Woodward and Repatriation Commission
[2006] AATA 1099
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1099
ADMINISTRATIVE APPEALS TRIBUNAL No Q2005/16
| VETERANS' APPEALS DIVISION | ||
| Re | GREGORY WOODWARD | |
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr RG Kenny, Member
Date 20 December 2006
Place Brisbane
Decision
The Tribunal affirms the decision under review.
..................[Sgd]............................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – defence service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions –– post traumatic stress disorder and alcohol abuse/dependence diagnosed – whether related to experiencing impact of cyclone – conditions not defence-caused – decision affirmed
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 6C, 14, 68, 70(5), 70(7), 120, 198B
Repatriation Commission v Smith (1987) 15 FLR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Re Tulk and Repatriation Commission (1996) 44 ALD 359
Re Cashen and Repatriation Commission (1993) 36 ALD 707
Re Repatriation Commission and Wicking (1987) 13 ALD 431; (1987) 7 AAR 289
Re Lindsay and Repatriation Commission (1995) 39 ALD 108;
Re Ralph and Repatriation Commission [1999] AATA 475
Stewart and Repatriation Commission [2003] AATA 1174
Roncevich v Repatriation Commission (2005) 222 CLR 115; (2005) 218 ALR 733; (2005) 79 ALJR 1366; (2005) 85 ALD 257; (2005) 41 AAR 355; [2005] HCA 40;
Re Roncevich and Repatriation Commission(2006) 91 ALD 662 [2006] AATA 660
Re Pridham and Commonwealth of Australia (unreported, No 3153, 14 January 1987)
Repatriation Commission v Tuite (1993) 39 FCR 540; (1993) 29 ALD 609; (1993) 17 AAR 158
Coward v Repatriation Commission (2006) NSD 2273 of 2005
Holthouse v Repatriation Commission (1982) 1 RPD 287
Repatriation Commission v Law (1980) 31 ALR 140; (1980) 47 FLR 57
Re Repatriation Commission and Carroll (1988) 14 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108; (2000) 60 ALD 401; (2000) 31 AAR 150; [2000] FCA 532
REASONS FOR DECISION
| 20 December 2007 | Mr RG Kenny, Member |
Background
Gregory Woodward (the applicant) served in the Royal Australian Navy (RAN) from 8 October 1966 until 28 January 1987. On 5 December 2003, he lodged a claim with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), for a disability pension for “post traumatic stress disorder”. He contended that this was related to his RAN service. On 17 February 2004, the respondent determined that his claim was answered by diagnoses of post traumatic stress disorder and alcohol dependence or abuse but also determined that those conditions were not related to his RAN service. The Veterans’ Review Board (the Board) affirmed that decision on 3 November 2004 and Mr Woodward now seeks review of the Board’s decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
At the hearing, Mr Woodward was represented by Ms D Kellie of counsel. The respondent was represented by Mr M Smith. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Service and Standard of Proof
Mr Woodward was born on 3 January 1951. His RAN service included return voyages from Australia to South Vietnam on HMAS Sydney in 1967 and 1968. These constitute operational service as defined in section 6C of the Act. However, for the purposes of this matter, his relevant service is a period of defence service which, in accordance with section 68 of the Act, commenced on 7 December 1972 and continued until his discharge.
The standard of proof for determining diagnostic matters and issues of causation for defence service is set out in subsection 120(4) of the Act which requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities: see Repatriation Commission v Smith (1987) 15 FLR 327 at 335. The application of that provision is affected by the terms of section 120B of the Act. This provides that, where a relevant Statement of Principles has been published by the Repatriation Medical Authority (RMA), a decision maker may only be reasonably satisfied that a condition is defence-caused if the Statement of Principles upholds the contention that the condition is, on the balance the probabilities, connected with that service.
Relevant Legislation and Statements of Principles
Subsection 70(1) of the Act provides that, where a member of the Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term disease is defined in subsection 5(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition. I am satisfied that the term extends to psychiatric conditions from which Mr Woodward suffers. Subsection 70(5) of the Act sets out criteria of causation. Accordingly, the disease is taken, in so far as relevant to Ms Kellie’s submissions in this matter, to be defence-caused if it:
(a) arose out of, or was attributable to, any defence service of the member;
(b) resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty;
(c) is deemed by subsection 70(7) to be a defence-caused disease;
(d)(i) was suffered or contracted during any defence service, but did not arise out of that service, and was contributed to in a material degree by any defence service rendered by the member, being service rendered after the member contracted the disease.
Subsection 70(7) of the Act, in so far as relevant, reads:
(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces…was due to…. a disease that would not have been contracted, but for his….having rendered defence service…or but for changes in the member’s environment consequent upon his….having rendered any such service:
(a) ….; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.
A function of the RMA is to determine Statement of Principles. Subsection 196B(3) of the Act provides that, if the RMA is of the view on the sound medical-scientific evidence available to it that it is more probable than not that a particular kind of disease can be related to defence service, it must determine a Statement of Principles in respect of that kind of disease setting out the factors that must exist and which of those factors must be related to service rendered by a person before it can be said that, on the balance of probabilities, a disease of that kind is connected with the circumstances of that service. The RMA has done this for post traumatic stress disorder with Instrument No. 4 of 1999 (as amended) and for alcohol dependence or abuse with Instrument No. 77 of 1998.
The description of the required causal nexus between a disease and service in section 196B of the Act differs from that which is used in section 70 of the Act. The former refers to a condition being related to service and that term is used in the Statements of Principles. As set out above, section 70 of the Act uses a variety of descriptions. Nevertheless, there is no conflict between the provisions because of subsection 196B(14) of the Act which reads:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.
The factors in the Statements of Principles for post traumatic stress disorder and alcohol abuse/dependence relevant to Mr Woodward’s claim and relied upon by Ms Kellie are set out in clause 5 which, with their respective definitions, read:
post traumatic stress disorder
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or…
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
alcohol abuse/dependence
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse; or…
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror;
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;…
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
Contentions
Ms Kellie submitted that Mr Woodward had contracted post traumatic stress disorder and alcohol abuse/dependence during and as a result of his defence service because of the events that occurred on the evening of 24 December 1974. Mr Woodward was rostered for duty as a cook at HMAS Melville which was a shore establishment in Darwin. His roster comprised 24 hours on duty and then 24 hours off duty. On 24 December 1974, his duty commenced at 5am. The work of the roster was completed by 7pm that day and Mr Woodward then travelled by car to his married quarters which was a house in Darwin where he lived with his family. Some of the early effects of cyclone Tracey, in the form of strong winds and associated debris, were experienced during that journey. The full effects of the cyclone were felt later that evening when his house suffered major damage and he, his wife and youngest child were placed in danger. Ms Kellie submitted that, even though Mr Woodward was at home, he was, nevertheless, continuing to render defence service during that time when he was still rostered on duty until 5am on Christmas day.
Ms Kellie submitted that experiencing the effects of the cyclone met factor 5(a) of the Statement of Principles for post traumatic stress disorder and that this was, therefore, defence-caused in accordance with paragraph 70(5)(a) of the Act (attributable to or arising out of defence service); paragraph 70(5)(b) of the Act (due to an event occurring on the journey to his home); paragraph 70(5)(d) of the Act (contributed to in a material degree by defence service); or subsection 70(7) of the Act (would not have been contracted but for his having rendered defence service or but for changes in the environment). She also referred to paragraph 196B(14)(a) of the Act and submitted that the cyclone was an “occurrence” which happened to him while undertaking defence service and that his conditions were defence caused for that reason.
For alcohol abuse/dependence, Ms Kellie submitted alternative arguments. The first was that alcohol abuse and dependence developed because of post traumatic stress disorder in a manner which meets factor 5(a) of the Statement of Principles for alcohol abuse/dependence; or the impact of the cyclone was, in itself, a severe stressor which met the requirements of factor 5(b) of that Statement of Principles. Again, reliance was placed upon the above-noted components of subsections 70(5), 70(7) and 196B(14) of the Act.
Ms Kellie referred to the following authorities: ReTulk and Repatriation Commission (1996) 44 ALD 359, ReCashen and Repatriation Commission (1993) 36 ALD 707, Re Repatriation Commission and Wicking (1987) 13 ALD 431, ReLindsay and Repatriation Commission (1995) 39 ALD 108, ReRalph and Repatriation Commission [1999] AATA 475, ReStewart and Repatriation Commission [2003] AATA 1174, Roncevich v Repatriation Commission (2005) 85 ALD 257 and Re Roncevich and Repatriation Commission [2006] AATA 660.
Mr Smith conceded that Mr Woodward was rostered for duty for the 24 hours commencing at 5am on 23 December 2004. However, he submitted that the only connection between Mr Woodward‘s psychiatric conditions and his defence service was temporal and that there was no causal association with his defence service. On that basis, he submitted that post traumatic stress disorder and alcohol abuse/dependence were not defence-caused.
Diagnosed Conditions
Mr Woodward first sought medical assistance for his psychiatric condition in 2003 when his general practitioner referred him to psychiatrist, Dr Jerome Gelb. In his report, dated 26 January 2004, Dr Gelb diagnosed “post traumatic stress disorder and secondary alcohol dependence/abuse”. He expressed the opinion that the first of these conditions resulted from the trauma experienced by Mr Woodward during cyclone Tracey’s passage through Darwin. He also concluded that alcohol abuse and dependence developed because of the post traumatic stress disorder. It was conceded by Mr. Smith, and I am reasonably satisfied, that Dr Gelb correctly diagnosed the conditions in Mr Woodward and that those are the appropriate diagnoses for the conditions which Mr Woodward suffers pursuant to his claim of 5 December 2003.
Relationship with Cyclone Tracey
Mr Woodward described the events of 24 December 1974. He arrived home at about 8pm having taken about twice as long on the journey than was the usual case because of the strong winds and debris on the road. No specific incidents of trauma occurred to him during that commuting time. The full strength of the cyclone was felt between 10pm and midnight and then for a further few hours after a lull in the wind strength as the cyclone crossed the coast where his house was located at Nightcliff. Initial damage to the house involved the destruction of windows and, before long, the collapse of entire walls. Mr Woodward was terrified during the ordeal and did what he could to protect his wife and young child. They moved from one part of the house to another to maximize their safety. There were many occasions during the night when Mr Woodward feared for his life and the lives of his wife and child. He was grateful that his two older children were staying interstate with their grandparents. The house was virtually destroyed and, in the days that followed, they were accommodated, along with many other homeless people, at another RAN base at Coonawarra. His wife and child were evacuated on 27 December 2004 and he resumed duty a few days later. Mr Woodward said that his alcohol consumption pattern changed dramatically thereafter with a significant and continuing increase in consumption from then until the present time. He believed that his psychiatric conditions have had a significant impact upon his relationships with others, including his wife, and had also played a part in slowing down his career prospects in the RAN.
HMAS Melville was unlike other RAN bases in that it was not a single entity but, rather, a collection of buildings and facilities in the city. Married personnel were accommodated in houses throughout Darwin. Single or unaccompanied personnel were messed and accommodated in a limited number of billets in the Army barracks at Larrakeyah. Because of the presence of RAN personnel at the Army barracks, the RAN provided cook sailors to supplement the Army cooking staff. Mr Woodward was rostered for such duty during the period of time when cyclone Tracey struck Darwin. He and others in the mess were required to prepare the evening meal of 24 December as well as breakfast and lunch for Christmas Day. This was completed by 7pm. Mr Woodward’s evidence was that, although he was rostered until 5am the next day, it was usual practice for him to return to his home when the work was finished. Because he was still rostered on duty, he was liable to be called out as a member of the fire emergency party or standby crew on a patrol boat. For that reason, he was required to remain in his home until the duration of his watch at 5am the following day. Mr Woodward said that he had never been called out for any such purpose either before or after cyclone Tracey.
Mr Smith conceded that there was a causal connection between Mr Woodward’s experiences with cyclone Tracey and the two psychiatric conditions in the manner described by Dr Gelb. On the basis of Mr Woodward’s evidence and the medical evidence of Dr. Gelb, I am also reasonably satisfied of that causal relationship. The issue then is whether that constitutes a causal relationship with defence service.
Relationship with Defence Service
I have considered the authorities cited by and the submissions made by Ms Kellie in this matter. However, I am unable to accept the contention that Mr Woodward’s psychiatric conditions are defence-caused.
As noted above, section 196B of the Act uses the term “related to” as providing the relevant causal nexus to service. That is not a term used in section 70 of the Act. Nevertheless, the various descriptions of causation set out in section 70 of the Act for defence service are listed in paragraphs 196B(14)(b) to (g) thereof and are ascribed the same meaning as being “related to”. In addition, paragraph 196B(14)(a) of the Act describes a condition as being related to service if it “resulted from an occurrence that happened while the person was rendering that service”. The causal association involving an occurrence is found in section 9 of the Act which is concerned with operational service. It is not found in section 70 thereof for defence service and it is section 70 which is the operative provision which sets out the causal criteria for defence service: see Tulk and Repatriation Commission (1996) 44 ALD 359 at 360. In one part of her submissions, Ms Kellie relied upon this causal component involving an “occurrence” to assist Mr Woodward. However, I am reasonably satisfied that it has no application to defence service. Section 196B of the Act deals with both operational service and defence service and subsection 196B(14) thereof has the effect of ensuring that all causal criteria for both forms of service are included in the concept of a condition being “related to service”. The reference in paragraph 196B(14)(a) of the Act has effect only in the context of operational service. While cyclone Tracey was undoubtedly an occurrence, I am reasonably satisfied that Mr Woodward’s psychiatric conditions can not be defence-caused on the basis of the occurrence of cyclone Tracey. A different conclusion may well have been in prospect if he was rendering operational service at the time.
I am also reasonably satisfied that paragraph 70(5)(b) of the Act has no application in this matter. In the context of Ms Kellie’s submissions, it requires Mr Woodward to have experienced a severe stressor, as that term is defined above in the Statements of Principles, on the journey to his home. Apart from experiencing some interruptions to his progress from strong winds and debris on the roads, there is no evidence to suggest that the trauma associated with cyclone Tracey occurred prior to his arrival at home or before about 10pm. Also, I am reasonably satisfied that paragraph 70(5)(d) of the Act is not applicable. It requires a material contribution from defence service rendered after the disease was contracted and there is no evidence to satisfy that requirement.
The remaining component of subsection 70(5) of the Act is paragraph (a). Ms Kellie submitted that this provision was satisfied because the residence in which Mr Woodward lived was owned by the RAN and was the accommodation allocated to him by the RAN. Reliance was placed on the Tribunal decision in Re Repatriation Commission and Wicking (1987) 13 ALD 431. There, an officer with the Royal Australian Air Force (RAAF) was required to live in the single men's quarters on an RAAF base. He was injured when he fell in the bathroom. He was not on duty at the time. The Tribunal found that the injury was defence-caused because it occurred in service quarters. However, the Tribunal distinguished the situation which arose in Re Pridham and Commonwealth of Australia (unreported, No 3153, 14 January 1987) where the injured RAAF member lived away from the RAAF base in premises which were owned by the RAAF and let to the member. Mr Woodward’s situation is akin to that which arose in Re Pridham and, accordingly, the case of Wicking is distinguishable. Also, the automatic acceptance of a defence relationship is not consistent with High Court decision in Roncevich v Repatriation Commission (2005) 85 ALD 257. There, the majority (McHugh, Gummow, Callinan and Heydon JJ) held that the application of paragraph 70(5)(a) requires a consideration of whether the service-man’s injury or disease arose out of or is attributable to his defence service. Their Honours held that the use of those terms disjunctively in paragraph 70(5)(a) manifested a legislative intention to give the term "defence-caused" a broad meaning (at 265). Nevertheless, a causal connection with defence service is still required although the test of attributability should not be qualified by terms such as “sole, dominant, direct or proximate” (at 266). The need for a causal relationship to defence service is also demonstrated in the authorities which provide that a mere temporal connection will not be sufficient: see Repatriation Commission v Tuite (1993) 39 FCR 540 at 541; Roncevich v Repatriation Commission (2005) 85 ALD 257 at 265; and Coward v Repatriation Commission (2006) NSD 2273 of 2005 at para 26. In Roncevich v Repatriation Commission(2005) 85 ALD 257, the High Court was considering an injury incurred by a member of services while he was not officially on duty. The majority said:
"… 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 is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties".
In Mr Woodward’s situation, the evidence is that he was rostered for duty when the cyclone damaged his house. However, it is appropriate, in determining whether the psychiatric conditions arose out of or were attributable to defence service, to consider the nature of his employment, the circumstances in which it was undertaken and what he was required or expected to do in carrying out those duties. The evidence is that he was merely required to be at home so that he could be contacted and called out to attend to any RAN emergency which might have arisen. With that limitation, he was able to carry on with the private affairs associated with his family and his household. A distinction is to be drawn between matters which are of a purely personal or private nature and matters which are connected with defence service: see Holthouse v Repatriation Commission (1982) 1 RPD 287 at 289. Unless and until Mr Woodward was called out to attend to an emergency, he remained in the home performing functions which were of a private and personal nature and not associated with his defence service. The arrival of cyclone Tracey made no change to that situation and his presence in the house provided no more than the circumstances in which the events of cyclone Tracey took place: see, to similar effect, Stewart v Repatriation Commission [2003] AATA 1174. Further, it is noted that the impact of cyclone Tracey was experienced by the whole city of Darwin and not only Mr Woodward’s residence. I am reasonably satisfied that his post traumatic stress disorder and alcohol abuse/dependence did not arise out of and is not attributable to his defence service.
Subsection 70(7) of the Act is a deeming provision. Quite apart from the principles of causation set out in subsection 70(5) thereof, incapacity in Mr Woodward from a disease is deemed to be from a defence-caused disease if it would not have been contracted but for his having rendered defence service or but for changes in his environment consequent upon his having rendered that defence service.
The provision is potentially very broad in its ambit. For example, Mr Woodward is not likely to have been in Darwin at the time of cyclone Tracey but for the fact that he was in the RAN and based in Darwin. However, that potential breadth is limited by the requirement that the incapacity must still be causally associated with defence service: see Holthouse v Repatriation Commission (1982) 1 RPD 287 at 291 and Repatriation Commission v Law (1980) 31 ALR 140 at 151 (Full Federal Court). The change of environment referred to in that provision is one which is “consequent to” a veteran having rendered his defence service. As such, it will be a change in the environment which is, in some way, resultant from, in this case, defence service. In Re Repatriation Commission and Carroll (1988) 14 ALD 581, the Tribunal was concerned with paragraph 8(1)(d) of the Act which is the operational service equivalent to subsection 70(7) of the Act. Clearly, the standard of proof is different as between defence service and operational service but the operative “but for” provision is expressed in the same terms. In that case, the environment extended to the state the veteran was in because of a war-caused psychiatric condition some 40 years after his service: see the observations of Lee and Cooper JJ in the Full Federal Court decision of Repatriation Commission v Keeley (2000) 60 ALD 401 at 409. Clearly, the arrival of cyclone Tracey in Darwin heralded in a change of environment but that was not a change which was consequential to Mr Woodward’s service.
The psychiatric incapacity that Mr Woodward suffers is not causally associated with his defence service and the psychiatric conditions of post traumatic stress disorder and alcohol abuse/dependence are not deemed to be defence-caused under subsection 70(7) of the Act.
I am reasonably satisfied that neither post traumatic stress disorder or alcohol abuse/dependence from which Mr Woodward suffers is defence-caused as a result of his experiences with cyclone Tracey. As post traumatic stress disorder is not defence caused, it follows that alcohol abuse/dependence, to the extent that it is secondary to post traumatic stress disorder, is not defence caused by that means.
Decision
The decision under review is affirmed.
I certify that the preceding 28 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: ............................................................
Legal Research Officer
Date/s of Hearing 29 November 2006
Date of Decision 20 December 2006
Counsel for the Applicant Dr D Kellie
Solicitor for the Applicant Smith and Associates Solicitors
Representative for the Respondent Mr M Smith
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