White and Repatriation Commission

[2007] AATA 1949

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1949

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V 200600971

VETERANS’       APPEALS      DIVISION		)
Re		ANDREW JOHN WHITE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date14 November 2007

PlaceMelbourne

Decision The decision under review is varied to the extent the applicant does not suffer post‑traumatic stress disorder.  The remainder of the decision is affirmed.

(Sgd)  John Handley

  

Senior Member

VETERANS’ ENTITLEMENTS – applicant was bosun onboard HMAS Kanimbla in Persian Gulf – approach by 35 cigar boats which did not respond to radio warnings – flares fired – applicant alleged he ordered firing of bullets over the cigar boats – alleged he did so because Captain could not be located – Captain gave evidence – dispute concerning applicant's version of events – finding that shots not fired – PTSD diagnosis as asserted could not be established – Deledio analysis – whether to follow four stages‑ recent Federal Court decisions discussed – decision affirmed

Veterans’ Entitlements Act 1986 s 120

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Administrative Appeals Tribunal and Repatriation Commission [2007] FCAFC 111

Hardman v Repatriation Commission [2005] FCAFC 83

Mines v Repatriation Commission [2004] FCA 1331

Repatriation Commission v Crane [2004] FCAFC 86

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2005] FCAFC 23

Repatriation Commission v Delidio (1988) 83 FLR 82
Repatriation Commission v Keeley [2000] FCA 532
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Stoddart (2003) 77 ALD 67

REASONS FOR DECISION

14 November 2007   Mr John Handley, Senior Member

1.      Mr White was a member of the Royal Australian Navy (the Navy) between 1980 and 2004.  The only episode of operational service relevant to these proceedings occurred between November 2001 and March 2002 when he served as a Petty Officer onboard HMAS Kanimbla (Kanimbla).  More specifically the applicant relies on an episode which he said occurred on 27 February 2002 when he was the bosun in charge of the gunnery watch, onboard Kanimbla in the Persian Gulf.  By reason of the events of that day, the applicant asserts that he has suffered either post‑traumatic stress disorder (PTSD) or depressive order and as a consequence claims a pension under the veterans’ entitlements legislation.  Pension presently is being paid at 100 per cent of the general rate for the conditions of sensori‑neural hearing loss of the left ear, asthma, fracture of right ankle and chemical burns to both eyes.  The Veterans’ Review Board (VRB) refused the claim for medical treatment and pension for incapacity for the condition of depressive disorder.  It also decided to amend the diagnosis to include PTSD.

2.      On 27 February 2002, Mr White said in his position as bosun in charge of the gunnery watch he was obliged to comply with Standing Orders and / or Rules of Engagement concerning service in the Persian Gulf.  He said that he understood the Standing Orders or the Rules of Engagement compelled him to notify the Captain if he observed the presence of another vessel within 1000 yards.  If the Captain could not be located, he was obliged to fire flares at that vessel when it was within 500 yards.  If contact with the Captain continued to be absent or not possible, he was then obliged to fire shots over the bow of the approaching vessel if it was within 300 yards.

3.      On the day in issue the applicant said that 35 cigar boats in a convoy approached Kanimbla, at a fast rate, at 90 degrees.  He said the cigar boats were long narrow vessels with high powered outboard motors.  He observed them approaching through binoculars.  He said he attempted to locate or contact the Captain but was unsuccessful.  The applicant said that he was concerned about the approach of these vessels because it was believed that they could contain explosives and if contact was made with Kanimbla, considerable damage could occur.  He said he had a knowledge of the potential for those vessels to contain explosives because of a briefing he and others had received onboard Kanimbla during its voyage to the Persian Gulf after leaving Australia.  Whilst he acknowledged that the potential for cigar boats to contain explosives was speculative, he did, on the day, believe that Kanimbla was at risk.

4.      As the convoy of cigar boats continued to approach Kanimbla and in the absence of being able to contact the Captain, the applicant said he ordered that flares be fired in the direction of the approaching vessels.  He also said that two cigar boats broke off from the convoy and changed course and approached Kanimbla at a fast rate.  As those vessels continued to approach Kanimbla, he then ordered the firing of two shots from a Steyr gun which he described as having a 5.56 millimetre bore.  The applicant said that the two vessels which had broken away then changed course and passed across the bow of his vessel.

5.      The applicant said that he had no contact with the Captain until three or four minutes after the shots had been fired and when the Captain then approached him on the gun direction platform.  He said he did not have any conversation with the Captain about the episode which had previously occurred but said the Captain told him that he had done a good job.  The applicant did not complete a report and said that he was not asked to do so.  He was not aware whether a report of the incident was completed by any other person.

6.      The applicant said at the conclusion of his shift that he was scared and depressed and had feared for the lives of others if Kanimbla had been rammed.  He said he also feared that he might have been responsible for killing other persons in the cigar boats by the shots that had been fired.  A few days later and when he had continued to remain depressed, the applicant said that he also felt suicidal and had been too embarrassed to seek assistance from the Chaplain onboard Kanimbla.  He said he then went to the armoury and removed a loaded pistol.  A short time later he was observed by a junior officer, Miss Nitsche, to be holding the pistol in his mouth in anticipation of suicide.  He said that he and Miss Nitsche argued, that she took the pistol from him and he asked her to shoot him.  Fortunately she declined and she fired into the ship’s bulkhead.

7.      Later when on shore leave in Singapore, the applicant said that he engaged in binge drinking and remained depressed and suicidal.

8.      In the following months the applicant and Miss Nitsche were disciplined because of a continuing relationship they had had onboard Kanimbla.  The applicant was then 39 years of age and Miss Nitsche was 18 years of age.  Both he and Miss Nitsche were removed from the ship.  The applicant said his relationship with her ended later in 2002.

9.      After returning to Australia in April 2002, the applicant overdosed and was admitted to the Naval Hospital at Cerbrus and later to Victoria House Private Hospital where he engaged in an extensive period of inpatient treatment under the care of Dr Cronin a psychiatrist and Mr Stapleton a psychologist.  The applicant said he did not initially tell either Dr Cronin or Mr Stapleton of the incident involving the cigar boats because he felt ashamed and believed that he could have done better.  The applicant has had continuing psychiatric treatment at the Repatriation General Hospital and has also undertaken the PTSD program which has been operating at that hospital.

10.     The applicant acknowledged that in 1990 he was charged by the Navy with accepting bribes with respect to the compilation of duty rosters and was demoted.  He was then prescribed antidepressants but said after approximately six months he returned to good emotional health.  He acknowledged that he had also undertaken treatment seven years previously following the suicide of his mother.  Later the applicant attended his doctor for treatment following an episode where his son was bullied at a school in Melbourne.

11.     At the present time the applicant said he is not now affected by the ending of the relationship with Ms Nitschke.  He said he relives the cigar boat incident daily and he has nightmares and hot sweats whilst sleeping.

12.     In cross-examination the applicant said that he believed that the cigar boats approaching Kanimbla were a threat because of the risk of them carrying explosives and because they were approaching at a fast rate.  He was also concerned when two of the cigar boats broke away from convoy and his fear was also heightened because Kanimbla either stopped or slowed down and in those circumstances he believed that he was at greater risk.  It was at or about that time that he ordered that flares be fired at the approaching vessels.  The applicant said he knew nothing of the evidence that would be given by the Captain that the approaching cigar boats were observed on radar and that their presence on radar had been known to both the Captain and the Principal War Fare Officer (PWO).  The applicant denied that the Captain and the PWO controlled the operation.  The applicant said that he made the decision to fire the flares and he also gave the command to fire from the Steyr rifle.  He said that he had not received any communication from the Captain or the PWO.  The applicant was adamant that shots were fired over the bow of the cigar boats by another person acting under his command but he could not recall the name of that person.  The applicant said that this episode was the only occasion where shots were fired from Kanimbla during its tour of the Persian Gulf and that he and others were not debriefed at a later time.  He agreed that that he continued to work the remainder of his shift in a professional manner because he did not want to demonstrate his fear and depression to his subordinates.

13.     The applicant agreed that Miss Nitsche was in his line of command and he had been counselled two weeks before 27 February 2002 about the inappropriateness of his relationship with her.  He also agreed that he had been counselled in the month following the cigar boat episode concerning his continuing relationship with Miss Nitsche.

14.     When the applicant’s medical history was summarised to him, he agreed that he had given a number of doctors a history of his relationship with Miss Nitsche, the episode concerning the suicide attempt when he held a pistol to his mouth, some difficulties in his marriage and his past treatment for depression but had not given a history concerning the cigar boat incident to any of the doctors until the following year.

15.     David McCourt was the Captain of Kanimbla when it was serving in the Persian Gulf between November 2001 and February 2002.  He joined the Navy in 1977 and was progressively promoted through officer ranks.  In the late 1980’s he was a PWO onboard HMAS Geraldton and later took up command of Kanimbla.  He has subsequently retired from the Navy and is now in civilian employment.

16.     Mr McCourt said that he could recall the cigar boat incident in February 2002 and could also recall that concern had been expressed before that day of the potential for those vessels to carry explosives.  He said Kanimbla was operating in the Persian Gulf, close to Iran and Iraq and was aware that there had been suicide boat attempts made on other coalition vessels.  Nonetheless he said we had a bunch of procedures in place to deal with any potential threats of that nature.

17.     In the event of an unidentified vessel approaching Kanimbla, he said that the procedures involved graduated responses commencing with radio communication via the International Maritime Mobile VHF Channel 16.  If the approaching vessel did not respond or change course, flares would be fired and shots could be fired across the bow.  As a last resort the approaching vessels could be fired upon by machine guns or rockets.

18.     On the day of the episode alleged by the applicant, Mr McCourt said that he had been in his cabin and was called into the operations room by the PWO after leaving the Straits of Hormuz.  He said anomalies were appearing on the radar.  He recalled there was thick fog or cloud at a distance of approximately five miles from Kanimbla and on the edge of the radar screen there was evidence of objects approaching at a high speed.  He and the PWO decided to move to the bridge to attempt a sighting of the approaching objects. He was then notified by persons in the operations room that high speed vessels were approaching through the fog.

19.     Mr McCourt said that he and the PWO observed a swarm of cigar boats approaching Kanimbla on its starboard side.  He said radio calls had been made to those vessels but without response.  He recalled that the PWO returned to the operations room and when he returned to the bridge the gun crews were closed down and other persons on the bridge were ordered to man their stations and an order was given to commence firing by flares only.  Mr McCourt recalled that some flares were bouncing off one cigar boat onto another.  He recalled that the vessels then changed course and passed ahead of the bow of Kanimbla.  Those vessels were monitored and there was no continuing concern that those vessels presented any risk.  Mr McCourt recalled that those vessels then proceeded towards Iran.  The whole episode he recalled lasted approximately 10 minutes.  During that episode he said the PWO had command of the situation and he had command of the ship.

20.     Contrary to the evidence of the applicant, Mr McCourt said the PWO would have communicated with the gun direction platform either by a broadcast microphone (speaker) or by an internal voice circuit (radio).  Mr McCourt said he could recall hearing communication over the broadcast microphone (after the PWO had returned to the operations room) whilst he was standing on the bridge deck.

21.     Mr McCourt denied that Kanimbla slowed down or stopped as it was being approached by the cigar boats.  He said to have done so would have been a poor tactical response and would have made Kanimbla a sitting duck in the event that the cigar boats were carrying explosives.  He said it was intended to maintain the best defensive manoeuvrability by at least maintaining speed.

22.     Mr McCourt also initially said that he denied, but later said he did not recollect, any bullets being fired over the cigar boats.  He said the flares alone were sufficient to turn those vessels away.  He said if bullets had been fired he would have heard them.  He said a Steyr gun is a noisy weapon and could recall occasions where he had been able to hear it being fired when he was in his cabin some distance away from the gun direction platform.  On the occasion of the episode of 27 February 2002, he said he was standing on the bridge which was 10 feet below the gun direction platform and about 10 metres away from the Steyr gun.  He said it would have been impossible not to have heard it had it been discharged.  Additionally he said that the discharge of that gun would have attracted the attention of a number of persons.  He estimated more than 12 people would have been in the vicinity of the gun.  In an analysis of this episode a post‑action report was compiled.  No persons from any of the Kanimbla outstations reported any shots being fired (refer transcript at p48).

23.     He said the applicant definitely did have contact with the PWO or if he did not he would have definitely heard the directions given by the PWO over the broadcast microphone.  He said if the applicant did order the firing as he alleged, he could not comprehend why he had not made a report.  He said that he would have had a responsibility to have done so.  He thought the allegations generally made by the applicant were a fabrication.

24.     Mr McCourt acknowledged that the applicant was removed from Kanimbla because of his relationship with Miss Nitsche.  He said the relationship had been reported to him and complaints had been made that Miss Nitsche had been given favourable consideration when the watch rosters had been completed from time to time.  Mr McCourt was also aware of an allegation that Miss Nitsche had removed a pistol held by the applicant when he was alleged to be contemplating suicide.  He said that had the pistol been discharged it was possible that it would not have been heard by others, but thought that was unlikely.

diagnosis

25.     Dr Michael Epstein a consulting psychiatrist examined the applicant at the request of his solicitors.  He was of the opinion that the applicant suffered from PTSD.  In evidence he said that in the event that the episode as described by the applicant did not occur, he would be of the opinion that PTSD could not be established.  It would be his opinion that the appropriate diagnosis in those circumstances would be of either major depressive disorder and panic disorder with agoraphobia.

26.     Dr William Glaser a consulting psychiatrist engaged by the respondent examined the applicant.  It was his opinion that the appropriate diagnosis was major depressive disorder which was consistent with distress arising from the ending of the relationship with Miss Nitsche and some other events in the applicant’s life having been experienced by him outside naval service.

conclusions and reasons for decision

27.     In his closing submissions the representative for the respondent relied on the Full Federal Court decision of Repatriation Commission v Hill [2005] FCAFC 23. It was submitted in the present case, as was the case in Hill, that the occurrence of the traumatic event relied on by the veteran in service was in dispute.  However in Hill, the parties agreed that the appropriate diagnosis was PTSD.

28.     In the present case there is dispute as to diagnosis.  Dr Epstein did diagnose PTSD but agreed in cross‑examination that if the traumatic events in service did not occur that the diagnosis could not be sustained.

29.     A finding of diagnosis is to be made on the balance of probabilities.  When that finding is made, a decision can be made whether a Statement of Principle has been issued and applies.  The four stages of analysis recited in Repatriation Commission v Delidio (1988) 83 FLR 82 can then be followed. But in order to make a finding of diagnosis – and in the absence of agreement between the parties – a finding is sometimes required of whether an event in service, alleged to have precipitated an illness or injury, did, in fact, occur. If I make that finding at the stage of reasoning preparatory to making a finding on diagnosis, and I were to find for example that the trauma did not occur, it is arguable that the four stages in Deledio need not be considered at all.  More so perhaps in the present case where Counsel for the applicant submitted that the case for her client was put entirely on the occurrence of the cigar boat incident and her client’s reaction to it.

30.     In Mines v Repatriation Commission [2004] FCA 1331 (at par 40 and par 41) Gray J discussed the above dilemma and considered that there were two possible avenues for decision‑making namely:

(i)That if a decision‑maker were not satisfied on the balance of probabilities that a traumatic event occurred the matter would not need to be considered under Deledio because there would be no issue of connection between service and injury; or

(ii)The issue of connection between service and injury and whether in fact injury has occurred are to be determined on the basis of reasonable hypothesis.  This approach would involve a decision on the balance of probabilities with respect to symptoms and whether those symptoms satisfied the diagnosis of PTSD.  If that decision was made the reasonableness of a hypothesis would then be determined by the four steps referred to in Deledio.  By this method a finding favourable to a veteran would be required unless the material established beyond reasonable doubt that the traumatic event did not occur.

31.     His Honour suggested that the second basis above would be consistent with the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564 but on balance he was of the opinion that the first method above had been followed by a number of Federal Court decisions (refer par 42 and par 43).

32.     In Hardman v Repatriation Commission [2005] FCAFC 83 the Full Federal Court decided that the stages of analysis determined by Deledio were logically demanded by s 120 of the Veterans’ Entitlements Act 1986 (the Act) but following all of the steps can mislead a lay Tribunal.  The Court concluded:

In most cases the hypothesis will be obvious as will the relation of it to the applicable SoP. There is a risk that the Tribunal’s primary role of fact finding can be diverted into convoluted hypothetical reasoning by too mechanical an application of the Deledio steps in any given case. Those steps, as such, are not found in the Act. There are many cases in which the Tribunal can proceed to fact finding with little more than a glance at s 120(3). Indeed, in many cases there would be no error of law involved in disposing of a case under s 120(1) without adverting to s 120(3) (Hill at [80] and [85]).

33.     In Hill at par 80 the Full Court decided that following the Deledio steps is less likely to overlook an hypothesis that is fairly raised by the material and must therefore be considered.  Yet the Court also decided a failure to follow the Deledio steps will not of itself give rise to an error of law, and certainly will not do so in all cases.

34.     In Hill the Tribunal decided that the event relied upon by the veteran was not observed by him and in those circumstances the diagnosis of PTSD could not be established. At par 85 the Full Court was satisfied that in making those findings, s 120 (1) of the Act had been addressed, being the equivalent of the fourth stage of Deledio.  The Full Court was satisfied that the Tribunal was not obliged to proceed step by step in a mechanical manner and by reliance on a decision in Repatriation Commission v Crane [2004] FCAFC 86, the Deledio steps were not meant to operate in substitution for the requirements of the VE Act.  The Full Court in Hill (par 86) noted that the Tribunal had found that the incident relied upon by the veteran did not occur.  It also noted that finding was made at the third Delidio stage.  But it was concluded that that error was immaterial because analysis of the fourth stage would have caused the same result, being an affirmation of the decision under review.

35.     As I understand the propositions emerging from the above authorities, the four stages of analysis in Deledio are not intended as a substitution for the legislation, however a failure to follow those steps may, but not necessarily, amount to an error of law.  It would of course be prudent to follow those four stages of analysis but there is no obligation to do so in a mechanical manner.  If the hypothesis and a corresponding Statement of Principles (SoP) is obvious there is a risk of convoluted hypothetical reasoning by too mechanical application of the Deledio steps (contrast for example the recent Full Court decision of Collins v Administrative Appeals Tribunal and Repatriation Commission [2007] FCAFC 111 which found that impermissible fact finding occurred at stage three of Deledio which infected the decision and caused the Court to allow the appeal.  In that decision the Court did not refer to Hill, Crane or Hardman).

36.     In the present case the hypothesis advanced by the applicant was obvious and the corresponding SoP were not in issue (There is no SoP with respect to agoraphobia but I will return to this aspect later).

37.     The hypothesis advanced by the applicant was of him having suffered PTSD as a consequence of his involvement and reaction to the cigar boat incident on 27 February 2002.  In the assessment period, SoP No 3 of 1999 entitled Post‑Traumatic Stress Disorder as amended (immaterially) by Instrument No 54 of 1999 applies.  Dr Epstein was of the opinion that in the event that the incident as described by the applicant did not occur the appropriate diagnosis would be Depressive Disorder which would attract Instrument No 58 of 1998 (Ms Ryan on behalf of the applicant acknowledged that Instrument No 17 of 2007 also entitled Depressive Disorder was issued within the assessment period but she did not rely on it – refer Repatriation Commission v Keeley [2000] FCA 532). A SoP has also been issued with respect to Panic Disorder (No 9 of 1999) which was an alternative diagnosis also advanced by Dr Epstein. The hypothesis advanced by the applicant is consistent with the PTSD template because the material raised by the applicant pointed to him having experienced, witnessed or confronted an event that involved the threat of death or serious injury.  Accordingly factor 5(a) of the PTSD Instrument exists as a minimum namely, the applicant experienced a severe stressor prior to the clinical onset of PTSD.  Similarly, if the other SoPs were relevant at this (third) stage of the Delidio analysis, the material points to the applicant either experiencing a severe psychosocial stressor (No 58 of 1998) or experiencing a severe stressor (No 9 of 1999).

38.     It is at the fourth stage of Deledio that the finding of fact must be made on the material.  It is at this stage and for reasons which will follow that I have become satisfied that the injury or illness is not war‑caused.  The claim therefore must fail.

39.     As a fact I am not satisfied that the applicant was unable to contact the Captain.  Nor am I satisfied that the applicant exercised the authority that he believed that he had to instruct the discharge of flares and rifle bullets over the bow of the cigar boats.

40.     Mr McCourt, the Captain of Kanimbla impressed me as a truthful witness who at all relevant times was in command and control of the situation involving the cigar boats.  I accept his evidence that he was called to the operations room by the PWO who detected abnormalities on the radar.  I also accept that by reason of the radar screen being obscured by either cloud, fog or mist that the unidentified objects approaching Kanimbla at a high speed were best observed by the Captain and the PWO moving to the bridge which was a position below the deck occupied by the applicant.  I accept that the PWO returned to the operations room where he communicated with the gunnery deck either by radio or by speaker which the Captain said he also heard.  I am satisfied that flares were discharged but I do not accept that the Steyr rifle was discharged or any other weapon firing bullets was discharged over the bow of the cigar boats or at all.  I am satisfied that the cigar boats changed course and passed across the front of Kanimbla immediately following the flares having been discharged.

41.     I accept the evidence of Mr McCourt that the Standard Operating Procedures between himself and the PWO were exercised on this occasion.  I do not accept that Mr McCourt or the PWO or both of them when sailing in a war zone would, by default, delegate responsibility for dealing with fast approaching vessels to the applicant, being the bosun in charge of the gunnery watch.  I do not accept that Mr McCourt was unable to be contacted and that the applicant operated on his own volition.  The Captain was located, by the PWO, who alerted him to the irregularities demonstrated by the radar and it was from that point in time that the Captain and the PWO were in effective control of the vessel and the incident.

42.     In my view it is inconceivable that if bullets were discharged at the cigar boats that Mr McCourt, who was standing on the bridge deck below the gunnery deck would not have heard it.  Likewise I am satisfied that following the enquiries made of other persons in the vicinity of the gun deck not one person reported that the guns were discharged.  Additionally I note that the applicant neither called any person who was serving in his vicinity on this occasion nor gave any explanation either by his statements lodged prior to the hearing or in evidence why such persons were not called in support of his case.  If the applicant believed that Kanimbla was under threat from fast approaching vessels sufficient to cause him to order the firing of bullets, it is inconceivable that he, an experienced and long serving member of the Navy, would not have lodged a report of the event.  I am satisfied he did not lodge a report because bullets were not fired and Kanimbla was not under threat as he alleged.

43.     Additionally I am satisfied that the Kanimbla did not slow down or stop its engines as the cigar boats approached.  To do so would have caused Kanimbla to be in a position of vulnerability and surely would be inconsistent with safe navigation practice, no less when operating in a war zone and when being approached by other vessels who did not respond to radio communication.

44.     On balance therefore I am satisfied that the Captain and the PWO were in control of the situation involving the cigar boats, that flares only were fired at those vessels, shots were not fired over those vessels and no order was given by the Captain or the PWO, or the applicant, to fire the bullets over the bow of those vessels.  The circumstances of the cigar boats approaching Kanimbla are not known however I am satisfied that they did eventually pass across the bow of Kanimbla without incident and without threat.

45.     I am therefore satisfied as a fact that the above incident could not give rise to a diagnosis of PTSD, an opinion held also by Dr Epstein in the event that it was found that the circumstances described by the applicant to him did not occur.

46.     The applicant said he was scared and depressed following the episode with the cigar boats because the lives of the Kanimbla personnel and the occupants of the cigar boats were at risk.  He said he subsequently became suicidal and recounted the occasion where he was found by Miss Nitscke with a pistol in his mouth.  I think any manifestation of his emotions subsequent to 27 February 2002 is probably explained by his prior psychiatric history, the medical referral in November 2001 to an impotence clinic and the counselling he had previously and subsequently received about his relationship with Miss Nitscke.

47.     I am satisfied that the circumstances surrounding the cigar boat incident without shots being fired do not amount to the applicant having experienced a severe stressor within the meaning of the PTSD and the Panic Disorder Instrument.  Equally, I could not find that the applicant experienced a severe psycho-social stressor within the meaning of the Depressive Disorder Instrument.  Because I am not satisfied that the incident as described by the applicant did occur, it follows that I could not find that he has suffered any consequential agoraphobia which was an alternative diagnosis advanced by Dr Epstein.

48.     The hypothesis of the applicant involved the firing of shots over the approaching cigar boats.  I have found that shots were not fired.  If it were the applicant's case that the approach of the cigar boats and firing flares satisfied the SoPs by a threat he perceived, I could not find that it would have been an objectively reasonable reaction (refer Woodward v Repatriation Commission (2003) 200 ALR 332; Repatriation Commission v Stoddart (2003) 77 ALD 67).

49.     The decision under review is varied to the extent the applicant does not suffer post‑traumatic stress disorder.  The remainder of the decision is affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  10 September 2007
Date of Decision  14 November 2007
Counsel for the Applicant         Mrs Fiona Ryan
Solicitor for the Applicant          William Winter
Departmental Advocate            Mr Ken Rudge