of 2014 in January 2014) until its revocation by SoP No 82.
(c)Statement of Principles concerning Depressive Disorder No 83 of 2015 – effective from 20 July 2015.
(d)(alternatively) Statement of Principles concerning Depressive Disorder No 27 of 2008 (“SoP No 27 of 2008”) – effective from effective from 5 March 2008 (as amended by Statement of Principles concerning Depressive Disorder No 40 of 2010 (“SoP No 40 of 2010”)) until its revocation by SoP No 83 of 2015.
Commander Watson’s primary contention was that his diagnosed condition involved exposure to threatened serious injury – because he had either “directly experienced” the April 1970 collision or “witness(ed) in person the event(s) as it occurred to others”. On either alternative he said his PTSD condition fell within SoP No 82 of 2014.
Commander Watson’s alternative entitlement to rely on SoP No 5 of 2008, despite its initial amendment, and later revocation, after the August 2013 VRB decision was not disputed by the Commission. It is supported by the decisions in Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609; at [42]–[43], [50] & [62]; Repatriation Commission v Keeley (2000) 98 FCR 108. The same reasoning entitles him to rely on any of the other Statements of Principles referred to in paragraph 7 above that are either currently in force, or were in force at the time of the Commission’s decision: Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283 at [19]-[29].
Commander Watson’s alternative contention in relation to SoP No 5 of 2008 (revoked in September 2014) was that his diagnosed condition involved exposure to a “traumatic event” in which he was “confronted with an event or events that involved … a threat to the physical integrity of … others”, and his response had involved “intense fear, helplessness or horror”.
In relation to both the Statements of Principles potentially applicable to his diagnosed PTSD condition, Commander Watson contended that he had indeed “experienced a life threatening event” – that being the apparently relevant “factor” in both Statements of Principle. The argument was that the factor does include an experience that involves merely the observation of peril to others. The argument was developed with the proposition that the distinction made in Hunter (particularly in the passage of the reasons at [2010] FCA 145: [22]) was only between, on the one hand, an experience of actual peril and, on the other, where the experience merely involves apprehended peril. He contends that where there was an occurrence that involved an actual threat to life, the threat did not have to be to his own life.
THE VETERAN’S INJURY OR DISEASE
A veteran’s incapacitating injury or disease, is a primary matter to be established and is to be determined to the decision maker’s reasonable satisfaction: see VE Act s 120(4); Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [54]-[55]; Repatriation Commission v Hill [2002] FCA 192; (2002) 69 ALD 581 at [62]-[63]; Rayson v Repatriation Commission [2012] FCA 648 at [5]. That requirement applies a “balance of probability” standard: Repatriation Commission v Smith (1987) 15 FCR 327 at 335; 74 ALR 537 at 547; 12 ALD 798. It applies, with a possible qualification, whether the injury or disease involves a physical disorder or a mental disorder, such as post traumatic stress disorder or depression: see Rayson at [17]-[24]. The possible qualification arises where the diagnostic criteria for a mental disorder (such as PTSD) depend on the happening of a particular event during a period of the veteran’s operational service. In such a case, it is arguable that any finding about the happening of the event is inextricably linked to the question whether the injury was “war caused”. The argument is that, because of this connection, fact finding in relation to the happening of the event is subject to the principles summarised in the next section of these reasons: see Rayson at [25]-[28]. It is to be noted, however that in McKerlie v Repatriation Commission [2010] FCA 1127 at [19]-[21], the argument was regarded as foreclosed by the existing state of previous decisions of the Full Court of the Federal Court of Australia.
Because of the previously undisputed diagnosis, the VRB’s decision reasons primarily considered whether or not Commander’s Watson’s claimed conditions were “war caused”. However, in the present proceedings, relying on a psychiatric report obtained in June 2014 (long after the VRB decision) the Commission disputed both the PTSD and the Major Depression diagnoses. Because the argument about the resolution of that dispute somewhat blurred the conceptual distinction between issues of diagnosis, and factual considerations relevant to characterisation of the diagnosed condition as “war caused”, I address that dispute after setting out considerations relevant to that latter characterisation.
PRINCIPLES FOR DETERMINING “WAR CAUSED”
There is no presumption that a service person’s incapacitating injury or disease was “war caused”: VE Act s 120(5). But where the postulated cause is an event during a veteran’s “operational service”, the incapacitating condition must be determined to have been “war caused” unless the decision maker is satisfied, beyond reasonable doubt, “that there is no sufficient ground for making that determination”: VE Act s 120(1). A decision maker must be so satisfied if the material relating to a claim “does not raise a reasonable hypothesis connecting (the condition) with the circumstances of the particular service rendered by the person”: VE Act ss 120(3). Since the 1994 amendments to the VE Act, generally speaking, a connecting hypothesis is reasonable only if it is supported by either (i) a Statement of Principles made by the Repatriation Medical Authority or (ii) a relevant determination of the Repatriation Commission: VE Act s 120A(3); Repatriation Commission v Deledio (1998) 83 FCR 82 at 97G. If there is neither such Statement, a refusal by the Authority to make one, nor a determination by the Commission, an hypothesis will not be reasonable if it is: “(i) contrary to proved or known scientific facts; (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous: VE Act s 120A(4); Deledio v Repatriation Commission (1997) 47 ALD 261 at 275; Ellis v Repatriation Commission – [2014] FCA 847; (2014) 142 ALD 352 at [16].
The Repatriation Medical Authority must determine a Statement of Principles where it is of the view there is sound medical-scientific evidence indicating a particular “kind of injury” can be related to (amongst other things) operational service: VE Act s 196B(2)(a). Where a Statement of Principles relates to the possible relationship between a “kind of injury” and operational service, it must set out the minimum “factors” that must exist, and those that must be related to that service, before it can be said that a reasonable connecting hypothesis has been raised: VE Act s 196B(2)(d) & (e). A factor is “related to service” if, amongst other things, it has resulted from a service occurrence, arose out of the person’s service, was materially contributed to by the person’s service, or would not have occurred but for that service: VE Act s 196B(14)(a), (b), (d) & (f).
The VE Act provisions require consideration of four conceptually distinct matters (in practice, they are related – see paragraphs 17, 21 and 22 below) in determining whether a veteran’s incapacitating injury or disease was “war caused”, where the pension eligibility claim involves reliance on an occurrence during operational service: Repatriation Commission v Deledio (1998) 83 FCR 82 at 97E. The first three of those matters are:-
(a)does the claim (ie the totality of the available information, including contentious assertions) give rise to an hypothesis connecting the incapacity with an occurrence during the person’s operational service
(b)does a Statement of Principles apply to the claimant’s kind of incapacitating condition – so as to facilitate (or preclude) satisfaction of the requirement that the hypothesis is reasonable
(c)if there is a Statement of Principles that applies to the kind of incapacitating condition, does the hypothesis contain any of the “factors” that the Statement of Principles stipulates must be related to a claimant’s service.
The answer to the first question requires specificity about the particular hypothesis. Where there is an applicable Statement of Principles, that specificity should refer to its “essential elements”. That is because of the practical assessment involved in “testing the hypothesis” in the third step of the determination: Ellis v Repatriation Commission – [2014] FCA 847; (2014) 142 ALD 352 at [40].
That “testing of a hypothesis” (in the third question) does not involve a determination whether the material actually establishes the factual basis for the hypothesis: see Hunter v Repatriation Commission [2010] FCA 145 at [13]. But if the “test” reveals that the material does not contain at least one of the factors required by an applicable Statement of Principles, the pension claim must fail: Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [57].
If the material does contain a required “factor” then the fourth aspect of the claim assessment arises for determination. That fourth aspect involves a factual enquiry as to whether “one or more of the facts supporting the hypothesis” has been disproved, or contradicted, beyond reasonable doubt. If facts supporting the hypothesis have not been contradicted or disproved beyond reasonable doubt, the claim must be accepted as “war caused”: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 416; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570; Repatriation Commission v Deledio (1998) 83 FCR 82 at 89F.
PRINCIPLES ABOUT THE RAISING OF AN HYPOTHESIS
Conceptually an hypothesis is a supposition. It provides a starting point for the later investigation of the relevant facts and their evaluation: Bull v Repatriation Commission [2001] FCA 1832; (2001) 188 ALR 756; 66 ALD 271; 34 AAR 326; [at [38]]; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425; 109 ALR 30 at 43; 29 ALD 1 at 16.
A veteran claimant’s connection hypothesis necessarily involves description of the relevant incapacity, a factual history relating to their service, and a postulated causal connection between them: Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122 at [49] (“there must be some material which raises the relevant causal hypothesis”). In this sense, in the first of the questions posed (in paragraph 16 above) there is “a factual element particular to the material before the decision-maker about the veteran”: Forrester v Repatriation Commission [2013] FCA 898 at [11]; Woodward v Repatriation Commission (2003) 131 FCR 473 at 493 [110]. Typically the hypothesis will be “advanced” by the claimant, and may derive from details of their evidence. But the decision maker has their own statutory obligation to form an opinion about the material presented, and cannot confine themself merely to matters emphasised by the claimant veteran, in determining whether or not a connecting hypothesis has been raised: Deledio at 96F; Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [48]; Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [69]; Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122 at [38], [47] to [50], [51], [53], [54] & [79]. The hypothesis (whether specifically articulated or merely raised by the available material) addresses facts whose existence and accuracy is “pointed to” by the available material, including matters that are merely asserted, assumed or inferred: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414: Ellis v Repatriation Commission – [2014] FCA 847; (2014) 142 ALD 352 at [15] & [58]-[62].
Subject to one qualification, neither the identification of the connection hypothesis, nor the enquiry whether it is upheld by a Statement of Principles, involves any determination about the actual (as distinct from the asserted) details and events of a veteran’s service, the nature and extent of their incapacity or its cause: see Bushell at 415; Deledio at 97E to 98B; Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536. at [48]. The qualification is that the testing of the hypothesis is also said to involve the need “to identify the disease or injury … and then determine whether there is an SoP which applies to it”: Hunter at [36].
This need to “identify the disease or injury” was described in Repatriation Commission v Warren (2008) 167 FCR 511 as a preliminary (ie “pre Deledio”) determination that the decision maker has to make about the diagnosed condition: see earlier the propositions set out in paragraph 12. The decision maker cannot rely merely upon the asserted clinical diagnosis in determining whether a Statement of Principles applies. Where a postulated Statement of Principles contains a definition of the kind of injury to which it applies, the decision maker must determine whether the condition diagnosed satisfies the definitional criteria in the contentiously relevant Statement of Principles: see Repatriation Commission v Warren (2008) 167 FCR 511 per Lindgren and Bennett JJ at [24], [38], [64] & [85]; contra Logan J at [101] – [108].
THE 24 APRIL 1970 INCIDENT – COMMANDER WATSON’S ACCOUNT
Because of the “factual element particular to the material before the decision-maker” in the first of the determination questions (see paragraphs 16(a) and 21 above), it is necessary to have regard to a claimant’s own account of events postulated to be involved in his war service. In the present matter Commander Watson’s past accounts of his experience of the 24 April 1970 incident have varied (understandably given the passage of time) in relation to some details. However in the present proceedings a version of events was substantially agreed (both as to his recollection and its accuracy). I have taken that agreement into account in setting out my findings about the factual details that accord with Commander Watson’s recollection of events.
(a)At about 0900 he was on his rounds on the Hobart, near the refrigeration space below the main deck, and in the course of moving to the upper deck.
(b)Whilst he was still below deck, he heard cries from the lookouts, and a subsequent collision announcement over the ship’s public address system.
(c)He had not seen any collision. But, at about the same time as the announcement, he did feel the ship go astern, and then stop.
(d)As the ship was coming to a halt, he saw the ship’s sea boat crew going to the upper deck.
(e)Whilst the sea boat was still in the process of being lowered, he moved to the quarter deck.
(f)On the quarter deck he positioned himself about 5 metres from the stern. He saw the ship’s sea boat lowered into the water, and a search party despatched. There was thick fog and visibility was limited to between 50 and 100 metres.
(g)The fog remained heavy whilst the sea boat was away from the ship. He could only see the sea boat searching. He could not see anyone on the sea boat and, (contrary to some accounts he had given before his oral evidence in the present proceedings) he did not see anyone in the water.
(h)The sea boat returned to the ship, after about 30 minutes, with five male survivors from the Vietnamese fishing boat. They were being assisted up the side of the Hobart when he first saw them. One of the survivors was stretchered aboard.
(i)After returning to bring the survivors on board, the sea boat searched the area for a further 15 to 20 minutes. During this second search period the visibility cleared to between 200-300m.
(j)After the five survivors had been brought on board, Commander Watson, from his position on the quarter deck, observed their interaction with other members of the Hobart crew in the mid-ship area of the main deck. They were given food and blankets.
(k)Whilst the five survivors were on board Commander Watson observed, but did not hear, conversations between them and Hobart crew members. In particular, at one stage some of the fishermen appeared to be concerned about something being left behind, and pointed to the sea area from where they had been retrieved.
(l)At one stage Commander Watson observed, and partly heard, an argument between Hobart’s Commander and the apparent captain of the fishing vessel. At some unspecified time after the event, Commander Watson was told the fishing boat captain had been given some money, to compensate for the loss of his boat.
(m)None of the five survivors appeared, to Commander Watson’s observation, to have been injured. After they had been on board Hobart for some time, the five survivors climbed, unaided, down the ship’s ladders into the sea boat and were taken ashore.
(n)The whole incident lasted between 60 and 90 minutes.
After the incident Commander Watson returned to his duties and the ship got underway. Commander Watson said, in the present proceedings, that his personal concern was the possibility, which he variously referred to as a conviction and a belief, that not all those on board the fishing boat had been rescued, and perhaps women or children had been left behind. Later, in the mess on board Hobart, he had discussed the incident with colleagues. His recollection was there had been some agreed criticism that the “rescue had been rushed”, that Hobart’s Commander had been “more concerned at getting on with the war” and had been callous in his treatment of the fishermen. But he gave no evidence that he had then expressed his concern about people being left behind, or that his concern was voiced or shared by others. Indeed his evidence was that the discussion with his mess mates, apparently the same day, was as much as he could remember about the extent of his, and their, concerns. He said that the next day Hobart just went back to business, he resumed his duties, and “no-one spoke about it again”.
Commander Watson’s account of the collision and rescue (as summarised above) was rather brief, and not really very informative about his contemporaneous reaction to the on board treatment of the rescued fishing boat crew. Other accounts he had given, and some parts of his evidence, suggest a more direct observation of the rescued fishermen, and a more florid concern. For example, in a history he gave to Dr Altman in October 2012 he said he had been a witness to the actual collision. In a June 2014 statement he said he had seen survivors in the water clinging to the wreckage. He told Dr Altman in February 2004 (and confirmed in his oral evidence) that “what upset me most” was what he thought was the apparent disregard for the people who had been rescued and brought on board. He said he had felt “bewildered”. At one stage in his cross examination in the present proceedings he claimed he had felt horrified and bewildered, and that he had no control over the situation.
Commander Watson claims he never got over the April 1970 incident. In particular, he continued to harbour a belief that “we left women and children in the water to die”. He says that this belief, and his concern about it, gestated for some years. He said it became prominent in his mind after the “children overboard” incident. (This involved well publicised events, in about October 2001, concerning asylum seekers whose vessel sank after being intercepted by HMAS Adelaide.)
OTHER DETAILS OF THE 24 APRIL 1970 INCIDENT
Hobart’s Captain submitted a formal report on the collision on 29 April 1970. That (comparatively contemporaneous) report, which differs in some respects from Commander Watson’s account, included the following details.
(a)Just prior to the collision the sea was calm. Visibility varied between 300 yards and one mile, with occasional dense patches. Because of the fog Hobart had reduced its speed to about 16 knots.
(b)Hobart’s radar displayed various contacts on the starboard bow. At a time when the closest contact was shown at about 500 yards off the starboard bow, Hobart turned to port. But there was some miscommunication on the bridge and this resulted in a short delay in executing the turn.
(c)During the turn Hobart’s starboard side struck a 35 foot open fishing boat (perhaps one whose presence had not been picked up by Hobart’s radar). Hobart’s bow wave threw the fishing boat and crew sideways. They passed down Hobart’s starboard side. Having been alerted to the collision, Hobart immediately turned to starboard. The fishing boat crew were seen to be in the water, but clear of the Hobart as they passed its stern.
(d)(Contrary to Commander Watson’s recollection – see paragraph 24(c) above.) Hobart did not reverse engines before or after the collision. Reversing the engines would not have avoided the collision, and may have increased the risk of injury to the fishing boat crew that had been thrown into the water.
(e)After the collision Hobart’s sea boat recovered all five of the fishing boat crew. The vessel’s skipper was assisted on board Hobart. He was suffering from shock and immersion. All the fishing boat crew were given blankets and hot soup.
(f)After retrieving the fishing boat crew, and putting them on board Hobart, the ship’s sea boat continued to search the collision area. In the course of doing so it recovered various items of flotsam. Two other local fishing boats also assisted in searching for flotsam.
(g)Whilst the fishing boat crew were on board one of them, who spoke a little English, became concerned about something. It turned out to be about the loss of identity and registration records that had been contained in a canister on board the fishing boat. The canister was retrieved, and the relevant documents photographed and returned to the boat crew. This seemed to reduce the agitation they had previously expressed.
(h)Another local fishing boat was secured alongside Hobart. The various items of flotsam that had been recovered were placed on board that boat. After they had been on board Hobart for about an hour the crew of the boat involved in the collision were escorted to the boat secured alongside Hobart. The rescued crew members boarded the fishing boat unaided, and it was then cast off.
The Hobart Captain’s report expands on some aspects of the material provided by Commander Watson. It establishes, for example, another reason for the agitation Commander Watson observed between the rescued fishermen and the Hobart personnel. It also involves a positive claim that the five rescued people were the only occupants of the fishing vessel.
COMMANDER WATSON’S PERSONAL CIRCUMSTANCES
Because of both the dispute about the diagnosis of his claimed conditions (see paragraphs 12 and 13 above) and the decision maker’s obligation (referred to in paragraph 21) it is necessary to address material aspects of his personal history, in addition to the matters already recorded about his service, and the April 1970 incident.
The first matter is to return to the note in his August 2012 claim form that he was exposed to “a number of traumatic incidents” during his service in Vietnam (see paragraph 2 above). He repeated the substance of that statement in June 2014 examination by Dr Smith (see paragraph 42 below). He also stated that “in 1968” he had a frightening incident in where he was trapped in the boiler room whilst his ship was moving at full speed. (I note that both the recollected time of this incident, and the context in which it is referred to in Dr Smith’s report, suggest it occurred before the period of his service in Vietnam.
At the time of his April 1984 discharge Commander Watson provided a statement stating that he had neither suffered, nor claimed to suffer from, any disabilities related to his service. After leaving the Navy 1984 he worked for 10 years in the banking and insurance history. In 1994 until about 2004 he had intermittent periods of reserve service in the Navy. Then from 2005 until 2010 he worked in the Department of Defence as a manager. From 2010 until June 2012 he again worked in the Navy. Some time around June 2012 , although previously his compulsory retirement age had been extended to 5 October 2013 (when he turned 67), he received a negative work report. He said that he then made it clear that he did not want to continue working because he wasn’t coping. He told Dr Altman (in October 2012, after he had stopped work) that at work he was experiencing changes of mood, lapses of memory and was tending to become uncommunicative. In his August 2012 pension application he stated that he had ceased work because of “emotional difficulties”.
Other, potentially relevant, aspects of Commander Watson’s personal history medical history can be shortly stated, and are summarised below:-
(a)1974:- He stopped smoking
(b)1998:- He was diagnosed with hypertension and started on antihypertensive medication.
(c)1999 – 2000:- He was diagnosed with sleep apnoea and restless legs The diagnostic clinician’s report was that the basis of his sleep apnoea appeared to be his facial structure, his weight (BMI of 30.1) and increasing age
(d)2001 – July:- He commenced medication for his restless legs
(a)2001:- In a comprehensive medical report dated 6 November 2001 Commander Watson stated that he had good general health, apart from migraine headaches, backpain, sleep apnoea (for which he was using a CPAP machine) and a sleep disorder for which he was seeing a specialist. The subsequent medical report was itself essentially unremarkable. It specifically noted that Commander Watson reported “no issues” in relation to stress or mental health.
(b)2003:- (Apparently for a short time) he started using Rivotril for motor restlessness, associated with “restless legs”.
(c)2004:- In February and March 2004 he consulted Dr Altman. (And gave a history about the April 1970 incident: see paragraph 35 below.)
(d)2005:- He was reported to have a history of hypertension and gout, for both of which he was taking prescribed medication.
(e)2010:- He began to experience a bilateral high frequency tinnitus.
(f)2012 – February:- An ADF health care summary relating to Commander Watson, after he had nominated a new general practitioner responsible for his future health care, set out a list of his known health problems. They included sleep apnoea, restless legs, hearing loss and tinnitus. In relation to his hearing loss he was reported to be awaiting the results of an MRI scan. In relation to his tinnitus it was contemplated that he might require a masking device.
(g)2012:- In July 2012 he was seeing a sleep specialist for management of his sleep apnoea and restless legs. The sleep specialist started him on new medication and referred him to Dr Altman. This was, because of the persisting restless leg movements shown in his sleep study, and the sleep specialist’s view that “restless legs were a common feature of PTSD”
(h)2012 – 24 July:- He had an adverse reaction to the new medication his sleep specialist had prescribed for his restless legs. He also returned to see Dr Altman.
(i)2012 – September:- At the time of his consultation with Dr Altman in about September 2012 Commander Watson was taking an antidepressant (20mg Lovan daily).
(j)2014 – July:- Audiometric testing indicated Commander Watson had mild to moderate high frequency sensorineural hearing loss in both ears. The report also noted his reports of tinnitus since 2010.
THE PTSD DIAGNOSIS
In his August 2012 disability pension claim application Commander Watson said that he had been diagnosed with PTSD in both 2004 and in July 2012. He described the symptoms of his PTSD as sleeplessness, restless legs and depression. He said the condition resulted in lack of concentration, impaired memory, impatience and tiredness.
Dr Altman saw Commander Watson first in February 2004 and March 2004, on several occasions between about July and December 2012, twice in 2013 and on four occasions in 2014. Dr Altman’s 11 October 2012 report opined that Commander Watson suffered from chronic Post Traumatic Stress Disorder with an associated Major Depression. Dr Altman’s supplementary report of 11 September 2014, which he provided after being asked to address Dr Smith’s contrary view, referred back to his earlier report as identifying the stressor that he regarded as meeting the diagnostic criteria for PTSD in DSM-IV. Referring to that incident, Dr Altman then described Commander Watson’s response as one of “intense helplessness and horror”. The actual description contained in his 11 October 2012 letter was in the following terms:
The thing that horrified me most was the occasion when we ran over a Vietnamese fishing boat at top speed. We smacked into pieces and it sunk. We got the crew out of the water. I was a witness to all of this – the people would have had to be killed. What upset me most was the apparent disregard for them. We basically got them out of the water, put them in a boat and sent them ashore. It has been on my mind ever since”. He stated that this incident had made him feel “bewildered”. In addition in terms of this incident he stated “I was quite distressed (then), couldn’t focus on my work. The thought that we may have killed someone and done nothing about it – they were innocent fishermen.
Dr Altman had obtained the details in the first part of that passage from information Commander Watson provided at the time of their first consultation in February 2004. The last three sentences reflect details provided in September 2012, and as the passage itself rather tends to suggest, Dr Altman was then under the impression that Commander Watson had actually seen the collision itself. However Dr Altman said that by some time in 2012 (apparently before he provided his October 2012 letter) and certainly before his supplementary report of September 2014, he was aware that was not the case.
Dr Altman’s notes of his February 2004 consultation indicate that Commander Watson had been referred to him by his sleep specialist, and for the purpose of psychiatric assessment in connection with a possible claim under the VE Act. Dr Altman’s notes include, apparently in relation to a possible PTSD diagnosis, include details that
(a)Commander Watson
(i) did not suffer from nightmares
(ii) did not have flashbacks
(iii) was not a loner and hated being alone
(iv) did tend to avoid thoughts and discussions about his Vietnam experiences
(v) did feel somewhat detached, irritable and hypervigilant
(b)Dr Altman would review him in the next consultation.
Dr Altman’s notes of his 2 March 2004 consultation indicate that Commander Watson reported that he had no history of suicidal ideation and no past psychiatric medication. Apparently in connection with a possible diagnosis of depression, Dr Altman’s notes include details that Commander Watson
(c) did have some depressed mood, and difficulty sleeping, but no diurnal mood variation and no loss of appetite
(d) did report some lessening in his concentration, energy, motivation and confidence
(e) did report a loss of enjoyment “to a large extent”
(f) nevertheless, had no suicidal thoughts, was reasonably optimistic about the future, and was looking forward to retirement
(g) did not want to take any anti-depressants
(h) would be reviewed at their next consultation.
There is nothing in this, or any other material produced by Dr Altman, to corroborate Commander Watson’s recollection (in the August 2012 application) that Dr Altman then diagnosed him with PTSD. Indeed, Dr Altman’s notes of the history and symptoms he obtained on that topic are inconsistent with his having made any such diagnosis. And in that regard it is also significant that it was not until 2013 that Commander Watson’s sleep specialist regarded Dr Altman as having confirmed his own suspicions that Commander Watson did have PTSD. (Had such a diagnosis been made in 2004, it is reasonable to infer that it would have been conveyed to the sleep specialist, and there is nothing to indicate that it was.) Similarly, there is nothing to indicate that Dr Altman had diagnosed Commander Watson as suffering from a depressive condition, and certainly not a Major Depressive Disorder, at that time. His notes rather indicate that he was proposing to review Commander Watson in follow up consultations. But none occurred – until July or August 2012.
Dr Altman’s next significant notes deal with his consultation with Commander Watson on 12 September 2012. These added to the 2004 history of the April 1970 incident the details to which I referred in paragraph 36 above. Dr Altman obtained and recorded a number of matters, some of them quite different from, or significantly additional to, matters Commander Watson had previously reported, in his October / November 2001 statement and medical report, the symptoms and effects he had set out in his August 2012 application, and in his previous consultations with Dr Altman. According to Dr Altman’s notes of the September 2012 consultation, Commander Watson:-
(a)since the mid 1970’s, had recurrent monthly nightmares of being swept overboard in dark and stormy conditions, and being fearful for his life
(b)had daily intrusive thoughts about the April 1970 incident
(c)had flashbacks two to three times a year
(d)preferred to avoid thoughts or discussions about of the incident, his experiences in Vietnam, and to avoid reunions likely to involve such recollections
(e)tended to feel depressed if he watched war movies
(f)had feelings of being something of a loner and detached from others
(g)complained of poor concentration, irritability, and sleep disturbance
(h)had an exaggerated startle reaction and hypervigilance, displayed by preferring to sit with his back to a wall (something that he described as a “standing joke in the family”).
The inconsistency in some of the details Dr Altman recorded in his September 2012 consultation notes was sought to be explained, by Commander Watson, on the basis that, in 2004, he had had not wanted to accept a diagnosis of PTSD and simply told Dr Altman the wrong information. I think that explanation is highly unlikely and I do not accept it. The background to the 2004 consultations suggest that Commander Watson had been encouraged by his sleep specialist to consult with Dr Altman. Dr Altman’s notes tend to corroborate that fact. They also show that Commander Watson was giving active consideration to pursuing a claim, and that was the purpose of his consultation. I regard that overall context as tending strongly against the probability that Commander Watson mislead Dr Altman, by concealing potentially important details of his history. I do not accept that he did. It also follows that I do not accept the accuracy of some of the details on which Dr Altman based his PTSD diagnosis. Specifically, I do not accept that Commander Watson has a history of nightmares going back into the 1970’s.
Dr Smith examined Commander Watson on 13 June 2014. Commander Watson told him that he had flashback episodes, and that he experienced sleeplessness, restless legs and depression, sometimes irritable and prone to outbursts of anger. He described his disabilities as including lack of concentration, impatience, memory degradation and tiredness. Dr Smith himself reported that Mr Watson presented as a pleasant and well-groomed man who displayed no overt distress, anxiety agitation, hyperactivity or combativeness. At the time of Dr Smith’s examination, Commander Watson’s emotional expression was appropriate to the apparent contents of his expressed thoughts. and he did not display a depressed affect. His stream of thought was characterised by spontaneous and productive thinking. He was not distractible nor did he reveal language impairments, obsessions, compulsions or phobias. There was no evidence of active suicidal ideation, nor delusion. He was alert and oriented with good concentration and memory. Dr Smith did note that Commander Watson reported his previous symptoms had “partially ameliorated” since he had started taking the antidepressant prescribed by Dr Altman.
Dr Smith opined that based upon the history he had obtained, the documentation reviewed and his own clinical observations he considered that Commander Watson did not satisfy the diagnostic criteria for PTSD according to either DSM-IV or DSM-V. In his view, the events alluded to during Commander Watson’s operational naval service, and in particular the April 1970 collision with the fishing boat (which was the only incident that figured as significant in the history Commander Watson gave) did not satisfy the severe stressor criteria required for a diagnosis of Post-Traumatic Stress Disorder. In particular, although Commander Watson had provided a history indicating that he experienced resentment of the way the Hobart Captain had dealt with the rescued survivors, Commander Watson had not actually been exposed to the traumatic incident itself, he had neither directly experienced or witnessed it – as required by SoP No 82 of 2014. Neither had he experienced the intense fear, helplessness or horror, a key criterion for post-traumatic stress disorder, according to the DSM-IV diagnostic criteria and SoP no 5 of 2008. He thought that the contrary characterisation in Dr Altman’s report was unlikely to be accurate, having regard to the circumstances that (i) the troubled dreams and nightmares Commander Watson had reported did not involve recollections of the April 1970 incident, and (ii) had not (according to Commander Watson) come to the fore until after the 2001 “children overboard” incident.
THE MAJOR DEPRESSION DIAGNOSIS
Dr Altman set out in his 11 October 2012 report his view that Commander Watson presented with a number of significant depressive symptoms indicative of Major Depression. He claimed to have been feeling depressed since Vietnam and that depression has worsened over the years. He also said that Commander Watson had a long history of sleep disturbance, displayed diurnal mood variation, and complained of diminished energy, low libido, impaired concentration, low confidence and motivation. He reported having stopped enjoying most activities and was making big issues out of relatively minor ones. He was pessimistic about the future and occasionally experienced suicidal thoughts.
However, Dr Altman’s brief description of the “number of significant symptoms” made no attempt to correlate them to the diagnostic criteria in SoP no 27 of 2008. In his later report of 11 September 2014, he addressed Dr Smith’s report only in relation to the issue of PTSD, and again did not refer to SoP no 27 of 2008. Indeed, he did not refer to depression at all in that report. (Given the dates of his reports Dr Altman did not address the diagnostic criteria in SoP No 83 of 2015.)
In relation to the diagnosis of depression Dr Smith considered that there was no clinical evidence to satisfy diagnostic criteria for Major Depressive Disorder. In his 19 June 2014, report Dr Smith specifically addressed the diagnostic criteria for Major Depressive Disorder (as set out in SoP no 27 of 2008 cl 3). In so doing, and taking into account the matters referred to in Dr Altman’s report, and Commander Watson’s statement of 11 June 2014, he recorded that Commander Watson had not
(a) reported experiencing a persistently depressed mood throughout the day and nearly every day
(b) experienced markedly diminished interest in or pleasure in his activities
(c) experienced any biological disturbances such as significant weight change
(d) provided significant evidence of psychomotor agitation or retardation, fatigue or loss of energy
(e) reported feelings of worthlessness or excessive or inappropriate guilt
(f) reported significant impairment in his ability to think or concentrate
(g) reported recurrent thoughts of death or suicidal ideation.
Dr Smith thought that any depression like symptoms that Commander Watson had displayed were within the normal range of variance and did not qualify for a specific diagnosis of depressive disorder.
THE CONCURRENT EXPERT EVIDENCE
Dr Altman and Dr Smith gave evidence concurrently. They were both asked to assume that the circumstances of the April 1970 were those agreed between the parties as relevantly reflecting the details of Commander’s Watson’s contemporaneous observations and involvement. Those details (set out in Exhibit 3) are substantially to the same effect as those set out in paragraph 24 above. Both Dr Altman and Dr Smith considered that, on their own, those details did not involve exposure to a “traumatic experience” so as to be capable of sustaining a diagnosis of posttraumatic stress disorder.
However, Dr Altman thought that the diagnosis could be sustained when regard was had to two additional factors. The first was Commander’s Watson’s observation of the survivors’ apparent concern about “something” having been left behind in the sea (see paragraph 24(k) above). The second was Commander Watson’s apprehension that the “something” may have been other people, and that they may have been harmed or even killed. That apprehension sprang from his observations that, on other occasions he had seen women and children on similar fishing boats and, on this occasion only men had been rescued. Dr Altman pointed out that this latter concern was something that Commander Watson had raised on their first consultation in February 2004. Dr Altman disagreed with Dr Smith about the nature and significance of Commander Watson’s reaction to the incident. He was satisfied that Commander Watson had experienced fear at the time, he described his reaction as one of being horrified – because of his concern about the likelihood of other people on board the vessel, the apparent brevity of the sea boat search, his impression of the lack of concern by the Hobart’s Captain and his own powerlessness to affect the situation. Addressing the definitional criteria in SoP No 82 of 2014 cl 3(b)A, Dr Altman thought that Commander Watson‘s exposure to the April 1970 events involved him in both “directly experiencing” them and “in witnessing, in person, the event(s) as it had occurred to others”. In using those expressions, Dr Altman was considering the PTSD definition in SoP no 82 of 2014. Consistent with his view, the circumstances would also have satisfied the differently expressed definition in (the earlier) SoP no 5 of 2008 (which used the alternative expression “was confronted with”).
Dr Smith disagreed with Dr Altman’s opinion, to the point of saying it was one with which he had great difficulty. The basic element of his disagreement was that there had not been a relevant severe stressor. He said that Commander Watson’s history of the incident really involved nothing more than apprehending, after the actual event, that someone may have been hurt. His view was that such a subjective apprehension could not sustain the diagnosis – according to the diagnostic criteria in either SoP no 82 of 2014 or SoP no 5 of 2008. In Dr Smith’s view, that was the end of the matter. It was not necessary, nor even relevant, to address and evaluate other aspects of Commander Watson’s clinical history. Later, in the course of cross examination, Dr Smith agreed that the collision could have resulted in death or injury to the fishing boat occupants, but he adhered to his view that such a prospect did not mean that Commander Watson had himself experienced, witnessed or been confronted with, any trauma of the kind necessary to justify a diagnosis of post traumatic stress disorder.
The critical difference between Drs Altman and Smith is as to whether the April 1970 incident was capable of satisfying the required stressor criterion for a proper diagnosis of PTSD. In that regard, both of the psychiatrists were of the view that the objective circumstances of the collision, including Commander Watson’s own observations of the interaction with the rescued survivors once they were brought on board the Hobart, could not support the diagnosis. The difference between the two doctors was that Dr Altman thought Commander Watson had experienced “intense fear, helplessness or horror” (an expression derived from the relevant definition in SoP no 5 of 2008) as a result of his own subjective apprehensions, and that this constituted exposure to the required stressor. Dr Smith, on the other hand, disagreed both that Commander Watson had experienced any intense fear, helplessness or horror, and that the Commander Watson’s own apprehensions about what might have happened, (but did not) could not satisfy the diagnostic criteria – in either SoP no 5 or SoP no 82.
Commander Watson submitted that the Tribunal should regard the disagreement between Drs Altman and Smith as an “evidentiary equipoise”, with the result that Dr Altman’s view could not be said to have been disproved beyond reasonable doubt. In support of that view reliance was placed on passages in Repatriation Commission v Law (1981) 147 CLR 635 at 651 per Aickin J; and Repatriation Commission v O’Brien (1985) 155 CLR 422 at 440. This submission overlooks the fact that in those cases the relevant dispute was about the connection between the veteran’s diagnosed condition and his service. It was not about the diagnosis of the condition. The issue of diagnosis has to be determined as a first step, and according to reasonable satisfaction: see paragraphs 12 and 23 above.
In resolving the diagnostic differences between the two clinicians in the present matter, the conclusions of Dr Smith are significantly more clearly reasoned that those of Dr Altman. Dr Altman placed primary importance, in his PTSD diagnosis, on the proposition that Commander Watson experienced intense fear, helplessness or horror, at the time of the April 1970 incident. That proposition is inherently unpersuasive – because Commander Watson had played no real part in the events that had occurred, either during the collision or in the subsequent rescue. More significantly, there is no contemporaneous account or record of his complaint or distress. Most significant of all, on his own account, Commander Watson’s disapproval of the circumstances was confined to critical conversations in the mess later that day. The following day he went about his duties, and there was no further discussion about the matter: see paragraph 25.
In addition, there is in my view an unacceptable contradiction between Dr Altman’s view that the objective circumstances of the April 1970 incident cannot justify a proper PTSD diagnosis, and his proffered view that Commander Watson did nevertheless “experience”, “witness” or was “confronted with” the traumatic event. The key element in Dr Altman’s view about Commander Watson’s history, and the critical element in his diagnosis, was Commander Watson’s subjective reaction to the events he observed about the rescued survivors. In my view, Dr Smith was correct in saying that Commander Watson’s claimed subjective reaction to the incident, (a reaction whose intensity I have in any event rejected) did not justify satisfaction that his history met the relevant diagnostic criteria for PTSD for the purpose of either SoP no 82 of 2014 or SoP no 5 of 2008.
For these reasons, I am not satisfied that Commander Watson has posttraumatic stress disorder.
In relation to Dr Altman’s diagnosis of Major Depressive Disorder, I have referred earlier to the fact that Dr Altman at no stage explicitly addressed the appropriate diagnostic criteria in SoP no 27 of 2008. (Those criteria were substantially the same as those contained in the corresponding definitions in Schedule 1 to SoP no 83 of 2015 – the SoP that has been in effect since 20 July 2015.) In the absence of specific consideration by Dr Altman of the relevant diagnostic criteria, and taking into account also (i) Dr Smith’s contrary view, (ii) the fact that Dr Smith did address those criteria, and (iii) that Dr Altman did not respond (in his 11 September 2014 report) to Dr Smith’s specific disputation, I am not satisfied that Commander Watson has Major Depression.
ALTERNATIVE CONSIDERATION OF THE RAISED HYPOTHESES
Because of the conclusions I reached in relation to Commander Watson’s claimed conditions, it is not necessary to address his arguments based on the existence of reasonable hypotheses relating those conditions to his war service. However, against the contingency that elsewhere another view may be taken about his claimed conditions, I will also make findings in relation to their connection with his war service.
Where an SoP applies to a veteran’s injury or disease it prescribes the essential content of an hypothesis that is reasonable for the purposes of VE Act s 120(3), and thus capable of connecting the particular kind of injury or disease with the circumstances of a veteran's particular service. In order to satisfy the dual requirements that the hypothesis is raised by the material (VE Act s 120(3)) and upheld by an SoP (VE Act s 120A(3)), a veteran’s hypothesis must be supported by material pointing to each element that the SoP stipulates as essential for the hypothesis to be upheld. The hypothesis must start with the veteran’s claim related disease, and end with the veteran’s service. The connection between the two may “comprise a number of links or factors each of which must be upheld”: Repatriation Commission v McKenna (1998) 52 ALD 72 at 80; Repatriation Commission v Hill [2002] FCA 192; (2002) 69 ALD 581 at [55].
In relation to Commander Watson’s asserted PTSD condition, the material to which I have referred raises only one hypothesis:- that his condition is war caused because he “experienced a life threatening event” (the 1970 Hobart incident) during his war service.
In relation to Commander Watson’s asserted Major Depressive Disorder, the material to which I have referred raises the hypotheses that his condition is war caused because,
(a)he experienced or had
(i)a “category 2 stressor” within one year before the onset of his depressive disorder – that category 2 stressor being alternatively
·socially isolated and unable to maintain friendships or family relationships due to medical or psychiatric illness
·having concerns in the work environment
(see paragraphs 32, 40 and 44 above)
(ii)a sleep disorder for the six months before the clinical onset of depressive disorder (see paragraph 33 above)
(iii)a specified sleep wake disorder (specifically restless legs) for the six months before the clinical onset of his depressive disorder; and
(b)those factors occurred or developed either
(iv)as a result of the 1970 Hobart occurrence, or
(v)his service (including his perceptions and reactions to the occurrence), or
(vi)only because it was materially contribute to by, or would not have occurred “but for” contribution from, his service: see VE Act s 196B(14)(a), (b), (d) & (f).
SOP NO 82 OF 2014 – PTSD – SCOPE AND FACTORS
SoP No 82 relates to “posttraumatic stress disorder” and applies after 22 September 2014. Paragraphs 4 and 5 of SoP No 82 provide (subject to a presently immaterial qualification) that the posttraumatic stress disorder condition can be related to relevant service where at least one of 15 alternative factors listed in paragraph 6 is “related to the relevant service rendered by the person”. Paragraph 6 of SoP No 82 itself declares that one of those factors “must as a minimum exist” before any finding can be made that a reasonable hypothesis has been raised connecting the disorder with the circumstances of a person’s relevant service.
The only SoP No 82 paragraph 6 factor advanced on Commander Watson’s behalf, is his asserted experience of “a category 1A stressor” before the onset of his condition. The concept of a “a category 1A stressor” is defined in paragraph 9 of SoP No 82. The definition is in the following terms:
"a category 1A stressor" means one of the following severe traumatic events:
(a) experiencing a life-threatening;
(b) being subject to a serious physical attack assault including rate and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.
SOP NO 5 OF 2008 – PTSD – SCOPE AND FACTORS
During its currency until 22 September 2014, SoP No 5 also contained a defined meaning of “posttraumatic stress disorder”. That meaning required that the disorder must (i) result from relevant exposure to a “traumatic event” in which (i) the person “experienced, witnessed of was confronted with”, events involving “actual or threatened death or derious injury, or a threat to the physical integrity of self or others”, and (ii) the person’s response to the events “involved intense fear, helplessness or horror”.
Paragraphs 4 and 5 of SoP No 5 declared that posttraumatic stress disorder could be related to relevant service (again subject to a presently immaterial qualification) where at least one of the alternative factors listed in paragraph 6 was related to the person’s service. Paragraph 6 itself declared that one of those factors “must as a minimum exist” before any finding could be made that a reasonable hypothesis has been raised connecting the disorder with the circumstances of a person’s relevant service.
From 9 January 2008 until 19 December 2013 paragraph 6 of SoP No 5 listed only 9 alternative factors. One of those was “experiencing a category 1A stressor”. Clause 9 defined that expression – in identical terms to those set out in paragraph 62 above.
After 19 December 2013, the amendments made by SoP No 19 of 2014 inserted four additional factors. They included the following:-
(ba) having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:
(i) the individual concerned; and
(ii) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder; or";
…
(da) having a perception of threat and/or harm to the integrity of:
(i) a significant other; and/or
(ii) other persons known to the individual or with whom the individual concerned has had contact in the discharge of that individual's duties and/or responsibilities;
as a consequence of the individual concerned and the persons in (i) and/or (ii) being in the same or similar circumstances as the individual concerned which:
(iii) the individual concerned; and
(iv) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment but excluding a perception engendered from viewing or listening to mass media (unless such viewing or listening is part of that individual's duties and/or responsibilities) before the clinical onset of posttraumatic stress disorder; or";
…
(ha) having a perception of threat and/or harm to the integrity of:
(i) a significant other; and/or
(ii) other persons known to the individual or with whom the individual concerned has had contact in the discharge of that individual's duties and/or responsibilities;
as a consequence of the individual concerned and the persons in (i) and/or (ii) being in the same or similar circumstances as the individual concerned which:
(iii) the individual concerned; and
(iv) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment but excluding a perception engendered from viewing or listening to mass media (unless such viewing or listening is part of that individual's duties and/or responsibilities) before the clinical worsening of posttraumatic stress disorder; or".
The additional factors inserted by SoP No 19 of 2014 make clear that a reasonable apprehension of harm, either to themselves, or to certain other categories of people, could bring an hypothesis within the scope of SoP No 5 of 2008. In this respect the amendments altered (in that limited way) the position adopted uncontentiously in Hunter, and applied by the VRB in its August 2013 decision. However, that limited alteration, by the inclusion of specific additional factors, tends to re-inforce the view that the proper interpretation of the term “category 1A stressor” remains consistent with the view taken in Hunter – that in the absence of harm or threat to a limited class of people, subjective apprehensions about other people could not satisfy the relevant stressor definition.
SOP NO 82 OF 2014 AND SOP NO 5 OF 2008 – HYPOTHESIS CONFORMITY
The argument advanced on behalf of Commander Watson about hypothesis conformity essentially advanced two alternative propositions. The first was that the SoP no 82 of 2014 cl 3(b)A reference to “exposure” to a traumatic event by “directly experiencing” or “witnessing” the event did not require immediate actual perception of the occurrence as it happened. The second argument addressed the somewhat different description of relevant “exposure” in the earlier SoP no 5 of 2008 cl 3(b)(A) with its use of the disjunctive expression “experienced, witnessed, or was confronted with”. This argument contended that this disjunctive width, particularly with the inclusion of the word “confronted with” meant that relevant exposure included that a traumatic event in which people other than the veteran either faced, or were apprehended by the veteran to have faced, the threat of death or injury.
An important part of the argument put on Commander Watson’s behalf was the judicial interpretation that had been accorded to the expression when used in previous, assertedly similar, definitions in earlier PTSD Statements of Principles. That judicial interpretation was illustrated in the following passage in the reasons in Hunter – at [2010] FCA 145: (the passage is dealing with SoP No’s 3 & 54 of 1999)
19 Mr Hunter’s submission was that … an “extreme stressor” within the meaning of clause 5 of the SoP … was itself defined in cl 8 (as amended) thus:
“‘experiencing a severe stressor’ 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 other person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ 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 observation of casualty clearance, atrocities or abusive violence;”.
20 That definition would be satisfied if, inter alia, there was material before the Tribunal suggesting that Mr Hunter had been confronted with “an event or events that involved threat or death or serious injury, to the person or another person’s physical integrity”. In Stoddart v Repatriation Commission (2003) 197 ALR 283 Mansfield J (at 296 [55]) said that a threat could be made out if the event “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.”
…
22 … (the relevant) SoP could be satisfied if a claimant were “confronted” with a peril which this Court has held includes being confronted “in the mind”: Woodward v Repatriation Commission (2003) 131 FCR 473 at 495 [123] per Black CJ, Weinberg and Selway JJ.
The decisions in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283 and Woodward v Repatriation Commission (2003) 131 FCR 473 at 493 do appear to lend some support for Commander Watson’s argument. Stoddart’s claim involved contentions by a naval veteran that being locked and isolated below decks, particularly on occasions when his ship was called to “action stations”, constituted “experiencing a severe stressor” for the purposes of the then relevant factor in the SoP relating to PTSD. There was evidence that the veteran’s ship had never in fact been in action, nor under actual threat. But there was no dispute that, in the ordinary course of events, the veteran would have been below decks in the manner he described, and on some of those occasions it was inherently likely that realistic “action station” drills would have been carried out. In holding that the SoP factor definition had been satisfied Mansfield J said:
[50] In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause “that involved actual or threat of death or serious injury . . .” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. …
[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 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 concept of being “confronted with … events that involved actual or threat … to … another person’s, physical integrity” (ie part of the definition of the factor “experiencing a severe stressor” in the PTSD SoP No 3 of 1999) was further discussed in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 at [123]; 75 ALD 420. In that case there were two different categories of traumatic experience on which the veteran relied. One category was his participation in patrols where he apprehended the risk of attack, although none ever eventuated. The second category involved processing paperwork relating to the death of two officers he knew, and collecting personal belongings from one of their tents. Applying the reasoning in Stoddart, the Full Court of the Federal Court accepted that the first category of events could fall within the definition: see 131 FCR 473 at [136] to [140] – subject to the potential qualification that the veteran’s subjective apprehensions must be reasonable: see 131 FCR 473 at [141]. In relation to the second category (relating to the collecting the dead officer’s belongings) the Full Court considered that this experience could fall within the ordinary meaning of being “confronted” with a relevant event. The Full Court said this:-
[122] 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.
[123] In any event, as a matter of ordinary usage to be ``confronted” with something means to be brought face to face with it either 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 is no less the case when the confronting event is one involving death or serious injury.
[124] In the present context the point becomes clearer when reference is made to the second paragraph of the definition. This illuminates the definition by giving examples of events that those who drafted it had in mind as falling within it. The second paragraph states that events that qualify as stressors in the setting of service in the defence forces include ``participation in or observation of casualty clearance”. A member of the armed forces taking part in casualty clearance may well have been outside the area of immediate conflict and have neither experienced nor witnessed the events that caused the casualties, yet it is easy to see how such a person could be ``confronted with” such events.
[125] An example taken from earlier conflicts may illustrate the range of situations which, as a matter of ordinary usage and context, the definition can be seen to cover. A sailor in a warship escorting a convoy may come face to face with events involving death in any one (or more) of three ways. He may experience an attack upon his ship, he may witness the loss of another vessel and by attending to casualties in the sickbay he may be confronted with events he has not seen or experienced. There may of course be an overlap of these stressor events, but that possibility does not deny their separate character.
[126] The language of the definition provides no warrant to confine the confrontation with an event involving death, of which the definition speaks, to an event involving the death of a family member or other close associate. Indeed, the illumination provided by the second paragraph of the definition would suggest the very opposite, since it is hardly to be supposed that the general reference to casualties and casualty clearance was intended to be qualified in a way which, in the context, would be quite exceptional.
[127] In these circumstances the AAT's brief statement that there was no material raising or pointing to Mr Woodward ``experiencing, witnessing, or being confronted with an event … involving death …” reveals that it misinterpreted the SoP in a material way, and in particular that it misunderstood and misapplied the critical definition of ``experiencing a severe stressor”. In doing so it erred in law.
[128] The material pointed unequivocally to there having been an event involving death. This was the death, when their aircraft had been shot down, of the two pilots with whom, according to the material, Mr Woodward had flown on operations against the enemy. The material also pointed unequivocally to Mr Woodward being brought face to face with the reality of death on active service. This occurred not only by his having to process forms concerning the deaths (Mr Woodward was a clerk) and by his having to pack the belongings of one of the pilots who had been shot down but also, and perhaps more acutely, by his coming face to face with death on active service by seeing the images, among the belongings in the tent, of those whom he believed to be the dead pilot's wife and young daughter. Had the AAT brought to its task a correct understanding of the definition of ``experiencing a severe stressor” it might very well have concluded that, in these circumstances, Mr Woodward was relevantly ``confronted with an event … that involved actual death …”.
However, Commander Watson’s arguments relying on Stoddart and Woodward, suffer from the flaw that in those cases the actual definition of the relevant SoP factor actually included the disjunctive expression “experienced, witnessed, or was confronted with”. That is not the case in relation to either SoP no 82 of 2014 or SoP no 5 of 2008. The disjunctive expression appears only in SoP no 5 of 2008, and only there in the description of the defined meaning of “posttraumatic stress disorder”. The expression does not appear in the wording of any relevant “factor”. The only relevant factor is that of experiencing “a category 1A stressor”. That expression is identically defined in both SoP no 82 of 2014 or SoP no 5 of 2008 – and in the terms I have set out in paragraph 62 above.
The absence of the expression “confronted with” from the category 1A stressor definition deprives Commander Watson’s argument of the primary textual basis on which it relied. The secondary textual basis for the argument is the use of the word “experiencing” in the definition, and the criticism that the Full Court expressed in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 about that word being given too narrow an interpretation. The relevant passage from the judgment (which needs to be understood against the factual background summarised in paragraph 71 above) was as follows:
[58] The reason given by the AAT for concluding that the hypothesis did not fit either relevant template was its finding that Mr Woodward had not met the definition of “experiencing a severe stressor” as set out in cl 8 of both SoPs. In arriving at that conclusion, the AAT accepted as correct the meaning accorded to the words “experienced”, “witnessed” and “confronted” by an earlier decision of the AAT in Re Slattery and Repatriation Commission (1998) 52 ALD 90 (Re Slattery). In that case, the AAT said (at 108 [79]):
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.
[59] To limit the definition of the word “experienced” in this way was plainly at odds with its ordinary and natural meaning. So much was eventually acknowledged by the respondent in the appeal to this court.
This criticism of the narrow meaning of the word “experience” does not, however, justify the argument made by Commander Watson in the present case. The total context of the criticism expressed in Woodward was directed to the proposition that a person may “experience” a threat subjectively. That is to say, they may feel threatened or fearful to the relevant extent, even though none exists as an objective fact. Thus, neither the fact that Mr Stoddart was never below decks during a real “actions stations” call, nor the fact that none of Mr Woodward’s patrols was actually shown to have involved any enemy presence contradicted the reality of their relevant and subjective “experience” of a threat. But that extension of the concept of experience, to embrace a largely subjective apprehension (one with at least an arguably reasonable basis), provides no justification for regarding the ordinary meaning of the expression “experiencing a life threatening event” as including subjective apprehensions about the harm, or risk of harm, to other people as a result of an event that a veteran was neither exposed to themselves nor witnessed happening to others.
That view is rather confirmed by the additional factors that were inserted (by SoP No 19 of 2014 in January 2014) into SoP no 5 of 2008). They make clear that a reasonable apprehension of harm, either to a veteran, or to certain other categories of people, could bring an hypothesis within the scope of SoP No 5 of 2008. However, the amendments limit the categories of relevantly threatened or injured persons to those who have a relevant relationship with the veteran. In this respect, in relation to persons who were not known to the veteran at the time of the incident, the amendments tend to re-inforce the conclusion accepted in Hunter about the effect and scope of the definition of a “category 1A stressor” in SoP no 5 of 2008.
That conclusion is further re-inforced by the fact that both SoP no 5 of 2008 and SoP no 82 of 2014 contain, as an alternative factor, a “category 1B stressor”. That stressor is again identically defined in both those SoPs, and in identical terms. That definition, addresses situations where the veteran is a witness to the traumatic events or their aftermath. The “category 1B stressor” definition is in the following terms.
"a category 1B stressor" means one of 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;
The “category 1B stressor” definition strongly points to the intention that a “category 1A stressor” is not intended, and cannot properly be interpreted, to include situations where the claimant veteran is a mere witness to the traumatic events or merely comes upon their consequences.
On the proper interpretation of the definition of a “category 1A stressor” it does not apply to Commander Watson’s hypothesis. That hypothesis, involving direct exposure to the mere aftermath of the Hobart’s collision does not match the factors in any relevant SoP and consequently cannot be regarded as reasonable. His claim relating to PTSD must fail for that additional reason.
SOP NO 83 OF 2015 – DEPRESSION – SCOPE AND FACTORS
SoP No 83 of 2015 define “depressive disorder” as a group of mental disorders limited to major depressive disorder, major depressive episode, persistent depressive disorder, other specified depressive disorder, unspecified depressive disorder premenstrual dysphoric disorder, depressive disorder due to another medical condition and substance / medication-induced depressive disorder.
Paragraphs 8 and 10 of SoP No 83 of 2015 declare that “depressive disorder” can be related to the veterans service where at least one of the alternative factors listed in paragraph 9 was related to the veterans service. Paragraph 9 itself lists
(a)in the case of a veteran suffering from major depressive disorder, major depressive disorder, persistent depressive disorder, 20 alternative factors relating to the period before the onset of the disorder: see cl 9(1)&(2)
(b)26 factors relating to the period before the clinical worsening of a depressive disorder suffered or contracted before the end of the person’s relevant service: see cl 9(5)-(30) & 10(2).
Within the 20 alternative factors in No 83 of 2015 cl 9(1):
(a)seven factors relate variously to prisoners of war, women or occurrences affecting a veteran’s “significant other”: see cl 9(1)(a)(d)(e)(o); 9(2(a), (b)
(b)four factors relate to persistent pain, or significant illness or injury for various periods before the onset of clinical depression: see cl 9(1)(h)(i)(l)(m)
(c)four factors refer to epilepsy, vitamin D deficiency, obesity and smoking either for a period preceding, or at the onset of, the onset of clinical depression: see cl 9(1)(f)
(d)two factors involve experiencing a category 1A or 1B stressor within five years before the clinical onset of depressive disorder: see cl 9(1)(b)(c). Those terms were then defined, in exactly the same wording as the definitions in SoP No 5 of 2008
(e)one factor refers to experiencing “a category 2 stressor” within one year before, the clinical onset of depressive disorder: see cl 9(1)(n)
(f)one factor refers to having a specified “sleep-wake disorder” for the six months before the clinical onset of depressive disorder: see cl 9(1)(f)
(g)one factor involves being the victim of severe childhood abuse before the clinical onset of depressive disorder: see cl 9(1)(g).
The term “category 2 stressor” is defined in SoP No 83 of 2015 in the following terms:
category 2 stressor means one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lackof control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability.
SOP NO 27 OF 2008 – DEPRESSION – SCOPE AND FACTORS
SoP No 27 of 2008 contained an extensive definition of “depressive disorder”. The definition was limited to dysthymic disorder, depressive disorder not otherwise specified, major depressive episode, recurrent major depressive disorder, substance induced mood disorder with depressive features and mood disorder due to a general medical condition with depressive features or with major depressive like episodes: see cl 3.
Paragraphs 4 and 5 of SoP No 27 of 2008 declared that “depressive disorder” could be related to the veterans service where at least one of the alternative factors listed in paragraph 6 was related to the veterans service. Paragraph 6 (as amended by SoP No 40 of 2010) itself listed
(a)in the case of major depressive disorder, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified, 13 alternative factors relating to the period before the onset of the disorder: see cl 6(a)
(b)19 factors relating to the period before the clinical worsening of a depressive disorder suffered or contracted before the end of the person’s relevant service: see cl 6(d) to (v) & 7.
Within the 13 alternative factors in SoP No 27 of 2008 cl 6(a) (see paragraph 84(a) above)
(a)five factors related variously to prisoners of war, women or occurrences affecting a veteran’s “significant other”: see cl 6(a)(i),(iv),(v),(xi),(xii)
(b)three factors related to chronic pain, or significant illness or injury for various periods before the onset of clinical depression: see cl 6(a)(vii)-(ix)
(c)two factors involve experiencing a category 1A or 1B stressor within five years before the clinical onset of depressive disorder: see cl 6(a)(ii)&(iii). (Those terms were then defined, in exactly the same wording as the definitions in SoP No 5 of 2008 and SoP no 82 of 2014.)
(d)one factor referred to experiencing “a category 2 stressor” within one year before, the clinical onset of depressive disorder: see cl 6(a)(vi)&(vii) (The term is defined in identical terms to the definition in SoP No 27 of 2015.)
(e)one factor referred to having a sleep disorder for the six months before the clinical onset of depressive disorder: see cl 6(a)(x)
(f)one factor involved being the victim of severe childhood abuse before the clinical onset of depressive disorder: see cl 6(a)(xiii).
SOP NO 83 OF 2015 AND SOP NO 27 OF 2008 – HYPOTHESIS CONFORMITY
Because of the similarity of the definitions in SoP 82 of 2014 and SoP 27 of 2008, both the Commission and the VRB disregarded the potential application of the category 1A & 1B factors to Commander Watson’s depressive disorder. The VRB had also relied on the five year time limit that applied under SoP No 27 of 2008. Those approaches were, and are, correct.
The material provided in support of Commander Watson’s claim involves details pointing to a degree of social isolation, including difficulties with his work performance and concerns about his work performance, all as a potential result of his rumination over the 1970 Hobart incident: see paragraphs 32, 40 and 44 above. The hypothesis that he experienced a “category 2 stressor” within 2 years of the onset of his depressive disorder, as a result of a factor related to his war service, and that this contributed to his depression, is therefore upheld by both SoP No 83 of 2015 and SoP no 27 of 2008.
The material provided also points to Commander Watson having a long standing sleep disorder, including restless legs which he, and apparently his sleep specialist, attributed to his rumination over the 1970 Hobart incident. That sleep disorder was still apparent within six months before the postulated onset of his depression (in July 2012). The hypothesis that he had a sleep disorder, as a result of a factor related to his war service, and that this contributed to his depression, is therefore upheld by SoP no 27 of 2008.
Similarly, the material provided also points to Commander Watson having restless legs (a specified sleep wake disorder) for six months before the postulated onset of his depression. He and his sleep specialist apparently attributed that condition to his rumination his rumination over the 1970 Hobart incident. The hypothesis that he had a specified sleep disorder, as a result of a factor related to his war service, and that this contributed to his depression, is therefore upheld by SoP No 83 of 2015.
SOP NO 83 OF 2015 AND SOP NO 27 OF 2008 – DEPRESSION – FINDINGS
The findings I have made about the 1970 Hobart incident (see paragraph 24 above), affirm Commander Watson’s involvement, as an observer, in that incident. They also confirm his contemporaneous disquiet over the incident. The other evidence of Commander Watson’s subsequent rumination over it, particularly triggered by the 2001 children overboard notoriety, I also accept. That his rumination contributed to his reported difficulties and concerns at work in 2012, is a matter corroborated by the history he gave to Dr Altman in July 2012. I also accept that evidence. In those circumstances, Commander Watson did experience a category 2 stressor as a result of his service and there is no factual basis on which I could be satisfied beyond reasonable doubt that there was no such connection.
In addition there is no reason to question the accuracy of Commander Watson’s diagnosis with a chronic sleep disorder and long standing associated restless legs. Those conditions are at least associated with nightmares which Commander Watson attributes to his ruminations over the Hobart 1970 incident. I accept that association and find that his sleep condition and, more specifically his restless legs condition, was likely a factor that would not have occurred but for his service experience (including the Hobart incident). In those circumstances Commander Watson did experience that additional relevant factor as a result of his war service, and there is no factual basis on which I could be satisfied beyond reasonable doubt that there was no such connection.
CONCLUSION
In the light of the findings I have made (in paragraphs 55 and 56 above) the decision under review is affirmed.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC ................................[sgd]........................................
Associate
Dated 20 June 2016
Date(s) of hearing 10-11 August 2016 Solicitors for the Applicant Mr G Kolometiz, Glenn Kolomeitz Lawyers Advocate for the Respondent Mr T O'Reilly, Repatriation Commission
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