Williams and Repatriation Commission (Veterans' entitlements)

[2018] AATA 3015

Williams and Repatriation Commission (Veterans' entitlements) [2018] AATA 3015 (17 August 2018)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/2607

Re:Darryl Williams

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Senior Member Linda Kirk

Date:17 August 2018

Place:Sydney

1.    The reviewable decision, being the decision of the Repatriation Commission made 7 November 2014 refusing Mr Williams’ claim in respect of Post-Traumatic Stress Disorder, is set aside.

2.    In substitution, it is decided that the Post-Traumatic Stress Disorder suffered by Mr Williams, with a clinical onset of 21 January 2002, is war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

....................[sgd]....................................................

J W Constance
Deputy President

Catchwords

VETERANS’ ENTITLEMENTS – whether injury or disease is war-caused – date of the clinical onset of the condition – Post-Traumatic Stress Disorder – Alcohol Use Disorder – Major Depressive Disorder – hypothesis connecting injury or disease with the circumstances of operational service – Statement of Principles – decision set aside

Legislation

Veterans’ Entitlement Act 1986 (Cth)

Cases

Bull v Repatriation Commission [2001] FCA 1832
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Warren (2008) 167 FCR 511

Secondary Materials

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013)

REASONS FOR DECISION

Deputy President J W Constance
Senior Member Linda Kirk

17 August 2018

1. On 1 July 2014 Mr Williams made an application for Post-Traumatic Stress Disorder (PTSD) to be accepted as a war-caused injury in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claimed he has suffered, and continues to suffer, the condition arising out of service he rendered as a member of the Australian Army while serving in East Timor in 2001-2002.

2. On 19 February 2016 the Veterans’ Review Board affirmed a decision of the Repatriation Commission refusing the claim.  

3. On 17 May 2016, Mr Williams applied to the Tribunal to review the Commission’s decision.

4. For the reasons which follow, the decision of the Repatriation Commission will be set aside. In substitution it will be decided that the condition of Post-Traumatic Stress Disorder suffered by Mr Williams was war-caused.

   B: LEGISLATIVE FRAMEWORK

   War-caused injury

5. Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:

   War caused injuries or diseases

   (1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

   (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service

   Standard of proof when claimed injury or disease said to arise out of operational service

6. Section 120 provides, in part:

   Standard of proof

   (1)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.

   Note:     This subsection is affected by section 120A.

   …

   (3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

   (a)that the injury was a war-caused injury or a defence-caused injury;

   (b)that the disease was a war-caused disease or a defence-caused disease; or

   (c)that the death was war-caused or defence-caused;

   as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

   Note:     This subsection is affected by section 120A.

   …

   (6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

   (a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

   (b)the Commonwealth, the Department or any other person in relation to such a claim or application;

   any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

   Reasonableness of hypothesis to be assessed by reference to Statement of Principles

7. Subsection 120A(3) provides:

   For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

   (a)a Statement of Principles determined under subsection 196B(2) or (11); or

   (b)a determination of the Commission under subsection 180A(2);

   that upholds the hypothesis.

8. Subsection 120A(4) provides:

   Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

   (a)the kind of injury suffered by the person; or

   (b)the kind of disease contracted by the person; or

   (c)the kind of death met by the person;

   as the case may be.

   Standard of proof when subsection 120(1) does not apply

9. Subsection 120(4) provides:

   Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

10. Subsection 120B(3) provides:

    In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:

    (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

    (b)there is in force:

    (i)     a Statement of Principles determined under subsection 196B(3) or (12); or

    (ii)    a determination of the Commission under subsection 180A(3);

    that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

    C: THE DELEDIO PRINCIPLES

11. In Repatriation Commission v Deledio,[1] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service once any issues relating to the type of service and the diagnosis of the condition suffered by the claimant have been determined. The Full Court said:

    1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

    2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    3If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

    4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

    [1] (1998) 83 FCR 82 at 97-98. The Federal Court has since held that the last sentence in step 2 is incorrect but this is not relevant in this application. See Bull v Repatriation Commission [2001] FCA 1832.

    D: ISSUES FOR DETERMINATION

12. We have to determine the following issues:

    (1)       Did Mr Williams render operational service and if so, when?

    (2)Does Mr Williams suffer from Post-Traumatic Stress Disorder or another relevant condition?

    (3)       If he does, when was the clinical onset of the condition?

    (4)Considering all the material before the Tribunal, does it point to a hypothesis connecting the PTSD with the circumstances of the operational service?

    (5)If such a hypothesis is raised, is there a relevant Statement of Principles in force?

    (6)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and, therefore, a reasonable one?

    (7)If so, considering section 120(1), are we satisfied beyond reasonable doubt that the disease suffered by Mr Williams was not war-caused?

    E: DETERMINATION OF THE ISSUES

    Issue 1: Did Mr Williams render operational service and if so, when?

13. It is not in dispute that Mr Williams rendered operational service in East Timor from 6 December 2001 to 14 March 2002.

    Issue 2: Does Mr Williams suffer from Post-Traumatic Stress Disorder?

14. The question of whether Mr Williams suffers from PTSD is to be decided according to the standard of “reasonable satisfaction” set out in subsection 120(4) of the Act. We have to be satisfied that Mr Williams suffers a collection of symptoms that constitute a “disease” for the purposes of the Act.[2]

    [2] Repatriation Commission v Bawden [2012] FCAFC 176 at [43].

15. We are not required to apply the definition in the Statement of Principles to determine the existence of the claimed condition or how it should be described.[3]

    [3] Repatriation Commission v Warren (2008) 167 FCR 511.

    Evidence of Mr Williams

16. Mr Williams made written statements dated 23 February 2006[4] and as part of his claim dated 27 June 2014.[5] He also gave evidence at the Tribunal hearing on 13 March 2018.

    [4] Exhibit R1 at 81.

    [5] Exhibit R1 at 99.

17. Having observed Mr Williams give evidence we are satisfied that he was an honest witness who gave his evidence to the best of his recollection. In deciding whether Mr Williams suffers from PTSD and the date of onset of that condition, we accept his evidence.

18. In 2001 Mr Williams was a Private in the Australian Army stationed at Townsville, Queensland. He was living in married quarters with his wife and children.

19. On 15 November 2001 Mr Williams was physically assaulted at his home by Mr Toner, a neighbour and co-worker. This occurred during Mr Williams being engaged in training prior to his being deployed to East Timor.

20. During November and December 2001 Mr Williams was harassed at work, both physically and verbally, by Mr Toner and Mr Frost (Mr Toner’s cousin). He received threatening telephone calls directed at his family and himself.

21. On 1 December 2001 Mr Williams was at home with his family when Mr Toner and Mr Frost attempted to break into Mr Williams’ house. Mr Williams was verbally abused by the two men.

22. On other occasions Mr Williams was awoken by someone kicking his front door in the early hours of the morning. During training prior to deployment to East Timor, Mr Williams was physically attacked in the lunch room on several occasions and his uniform was spat and urinated on. He was threatened by Mr Frost that he (Mr Frost) would “get him” for what he had done involving Mr Toner’s partner at a social function at Mr Williams’ home.[6] Mr Williams had not engaged in inappropriate conduct involving Mr Toner’s partner at any time.

    [6] Transcript 13/03/18 at 11.

23. The treatment experienced by Mr Williams caused him to become very anxious. At times his anxiety was such that he would vomit before going to work. He reported the incidents which occurred during pre-deployment training to his superior officer but the conduct towards him continued.

24. Mr Williams arrived in East Timor on 6 December 2001. Mr Frost was part of the same deployment and was based at Dili. Most of the time Mr Williams was based on board his boat in the harbour and travelled to and from another port in East Timor. However, on occasions Mr Williams was required to stay onshore in Dili. On these occasions he would come into contact with Mr Frost on a daily basis; one of these occasions was for a period of two weeks.

25. During these times Mr Frost kicked chairs at Mr Williams as he walked past. On other occasions Mr Frost shoulder-barged him. Mr Frost also threatened Mr Williams that he (Mr Frost) was “going to sort it out for his cousin”.[7] Mr Williams felt intimidated by this conduct.

    [7] Transcript 13/03/18 at 14.

26. On 21 January 2002[8] Mr Williams was based onshore in Dili for one night. The base was a fully sealed compound.

    [8] We have determined this date from records which show that Mr Williams was assessed by Captain Hayter the following day. The date of the assessment was 22 January 2002. See exhibit R1 at 228.

27. On arrival at the base, Mr Williams reported to the Staff Sergeant Major and then proceeded to the clearance bay to clear his weapon before placing it in the rack in the accommodation building. When he gave evidence he described the ensuing events as follows:

    MR WILLIAMS: So as I was approaching the clearance bay I noticed Jason Frost, very recognisable with his bright red hair and that, so - hats weren't worn around the base. The only time we'd put our hat on was out for patrol. Waited behind just for Jason to go through the clearance. Whilst he was in the process he's obviously noticed that I was there. I heard him cock the weapon, which my thought is that's part of a clearance. He then proceeded to turn around and point the weapon at myself, which was around - which was upper body, use the words to effect of "One day you" - and those words are either, you know, something around the dog, you c-u-n-t, that sort of thing, which obviously just scared the shit out of me. So I - and then he turned around and proceeded to clear his weapon, and during the weapon clearance because there was a round chambered it actually got ejected from the weapon and that's how I knew that he was at full - you know, that he was at instant because he had to bend over to pick up that round.

    MR SAUNDERS: All right. When he pointed the weapon at  you where did he point it?

    MR WILLIAMS: Upper - upper body, so around my face to neck, upper chest, that sort of - we're talking only a short distance too.

    MR SAUNDERS: How far was the end of the muzzle to your face, sort of upper chest, how far away was it?

    MR WILLIAMS: Within 30 to 45 centimetres.

    SENIOR MEMBER KIRK: Was there anyone else in this clearance bay as you have described it at this time?

    MR WILLIAMS: Yes. I don't recall, ma'am, anyone, whether there was anyone or whether there wasn't. At the clearance bay you're just going through the actions.  You know, you do it so often that it's really through the actions and that's - I don't recall seeing anyone there.

    MR SAUNDERS: Other than him saying "One day you dog or c-u-n-t", whichever it was, do you remember him saying anything else?

    MR WILLIAMS: No, it was just - I can only remember the words to the effect of "One day you", whatever came from that. To me honestly feeling that that was going to - that that meant that there was going to be some sort of - something inflicted on me one day, whether it was going to be that second or whether it was going to be on return home or anything, sir.

    MR SAUNDERS: Earlier you said "It scared the shit out of me"?

    MR WILLIAMS: Yes.

    MR SAUNDERS: When he was saying "One day" and he spun around you said that second or on return - I mean can you just describe any other feelings you had at that moment?

    MR WILLIAMS: Yes, look I was - I was terrified, I was blank.

    MR SAUNDERS: You were what, sorry?

    MR WILLIAMS: Blank.

    MR SAUNDERS: Blank?

    MR WILLIAMS: I was, yes.  That's why, you know, I didn't spin on the spot and search for people.  I didn't - I was - I was in shock. The feelings are very hard to describe at that instant, because I guess unless you've been scared for your life and - but it's that fear, it's that gut churning fear that something could happen.

    SENIOR MEMBER KIRK:  Did you say anything to him when this happened or you were just - - -?

    MR WILLIAMS: No, I was already at the point that all the intimidation and physical encounters prior to that, that I was trying to avoid him 100 per cent. I was in that much shock I really don't - I don't - yes, I don't think I would have spoken back at that time. [9]

    [9] Transcript 13/03/18 at 21-23.

28. Within about an hour of this incident, Mr Williams telephoned his father and told him what had happened. Mr Williams Snr had retired after a long career in the Army. He was already aware of the previous incidents involving Mr Toner, Mr Frost and his son. Mr Williams was advised by his father not to report the incident to his superiors as this would only make things worse for him. He accepted this advice. At the time he felt angry and “beaten down”.[10]

    [10] Transcript 13/03/18 at 28.

29. The following day Mr Williams returned to his boat. That evening he was assigned to anchor watch. He described what happened while he was on watch as follows:

    I called, it was probably early in the morning. 2.00 am maybe, I can’t recall the time in the morning where we were, so I don’t know what the time was in Townsville, but [my mate] failed to answer and I left a message on there about my concerns, I guess. My depression state and what my intentions were at that time. [My mate] then told somebody at the unit and I was called back into Dili by the SSM.[11]

    [11] Transcript 13/03/18 at 29.

30. The next morning Mr Williams was called to the compound in Dili and his weapon was taken from him. He assumed that this happened because his mate had reported the message he had left. Later that day he was referred to an Army psychologist, Captain Hayter.[12]

    [12] Ibid.

31. When he was being assessed by Captain Hayter, Mr Williams did not tell the truth. He denied feeling suicidal and did not relay the incident with Mr Frost. He did this to avoid being returned to Australia on psychiatric grounds and being subject to further scrutiny when he got home. He was also following his father’s advice. His weapon was returned to him after this consultation. He remained onshore for about two weeks and then returned to his boat.

1. In mid-February 2002 Mr Williams was hospitalised in Dili for six days, suffering from dengue fever. While in hospital he met and assisted a child who had been raped and severely injured. Mr Williams was significantly affected by this experience. In view of the decision we have reached as to the time of the clinical onset of the Post-Traumatic Stress Disorder suffered by Mr Williams it is unnecessary that we recite details of his experience in these reasons.

2. Mr Williams was deployed back to Australia on 14 March 2002. He immediately travelled to Sydney to see his family.

   Evidence of Dr Dinnen, Consultant Psychiatrist

3. Dr Dinnen examined Mr Williams on 13 September 2013 at the request of his Solicitors. He provided a report dated 22 September 2016[13] and gave evidence.

   [13] Exhibit A2.

4. Dr Dinnen diagnosed Mr Williams as suffering Post-Traumatic Stress Disorder, Major Depressive Disorder and Alcohol Use Disorder.[14]

   [14] Exhibit A2 at 8.

   Evidence of Dr Smith, Consultant Psychiatrist

5. Mr Williams was examined by Dr Smith on 18 November 2016 at the request of the Commission. He provided a report dated 24 November 2016[15] and gave evidence at the hearing.

   [15] Exhibit R2.

6. Dr Smith reported that, at the time of the examination, Mr Williams demonstrated the diagnostic criteria of an Alcohol Use Disorder in remission. He reported further that:

   In the absence of confirmatory evidence I have not diagnosed Mr Williams with a Post-Traumatic Stress Disorder related to his adverse experiences with Private Frost.[16]

   [16] Exhibit R2 at 13-14.

   Discussion

7. On the basis of the evidence of Mr Williams and Dr Dinnen we are satisfied on the balance of probabilities that Mr Williams suffers from Post-Traumatic Stress Disorder. In making this finding we have preferred the evidence of Dr Dinnen to that of Dr Smith.

8. When giving evidence, Dr Dinnen gave careful consideration to the history he took from Mr Williams. This history was consistent with the evidence Mr Williams gave before us and which we have accepted. This included his evidence as to the incident when Mr Frost pointed a loaded weapon directly at him.

9. The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition[17] (DSM-5) includes the following as one of the diagnostic criteria for PTSD:

   A Exposure to actual or threatened death, serious injury or sexual violence in one(or more) of the following ways:

   1 Directly experiencing the traumatic event(s)…[18]

   [17] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013).

   [18] Ibid at 271.

10. In the opinion of Dr Dinnen, the event with the weapon satisfied the requirement of a life threatening event within the diagnostic criteria for PTSD.[19]

    [19] Exhibit A2 at 8.

11. We accept the view of Dr Dinnen that Dr Smith treated the weapon incident too lightly. Dr Dinnen considered this event in the context of the repeated harassment and threats to which Mr Williams had been subjected both before and during his deployment in East Timor. Taking into account these circumstances, Dr Dinnen said that Mr Williams would have been in a state of fear at the time of the weapon incident.[20]

    [20] Transcript 14/03/18 at 93-94.

12. Dr Dinnen also referred us to the report of Ms Crumpton-Crook dated 21 May 2002.[21] At the time Ms Crumpton-Crook was Acting Area Officer of the Defence Community Organisation, Townsville. As Dr Dinnen pointed out, this report was significant as it was prepared shortly after the incidents of harassment suffered by Mr Williams and confirmed the seriousness of those events and their effect on him.[22]

    [21] Exhibit R1 at 239-242.

    [22] Transcript 14/03/18 at 93.

13. Dr Dinnen and Dr Smith differed in their opinions as to the appropriateness of a diagnosis of PTSD when a person is suffering from an Alcohol Use Disorder. Dr Dinnen explained that there may be situations where the person is so seriously affected by alcohol use that the underlying features of PTSD cannot be established. This was not so in Mr Williams’ case as the features of PTSD were reasonably established. In the opinion of Dr Dinnen, based on his experience, “the excessive use of alcohol is possibly the most effective avoidance strategy available to any traumatised individual.”[23]

    [23] Transcript 14/03/18 at 99.

14. In contrast to the evidence of Dr Dinnen we found the evidence of Dr Smith unconvincing.

15. Dr Smith was of the opinion that if a person has a significant alcohol abuse problem a diagnosis of PTSD should not be made.[24] He referred us to criterion H which reads:

    The disturbance is not attributable to the physiological effects of a substance (e.g. medication, alcohol) or another medical condition[25]

    However, as Dr Dinnen pointed out, this criterion refers to physiological effects only and not psychological effects.

    [24] Transcript 13/03/18 at 70.

    [25] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013) at 272.

16. Although he was critical of the diagnosis of PTSD, Dr Smith agreed that an argument could be made for such a diagnosis if it were accepted that the weapon incident occurred and if all other criteria were made out. He did not detail all those criteria in his report as he thought they were “obvious”.[26]  We accept the evidence of Dr Dinnen that, based on the history given by Mr Williams, the other criteria referred to in DSM-5 were established. As stated earlier, we accept that Mr Williams was a truthful witness.

    [26] Transcript 13/03/18 at 81.

17. Dr Smith appeared anxious to argue a case for the Commission, at times seeking to apply legal principles in support of his argument. On several occasions he referred to the lack of “corroborative evidence” in regard to the significant event involving the loaded weapon. His doubts as to the truthfulness of Mr Williams appeared to influence his diagnosis.[27]

    [27] Transcript 13/03/18 at 71-72 and at 83 line 20.

18. Dr Smith said that he did not agree with the diagnosis of PTSD made by Dr Dinnen as he did not think that “it has been established beyond a reasonable doubt”.[28] When asked, he confirmed that this was the test he had applied. Counsel for the Commission later asked Dr Smith as to his view of the diagnosis on the balance of probabilities. He replied, without hesitation, that this did not alter his opinion.[29] His response caused us concern as to the basis on which he made the diagnosis.

    [28] Transcript 13/03/2018 at 72.

    [29] Transcript 13/03/2018 at 73. 

19. For the reasons stated above, we find that Mr Williams has suffered, and continues to suffer, from Post-Traumatic Stress Disorder.

    Issue 3: When was the clinical onset of the PTSD suffered by Mr Williams?

20. In his report of 22 September 2016, Dr Dinnen stated that in his opinion the onset of PTSD was during Mr Williams’ service in East Timor.[30]

    [30] Exhibit A2 at 8.

21. When he gave evidence, Dr Dinnen confirmed this opinion and was more specific as to the time of onset. In so doing he distinguished between the harassment which occurred prior to deployment and that which occurred in East Timor.

22. In answer to a question as to the basis for his opinion, Dr Dinnen said:

    Toner came to his door in November, and he was deployed to Timor in December.  If in Timor he had not been subjected to the harassment from Frost I would think his reaction would have been containable, it would have been manageable; and if there had been no further harassment when he got back.  But the fact that he was in Timor where Frost was, certainly as he perceives him to be dangerous, was I think the onset of that traumatic experience.  Certainly being attacked by Toner in November is relevant, but if it had been the only incident, it would have been much less likely to have led to such severe PTSD as was the result of spending that four months in Timor where Frost was around.[31]

    [31] Transcript 14/03/18 at 95.

23. When asked whether he thought the events which took place the day after the weapon incident were relevant considerations as to clinical onset, Dr Dinnen said:

    Absolutely, I think that’s chapter and verse. That makes it very clear. That’s when the full impact of his exposure to threat had caused psychiatric disturbance.[32]

    [32] Transcript 14/03/2018 at 95.

24. On the basis of the evidence of Mr Williams and Dr Dinnen, we are satisfied on the balance of probabilities that the clinical onset of the PTSD suffered by Mr Williams was on either 21 or 22 January 2002.

    Issue 4: Considering all the material before the Tribunal, does it point to a hypothesis connecting the PTSD suffered by Mr Williams with the circumstances of his operational service?

    The hypothesis

25. The hypothesis put forward on behalf of Mr Williams said to connect his suffering PTSD with the circumstances of his operational service is that:

    During the period that he is deployed in East Timor, that period being 6 December 2001 to 14 March 2002 …… he was exposed to a category 1A stressor in either late December 2001 or early January 2002, when Private Jason Frost turned whilst clearing his weapon …… at the clearing point [in the hard base in Dili], turned his weapon onto the chest and upper torso and facial region …… in close proximity to [Mr Williams], having cocked his weapon, i.e., a round going into the chamber of the weapon which was audibly heard by [Mr Williams].[33]

    [33] Transcript 13/03/18 at 84-85.

    The material before the Tribunal

26. Following what the Federal Court said in Deledio, it is essential that we do not engage in fact finding at this stage. Rather than repeat the material we have already set out in relation to the diagnosis and clinical onset of the PTSD, we refer to that material without reference to any findings based on it. This comprises the evidence of Mr Williams, Dr Dinnen and Dr Smith and the reports of Dr Chalk, Dr Feeney, Ms Salter, Dr Synnott and Dr Rewais.

27. In addition to the material referred to in the preceding paragraph, we also take into account the material contained in Exhibit R1, which includes the following reports.

    Report of Dr Chalk, Psychiatrist, 8 October 2005[34]

    [34] Exhibit R1 at 44.

28. Mr Williams was assessed by Dr Chalk in September or October 2005.  He reported, in part:

    He essentially describes some occasional difficulties with alcohol in the past and really seems to describe a binge like pattern of alcohol consumption which appears to have been associated with no mixed anxiety or depressive symptoms. He relates this back to harassment in 2001 and 2002 and it would appear that he was victimised over a period of time though really never seems to have done anything about it.

    Report of Dr Feeney, Senior Staff Specialist, 18 October 2005[35]

    [35] Exhibit R1 at 46.

29. Dr Feeney assessed Mr Williams at the Alcohol and Drug Assessment Unit of the Princess Alexandra Hospital, Woolloongabba Hospital in October 2005.

30. Dr Feeney reported, in part:

    He describes a pattern of binge drinking which occurs mainly at weekends and can involve up to the equivalent of a carton of beer (360 grms of ethanol [sic]) per session. This is usually a combination of beer and spirits ……

    …

    This thirty four year [sic] man recognises that his alcohol use has become progressively more troublesome over the last six years.

    Report of Ms Salter, Psychologist, 18 December 2005[36]

    [36] Exhibit R1 at 48.

31. Mr Williams was assessed at an Army Mental Health Unit in December 2005. The assessment was in respect of ongoing depressive and anxiety symptoms.

32. Ms Salter took a history from Mr Williams of him having been harassed in East Timor. In the opinion of Ms Salter, Mr Williams appeared to evidence substantial problems with interpersonal relations.

    Report of Dr Synnott, Consultant Psychiatrist, 21 July 2006[37]

    [37] Exhibit R1 at 52.

33. Dr Synnott assessed Mr Williams on 21 July 2006.

34. Dr Synnott was of the opinion that at the time of assessment Mr Williams did not have a psychiatric condition.

    Report of Dr Rewais, Consultant Psychiatrist, 7 September 2009[38]

    [38] Exhibit R1 at 62.

35. Dr Rewais assessed Mr Williams on three occasions in the latter half of 2009. Mr Williams provided Dr Rewais with a history which included instances of harassment in East Timor.

36. Dr Rewais reported, in part:

    Diagnostically, based on the DSM IV, Mr Darryl Williams fulfils the criteria for Post Traumatic Stress Disorder and Major Depression. These diagnoses were supported by the CAPS and Beck Depression Inventory. He also fulfils the criteria for Alcohol abuse disorder.

    …

    The first situation which had affected him was the conflict with his neighbour and colleague…… As reported by Mr Williams, this conflict escalated to ongoing tension and bullying of Mr Williams by several of his colleagues. He reported several assaults by them including stabbing him in the arm. When he came across them in East Timor following his earlier transfer, Mr Williams became fearful for his life as they all carried weapons and he feared that there maybe [sic] use of weapons during an altercation.[39]

    [39] Exhibit R1 at 66-67.

37. Under the heading “Prognosis” Dr Rewais reported:

    In conclusion Mr Williams has continued to experience symptoms of PTSD. In particular he reported reliving experiences in terms of nightmares and recollection during his waking hours. He described a disturbance of mood and sleep and difficulty in relationships and interactions with other people. As reported, his condition has improved gradually over time and I suspect it will continue to fluctuate but overall improve. The extent and rate of his improvement can only be discovered through assessment over time.[40]

    [40] Exhibit R1 at 67-68.

    Does the material before us “point to” the hypothesis proposed on behalf of Mr Williams?

38. Clearly the opinion of Dr Dinnen points to the incident when Mr Frost pointed the loaded weapon at Mr Williams as being the cause of Mr Williams’ development of PTSD. This incident occurred as Mr Williams was carrying out the duties of his operational service.

39. The various medical reports point to Mr Williams being affected by bullying he experienced while on operational service in East Timor.

40. The evidence of Mr Williams points to the circumstances of the event and those which preceded it. The latter circumstances, in turn, point to the seriousness with which Mr Williams regarded the event and why he would have reacted with fear. The evidence of Mr Williams and the report of Captain Hayter point to the incident having a significant effect on Mr Williams despite there being no evidence that Mr Williams reported the event to any of his superiors.

    Issue 5: Is there a relevant Statement of Principles in force?

41. It is not in dispute that the relevant Statement of Principles is the Statement of Principles concerning POSTTRAUMATIC STRESS DISORDER No.82 of 2014.

42. On the basis of the evidence of Dr Dinnen we are satisfied that the disorder suffered by Mr Williams meets the criteria set out in clause 3 of the Statement.

    Issue 6: Is the hypothesis consistent with the “template” within the Statement of Principles and therefore a reasonable one?

    The factor which must as a minimum exist before a reasonable hypothesis is raised

43. Clause 6 of the Statement provides in part:

    The factor which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:

    (a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder

44. Clause 9 defines “a category 1A stressor” to mean one of the following severe traumatic events:

    (a) experiencing a life-threatening event;

    (b) being subject to a serious physical attack or assault including rape and sexual molestation; or

    (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured Discussion

45. We are of the opinion that the hypothesis raised is a reasonable one as it contains one of the factors set out in clause 6, namely that Mr Williams experienced a category 1A stressor before the clinical onset of a Post-Traumatic Stress Disorder.

46. The incident with the loaded weapon is a severe traumatic event on each of the following bases:

    ·Mr Williams experienced a life-threatening event;

    ·He was threatened with a weapon.

47. On the material before us, Mr Williams had a loaded weapon pointed at the area of his torso and face at close range. He was aware the weapon was loaded as he heard it being cocked immediately before it was pointed at him. This was confirmed by a live bullet being ejected from the chamber immediately after it was pointed at him. The person aiming the weapon had threatened and harassed Mr Williams on previous occasions. This material points to the event being life-threatening.

48. The evidence of Mr Williams points to his being threatened by a weapon, which of itself is consistent with the template in the Statement of Principles.

    Issue 7: Considering section 120(1), are we satisfied beyond reasonable doubt that the disease suffered by Mr Williams was not war-caused?

49. Taking into account the evidence of Mr Williams and the opinion of Dr Dinnen, both of which we have accepted for the purpose of determining the disease from which Mr Williams suffers, we cannot be satisfied beyond a reasonable doubt that it was not war-caused.

    CONCLUSION

50. The reviewable decision, being the decision of the Repatriation Commission made 7 November 2014 refusing Mr Williams’ claim in respect of Post-Traumatic Stress Disorder, will be set aside.

51. In substitution, it will be decided that the Post-Traumatic Stress Disorder suffered by Mr Williams, with a clinical onset of 21 January 2002, is war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Senior Member Linda Kirk.

........................[sgd]................................................

Associate

Dated: 17 August 2018

Date(s) of hearing:	13 and 14 March 2018
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	KCI Lawyers
Solicitors for the Respondent:	Australian Government Solicitor