White and Repatriation Commission
[2006] AATA 293
•31 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 293
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/935
VETERANS' APPEALS DIVISION )
Re ROBERT WHITE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member
Dr GJ Maynard, Member
Date31 March 2006
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ..........[Sgd]...........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – post traumatic stress disorder – alcohol dependence or abuse – reasonable hypothesis of relevant relationship to service raised – satisfied beyond reasonable doubt that conditions not attributable to or aggravated by war-service
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss, 6C, 14, 69, 70, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Constable v Repatriation Commission [2005] FCA 928
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
31 March 2006 Mr RG Kenny, Member
Dr GJ Maynard
Background
1. Robert White (the applicant) completed a period of service with the Royal Australian Navy from 1961 until 1981. On 12 July 2000, he lodged a claim for a disability pension for “anxiety disorder/depressive disorder” with the Repatriation Commission (the respondent) in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act). On 9 November 2000, the respondent accepted that Mr White suffered from post traumatic stress disorder and alcohol abuse or dependence but determined that these conditions were not related to his service. This decision was affirmed by the Veterans’ Review Board on 20 July 2001 and Mr White now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mr White was represented by Mr R Clutterbuck of counsel and the respondent was represented by Ms H Bowskill of counsel. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Issues and Service
3. Mr White’s service with the Royal Australian Navy was from 6 January 1961 until 5 January 1982. The period from 7 December 1972 until his discharge constitutes defence service as provided for in sections 69 and 70 of the Act. However, it is common ground that Mr White’s claims do not relate to that period of service and I am satisfied that the claimed conditions are not defence caused. Mr White also rendered a period of eligible war service in the form of operational service as defined in section 6C of the Act on HMAS Derwent from 4 November 1971 until 8 November 1971 in South Vietnamese waters and in transit to and from Singapore.
4. The standard of proof for determining diagnostic matters is provided for in subsection 120(4) of the Act and this requires that such matters be determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to the matter of causation for operational service is set out in subsection 120(1) which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
5. The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. Under subparagraph 9(1)(e)(ii) thereof, a condition will be war-caused if it was suffered or contracted before the period of eligible war service and was contributed to in a material degree by, or was aggravated by, any eligible war service subsequently rendered.
Submissions
6. Mr Clutterbuck contended that Mr White’s psychiatric conditions were due to his experiencing a severe stressor when carrying out his duties on HMAS Derwent while the vessel was in Vung Tau Harbour on 6 November 1971. He also made an alternative submission on the matter of causation. This was that post traumatic stress disorder and alcohol abuse or dependence pre-dated his operational service and that the stressor experienced on 6 November 1971 aggravated those pre‑existing conditions.
7. Ms Bowskill submitted that Mr White suffered from alcohol abuse, rather than alcohol dependence, but that he did not have post traumatic stress disorder. However, in the event that post traumatic stress disorder was present, she submitted that Mr White did not experience a severe stressor such that it would lead to the development of or aggravation of either post traumatic stress disorder or alcohol abuse.
Evidence
8. Mr White outlined his service with the Navy. He enlisted when he was 15 years of age and was posted to HMAS Leewin in Western Australia where he completed schooling. He was then posted to the HMAS Diamantina, a survey ship, for training. Then, at HMAS Cerberus he completed a basic training course of three months to prepare for the rest of his service in the Stores Victualling Branch of the Navy. He served at the naval air station at Nowra before being posted to HMAS Queenborough in 1966. In 1968, he served at HMAS Balmoral in Sydney and was promoted to Petty Officer. He served in Darwin for approximately two years and then he joined HMAS Derwent in Sydney. Throughout his Navy service, Mr White had responsibility for food stores and galley equipment as well as menu planning and costing. Mr White was promoted to Chief Petty Officer while he was on HMAS Derwent and this promotion meant that he could no longer serve on that vessel. He described this as upsetting because he wanted to stay with HMAS Derwent because it was to undertake a voyage to the United Kingdom. Instead, he was stationed at HMAS Waterhen in Sydney and he found this frustrating. Mr White was promoted to the rank of Warrant Officer towards the end of his Navy career. After leaving the Navy, he remained a member of the Navy Reserve and re-enlisted on four or five occasions so that he had continuous involvement until August 1999.
9. After leaving the Navy in 1981, he tried a series of jobs but was unable to settle into any of them. He found the adjustment from service life to civilian life a difficult one. Eventually, however, he joined Australia Post in Melbourne where he was managing food services but he found this frustrating especially because of his need to deal with trade unions. He stayed with Australia Post but downgraded his position to delivery van driver but he eventually became a mid-level personnel manager and continued for a further nine years. He said he enjoyed this work and continued until he accepted a redundancy package. He said that he was able to get on very well with the staff that he managed and was usually able to sort out problems by having a beer with them.
10. In December 1967, Mr White was serving on HMAS Queenborough as the Leading Seaman Victualler. Over a period of about 2 months, he befriended Ordinary Seaman Bratt who was about 17 years of age. Mr Bratt was a stoker but was interested in the kinds of duties that Mr White carried out and he spent some time with him and in the galley. Mr Bratt was killed in a boiler room incident. His body was taken to the sick bay on the vessel and Mr White volunteered to get a quantity of ice from the cold room. This was to be used for packing Mr Bratt’s body for the return voyage to Sydney. When he entered the sick bay, he saw Mr Bratt’s body which was covered with a sheet. Mr White said that he was deeply shocked by this experience.
11. Mr White said that, after the incident with Mr Bratt, he became reclusive and blamed the Navy for what had happened. He said that one means that he adopted to let his feelings be known, was to volunteer for shore patrols and he became very strict when dealing with sailors who were intoxicated. He said that, until then, he did not consume alcohol. His father had been a heavy drinker and he did not want to continue in that mode. However, one of his messmates noted that he had changed since Mr Bratt died and told him that he needed to relax. Mr White accepted an invitation to accompany him to shore while the ship was in Mackay and he began to consume beer thereafter on a regular basis by taking up his daily beer ration of two cans per day.
12. Before sailing to South Vietnam, HMAS Derwent was in Singapore. The crew was advised that they were going into the war zone as escort for HMAS Sydney and that the main threat to the vessel whilst it was at anchor was potential activity from enemy divers. Mr White said that it was in the early morning and still dark when the ship entered Vung Tau Harbour. He said that he could see flashes of light in the distance but was unable to hear the sound of any explosions. After the ship anchored, Defence Watches were ordered and Operation Awkward Stage 2 was assumed. This indicated the vessel’s degree of readiness and required the posting of armed sentries as lookouts around the vessel for any sign of activity from, for example, enemy divers. The ship’s boats were required to be launched and, from these, scare charges would be thrown into the water at random intervals. Certain watertight hatches were required to be shut and some of these could only be opened if specific permission was given.
13. Mr White was the Petty Officer in charge of stores and, at about 6.30 am on 6 November 1971, and accompanied by two other sailors, he went below to the refrigeration room on 4 deck to obtain food supplies. To do this, they had to go through two hatches. The first hatch was on 2 deck and this was allowed to be left open. Mr White obtained permission to use the hatch on 3 deck and this was closed after they passed through it to 4 deck which was below the water line. The refrigeration room was heavily insulated with the door being approximately 8 to 10 inches thick. It had an internal light and, when personnel were in the room, the door had to be closed to minimize loss of cool air. There was no communication system installed in the refrigeration room and personnel working there were unaware of what was going on in the rest of the vessel.
14. Mr White’s evidence was that, while breaking out the required food supplies, he heard a noise and felt vibration which caused him to become alarmed. He did not know what the source of the noise was and he feared that the ship had come under attack. He ordered the other two sailors to go to their “leaving ship” stations and they all immediately left the refrigeration room and negotiated the hatches on 3 deck and 2 deck. Mr White said that he felt helpless and claustrophobic as well as a sense of panic when he was in the small space of the refrigeration room and had a “flashback” to the incident on board HMAS Queenborough in 1967 when Ordinary Seaman Bratt died in the boiler room incident. On reaching the upper deck, he discovered that the source of the noise was a scare charge and that the ship was not in danger. Mr White said that he felt a sense of relief and that he went to his office, locked the door and “cried his eyes out”. Mr White said that he had no previous experience with scare charges and that the only time that he had been involved in the Operation Awkward procedure was when HMAS Derwent was alongside in Sydney Harbour. He said that, on that occasion, scare charges had not been used because of the ship’s location.
15. The ship left Vung Tau Harbour at 11.30 pm on 6 November and returned to Singapore. Mr White said that he substantially increased his alcohol consumption after the incident with the scare charge and that, as a Petty Officer, he was able to gain ready access to supplies of alcohol.
16. Mr White was referred to two alcohol consumption questionnaires dated 3 November 1998 and 10 March 2005. In the second of those, it is noted that he commenced drinking beer in 1968 following the incident with Mr Bratt and, in response to the question on how his alcohol consumption was contributed to by his service, it is noted:
“Before operational service which commenced on 4 November 1971 I only consumed my beer issue. Following the stressors to which I was exposed in Vietnam my alcohol intake greatly increased. The increased alcohol helped me sleep after Vietnam. The alcohol consumed I thought would calm me down.”
17. The questionnaire noted that, from December 1971, Mr White was consuming 10 to 20 schooners of beer per day for five days a week. It also noted that he attempted to stop consuming alcohol in 1997 when he suffered from heart problems but that this only lasted 3 or 4 months and he continues to binge drink approximately once per month. In the earlier questionnaire, the starting year for alcohol consumption was 1968 and the reason given was “Peer pressure. Service life”. In response to a question whether his alcohol consumption changed significantly, it was noted that it did change in 1968-1970 to heavy drinking of 6 to 10 pots per day. In his evidence, Mr White said that this must have been a reference to what he had been consuming whilst he was based in Darwin.
18. Mr White’s service medical records reveal that, in October and November 1973, he was referred to consultant psychiatrist Dr A Rowe. It was noted that he was consuming alcohol heavily and experiencing marital difficulties at that time.
Medical Evidence
19. Dr C Danesi is Mr Wright’s treating psychiatrist. He first saw him in May 2002 and saw him regularly until July 2003 and from November 2003 to the present time. He completed a report on 25 September 2003 in which he recounts a family history that involved violence towards him by his father who was alcohol dependent (Exhibit 5). In that report, Dr Danesi also recorded Mr White’s history of alcohol consumption as comprising “approximately 15 stubbies about 5 times a week since about the age of 22”. In his report, Dr Danesi diagnosed post traumatic stress disorder and alcohol dependence. He said post traumatic stress disorder was associated with a number of childhood antecedents and that the incident involving Mr Bratt appeared to cause the onset of both post traumatic stress disorder and alcohol dependency. In describing that incident, Dr Danesi said that Mr White had to pack the body in ice which he took to the sick bay and Dr Danesi reported Mr White as stating that he had been haunted by this ever since. In a second report, dated 13 April 2005, Dr Danesi confirmed the diagnosis of the two psychiatric conditions which he said were caused by the 1967 incident involving Mr Bratt and that there was a significant exacerbation of these conditions because of the incident on HMAS Derwent in 1971 which he described as a “severe psychosocial stressor”.
20. In his evidence, Dr Danesi confirmed, by viewing his clinical notes, that Mr White had reported heavy drinking since he was aged 22 years. He also confirmed the psychiatric diagnoses and said that it was alcohol dependence rather than abuse from which Mr White suffers. Dr Danesi considered that aggravation of these psychiatric conditions can occur and that this is demonstrated by additional symptoms being displayed after experiencing the aggravating event. He considered also that this was not a temporary increase in symptoms but a worsening of the course of the underlying disease. He said that where a person already has post traumatic stress disorder, it is much easier for them to decompensate in the face of another stressful event because the vulnerability of the individual is already heightened.
21. Dr Danesi said that a measure of Mr White’s alcohol dependence was seen in his continued willingness to binge drink on occasions when he has been told not to do so because of a heart condition. Dr Danesi explained that Mr White’s post traumatic stress disorder was multifactorial and that events of his childhood had predisposed him to its development and that the trigger for it was the 1967 incident with Mr Bratt. He described Mr White’s ability to give orders to the other sailors in the refrigeration room during the scare charge incident as not being surprising and noted that sometimes people who have post traumatic stress disorder are surprised that they remained calm at the time of the incident.
22. Dr Danesi said that people with post traumatic stress disorder usually have difficulty in coping with responsibility such as Mr White had in his post service working life. However, he said that is not always the case and that it was not uncommon for a person who is suffering from post traumatic stress disorder to have a satisfactory work history.
23. Dr Chalk, psychiatrist, saw Mr Wright for the purposes of preparing his report, dated 19 July 2005. He concluded that Mr White did not suffer from post traumatic stress disorder but that he had experienced previous difficulties with alcohol abuse and probable dependence. He was referred to the incidents on HMAS Queenborough and HMAS Derwent. He considered that neither of these was a sufficiently stressful event to constitute a trigger for the development of post traumatic stress disorder. For the incident involving Mr Bratt, he considered this to be the case even though there was a friendship between him and Mr White. He considered that they would be upsetting to an individual but would not bring about a psychiatric condition. He noted that Mr White had continued to function in the Navy at more than a reasonable level of competence as indicated by promotions for 10 or more years after the 1971 incident. He considered that a condition such as post traumatic stress disorder would not remain latent for many years. This was because a person who had the condition would demonstrate some symptoms.
24. Dr Chalk said that, if a person had post traumatic stress disorder and was exposed to a further stressor, this was likely to cause a temporary increase in symptoms, but that it would need to be a very significant event to aggravate the condition permanently. He considered that the incident involving the scare charge did not fit that category. However, he also agreed that a person with a psychiatric condition will be more vulnerable than others to that increase of symptoms.
25. Mr White saw Dr Maxwell Katz, consultant psychiatrist, in 2000. Dr Katz noted the history of violent experiences in Mr White’s childhood. He described these as playing a role of sensitizing him to the development of post traumatic stress disorder. He considered that to be the case as well for the incidents on HMAS Queenborough and HMAS Derwent. He diagnosed post traumatic stress disorder and alcohol abuse. In describing the incident on HMAS Queenborough, he also said that Mr White had the job of packing the body in the ice which he had taken to the sick bay. As to causation, Dr Katz concluded that Mr White’s presenting symptoms were “50% developmental and 50% Naval service related”.
Mr P M Mulcare
26. Mr Mulcare served in the RAN from 1954 to 1991 and retired at the rank of Commodore. He served as a supply officer on HMAS Queenborough and on sister ships of HMAS Derwent. He described the position that Mr White had on HMAS Derwent as being a very responsible one and said that his analysis of Mr White’s record revealed that he was highly regarded and performed at an excellent level. He noted that he was promoted to Chief Petty Officer after only three years as a Petty Officer and that he was highly marked as a Warrant Officer.
27. Mr Mulcare described a scare charge as comprising a device containing about one to one and a quarter pounds of explosive. He said that he had witnessed scare charges being detonated while he was on the deck of a vessel but not from below the water line. He said that, if a scare charge was detonated very close to the hull of a ship, some vibration might occur. However, he said he had not witnessed this. Mr Mulcare said that he was familiar with the refrigeration room on HMAS Derwent. He was referred to a plan of the vessel and said that the refrigeration room did not extend to the outer hull at the side of the vessel because there was a void air-space between the outer hull and the refrigeration room wall.
Diagnoses
Post traumatic stress disorder
28. For this condition, the relevant Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria which need to be met before a diagnosis of post traumatic stress disorder can be made. Criterion A of these is that the person must have been exposed to a traumatic event in which:
“(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;”
29. The incident on HMAS Queenborough involving Ordinary Seaman Bratt is well-documented. In evidence was a detailed report of the Board of Inquiry into the incident which occurred during a torpedo firing exercise off Jervis Bay. However, no reference is made in that report to any involvement in that incident by Mr White at any stage. Nor was it Mr White’s evidence that he was involved to any greater extent than that of delivering the ice to the sick bay where he sighted the covered body. Dr Chalk’s opinion was that the incident involving Mr Bratt did not constitute a traumatic event sufficient to meet the requirements of criterion A. He conceded that it would be upsetting for Mr White but would not precipitate a psychiatric condition even given the existence of friendship between them. He placed significance on Mr White’s sound service record as indicated by promotions over 10 or more years after that incident.
30. Both Dr Danesi and Dr Katz diagnosed post traumatic stress disorder on the basis of the incident on HMAS Queenborough. However, in each case, they were advised by Mr White that he was required to do more then deliver ice to the sick bay. In their respective reports, where the diagnosis of post traumatic stress disorder is made, they each refer to his being required to pack Mr Bratt’s body in the ice. That was not his evidence to the Tribunal and extends the length and nature of his involvement with the body of Mr Bratt beyond that which he described in evidence. Further, this was not a situation where Mr White witnessed the event which brought about the death of Mr Bratt, or one where he was required to take part in the recovery of Mr Bratt’s body from the boiler room or, indeed, to have any involvement, apart from being advised of the event, before seeing the body laid out but covered with a sheet. The Tribunal accepts the evidence of Dr Chalk in relation to the role played by this incident in causing post traumatic stress disorder in Mr White and is reasonably satisfied that it does not meet the description given in criterion A. No other specific event was described as bringing post traumatic stress disorder about prior to Mr White’s operational service although the Tribunal notes the evidence of Dr Katz and Dr Danesi concerning the role of his childhood experiences in predisposing him to its development.
31. Dr Chalk also expressed the opinion that the incident in the refrigeration room of HMAS Derwent was not sufficient to meet criterion A in the Statement of Principles and that a diagnosis of post traumatic stress disorder can not be made in reliance on that incident. However, the report of Dr Katz and the detailed reports of Dr Denisi, in particular that dated 13 April 2005 where he addresses all the criteria from the Statement of Principles, leave the Tribunal reasonably satisfied that a diagnosis of post traumatic stress disorder is appropriate. This is not a finding in relation to the causation of the condition but to its presence in Mr White. The matter of causation is addressed below.
Alcohol abuse/dependence
32. For this condition, the relevant Statement of Principles is Instrument No 76 of 1998. In the opinion of Dr Katz, Mr White suffers from alcohol abuse. In the more recent reports of Dr Danesi, Mr White is described as suffering from alcohol dependency, in partial remission, rather than alcohol abuse. Dr Chalk noted that Mr White had been able to exercise some control over his alcohol consumption in recent times although he continued to binge drink on occasions particularly in association with people at rugby union events. He considered that this description was one of alcohol abuse rather than alcohol dependence. On balance, and on the basis of Dr Chalk’s reasoning, the Tribunal is reasonably satisfied that the appropriate diagnosis is alcohol abuse. Again, the matter of causation remains to be determined.
Principles of Causation
33. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. The Tribunal accepts Mr Clutterbuck’s submission that there is an hypothesis of a relationship between Mr White’s operational service and his post traumatic stress disorder in that the condition was caused, but not aggravated by, the incident in the refrigeration room on HMAS Derwent. The Tribunal also accepts his submission that there is an hypothesis of relationship between Mr White’s operational service and his alcohol abuse on the basis that the condition was aggravated by or caused by that incident or that it was aggravated by or caused by post traumatic stress disorder.
34. The second of the four Deledio steps requires identification of the relevant Statements of Principles as published by the RMA. These have been noted above.
35. The third Deledio step requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor and associated definitions in the Statement of Principles. For post traumatic stress disorder, they read:
“(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder
“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 another 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;”.
36. For alcohol abuse, the definition of “experiencing a severe stressor” requires that the event or events “might evoke intense fear, helplessness or horror”. That is not a requirement for the definition as it appears for post traumatic stress disorder. For alcohol abuse, the factors and associated definition read:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;”
or
“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 people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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;”
37. If an hypothesis for either of the conditions under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant conditions are war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Reasonableness of Hypotheses
38. This third step of the Delidio process does not involve findings of fact and, for the purposes of considering the reasonableness of the hypothesis, I have accepted the summary of evidence set out above.
39. The analysis of experiencing a severe stressor for post traumatic stress disorder involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, it is not a requirement that there be an actual threat: see Stoddart at paragraphs 30 and Woodward at 131-142. In Stoddart (paragraph 30) the Full Federal Court adopted the following statement from Woodward’s case (paragraph 139):
“…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words “experiencing” should be construed as having at least this partially subjective connotation.”
40. The components of the definition of experiencing a severe stressor relate to an event that involved actual death or serious injury; threat of death or serious injury; or threat to the veteran’s or another person’s physical integrity. The same objective/subjective analysis as noted above must be equally applicable to each part of the definition. The material before us points to Mr White being confronted in the refrigeration room below the waterline of HMAS Derwent with a situation of uncertainty concerning the sound from an explosion and a vibration in the ship. It is not argued that there was an actual threat to Mr White but the material points to a situation which was capable of conveying a threat to the three men in that room. Further, Mr White described a reaction which reflected that he did perceive that this threat may have existed. This account of the incident points to the satisfaction of the requirements of the template of experiencing a severe stressor for post traumatic stress disorder and for some aspects of the template for alcohol abuse.
41. An additional component of experiencing a severe stressor in the case of the causation of or aggravation of alcohol abuse where a stressor is relied upon is that the material must point to the clinical onset of the disorder within two years of the stressful event: see Constable and Repatriation Commission [2005] FCA 928 at para 13. That is not a requirement where the alcohol abuse is related to another psychiatric condition such as, in this case, post traumatic stress disorder. It will be sufficient if post traumatic stress disorder predates and is present at the time of the clinical onset of the alcohol abuse. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. Putting the evidence of Mr White’s alcohol consumption at its highest, it does point, to some extent, to meeting the template’s requirement of a clinical onset within 2 years of the refrigeration room incident in Vung Tau Harbour.
42. The material before the Tribunal raises a reasonable hypothesis of a relationship to service of both post traumatic stress disorder and alcohol abuse abuse. This does not necessarily mean that they are related to Mr White’s service. Rather, the evidence relating to the hypotheses must be considered under the fourth of the Deledio steps. Post traumatic stress disorder and alcohol abuse will be war-caused unless the Tribunal is satisfied beyond reasonable doubt that this is not established by the evidence.
Deledio Step 4: Are the conditions War-caused?
43. Mr White has given inconsistent histories concerning his association with alcohol. In his evidence, he said that he did not consume alcohol prior to the death of Mr Bratt on HMAS Queenborough. He said that he then began to consume alcohol in a social setting with a messmate in Mackay in order to help him relax. From then until the incident in Vung Tau Harbour, his evidence was that he drank only his beer issue which was two cans per day whilst on board ship. But that is not the history which was recorded by Dr Katz or by Dr Danesi. Dr Katz described his drinking as beginning “in earnest” after the death of Mr Bratt. Dr Danesi described him as drinking approximately 15 stubbies about five times a week since the age of 22. This marks the commencement of the heavy consumption habit as being 1966 or 1967 and before the commencement of his operational service. That is also consistent with the alcohol questionnaire completed by him on 3 November 1998 when he was described as a heavy drinker at the level of 6 to 10 pots of beer per day in 1969 and 1970. In his evidence, he confirmed that this was what he drank when he was living in Darwin. Again, that predates operational service. Dr Danesi expressed the opinion that Mr White suffered from an alcohol related psychiatric condition prior to his visit to Vung Tau Harbour and the Tribunal is satisfied beyond reasonable doubt that the clinical onset of Mr White’s alcohol abuse predated his operational service. For that reason, the Tribunal is satisfied beyond reasonable doubt that the condition was not caused by that service in the manner set down in paragraph 9(1)(b) of the Act. However, that leaves open the question of whether it was aggravated, as set down in paragraph 9(1)(d) of the Act, by the incident.
44. It is difficult to imagine that someone of Mr White’s experience in the Navy would not realize that the sound he heard was associated with a scare charge rather than activity associated with enemy divers. Similarly, it is difficult to imagine that there would not have been some discussion amongst the three men in the refrigeration room as to the source of the noise and vibration that Mr White heard and felt. Mr White was in a war zone and was aware that Operation Awkward involved the random detonation of scare charges around the ship. Nevertheless, that was the evidence. It was noted above that the Tribunal is not satisfied that Mr White has always given consistent accounts of matters pertaining to his claim. In particular, that was the situation with his alcohol consumption history. The Tribunal is also of that opinion in relation to the events which occurred in the refrigeration room of HMAS Derwent and immediately thereafter.
45. In his initial claim to the respondent, Mr White gave the following description of the incident in Vung Tau Harbour.
“When I was in Vietnam waters I was in an area under main deck amidships below the water. The main hatch had to be closed. At the same time several loud explosions occurred. I immediately felt the vibrations. I thought we had been hit. I felt helpless and claustrophobic.” (T4 – folio 11)
46. In a statement, dated 28 October 2003, Mr White referred to “several large explosions” and he described the ship’s side as shaking and vibrating “violently”. In another statement, dated 11 March 2005, he again referred to “several loud explosions” and said he could “feel the vibrations”. The description of the noise and the vibration in his evidence was materially different from those descriptions. In his evidence, he described the noise as a “thud” and the vibration as similar to a vehicle running over a speed bump. Also, Mr White was asked how many times a scare charge detonated while he was in the refrigeration room. He said that there was the first “thud” and “perhaps one more”. Again, that is materially different from hearing “several explosions” in the manner described to and relied upon by Dr Katz and Dr Danesi when they attributed causation to the incident.
47. Mr White gave evidence that, after ascending from the 4 deck to the upper deck, he was advised that the noise had come from a scare charge. He said that he then went to his office and locked himself in and cried. He also said that, subsequently, he returned to the refrigeration room to complete the victualling task that he and the other sailors had already started. However, in his statement, dated 28 October 2003, he wrote that, after finding out that it was the ship’s divers dropping scare charges, he returned to the refrigeration room where he and the other sailors completed the task and he then went to his office and locked himself in. Those accounts are materially different and relate to Mr White’s actions proximate to the alleged stressful event.
48. Those inconsistencies in Mr White’s evidence leave the Tribunal satisfied beyond reasonable doubt that the event did not occur in the manner detailed by him to Dr Katz and Dr Danesi. The Tribunal is also satisfied to that standard that it did not have the effect described by Mr White. He said that, when he heard the noise of the scare charge, he had a flashback to what occurred to Mr Bratt and panicked. He also said that he was not sure when the flashback of the HMAS Queenborough incident occurred and he said that it may have been when he was going up the ladder to leave the refrigeration area. The evidence is that Mr White did not observe any aspect of the event that befell Mr Bratt and that he observed Mr Bratt’s covered corpse remote from the incident that brought about his death. Also, the Tribunal has determined that that event was not one that meets criterion A for post traumatic stress disorder. Further, Mr White’s actions did not reflect panic or helplessness on his part. Rather, he maintained presence of mind when the incident occurred and remained in control of the other sailors, ordering them to proceed to their “leaving ship” positions. On one version of events, he went back immediately to the refrigeration room and completed his task there. The Tribunal is satisfied beyond reasonable doubt that the incident was not one which satisfies the definitions of experiencing a severe stressor for the purposes of causing post traumatic stress disorder or aggravating his alcohol abuse and that these conditions are not war-caused. Further, as post traumatic stress disorder is not war-caused, it cannot be relied upon as an aggravating factor for alcohol abuse.
Decision
49. The Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny and Dr GJ Maynard, Members
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 15 March 2006
Date of Decision 31 March 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Haney Lawyers
Counsel for the Respondent Ms H Bowskill
Solicitor for the Respondent Australian Government Solicitors
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