Wood and Repatriation Commission (Veterans' entitlements)
[2022] AATA 3833
•17 November 2022
Wood and Repatriation Commission (Veterans' entitlements) [2022] AATA 3833 (17 November 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/0596
Re:Robert WOOD
APPLICANT
AndRepatriation Commission
RESPONDENT
Decision
Tribunal:Mrs J C Kelly, Senior Member
Date:17 November 2022
Place:Sydney
The reviewable decision is affirmed.
..............................[sgd]..........................................
Mrs J C Kelly, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – disability pension – clinical worsening – post-traumatic stress disorder – major depressive disorder – statement of principles – whether defence-caused diseases were clinically worsened in connection with applicant’s service – whether there was a causal connection to service – reviewable decision is affirmed
Legislation
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
Safety, Rehabilitation and Compensation Act 1988
Veteran’s Entitlement Act 1986 (Cth) (VEA)
Cases
Comcare v PVYW (2013) 250 CLR 246
Franks and Repatriation Commission [2010] AATA 329
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Re Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525
Roncevich v Repatriation Commission (2005) 222 CLR 115
Smith v Repatriation Commission [2015] AATA 786
Secondary Materials
Statement of Principles concerning posttraumatic stress disorder No. 83 of 2014
Statement of Principles concerning depressive disorder (No. 84 of 2015)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
17 November 2022
Introduction
Mr Robert Wood is 74 years old. He served in the Royal Australian Navy (the RAN) from July 1964 until July 1976. He claims that in 1975, during his naval service, after he accepted an invitation from air force personnel to go to a party, he was taken to the desert outside Broome after 10PM and left to die. By good luck, he found his way back to his base in Broome at about 7AM the following morning after walking 40 to 60 kilometres over about 10 hours. From there, he travelled by bus to the airport with other members of his squadron for the day’s work. He was in a hangar when an officer came up behind him, assaulted him, and frog-marched him to see a more senior officer. After a conversation between the two officers, he was told he was returning to HMAS Albatross near Nowra. He was put on a Royal Australian Air Force (RAAF) Hercules aircraft and returned to Richmond RAAF base near Sydney where he arrived that night and was told to get off the base. He had to find his own way back to Nowra. He caught a taxi to Blacktown railway station, then caught a train to Central Station. The next morning, he caught a train to Bomaderry and then a navy bus to HMAS Albatross. On arriving at HMAS Albatross the next morning, he was charged with causing a disturbance at the Broome base and forfeited leave and attending at ‘the Wets’ for one or two weeks. I will refer to this as the ‘Broome incident’.
As a result of the Broome incident, Mr Wood claimed that he has suffered clinical worsening of Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD), and Alcohol Use Disorder (AUD) and satisfies the criteria for a disability pension under Part IV of the Veteran’s Entitlement Act 1986 (Cth) (the VEA). His application was refused by the Repatriation Commission and the Veteran’s Review Board (VRB). He applied to the Tribunal for review of the VRB’s decision.
The legal framework
The Commonwealth is liable to pay pension by way of compensation to the member in accordance with the VEA, where a member of the Forces is incapacitated from a defence-caused injury or disease (section 70(1)(b) and (d) of the VEA). It is not disputed that Mr Wood’s claims have been made in respect of a ‘disease’ as defined in the VEA rather than an injury.
A disease contracted by a member shall be taken to be a defence-caused disease if:
· it arose out of, or was attributable to any defence service of the member (section 70(5)(a) of the VEA); or
· would not have been contracted but for either of (section 70(5)(c) and section 70(7) of the VEA):
o the member having rendered defence service, or
o changes in the member’s environment consequent upon his or her having rendered any such service.
The Respondent conceded that section 70(9) of the VEA, which excludes liability for a member’s ‘serious default or wilful act’, was not relevant.
Sections 120(4) and 120B(3) of the VEA provide that I must be reasonably satisfied that a disease contracted by Mr Wood was defence-caused only if the material before me raises a connection between the disease and some particular service rendered by Mr Wood and, where there is in force a Statement of Principle (SoP) determined by the Repatriation Medical Authority, the SoP upholds the contention that the disease of the person is, on the balance of probabilities, connected with that service.
There are SoPs for both PTSD and Depressive Disorder.
I cannot presume that the disease suffered by Mr Wood is defence-caused (section 120(5) of the VEA). Mr Wood has no onus or proving any matter that is or might be relevant to his application (section 120(6) of the VEA).
The Tribunal is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks is just, and shall take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including the effects of the passage of time, including on the availability of witnesses and the absence or deficiency in relevant official records of a report of an occurrence during service (section 119 of the VEA).
The issues
By the end of the hearing, I understood that Mr Wood was not pressing a claim in respect of AUD. For certainty, I refer to the evidence on that issue.
The expert psychiatric evidence was provided by Dr Jennifer Lockwood, Consultant psychiatrist, who prepared two substantive reports, in 2018 and 2021, and answered questions from the VRB in 2020 (Dr Lockwood’s 2020 response). In her 2018 report she had diagnosed, inter alia, PTSD, MDD and AUD which arose from Mr Wood’s experience during about the first six months of his service in 1966.
In her 2021 report, she found that Mr Wood had suffered a clinical worsening of PTSD and MDD as a result of the Broome incident. However, in respect of AUD, Dr Lockwood wrote at page 55:
… It is very possible given the severity of his exacerbation of PTSD and depressive symptoms, that his alcohol use did increase at this time, but I cannot state this with any certainty based on the history available to me. These opinions are based on the history provided.
The evidence, including that of Dr Lockwood, does not satisfy me that Mr Wood suffered a clinical worsening of AUD as a result of the Broome incident. In response to Dr Lockwood’s 2021 report, Mr Wood did provide a document setting out how his drinking increased after the Broome incident. However, given his earlier consistent accounts of very heavy drinking before the Broome incident and lack of evidence of any increase after it, I do not accept that it is accurate. It is unnecessary to consider AUD further.
The Repatriation Commission, the Respondent, accepts that Mr Wood has been diagnosed with PTSD and MDD and that there are SoPs in respect of each. It takes issue with Mr Wood’s claim that those diseases were clinically worsened as a result of the Broome incident for a number of reasons. The questions I need to answer are, am I reasonably satisfied that:
(a)the Broome incident occurred,
(b)If so, the relevant SoP is satisfied, and
(c)there is the necessary connection with Mr Wood’s service.
Chronology
Mr Wood has provided extensive documentation in support of his applications to the Respondent, the VRB and the Tribunal. The following chronology summarises Mr Wood’s history of seeking redress for the experiences he had during his service.
Mr Wood engaged in the Defence Abuse Response Taskforce (DART) process in 2013 with respect to the early months of his service at HMAS Leeuwin in 1966. He described incidents when he witnessed and when he experienced, trauma from physical assaults, including sexual assaults, and what may be described as bastardisation. He says that he approached a firm of solicitors in 2013 but they did not want to assist him.
In 2016, Mr Wood says that the same firm of solicitors contacted him about taking legal proceedings, on a pro bono basis, in relation to his experiences at HMAS Leeuwin after the Federal Government removed time limits on seeking compensation for abuse/sexual abuse to children.
On 6 September 2016, Mr Wood sent an email to his then solicitors with the subject ‘final broome revisited’. Mr Wood wrote:
Below is the now much extended third draft of the letter I call ‘Broome Revisited”. Perhaps I am putting the cart before the horse in any possible compensation case – but wanted to get it (sic) most of it out of my system before the real battle for compensation begins. Below is what I would sign as statement before any court or jurisdiction, this and the two DART letters I previously sent you.
…
BROOME REVISITED
The reception of the forms in the mail from (solicitors) for me to sign, jogged my memory of another significant abuse incident, occurring not at Leeuwin, though in Western Australia, but at Broome in March 1975.
Mr Wood set out his account of the Broome incident over five pages and then gave an account of his life after his service. He concluded:
Now that I feel significantly stronger in body and mind – and after many decades of working on my mental state and my physical injuries, I no longer take antidepressants (Allegron/Nortryptiline). But that’s pretty much the sum of my life. Now I feel finally (after a mere 50 years!), more capable and able to challenge the ‘heirarchy of scum’ in the ADF whose actions and inactions systematically destroyed my future – now I do want my pound of flesh – and by that I mean significant compensation. Decades ago I felt compelled to just walk away from it all. Tried to forget about it all and try to heal my life. But now do I want a future, yes fifty years late. So yes I want all the Post Traumatic Stress and and the rest of the muck dumped on me by joining the Navy to be paid for by the ADF - because apologies and reviews might sound good to some – but they don’t mean anything to me. Not a thing.
Mr Wood’s then solicitors referred him to Dr Jennifer Lockwood, Consultant Psychiatrist, for an independent psychiatric assessment. Her report, dated 5 April 2018, was addressed to “The Court” care of a solicitor from the firm. The subject line said: ‘Re: Robert WOOD: Defence Abuse Common Law Claim’.
Dr Lockwood had prepared the report after a four-hour assessment on 15 March 2018. She diagnosed chronic PTSD, Chronic Dysthymic Disorder, Alcohol Use Disorder and Tobacco Use Disorder, both now in long term remission, likely MDD recurrent, which developed early in Mr Wood’s RAN service, directly in response to traumatic experiences. He did not have those symptoms before joining the RAN. His history was consistent with experiencing them after that time. His PTSD had been complicated by a lengthy period of severe alcohol abuse which developed as a form of withdrawal from stress and self-medication for anxiety. His time away from duties was largely devoted to drinking alcohol either on or off base. Mr Wood ceased drinking in about 1991 or 1993.
Dr Lockwood reported that Mr Wood had not really had any treatment. He saw a psychologist three or four times through the DART process in 2013 but did not discuss issues around his abuse but focused on his future plans. He said that he was able to write down the history for the DART process but was unable to say it. He had not seen another psychologist or a psychiatrist and had not disclosed his mental health problems to his GPs.
He was briefly prescribed a low dose antidepressant which was unlikely to have been effective. In her opinion, Mr Wood would benefit from treatment with a combination of supportive and possibly trauma focussed psychotherapy and appropriate medications, including medication(s) to reduce depressive and anxiety symptoms.
Dr Lockwood did report that Mr Wood mentioned the Broome incident:
While he was drinking heavily, he had some blackouts and lost days. He had some legal problems; on one occasion while he was drinking he had an argument with an RAAF officer who drove him and dumped him in the middle of the desert, after which Robert was charged with being drunk and disorderly and had a one to two weeks stoppage.
By around October 2018, the common law claim ‘was going nowhere’ according to Mr Wood. There seems to have been some confusion with applications he sought to lodge around that time. In any case, the following documentation is clear.
On 3 December 2018, Mr Wood claimed for liability under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA).
On 28 March 2018, the Military Rehabilitation and Compensation Commission (MRCC) accepted liability for ‘chronic post-traumatic stress disorder’, ‘depressive disorder’ and ‘alcohol use disorder’ and acute stress disorder under s 14 of the DRCA. The MRCC was unable to finalise the claim for ‘tobacco use disorder’ because it was awaiting a formal diagnosis of a compensable condition. Liability had been accepted based on Dr Lockwood’s 2018 report.
On 24 December 2018, Mr Wood lodged a claim for disability pension in respect of PTSD, ‘depression’ and ‘recovering alcoholic’. He attributed the conditions to incidents that occurred within the first six months of his service when he had been sexually, physically, and mentally ‘bastardised’ at Leeuwin in 1964. In answer to the question asking when he first became aware of the signs and symptoms, he wrote ‘12/7/64’, in respect of each condition. He included names of other recruits and staff and specified locations at HMAS Leeuwin.
On 29 March 2019, the Respondent, found that Mr Wood was not entitled to a pension under Part IV of the VEA for the claimed conditions because the delegate was not satisfied that the conditions were defence-caused for the purposes of the VEA including by reference to the relevant SoPs.
With respect to PTSD, the decision said:
Mr Wood’s statement outlines stressors that occurred prior to 7th December 1972. As this is before his eligible service under the Veterans Entitlement Act I am unable to relate his claimed condition to his service.
Mr Wood’s service prior to 7 December 1972 is not covered by the VEA.
Correspondence between Mr Wood and the Respondent between 8 May 2019 and 18 October 2019, shows that Mr Wood did not receive formal notification of the decision made on 29 March 2019 until 18 October 2019. On that day, Mr Wood applied for review of the decision to this Tribunal which, on 3 February 2020, dismissed the application because it did not have jurisdiction.
On 11 February 2020, an officer of the department advised the appeals section that Mr Wood confirmed his desire to appeal to the VRB, and the problem communicating with Mr Wood had been caused by his move to the United Kingdom (UK).
On 14 February 2020, Mr Wood provided to the VRB a 30-page submission in support of his claim which included at paragraphs 51-52:
1975, I am flown to Broome with half my Squadron (851) to do surveillance of Indonesian fishing boats. I spend the first full day in the hotel/motel bar getting drunk (my day off). I note the segregation in the bar, and argue that night, and get into a loud argument with three uniformed RAAF [Royal Australian Air Force] Officers, one an obvious racist. I am hood winked (at his connivance ((?)) into getting into the back of a white utility on the pretext of “going to a party”. Driven out of Broome and dumped in the desert. I find my way back to town many hours later in the early morning. I start work on day two, and because of the ruckus I cause, summarily sent back later that morning to RAAF Richmond by my Squadron Leader Burdorf, in a Hercules via RAAF Pearce, and told to make my own way back to HMAS Albatross.
These final criminal actions, by the Navy/ADF, jolts me to finally realise for all my distraught state of mind, I had to leave. Feeding, clothing and housing me, yes, but degraded and destroyed my life and possibly any hope for a future.
Mr Wood attached a statement about his interview with Dr Lockwood on 15 March 2018 to a second email dated 28 July 2020. He emphasised how difficult he had found speaking about his HMAS Leeuwin ‘ordeal and mental anguish from then on’. He wrote that he was totally gutted and severely mentally disturbed, enraged, and suicidal almost continually for many days after the interview.
On 3 August 2020, Mr Wood sent the VRB an account of events on 6 March 1975 ‘and the rest of his time in the navy’. It begins:
Although my application for a disability pension was by mistake centred on Leeuwin 1964, basically my application to DART in 2013 regarding HMAS Leeuwin and not wishing to go anything further, nor knowing about the 7th December 1975 as the cut off point for a Disability Pension. i am now forced to make my application on the impact of the crimes committed against me by members of the so-called Royal Australian Navy and Royal Australian Airforce, in Broome from early March (5th – 7th 1975, basically being kidnapped/abducted and driven out into the desert and dumped. A horror I have tried to not go deliberately to, because of the terror involved.
Mr Wood referred to sections of the Western Australian Criminal Code and addressed factors in the PTSD SoP by reference to the events of the Broome incident.
On 4 August 2020 Mr Wood sent another email about ‘Broome 1975’. He recalled that the hangar and the hotel/motel were owned by Burmah Oil company. The night he was ‘kidnapped/abducted’, they drove into the desert in a north easterly direction. Perhaps 8-10 kilometres from the town, they stopped for a ‘nature break’ which he ‘now realised’ was orchestrated to get him ‘on’ and ‘off’ the ute. The ute took off. There was criminal intent to abandon him there. He attached pages from the Navy News about Operation Trochus and referred to a video on YouTube about the Grumman Trackers, Operation Trochus 75 and where they stayed.
On 10 August 2020, Mr Wood sent an email in which he said that his ‘memory’ of who the commanding officer was, and his squadron, was wrong. He said that the date of the Broome incident was May 1975 and the squadron with which he was serving was 816. He had changed squadrons a few months before March 1975. He could not be clear about who the officer of the day was who had assaulted him, but described his appearance. Mr Wood had just received the naval file he had requested to show his whereabouts in 1975: ‘I am clearer of the names and dates’. He repeated the identity of the person who told him about the death threats against him by the Pearlers in Broome.
On 28 August 2020, the Department of Veterans Affairs wrote to Dr Lockwood, with her agreement, enclosing an extensive written account of the Broome incident and sequelae Mr Wood had provided to the VRB and asking her opinion regarding the following:
·Do you believe that the events in Broome and subsequent events involving Mr Wood aggravated any or all of his mental health conditions?
·If so was any such aggravation permanent?
·Do you believe Mr Wood’s perception of the Broome incident was that he was ‘kidnapped’?
Dr Lockwood’s response was dated 14 September 2020. In her opinion, it was ‘highly likely’ that Mr Wood’s experiences aggravated his chronic PTSD and Dysthymic disorder and was permanent. She agreed that the incident was consistent with a general understanding of the term ‘kidnapped’.
Mr Wood provided a version of his account of the Broome incident entitled: ‘Broome revisited edited and rewritten for VRB hearing 2021’ and an ‘Addenda’. It amended the date, squadron and people involved and added information about his service, his life after service, and included various pieces of supporting information including illustrations, the lunar calendar for May 1975, a table entitled ‘May 1975 – Sun in Great Sandy Desert’, photographs, including of a white ute, an AAT decision, an extract from Hansard, and criticism of the VRB staff.
On 28 January 2021, the VRB affirmed the decision dated 29 March 2019. On 3 February 2021 Mr Wood applied to the Tribunal for review of that decision.
Mr Wood provided a lengthy document titled ‘Hearing 27th January 2021 initial response’ and set out why he was unhappy with the decision. He included an image that showed he had sent an email to his case manager at the department on 21 December 2018 which included a ‘Broome revis’ file. That is, he sent information about the Broome incident at the time of his application.
In a document titled ‘Minister for Defence and Veterans Affairs Why I believe the VRB is corrupt and biased towards the DVA’, Mr Wood objected to the VRB making its decision based on Dr Lockwood’s 2018 assessment and not providing a more up to date version of his account of the Broome incident. Mr Wood claimed that Dr Lockwood’s 2018 report was confined to his seeking compensation for sexual and other abuse as a 16-year-old at HMAS Leeuwin in ‘1964’, and that she knew nothing about the Broome incident at that time and had not mentioned it.
On 28 May 2021, Mr Wood provided a detailed timeline of events from 11:00 Tuesday 6 May 1975 until 08:00 10 May 1975, and a list of witnesses including several email addresses. On Wednesday 7 May 1975, he was quietly drinking from 12:00. Three RAAF officers in uniform arrived at approximately 21:30. At 21:50 he cried out that Broome is a racist town and a RAAF officer responded. Last drinks were at 22:00 and one of the RAAF ratings he is drinking with is called over to the officers’ table. When he returned, he told Mr Wood that they have just organised a party and asked if he wanted to go. Mr Wood went.
In this document, Mr Wood claimed that after walking through the desert, in the morning, he clambered up to a window of an accommodation unit and briefly peered inside where he saw a couple and a young child, apparently a Burmah Oil worker and his family, ‘who had not been laid off’. He has claimed that it was this incident that resulted in his being returned to HMAS Albatross rather than the argument with the RAAF officer.
Dr Lockwood was engaged by the Respondent to undertake an independent psychiatric assessment in relation to Mr Wood’s claims about the Broome incident. She was provided with documents, including extensive material provided by Mr Wood about the Broome incident. In her report dated 18 November 2021, Dr Lockwood listed 47 different pieces of information of which 40 had been provided by Mr Wood. She based her report on that information and an interview with Mr Wood that was conducted by either Zoom or Skype on 8 September 2021. Dr Lockwood mentions both media in her report. Mr Wood had been residing in the UK since November 2019.
Consideration
As Dr Lockwood conceded when she was cross-examined, if Mr Wood’s account of the Broome incident is not accepted, there is no basis for a clinical worsening of his mental health conditions. She relied on his account of the Broome incident and his symptoms.
Mr Wood’s account is not improbable. I accept that an incident occurred in Broome in May 1975 as Mr Wood claims. The essential elements of his account have remained the same since his 2016 email. The day after he arrived with his squadron, he and half his squadron had a day off. He was drinking from about midday until just before closing at 10PM, when he “ranted” about racism in Broome and had an argument with RAAF officers. He accepted an invitation from RAAF personnel to go to a party and got on the back of a ute which drove into the desert. He got off the back of the ute when he was told it had stopped for a toilet break, and was left on his own to find his way back. He had no idea which way to go, panicked, and feared for his life.
After several hours, at about 6:30AM or 7AM, he returned to Broome and found his base. He got on the bus which took him and his colleagues to the airport. He was in the hangar when he was assaulted from behind by a junior officer and frog-marched to see a more senior officer. He was put on a RAAF Hercules aircraft back to Richmond air base near Sydney, from where he had to make his own way by taxi and train to HMAS Albatross near Nowra.
The timing of the incident has changed from March to May 1975, the squadron has changed from 851 to VS 816, the identification of the location where he was drinking has changed from a ‘hotel/motel’ to the Burmah Oil Company base. The names of RAN and RAAF personnel have changed. I infer that information has changed as Mr Wood’s research has unearthed new information.
In her 2018 report, Dr Lockwood recorded that Mr Wood was undertaking his own private research into matters he was involved in, had had the internet connected, and spent a lot of time checking up on previous colleagues and the naval situation. Over the last few years, Robert had been involved in writing documents about his experience in the Navy.
In her 2021 report, Dr Lockwood wrote that Mr Wood had been ‘preoccupied’ with his previous naval experiences since 2013.
He says that most of his time is spent being “consumed” with his current claim; he uses his computer for an hour or two most days to research his case and Navy events, and he spends a great deal of time writing and rewriting about what happened to him and “gathering evidence”. He feels that he is helped by the research and writing that he is doing, which he feels has enabled him to process what he went through. He spends time caring for his cat, who he also photographs frequently, stating “I don’t want to imagine what other reckless actions I would have taken had I not taken him in to take care of”. He spends a great deal of time each week “reading through psychology books or related issues to my mental state on the internet”.
There is reliable evidence that supports Mr Wood’s claim. His service record shows that he changed squadrons to VS 816 on 30 September 1974 and was serving with that squadron throughout 1975. Naval news reports show that VS 816 squadron was serving in Broome in May 1975, but not March 1975, and that the RAN had leased premises and a hangar from the Burmah Oil Company for the operation being undertaken.
In an email exchange with Mr Wood, John McCormack, an Acting Sub Lieutenant (Observer) in 1975, did not remember the Broome incident but wrote that the Burma (sic) oil camp bar was ‘our “west” (sic), and pool and everything else and that the bars in pubs in Broome and Darwin were segregated. I understand that the term ‘wets’ refers to premises provided by the RAN which serve alcohol.
The only contemporaneous record of Mr Wood’s service states: ‘Broome 09 0725Z/5/75’ and ‘document to follow’. Mr Wood says that it shows when he returned from Broome: 9 May 1975 at 07:25. The ‘document to follow’ is not in evidence. Mr Wood claims that it has been destroyed. At the hearing, he claimed that it would show that he was charged for looking into the window of the accommodation unit of a Burmah Oil employee when he was returning from the desert. Previously he had claimed it was because of his argument with the RAAF officers.
I emphasise that I accept the essential elements of Mr Wood’s account as I have summarised them, but not the details. His first written account was provided in 2016, more than 40 years after the incident. That he has focussed his attention on the events at HMAS Leeuwin until he was told that the VEA did not apply to them, is understandable, taking into account that he received a payment as a result of the DART process in 2013 and his 2016 claim was directed to those events. Dr Lockwood’s 2018 report was directed to those events. Mr Wood did mention to her the Broome incident as she wrote in her report.
Mr Wood’s recollection of details of what happened after more than 45 years has been influenced by the information he has discovered from his continuing research for information that supports his case.
He identified a particular Flight Lieutenant as the RAAF officer with whom he claimed he argued, who ordered that he be left in the desert, and then flew the RAAF Hercules to Richmond. I do not draw the same inferences as Mr Wood does from the Unit History Sheet and the service records of that individual.
Cross-examination about details of the Broome incident elicited answers that were inconsistent with previous evidence provided by Mr Wood. I infer that some of the answers were self-serving, such as that he was not drunk by 10PM and was charged because of looking through the window of the residence of a Burmah Oil employee rather than because he had argued with RAAF officers.
Mr Wood’s various accounts over time have specified differing numbers of RAN and RAAF personnel with whom he was drinking and who were in the ute.
Despite those matters, I am reasonably satisfied that the Broome incident occurred as I have summarised above.
Dr Lockwood’s 2021 report is lengthy, considered, and comprehensive. She noted that Mr Wood had mentioned the Broome incident to her during the first interview in 2018 and she had referred to that in her 2018 report. In the 2021 report she noted that during her initial interview with Mr Wood, he did not go into detail about that event.
The PTSD SoP relied on by the Respondent is No. 83 of 2014 (the PTSD SoP).
A person may satisfy the SoP if he suffers a category 1A or 1B stressor. Relevantly, a category 1A stressor includes experiencing a life-threatening event or being kidnapped (clause 9(a) and (c) of the PTSD SoP).
I am satisfied, that Mr Wood experienced a category 1A stressor, directly experiencing a life-threatening event before the clinical worsening of PTSD (clauses 6(g) and 9(a) of the PTSD SoP). He was left in the desert in the middle of the night not knowing where he was. He may have perished. Fortunately, he did return to Broome. It is unnecessary to decide whether the circumstances constituted kidnapping.
The category 1A stressor must be connected with the circumstances of Mr Wood’s relevant service.
In Roncevich v Repatriation Commission (2005) 222 CLR 115 at [23] the majority said:
As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.
At [27[, the majority said:
The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
Deputy President Jarvis observed in Franks and Repatriation Commission [2010] AATA 329 at [17] that the test in section 70(7) of the VEA is ‘a wider test of causation’ than section 70(5) of the VEA but did not consider the application of the provision.
In Re Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525 at [94]-[96]. the Tribunal discussed the provision in the Military Rehabilitation and Compensation Act 2004 (Cth) that is in similar terms to section 70(7) of the VEA and quoted Madgwick J in Military Rehabilitation and Compensation Commission v Roberts (2007) 238 ALR 637 at [62]:
In any case, to my mind, … it is clear that s 6(1)(a) was intended to have a generous application where a Commonwealth employee is injured by a violent act. That is shown, apart from the very use of the wide test notoriously inherent in the expression ‘but for’, by the apparently exhaustive inclusion of the ways of conceiving what might be the original and crucial, employment-related circumstance: the ‘employee’s employment’, his/her performance of the ‘duties’, or the ‘functions’ of the employment. It remains true that the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection.
In Archer, a soldier fell off a balcony and was seriously injured. He overbalanced when he tried to sit on the railing after consuming alcohol during a social gathering of peers at his accommodation on the base. The Tribunal found that the causal factors linking Mr Archer’s defence service to his injuries were sufficient to satisfy the ‘but for’ test in section 27(c) of that Act.
The case referred to that is most analogous to the circumstances of this case is Smith v Repatriation Commission [2015] AATA 786. Mr Wood believes that case supports a finding in his favour. Mr Wood was not engaged in actual work when he experienced the life-threatening event. Mr Smith was not either, but he had been required to attend a lunch and then find his own way back to his ship. On the way, he witnessed an horrific traffic accident when a pedestrian was decapitated. Deputy President McCabe found that there was the necessary causal link between Mr Smith’s service and the consequential PTSD.
The conclusion in Smith followed consideration of Comcare v PVYW (2013) 250 CLR 246, where the High Court explained its reasoning in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 482-485. The High Court concluded, albeit in the context of the Safety, Rehabilitation and Compensation Act 1988, that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which the employee was injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee was injured while engaged in an activity at that place.
While it may be said that Mr Wood was at the ‘wets’ in Broome because of the RAN’s inducement or encouragement, he experienced a life-threatening event because he decided that rather than going to bed in the nearby accommodation, he would attend a party at around 10PM. He got into the ute of his own free will. I do not accept that he did so because he feared that he would be bashed if he did not. That was a self-serving detail which he provided long after 2016.
There is not the necessary connection with Mr Wood’s relevant service.
The Respondent referred to the SoP for Depressive Disorder (No. 84 of 2015) (the DD SoP). Depressive disorder (DD) means a ‘group of mental disorders which are manifested by a dysphoric mood and a range of other symptoms’ and includes major depressive disorder and persistent depressive disorder, which includes the condition previously known as dysthymia (clause 7 of the DD SoP).
Relevantly, one of the following factors that must exist, on the balance of probabilities, connecting DD with Mr Wood’s service are experiencing a category 1A or 1B stressor within the two years before the clinical worsening of DD (clauses 9(5) and (6) of the DD SoP) or having a clinically significant disorder of mental health as specified within the two years before the clinical worsening of DD (clause 9(11) of the DD SoP).
It is unnecessary to give further details of the criteria because, for the reasons given above, I am satisfied that Mr Wood experienced a category 1A stressor, that is, a life-threatening event, within the two years before the clinical worsening of depressive disorder pursuant to clause 9(5) of the DD SoP.
Mr Wood satisfies the DD SoP, however, there is not the necessary connection with Mr Wood’s relevant service for the reasons set out above in relation to PTSD.
Conclusion
For the above reasons, the reviewable decision is affirmed.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
................................[sgd]........................................
Associate
Dated: 17 November 2022
Dates of hearing: 26-27 April 2022 Date final submissions received: 8 October 2022 Applicant: In person Counsel for the Respondent: Mr A Dillon, AGS Solicitors for the Respondent: Ms N Donaghy, AGS
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