Willmott and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 1016

Willmott and Repatriation Commission (Veterans’ entitlements) [2015] AATA 1016 (23 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/1621
Re	Danny Willmott
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	23 December 2015
Place	Sydney

The decision of the Repatriation Commission made 14 May 2013 is varied to provide that the clinical worsening of a condition of post-traumatic stress disorder suffered by Mr Willmott is a war-caused disease, with a date of effect of 11 March 2013.

....................[SGD]....................................................

J W Constance
Deputy President

CATCHWORDS

VETERANS' AFFAIRS- war-caused injury - operational service - post-traumatic stress disorder - aggravation of war-caused injury - clinical onset of aggravation - is there a hypothesis connecting aggravation of post-traumatic stress disorder with the circumstances of the operational service - relevant statement of principles - amended statement of principles

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 9, 120(1),(3),(6), 120A(3),(4)

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391 (22 April 1998)

Repatriation Commission v Thomas [2002] FCA 1497
Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Keeley (2000) 98 FCR 108

SECONDARY MATERIALS

Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014 cls 4-6, 9

Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008

Amendment Statement of Principles concerning Posttraumatic Stress Disorder No.19 of 2014 cl 6(fa)

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Mr Willmott joined the Royal Australian Navy in September 1968, when he was 17.

2. He completed his recruit training and was posted to HMAS Melbourne in January 1969.  He was on board in the early hours of 3 June 1969 when the Melbourne collided with USS Frank E Evans.  Seventy-four lives were lost in that collision.

3. Mr Willmott suffered post-traumatic stress disorder as a result of his experience in this incident. The Commission accepts this diagnosis.

4. During 1970 – 1972 Mr Willmott rendered operational service on board HMAS Sydney during the Vietnam War.

5. On 14 November 2012 Mr Willmott lodged a claim with the Commission seeking payment of a disability pension.  He claimed that his post-traumatic stress disorder was worsened by his operational service.  On 14 May 2013 the Commission refused his claim. On 26 November 2013 the Veterans’ Review Board affirmed the Commission’s decision.

6. Mr Willmott has applied to this Tribunal to review the Board’s decision.

7. For the reasons which follow, the decision under review will be varied to provide that the clinical worsening of Mr Willmott’s post-traumatic stress disorder was war-caused.

   BACKGROUND

8. Unless otherwise stated, the facts set out in these reasons are based on the evidence of Mr Willmott. He provided a statement dated 23 February 2015[1] and two statements dated 22 October 2014[2] and gave evidence. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.

   [1] Exhibit A1.

   [2] Exhibits A2 and A3.

   Posting to HMAS MELBOURNE

9. In his statement of 22 October 2014 Mr Willmott described his experience on the Melbourne at the time of the collision:

   We were doing joint war exercizes with the SEATO Nations off the coast of VIETNAM in the South China Sea. It was our second or third week of constant action stations and defence stations, with constant pressure on everyone, the ship was flying aircraft, it was the night of the 2^nd June/ 3^rd June 1969.

   As we were at defence watches, I had come off watch at midnight and had gone to sleep. My bunk was the middle bunk of a tier of 3 in Four Delta Messdeck, Which was the most forward mess in the ship; my bunk was located right up forward on the starboard side.

   A couple of hours later I was woken by the pipe over the loudspeakers "Hands to collision stations, Hands to collision stations, Hands to collision stations" immediately followed by "Hands to emergency stations, Hands to emergency stations, Hands to emergency stations".

   A single light left on in the recreation area always lighted the messdeck. Someone was calling out, "get out, get out, this is not a drill". I jumped out of my bunk and grabbed a pair of shorts and sandals.

   At that instant we hit, the messdeck lurched upwards and dropped twice in quick succession with a severe shake / vibration. The impact threw me across the gap between the rows of bunks and down onto the deck.

   The noise was like a jet engine, a sort of a roar and rumble mixed together, I could smell smoke. For ten or twenty seconds the light was out until the emergency lighting came on, there was loose gear everywhere.

   Bodies getting up of the deck, people feeling their way around, someone called for all the watertight doors to be closed.

   The inside of the mess started to get hot, maybe because of the situation, or maybe just because the air vents weren't working, the smell of smoke was still around. One of the Leading Seaman detailed a few sailors who had personal torches to check for fire, nothing could be found. Another Leading Seaman called for silence and for everyone to muster at the bottom of the escape ladders.

   One by one we were counted as we climbed out through the small escape hatches. I made my way across the cross passage way to the Starboard Paravane Space, as I came out into the space. I noticed how strange it was. The sea was flatter than a pond; the moon was so bright you could see shadows and you could see for miles and miles.

   Except for peoples voices there was no noise. As I looked out, I noticed the stern of the EVANS hard up against our Starboard side, slowly drifting aft. I couldn't see anyone on her upper deck's, nobody home! One of her whip aerials touched our Gun Sponson, high voltage arcs of light jumped one or two feet long like some giant welder, she seemed to be very low in the water.

   Tried to go up to Zero Two Deck, too many people from other Messes were trying to go up also. I didn't want to be trapped there, so, I decided to go forward through the Naval Airmen's Mess, then up a ladder to the Forecastle. Then from there across the Forecastle to the Starboard Forward Gun Sponson.

   The aft section of the EVANS was now directly underneath the sponson, there were American sailors coming out of her hull, two or three were lying on the deck, a couple of their mates were tending to them.

   Up on the Flight Deck of the MELBOURNE, someone was throwing down a line, someone else was rolling a scramble net over the side for them. I climbed up a ladder from the gun sponson onto the flight deck. My emergency station was immediately in front of the Island superstructure.

   As I stood up on the flight deck, I saw on a bearing of roughly 45 degrees to the Port Bow, the forward section of the EVANS maybe fifty to eighty yards away. It was rolling slowly upright to her starboard side. She was wet all over, the moon shining off her paintwork.

   People were gathering on the Port side of the flight deck, just standing, just staring, there wasn't anything you could do. It was easy to see the people in the water, while others were still jumping of the EVANS. About forty to fifty feet away from me, at the bow of our flight deck, was an American sailor, obviously in pain. A couple of Australian sailors were tending to him.

   Our bow was all deformed and crumpled upwards at the front edge, steam was coming from the catapult. A large section of the EVANS was on the flight deck, looked like a flattened box. I still remember that it had an insignia painted on it, a lightning bolt and trident.

   The forward section of the Evans started to point skywards, on her hull were men, one man was struggling, his lower legs were either smashed or severed, it looked like he was moving on his knees, trying to move with the rolling of the ship.

   A Wessex helicopter moved above the bow section with it's spotlight on, someone was crying out, you couldn't do anything for them but watch, everything else had stopped, other ships were still, the sea was so flat the only noise was the sound of the helicopters and the men.

   By now the bow was pointing about 45 degrees to the sky, machinery was starting to break loose in her, the noises were like a series of thuds and explosions, about twenty or thirty men were in the water, some were still jumping off the EVANS.

   The man with "no legs" was right up forward, the EVANS started to slide backwards, you could hear air- rushing out, the American sailors weren't swimming away from her, Australian's were calling out, "swim, swim, Come on swim" I don't think they could hear.

   I don't know why? But I can't remember her going under. All of a sudden you noticed all the debris, mostly small stuff, bits of paper, seemed to be heaps of paper, about thirty or forty sailors were in the water, none of them seem to have life jackets on. Some of them just seemed to have on white boxer shorts and T-shirts.

   The Sonar Control Room could be heard on our Bridge Intercom, "Bridge SCR-bearing...depth...' Bridge SCR-bearing...depth..." Bridge SCR-bearing...depth..." depth 100, depth 150 etc., at the same time a deep rumble could be heard through our hull, you knew she was getting crushed.

   All those guys in her, no chance at all, nothing could be done for them. I was wishing for them to die quickly, I felt terrible for thinking that way, but I was hoping it was quick. The rumble went on for a long time; ten or twenty seconds, every one just stood there, and nobody said a word.

   Everything was quite except for the Sonar Control Room and the choppers. Another chopper was flying above the debris, our Sea Boat was amongst the American's, the boat looked so low in the water, just inches of freeboard, the boat was packed.

   A Senior Sailor fell us in to do a body count. We were immediately in front of the Island. You could see across the Flight Deck to where all the sailors were in the water. The helicopter searchlights were flickering here and there, one hovered over a spot with its searchlight on a person who wasn't moving, floating vertically in the water.

   Then all of a sudden another person came into sight about seventy feet or so away, just barely swimming. They went over to pick him up, I don't know what ever happened to the first guy, but he was never picked up.

   As a Junior Sailor I had to wait at our Emergency Station in front of the Island. Immediately to our Starboard side where we were standing, the Aft Stack of the EVANS was at eye level. If you looked over the side you could see the stern of the EVANS.

   Sailors were climbing up nets and there was a stretcher being pulled up to a Paravane space with an injured man in it. All this time we were wondering how much damage had the MELBOURNE suffered, we really didn't know if it was going to be sink or swim.

   After what seemed to be ten or fifteen minutes we were told that the damaged compartments had been secured. We were then detailed to do certain jobs, like damage control etc., my first job that morning was to be an escort for the injured American sailors. To show them the way from the Port Forward Boat Space to the sick bay, then later take them down to the ship's galley.

   Some were injured, others never even had a scratch, but they all were very quite, I'm sure it was shock. One of the Sick Bay Attendants was organising blood transfusions for the seriously injured.

   Another task I was detailed to do later on in the morning was to help clean up all the loose gear and to help carry the timber to Four Delta Mess for the Shipwrights doing damage control, shoring up Four Charlie Cell Flat.

   Later on in the day we went back into watches, the ship had been made ready to sail, all of the crew who were off watch mustered on the Flight Deck for a Memorial Service for the one hundred and seventy four sailors who had died that morning.

   I was on watch at the time, my very first watch was kept up in the cell compartment with the watertight door sealed behind me, locked in with just a sound powered telephone.

   You could see the ocean through a huge hole in the cell deck which had been torn away, the ocean flowed in and out of a huge hole in the bows underneath. The purpose of the Damage Control Sentry was to tell Damage Control Central if we started to take on water or if the shoring had started to fail.

   They gave the crew a beer issue that night,  I wasn't a drinker but that night I had my first beer, a large 26oz export can, it helped you to forget and not to worry and to go to sleep. The next three days I kept Damage Control Sentry duties many times inside the cell flat, with the watertight door sealed behind me, watching the water swirling around, as we were under way, listening for every little sound, I'll never forget it.

   We arrived in SAMBAWANG shipyard on Friday 6^th June to get temporary repairs, everyone was ordered not to talk to anybody about the collision, especially the media. Our Captain was sent to Subic Bay for a court martial, it seemed that we were wrong.

   Posting to HMAS CERBERUS

10. In about October 1969, following the return of the Melbourne to Sydney Mr Willmott was posted to HMAS CERBERUS where he completed his Able Seaman’s promotion course in fire control.  He did extremely well in the course which took four or five months, working from 5am until 6pm. At the conclusion of the course he was named the top course man, being top of the class.  He felt well and was looking forward to an ongoing career in the Navy.  By reason of his success he expected to be posted to one of the ships which was being fitted with a new weapons system in respect of which he had just been trained.

    Posting to HMAS SYDNEY

11. At the conclusion of the course Mr Willmott was posted to HMAS SYDNEY, an aircraft carrier which was not fitted with the new weapons system. He was disappointed at this posting is it meant that he would not work with the new weapons system for the next 18 – 24 months at least.  The Sydney was the sister ship of the Melbourne and was almost identical in appearance and layout.  Mr Willmott stated:

    At the start of my posting I walked through the gates of Garden Island with my kitbag on my shoulder and there she was, the HMAS Sydney, high up in the water with steep gangways just like the Melbourne. My immediate reaction was to think, ‘Back again, it’s just like the Melbourne.’ It took me right back to being on the Melbourne and the Evans disaster.[3]

    Mr Willmott was 17 at the time.

    [3] Exhibit A1 para.5.

12. On the Sydney Mr Wilmot was allocated the position of Petty Officers Messman, which he described as a “perk job”.  He was given a bunk which was only a few meters away from the position of the bunk he had been allocated in the Melbourne.

13. About a month after he joined the Sydney Mr Willmott had an opportunity to speak to the Captain. He told him that he had been on the Melbourne at the time of the collision and that he had been sleeping in a similar position to his present bunk.  He asked the Captain if he could be moved to accommodation on another mess deck, preferably down aft, as his present position reminded him of the Evans incident.  The Captain told Mr Willmott that he would speak to someone about his request.

14. Within a week Mr Willmott was re-assigned to the position of the ship’s spray painter, a position for which he had no experience.  His accommodation was changed to a storage locker which was five-six meters long and two-three meters wide. It had one door onto an open deck, no portholes and heavy steel shelving used for storage of painting equipment, paint and inflammable chemicals. The bed provided was a deck chair – there was no hammock.  At most times he was allowed to keep the door open for ventilation.

15. Mr Willmott remained in the job of spray painter and in his allocated accommodation for the remaining two years of his service on the Sydney.  He worked at night so as to cause minimum disruption to the crew and was usually left to his own devices.  He would sleep during the day. His working hours and practices kept him isolated from other crew members. He did not take part in normal watch duties.  On occasions another sailor worked with him and shared the locker but this position was rotated regularly.

    Operational service in Vietnam

16. Mr Willmott sailed on the Sydney into Vung Tau Harbour on eight occasions during the Vietnam War. These trips occurred between 21 October 1970 and 9 March 1972.

17. On his first trip he was asleep in the locker as the ship entered the harbour.  As it was a war zone the ship was in damage control state Zulu, which meant that it was closed down to watertight security.  All doors were closed and the light in the locker was off.

18. Mr Willmott was woken by a “really, really loud noise”.  It was immediately apparent to him that there had been an explosion and something had happened.  He was asked how he reacted.  Mr Willmott responded:

    It was altogether in an instance – it was just the same as being back on the Melbourne because I knew I was – an identical ship – it was like being there. I got to the door, swung the door open and like I said before the open space, I had about 10 foot or so to go to the ship’s side, maybe a bit more. As I bolted out through the door – we didn’t have any communications in this little locker. It had no comms, no nothing. So as I got out of the door there was a guy on the guard rail armed with an SLR and he had a box of charges at his feet and I didn’t know what was going on. There was swift boats running around off the ship’s side and I just assumed something had happened. But he seemed to be reasonably calm and he said to me, “it’s just a scare charge”. But I didn’t know at the time what it was because I was inside sleeping. Everyone else was up.

    …… at the time I wasn’t aware, you know, it could have been another collision as far as I knew.

    …… Well it shook me up quite a bit because it made me think again about what had happened only a matter of a year or two beforehand. …… I couldn’t go back to sleep …… I went down to the canteen for a little while and then I went back to my locker but it wasn’t, you know, normal. …… After the guy told me what it was I knew there was no immediate threat but it reminded me of what had happened prior but it shook me up. I had the shakes, I was hollow in my chest because for an instant I was back to in the mess.[4]

    Mr Willmott said that he felt shaken up for most of the day.  He had minimal sleep during the day and returned to his spray painting duties that night.

    [4] Transcript 17/09/15 pp.48-49.

19. On another trip, as the ship was leaving the harbour, Mr Willmott was moving his painting equipment into the forward hanger.  As he was doing this he heard a commotion and saw a group of people coming towards him across the hanger. Someone was yelling “get the door, get the door”. Mr Willmott turned and started unlocking the door behind him. Someone again called out “no, get the door, get the door, get the door on the lift”.  As he did so he noticed that the group was carrying a stretcher on which there was a person, who Mr Willmott believed was either unconscious or dead.  As the stretcher was carried past him he realised that he was looking down the same passageway as that on the Melbourne through which he had escorted the American sailors immediately following the collision with the Evans. This brought back his memories of the evacuation on that occasion. He felt shocked and his chest felt hollow. His head felt hot and he was trembling.

20. When asked how this made him feel Mr Willmott replied that he felt distraught and uncomfortable and that he did not wish to be there. He did not want to go to work and sat by himself for several hours and thought about what had happened and tried to calm down. He was shaking. He decided to talk to somebody as he felt really stressed at the time.

1. The following morning Mr Willmott spoke to his Divisional Officer. He believes this person was either a sublieutenant or a lieutenant. He told the Officer about the situation he had witnessed. He also told the Officer that he had been on board the Melbourne at the time of the collision, that he had escorted American sailors and that he had seen a deceased sailor taken from the bow of the Melbourne.

2. Mr Willmott was asked how the Officer responded to him. He replied:

   His attitude at the time was – which wasn’t unusual, it was normal – it was you have to get over it, we’re all part of a big team. There’s been people that have seen worse. You will get over it. Don’t let the team down. It was all that sort of stuff and I said, “but this is – I can’t do this anymore.” And he said, “well you’ll just have to. You’re a key in the chain” and all this sort of stuff.

   ….. I can remember it in general but he said things like – excuse the language – he said – we had an expression, harden the fuck up and get a bag of cement.” In other words, toughen up.

   …… I just went back to my hidey hole and never spoke to people.[5]

   [5] Transcript 17/09/15 p.54.

3. A month or so later Mr Willmott was subject to a routine assessment by his Divisional Officer. At that assessment his Divisional Officer told him that if he continued in the way he had been it would be noted that his performance was poor. The score he was given was below the rank of an Able Seaman and lower than his usual rating. It was the worst assessment he had ever received.

4. At the next assessment Mr Willmott returned to the normal range of his previous scores. He was doing well and was asked to do a leading Seaman’s promotion course. He undertook one or two days of the course and then told his superiors that he did not want to be promoted, even though he had good scores. He felt that all he wanted to do was to “give up, get out, go away, disappear, hide.”[6]  When he joined the Navy he hoped to be promoted but when he started the course he saw no future for himself.

   [6] Transcript 17/09/15 p.57.

5. After two years’ service on the Sydney Mr Willmott spent approximately one year in the diving section of HMAS Penguin.  In 1973 he joined the crew of a destroyer which had the weapons system in which he had been trained. However he was assigned to spray painting duties.

6. Mr Willmott retired from the Navy in 1978 after 10 years’ service.  He retrained in rigging and scaffolding and worked in the construction and housing industries. He had numerous jobs, but for some years he had difficulty maintaining his position. In the late 1980’s or early 1990’s he joined the Army Reserve as he was unemployed and needed an income.  He remained a member of the Reserve for seven years.  He was in constant employment with the one employer from 1994 to 2010.

   THE MEDICAL EVIDENCE

7. The Commission concedes that Mr Willmott suffers from post-traumatic stress disorder arising from his experience at the time of the collision between the Melbourne and the Evans. On the evidence before me I am satisfied that this is a proper concession.

   Evidence of Dr Dinnen, Consultant Psychiatrist

8. Dr Dinnen assessed Mr Willmott in August 2014, at the request of his Solicitors. He provided reports dated 26 August 2014[7] and 2 July 2015[8] and gave evidence.

   [7] Exhibit A4.

   [8] Exhibit A5.

9. In the opinion of Dr Dinnen, Mr Willmott’s service on the Sydney considerably aggravated his post-traumatic stress disorder and that aggravation has continued to have an effect.  Either of the events he described was capable of causing an aggravation of his pre-existing condition.

10. Dr Dinnen based his opinion on two elements of the material before him. The first was Mr Willmott’s consistent account of what happened to him whilst serving on the Sydney and that he found his time on the ship very difficult.  The manner in which Mr Willmott describes the incident involving the detonation of the scare charges indicates that the event is still vivid in his memory and he expresses emotion attached to that experience.

11. Secondly, there was a consistent account, both from Mr Willmott and from the medical records, that Mr Willmott’s condition worsened after he served on the Sydney.  Dr Dinnen took into account that Mr Willmott had done very well in his studies after leaving the Melbourne. The collection of symptoms of his disorder (which included his excessive drinking) and which were evident from the time that he served on the Sydney were not as troublesome during that nine months before he was posted to Sydney.

12. Dr Dinnen gave evidence that in his experience the effects of post-traumatic stress disorder are most marked in the first one to three months after the event and then the condition stabilises and becomes constant over the following years. Subsequent stressors can reactivate the condition and make it greater in intensity than the original baseline. Had Mr Willmott not been sent to serve on the Sydney his condition would not have been at the level that it has been through the subsequent years.

13. On the question of the appropriate clinical management of Mr Willmott’s condition, Dr Dinnen said that in 1971 and 1972 when he was on the Sydney, Mr Willmott could easily have been identified as having a psychiatric problem. When he spoke to the Captain and again when he spoke to his Divisional Officer, his psychological well-being could have been identified as having been damaged to the extent that he could have been referred for psychiatric evaluation. Although post-traumatic stress disorder had not been defined at the time, he would have been considered to have an anxiety condition and would have had appropriate treatment. This treatment would have included his immediate removal from the Sydney.  Had this occurred, Mr Willmott may have had a much better outcome.

    Evidence of Dr Roberts, Consultant Psychiatrist

14. Dr Roberts assessed Mr Willmott in November 2014 at the request of the Commission. He provided a report dated 16 November 2014[9] and gave evidence.

    [9] Exhibit R1.

15. It is the opinion of Dr Roberts that the effect on Mr Willmott of his being on the Sydney and the events that occurred whilst he was on board, would have been transient and discomforting, but that it would be extremely difficult to determine that any transient uneasiness would have given rise to permanent aggravation of his pre-existing condition. In his view Mr Willmott performed throughout his life in a way that would be anticipated of a person suffering from post-traumatic stress disorder.  Mr Willmott's life history cannot be demarcated as any different from that of anyone else who suffers from ongoing post-traumatic stress disorder.

    LEGISLATIVE BACKGROUND

    War-caused injury

16. Section 9 of the Veterans’ Entitlements Act 1986 (Cth) 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;

    (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

    …

    (e)the injury suffered, or disease contracted, by the veteran:

    (i)     was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

    (ii)     was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,

    and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible  war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; 

    but not otherwise.

    Standard of proof

17. Section 120 relevantly provides:

    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

18. 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.

19. 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.

    THE DELEDIO PRINCIPLES

20. In Repatriation Commission v Deledio[10]  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:

    1.The 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.

    2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a 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.

    3.If 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.

    4.The 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.

    [10] (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998).

    ISSUES FOR DETERMINATION

21. I have to determine the following issues:

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

    (2)Does Mr Willmott presently suffer from an aggravation of his pre-existing post-traumatic stress disorder?

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

    (4)Considering all the material before the Tribunal, does it point to a hypothesis connecting the aggravation of the post-traumatic stress disorder 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), am I satisfied beyond a reasonable doubt that the worsening of the post-traumatic stress disorder suffered by Mr Willmott was not war-caused?

    CONSIDERATION OF THE ISSUES

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

22. It is agreed that Mr Willmott rendered operational service during the eight trips he made to South Vietnam on board the Sydney.  These occurred during the following times:

    ·21 October to 12 November 1970

    ·14 February to 4 March 1971

    ·26 March to 8 April 1971

    ·13 May to 1 June 1971

    ·20 September to 16 October 1971

    ·26 October to 18 November 1971

    ·24 November to 17 December 1971

    ·14 February to 9 March 1972.

    I am satisfied that this is a proper agreement.

    Issue 2:  When was the clinical onset of the aggravation?

23. Based on the evidence of Dr Dinnen I am satisfied that the clinical onset of the condition was at the time of the incident involving the detonation of the scare charges.  This was during Mr Willmott's first trip to Vietnam which occurred between 21 October 1970 and 12 November 1970.

    Issue 3:  Does Mr Willmott presently suffer an aggravation of his pre-existing post-traumatic stress disorder?

24. On the basis of the evidence of Dr Dinnen I am satisfied on the balance of probabilities that Mr Willmott continues to suffer from the aggravation of his pre-existing condition.

25. I prefer the opinion of Dr Dinnen to that of Dr Roberts.  Dr Dinnen takes into account the progress Mr Willmott was able to make in the time immediately following his leaving the Sydney.  During that time he studied and achieved the highest result in his group.  He was looking forward to an ongoing career in the Navy.  This was consistent with Mr Willmott's condition having stabilised.  Dr Roberts did not satisfactorily explain these positive achievements.

26. Dr Dinnen also pointed to the decline in Mr Willmott's condition later in life when the condition caused by his experience on the Melbourne would have been expected to continue to be stable.

    Issue 4:  Considering all the material before the Tribunal, does it point to a hypothesis connecting the aggravation of the post-traumatic stress disorder with the circumstances of the operational service?

27. Having considered all of the material before me I am satisfied that it points to a hypothesis that Mr Willmott's pre-existing post-traumatic stress disorder was aggravated by the incident when the scare charges were detonated and/or the incident when he observed the unconscious or deceased person on the stretcher.

28. I am satisfied further that the material also points to a hypothesis that Mr Willmott suffered an aggravation of his pre-existing condition by reason of his being unable to obtain treatment for his post-traumatic stress disorder whilst he was on board  the Sydney.

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

29. There is in force a relevant Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014. If that Statement does not uphold the requisite connection, Mr Willmott is entitled to rely on a relevant Statement of Principles in force at the time of the Commission’s decision, being 14 May 2013. Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008 was in force at that time.

30. An issue has arisen as to whether Mr Willmott can rely on an amendment of Statement of Principles No. 5 of 2008, namely Amendment Statement of Principles concerning Posttraumatic Stress Disorder No.19 of 2014.  This was not a new statement, rather it was an instrument which added additional factors that may be related to service to No. 5 of 2008.  It is to be noted that this Amendment Statement of Principles was not in force at the time of the Commission’s decision and is not in force now. No. 5 of 2008 as amended by No. 19 of 2014 was revoked by No.82 of 2014 on 22 September 2014.

31. The amendment introduced by No. 19 of 2014 added several factors to clause 6 of No. 5 of 2008.  The relevant factor, upon which Mr Willmott seeks to rely read:

    (fa)having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:

    (i) the individual concerned; and

    (ii) a reasonable person in the circumstances of that individual would have;

    considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical worsening of posttraumatic stress disorder … .  

    Can Mr Willmott rely on Statement of Principles No.5 of 2008 as amended by Amendment Statement of Principles No. 19 0f 2014?

32. This issue was considered by the Federal Court in Repatriation Commission v Thomas.[11]

    [11] [2002] FCA 1497.

33. In Thomas the situation in relation to the relevant timing of the amending Statement of Principles was the same as in this matter.  In Thomas  the timeline was as follows:

    ·March 1995                Statement of Principles 95/1995 came into effect

    ·November 1996         Repatriation Commission decision

    ·December 1996         Statement of Principles 191/1996 amended No. 95/1995

    ·August 1997               Veterans’ Review Board decision

    ·November 1999         Statement of Principles 84/1999 revoked 95/1995 and  No. 191/1996           

    ·May 2002                   Administrative Appeals Tribunal decision.

34. Mansfield J. referred to earlier judgements of the Full Court of the Federal Court in which it was held that once a claim for a pension under the Act is made, the claimant accrues a right to have his or her claim determined by reference to the Statement in force at the time of the Commission’s decision.

1. In Repatriation Commission v Gorton[12]  Heerey J. said:

   if at the time of claim a claimant could raise one hypothesis consistent with the factors in [that earlier] SoP , the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear.

   [12] (2001) 110 FCR 321 at 331-332.

2. In a judgement with which Emmett J. agreed, Allsop J. said:

   the only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission’s decision by force of the decision in Keeley.[13]

   [13] At p.336. The reference to Keeley is a reference to Repatriation Commission v Keeley (2000) 98 FCR 108.

3. In Thomas Mansfield J. concluded:

   But I do not consider that [claimants] have an “accrued right” before the Tribunal to have the claim determined by reference to the Statement of Principles in force at the time of the Board’s decision where the then current Statement of Principles has replaced one in force at the time of the Commission’s decision, as distinct from and in addition to the accrued right recognised in Keeley and Gorton. My conclusion accords with the observations of Heerey J at 322 and of Allsop J at 333 and 335 in Gorton and of Lee and Cooper JJ in Keeley at 123 although their Honours were not required to, and did not, directly address that issue.[14]

   [14] At para.36.

4. In my view the decision in Repatriation Commission v Thomas is applicable to this matter and Mr Willmott is not entitled to rely on the provisions of the Amendment Statement of Principles No. 19 of 2014.  

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

   Statement of Principles No.82 of 2014

5. Clause 4 of the Statement of Principles provides:

   The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).

6. Clause 5 provides:

   Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

7. Clause 6 provides in part:

   The factor that 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:

   ……

   (h) experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or

   (i)  experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; or

   ……

   (o)  inability to obtain appropriate clinical management for posttraumatic stress disorder.

8. Clause 9 provides in part:

   For the purposes of this Statement of Principles:

   “a category 1A stressor”  means one of the following severe traumatic events:

   (a) experiencing a life-threatening event;

   ……

   “a category 1B stressor”  means one of the following severe traumatic events:

   (a) being an eye-witness to a person being killed or critically injured;

   (b) viewing corpses or critically injured casualties as an eyewitness;

   (c) being an eyewitness to atrocities inflicted on another person or persons;

   (d) killing or maiming a person;

   (e) being an eyewitness to or participating in, the clearance of critically injured casualties.

9. As there is no material pointing to Mr Willmott experiencing a life-threatening event or viewing corpses, the first hypothesis put forward is not consistent with the template in either factor 6(h) or 6(i).

10. Whilst Mr Willmott felt threatened when he heard the explosion of the first charge, the actual event was not in fact a threat to his life. 

11. The material points to his having seen one corpse, however the definition of a category 1B stressor refers to “corpses” plural.  In my view the insertion of the plural was deliberate.  Other provisions of the definition of a category 1B stressor variously refer to “a person”, “another person or persons” and “casualties” in the plural only.  Had it been the intention to include a reference to a single corpse the phrase “a corpse or corpses” would have been used.

12. There is material pointing to Mr Willmott being unable to obtain appropriate management for posttraumatic stress disorder. He spoke to his Divisional Officer about his concerns relating to the events he had experienced on the Sydney and received no assistance.  Dr Dinnen gave evidence that appropriate treatment was available at the time.

13. I conclude that the hypothesis that the clinical worsening of Mr Willmott's post-traumatic stress disorder is connected to his operational service is consistent with the template in Statement of Principles No.82 of 2014 and therefore is a reasonable one.

    Statement of Principles No. 5 of 2008

    The relevant factors and the definitions of category 1A and 1B stressors are identical to those referred to above.  For this reason the application of this Statement in its unamended form is of no additional assistance to Mr Willmott.

    Issue 6:  Am I satisfied beyond a reasonable doubt that the disease suffered by Mr Willmott was not war-caused?

14. Having seen and heard Mr Willmott give evidence I am satisfied that he was an honest and reliable witness and I accept his evidence.  On the basis of the evidence of Dr Dinnen I am satisfied that Mr Willmott suffered a clinical worsening of his existing post-traumatic stress disorder and that he was unable to obtain appropriate treatment for his condition while on board the HMAS Sydney. Taking into account this evidence I cannot be satisfied that the worsening of the post-traumatic stress disorder suffered by Mr Willmott was not war-caused.

    CONCLUSION

15. The decision of the Repatriation Commission made 14 May 2013 will be varied to provide that the clinical worsening of a condition of post-traumatic stress disorder suffered by Mr Willmott is a war-caused disease, with a date of effect of 11 March 2013.

I certify that the preceding 69 (six-nine) paragraphs are a true copy of the reasons for the decision herein of

...............[SGD].........................................................

Associate

Dated 23 December 2015

Date(s) of hearing	15 June 2015, 17-18 September 2015, 12 October 2015
Date final submissions received	12 October 2015
Counsel for the Applicant	C Mudge
Advocate for the Applicant	Legal Aid NSW
Solicitors for the Applicant	E Rice
Advocate for the Respondent	T O'Reilly; Department of Veterans' Affairs