Watson and Repatriation Commission (Veterans’ entitlements)

Link copied
Case Copied 63 min read

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 283

Woodward 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 2008

Statement of Principles concerning Posttraumatic Stress Disorder No 82 of 2014

REASONS FOR DECISION

Senior Member P W Taylor SC

20 June 2016

  1. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Watson and Repatriation Commission (Veterans’ entitlements) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2016] AATA 408
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Commander Watson against a decision of the Repatriation Commission, affirmed by the Veterans’ Review Board, which rejected his claim for a disability pension. Commander Watson sought compensation for post-traumatic stress disorder (PTSD) and depressive disorder, asserting these conditions were "war caused" due to an incident in April 1970. The Commission and the Board accepted that Commander Watson suffered from these conditions but were not satisfied, beyond reasonable doubt, that they resulted from his operational service.

The primary legal issues before the court were whether Commander Watson's diagnosed conditions of PTSD and major depression met the criteria for being "war caused" under the Veterans’ Entitlements Act 1986 (VE Act). Specifically, the court had to determine if the April 1970 incident constituted a "life threatening event" or a "severe stressor" as defined by the relevant Statements of Principles (SoPs) for PTSD and depression, and whether Commander Watson had "directly experienced" or "witnessed" such an event, or was "confronted with" it in a manner that satisfied the diagnostic criteria.

The court considered expert evidence from Dr. Altman and Dr. Smith. Both experts agreed that the circumstances of the April 1970 incident, on their own, did not involve exposure to a "traumatic experience" sufficient for a PTSD diagnosis. However, Dr. Altman believed the diagnosis could be sustained by considering Commander Watson's observation of survivors' concern about something left behind in the sea and his apprehension that this "something" might have been people who were harmed or killed. Dr. Altman concluded Commander Watson had experienced fear and horror due to his concern about others, the brief search, the Captain's apparent lack of concern, and his own powerlessness. In contrast, Dr. Smith maintained that Commander Watson's reaction was merely a subjective apprehension after the event that someone might have been hurt, which he considered insufficient to meet the diagnostic criteria for a severe stressor under the applicable SoPs. Regarding the depressive disorder, the court found that Dr. Altman had not explicitly addressed the relevant diagnostic criteria, and given Dr. Smith's contrary view and his engagement with those criteria, the court was not satisfied that Commander Watson suffered from major depression.

Ultimately, the court was not satisfied that Commander Watson had established PTSD or major depression that were "war caused" according to the relevant legislative provisions and Statements of Principles. Consequently, Commander Watson's claim for a disability pension could not succeed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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