Williams and Repatriation Commission
[2001] AATA 713
•13 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 713
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/92
VETERANS' APPEALS DIVISION )
Re JOYCE HANNAH WILLIAMS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date13 August 2001
Place Hobart
Decision The decision under review is set aside and in substitution therefor a decision that Mrs Williams' depressive disorder is connected with the circumstances of her relevant service within the meaning of Statement of Principle No. 59 of 1998.
[S P Estcourt QC]
Deputy President
CATCHWORDS
Veterans – Eligible Service – Depressive disorder – Whether war caused – Caused or contributed to by environment – Decision revoked.
Veterans' Entitlements Act 1986 – ss 120(4), 196B,(3),(14)
Repatriation v Smith (1987) 15 FCR 237
Re Grace and Repatriation Commission [2000] AATA 711
REASONS FOR DECISION
13 August 2001 Mr S P Estcourt QC., (Deputy President)
Mrs Williams has applied to the Tribunal to review the decision of a delegate of the Repatriation Commission of 9 February 2001 subsequently affirmed by a decision of the Veteran's Review Board of 7 May 2001, whereby her claim to have the condition of depressive disorder accepted as due to service was rejected.
At a conference conducted on 3 August 2001, Mrs Williams and the respondent's representative, Mr Castle, agreed that Mrs Williams application could be determined on the papers.
Accordingly there is before the Tribunal the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and in addition three letters from Mrs Williams to the Tribunal a letter dated 29 June 2001, an undated letter received in the Registry on 24 July 2001 and a letter dated 3 August 2001.
I am advised that the respondent received copies of the letters and does not wish to make any submissions to the Tribunal in relation to their contents.
Mrs Williams served in the Australian Army from 26 November 1942 to 15 August 1944 which constitutes eligible war service as defined by the Veterans Entitlements Act 1986 (Cth) ("the Act").
As Mrs Williams' service was not "operational service" as defined by the Act, s.120(4) requires the Tribunal in reviewing her application to decide the matter on the basis of "reasonable satisfaction". This means in determining to its reasonable satisfaction the question of whether Mrs Williams' depressive disorder was war caused the Tribunal must apply the civil standard of proof of the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 237 at 335.
Further, as Mrs Williams' claim was lodged after 1 June 1994, where there is a Statement of Principles ("SOP") made under s.196B(3) of the Act, the Tribunal must also determine whether the applicable SOP upholds the contention that the veteran's condition is, on the balance of probabilities, connected with the veteran's service.
There is a relevant SOP, namely instrument No.59 of 1998. That SOP defines depressive disorder and specifies a number of factors which must exist before it can be said that, on the balance of probabilities, depressive disorder is connected with the circumstances of a person's relevant service.
Re Grace & Repatriation Commission [2000] AATA 711 decided that the relationship to service required by the SOP must be one of the relationships prescribed in s.196B(14) of the Act. That section provides, relevantly:
"(14) A factor causing, or contributing, to an injury, disease or death is related to service rendered by a person if
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to that service; or
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for the changes in the person's environment consequent upon his or her having rendered that service."
In November 1943, Mrs Williams was informed of the death of her fiancé who was killed in action against the Japanese on his 21st birthday, just before the 9th Division returned to Australia.
Mrs Williams' uncontradicted evidence is that upon receipt of that news she had "a physical breakdown, that she cried for six weeks, that no-one could stop her from crying and that this 'stress' has stayed with her all her years".
On 6 December 2000, Mrs Williams was examined by a psychiatrist, Dr I.P. Burges Watson. Mrs Williams reported to Dr Burges Watson that she had been depressed all her life saying "I felt I had been under a big black cloud. There are days it comes down." When questioned by Dr Burges Watson as to what Mrs Williams meant by "all her life", she is reported as saying "since the tragic moment in my life", that is to say, learning of the death of her fiancé.
In his report dated 8 December 2000, Dr Burges Watson commented:
"It would be reasonable to assume that Mrs Williams has become depressed again recently following her multiple operations for cancer and her heart problems. Her husband's state of health might also be anticipated as a cause of depression."
I do not take that to be a contradiction of Mrs Williams' claim that she has been depressed ever since learning of the death of her fiancé in 1943. Indeed, Dr Burges Watson said in his report:
"I did not have time to go into detail about Mrs Williams symptoms now or in the past …".
As has been noted, Mrs Williams' claim that she "had stress back in 1943 and it has stayed with me all these years" is evidence before the Tribunal which is uncontradicted.In her letter dated 3 August 2001 she said "I had such depression on arrival and a dark cloud was always there even today".
One of the factors which must exist before it can be said on the balance of probabilities that a depressive disorder is connected with the circumstances of a person's relevant service is:
"Experiencing a severe psychosocial stressor or stressors within one year immediately before the clinical onset of depressive disorder."
It is implicit in Dr Burges Watson's report that Mrs Williams suffers a depressive disorder and her evidence is that she is now the way she has always been since learning of her fiancé's death in November 1943.
The question remains however as to whether Mrs Williams' depressive disorder is related to her eligible service.
Whilst it might be argued that Mrs Williams' depressive disorder resulted from learning of the death of her fiancé, which was an occurrence which happened while she was rendering that service, it is my view, although it is unnecessary for me to decide, that the test posed by s.196B(14)(a) requires more than a mere temporal connection with a person's service.
I am, however, satisfied that it is more probable than not that the onset of Mrs Williams' depressive disorder would not have occurred but for the changes in her environment consequent upon her rendering of eligible service within the meaning of s.196B(14)(f)(ii).
At the time of experiencing the severe psychosocial stressor in the form of the death of her fiancé, who I am more than satisfied can be described as a close friend of Mrs Williams, she was a girl of about 19 years of age. It is not altogether clear to me whether she was living in Tasmania or Victoria at the time of joining the Army, although it is apparent from the material before me that she joined up in Melbourne and that at that time her mother, Mrs Watterson, lived at Box Hill in Victoria.
At the time of learning of the death of her fiancé, Mrs Williams was living in a tent with three other service women in Townsville at a time when Japanese air raids in northern Australia had occurred since 1942 and a possible defence strategy involved abandoning Australia north of a diagonal line from Adelaide to Brisbane to the Japanese.
Without any direct evidence, one might have cause to wonder whether the news of the death of a loved one would invoke, in an apparently fit and healthy young woman, a life long psychiatric illness, had she been in the bosom of her family. There is however, direct evidence from Mrs Williams on this subject.
In her application for review dated 5 June 2001, Mrs Williams stated:
"I was flown over 3,000 miles in a DC3 plane on a stretcher with two other soldiers to the biggest woman's hospital and operated on for a cyst … I was very ill and depressed. I wanted my beautiful mother …".
In an earlier letter dated 17 August 2000, which appears at folio 37 of the T documents, Mrs Williams expands on this theme in terms demonstrative of the tyranny of distance. She said:
"I was taken by DC3 plane flown right out to sea over water along the coastline of Australia, because all roads and airways were loaded with troops, going to Papua New Guinea."
Finally in her letter of 3 August 2001, Mrs Williams stated:
"A DC3 plane with three stretchers across it flew out to sea till we got to Ipswich, Queensland. All roads were blocked with troops flying out to Papua New Guinea and Lae.. Japanese had invaded the island and killed all Australian nurses. Our ships were on the horizon, but we were too late to pick the nurses up, all were killed except Captain Bullwinkle, she played dead and did not speak about it for 20 years. We took an oath not to speak either. I had such depression on arrival and a dark cloud was always there even today. I had no counselling ever, I wanted my mother, she was 2,000 miles away and ill with a slight stroke. I was never offered leave."(my emphasis)
In all the circumstances, I am satisfied, on the balance of probabilities, that Mrs Williams has a depressive disorder which is connected with the circumstances of her relevant service within the meaning of SOP No.59 of 1998 and I am satisfied on the balance of probabilities that her depressive disorder was war caused. Accordingly, the order of the Tribunal is that the decision under review is revoked.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC.,
(Deputy President)Signed: .....................................................................................
Personal AssistantDate/s of Hearing Matter decided on the papers
Date of Decision 13 August 2001
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