YZJT and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 288
•5 May 2016
YZJT and Repatriation Commission (Veterans’ entitlements) [2016] AATA 288 (5 May 2016)
Division
GENERAL DIVISION
File Number(s)
2014/5701
Re
YZJT
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 5 May 2016 Place Brisbane The decision under review is set aside. In its place, the following decision is substituted:
(a)The Major Depressive Disorder was defence-caused.
(b)The Post Traumatic Stress Disorder was not defence-caused.
(c)Remit to the Commission the question of the rate of assessment of disability pension in respect of the Major Depressive Disorder.
.......................[sgd].................................................Senior Member A C Cotter
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – whether posttraumatic stress disorder related to service – whether depressive disorder related to service – reasonable satisfaction of tribunal – where tribunal not satisfied posttraumatic stress disorder was defence-caused – where tribunal satisfied depressive disorder was defence-caused – decision under review is set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 120B, 196B
Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 83 of 2014)
Statement of Principles concerning Depressive Disorder (Instrument No. 84 of 2015)CASES
Border v Repatriation Commission (No. 2) (2010) 191 FCR 163
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stafford (1995) 56 FCR 132
Repatriation Commission v Stoddart (2003) 134 FCR 392Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Collins Australian Dictionary (rev 5th ed, Harper Collins Publishers (Australia) Pty Ltd, 2014)
Macquarie Dictionary (rev 6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013)
REASONS FOR DECISION
Senior Member A C Cotter
The Applicant was a member of the Royal Australian Navy from 24 June 1986 to 23 May 1992. All of that service constitutes eligible defence service for the purpose of the Veterans’ Entitlements Act 1986 (Cth) (“Act”).
In July 2012, the Applicant submitted a claim for a disability pension for disabilities which were described in her claim form as “PTSD” (Post Traumatic Stress Disorder) and “Fibromyalgia”.[1] Accompanying the form were various annexures, including two letters from her treating doctors, Dr Craig Russell and Dr Andrea Boros-Lavack. The former, the Applicant’s general practitioner, confirmed that her major symptoms were “consistent with the diagnoses of Fibromyalgia, Depression and Anxiety”. He said that they could be “commonly associated with the chronic pain syndrome of Post-Traumatic Stress Disorder (PTSD)”.[2] The letter from the Dr Boros-Lavack, the Applicant’s psychiatrist, stated that she believed that the Applicant’s “PTSD, Major Depressive Disorder, Chronic Pain Disorder (i.e. Fibromyalgia) and Obesity are all linked to her multiple traumas sustained in the Navy at HMAS Albatross Nowra”.[3]
[1] Exhibit 9, T Documents, T 17, pages 115 and 116, Applicant’s claim form dated 5 June 2012.
[2] Exhibit 9, T Documents, T 19, page 122, letter from Dr Craig Russell dated 18 November 2011.
[3] Exhibit 9, T Documents, T 20, page 123, letter from Dr Andrea Boros-Lavack dated 27 October 2011.
The Applicant also suffers from a number of other disabilities, which have previously been accepted as defence-caused, they being: Contact Dermatitis; Bilateral Sensorineural hearing loss with Tinnitus; Lumbar Spondylosis; Thoracic Spondylosis; Osteoarthritis of the left knee; and Osteoarthritis of the right knee.[4]
[4] Exhibit 9, T Documents, Veteran Community Details Report.
On 6 August 2013, a delegate of the Commission decided that the Applicant’s PTSD was not related to service.[5] That decision was affirmed by the Veterans’ Review Board (“VRB”).[6]
[5] Exhibit 9, T Documents, T 33, pages 166-169, Delegate’s decision and reasons for decision dated 6 August 2013.
[6] Exhibit 9, T Documents, T 2, pages B-B 10, Veterans’ Review Board (“VRB”) decision and reasons dated 22 September 2014.
Dissatisfied with the outcome, the Applicant has applied to this Tribunal for a review of the VRB’s decision.
ISSUES FOR THE TRIBUNAL
At the commencement of the hearing, I was informed by the Applicant’s representative that the Applicant also intended to pursue a claim for Major Depressive Disorder (“MDD”), either in conjunction with the PTSD claim or separately from it. That was on the basis that the MDD claim was made out on the material which accompanied the claim form, and which was mistakenly overlooked and not considered by either the delegate of the Commission or the VRB.
The Commission’s representative agreed that it was open to the Tribunal to consider MDD, either in conjunction with PTSD or in the alternative. In particular, he referred me to the decision of the Full Federal Court in Repatriation Commission v Stafford,[7] which considered the question of the Tribunal’s jurisdiction in circumstances where, although referred to in the original claim, a condition was not considered by the delegate of the Commission or the VRB. In finding that the Tribunal had the necessary jurisdiction, Jenkinson, Ryan and Lee JJ explained:
Like the learned primary judge, we are of the opinion that the Tribunal’s statement, that ‘there was no material before the Tribunal to suggest that the veteran had ever sought to have the Commission decision in relation to the disabilities of COAD and hypertension reviewed by the VRB’, is wrong in law. The statement in the written application by Mr Stafford for review by the Board of the decision ‘Rejection of claim for disability pension’ in our opinion had in law the effect of imposing on the Board the obligation to review each decision and determination concerning each condition of entitlement which the claim for pension proposed or the evidence before the Commission suggested. In this case the claim proposed both of those conditions as war-caused diseases. That attracted, in relation to both conditions, the duty specified in s 139(2). Only a clear, unambiguous withdrawal by Mr Stafford of either condition from the scope of the review, which the Board was satisfied was a withdrawal the effect of which Mr Stafford understood, could relieve the Board of the duty.[8]
[7] (1995) 56 FCR 132.
[8] Ibid 141 [11].
Having considered the Applicant’s claim and the documentation which accompanied it, I am satisfied that there was sufficient material before the delegate of the Commission and the VRB to include a consideration of MDD. There is no suggestion of the withdrawal of that condition from the Applicant’s claim. I therefore accept that MDD is properly before the Tribunal.
Consequently, the primary issues which fall for my consideration are:
(d)whether the Applicant’s PTSD is defence-caused; and
(e)whether the Applicant’s MDD is defence-caused.
Before I consider these issues, it is timely to reflect on the relevant legislative provisions.
THE LEGISLATIVE FRAMEWORK
Section 70 of the Act deals with, amongst other things, the eligibility for pensions where a member of the Forces is incapacitated from a defence-caused injury or defence-caused disease. In particular, s 70(5) relevantly provides that an injury suffered by a member of the Forces shall be taken to be a defence-caused injury, or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the…injury or disease, as the case may be, arose out of, or was attributable to, any defence service…of the member;…
In Roncevich v Repatriation Commission, the majority of the High Court observed that this subsection requires a causal, and not merely temporal, connection between the claimed injury or disease and the defence service.[9] They went on to say that the provision manifested 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 connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[10]
[9] (2005) 222 CLR 115, 125 [23] (McHugh, Gummow, Callinan and Heydon JJ).
[10] Ibid 126 [27].
In determining whether the claimed injury or disease is defence-caused, the Commission is required to decide the matter to its “reasonable satisfaction”.[11]
[11] See Veterans’ Entitlements Act 1986 (Cth) s120(4).
Section 120B(3) of the Act relevantly provides that in determining a claim, the Commission is to be reasonably satisfied that an injury suffered or disease contracted by a person was defence-caused only if:
(a)the material before it raises a connection between the injury or disease of the person and some particular service rendered by them; and
(b)there is in force a relevant Statement of Principles made under the Act that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.[12]
[12] See Ibid s 196B(3).
In deciding the issues in the present case, I will need to consider the Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 83 of 2014) (“PTSD SoP”) and the Statement of Principles concerning Depressive Disorder (Instrument No. 84 of 2015 (“Depressive Disorder SoP”) which are the relevant Statements of Principles in force at the time of this decision. As it is open to the Applicant to rely on the Statements of Principles that preceded these and which were in force at the time of the Commission’s decision,[13] it may also be necessary to refer to them (they being Instrument No 6 of 2008 for PTSD and Instrument No. 28 of 2008 for Depressive Disorder).
CONSIDERATION
[13] See Repatriation Commission v Gorton (2001) 65 ALD 609.
The Applicant’s case – an overview
The Applicant was 21 years old when she joined the Navy in 1986. She was initially categorised as a Motor Transport Driver (“MTD”). On completion of her initial training, she was posted to Naval Air Station Nowra (HMAS Albatross) to undergo MTD category training. Some time into that course, she decided that she wanted to work as an ATA (Aviation Technician Aircraft); her request for a transfer was approved.[14]
[14] Exhibit 9, T Documents, T 31, page 160, letter Warrant Officer T. H. McDonald to Senior Naval Psychologist dated 29 October 1986.
At the time, the aviation branch of the Navy was overwhelmingly male dominated, with female sailors only having started to enter the branch in the mid-1980s. There were few, if any, facilities dedicated for female sailors; they often had to share change rooms, bathrooms and toilets with their male colleagues. The Applicant and her husband (who was also in the aviation branch) described ongoing physical, sexual and verbal harassment and bullying of the female ATAs and a prevailing male dominant culture.[15]
[15] Exhibit 9, T Documents, T 21, pages 124-125, Applicant’s statutory declaration declared 27 March 2012, and T 22, pages 126-127, statutory declaration of the Applicant’s husband declared 27 March 2012.
The Applicant also recounted that in her role, she was exposed to deadly chemicals, oils, fuels, asbestos, beryllium and other toxins. She suffered from painful dermatitis as a result. She also described the heavy manual labour that she had to undertake.[16] On two separate occasions, she fell from a high platform, sustaining painful back injuries. During her time at HMAS Albatross, she also suffered knee injuries which further reduced her mobility, with associated extreme pain.
[16] Exhibit 2, Applicant’s statement dated 5 July 2015.
In addition to the pain suffered from her injuries and the ongoing bullying and harassment to which she was subjected, the Applicant identified a number of specific incidents which she said were particularly traumatic for her. I describe those briefly below.
In 1987, she was subjected to a sexual assault. While working as an ATA, she said that it was practice to meet up at the end of the week’s maintenance and flying programs to go over certain matters. It was not uncommon to meet in town at a local hotel. Drinking was part of the culture and one was looked down on and frowned upon if they did not participate; it was considered advisable to attend and to be seen to be fitting in. On the particular night in question, the Applicant was having her second drink when she became disorientated and distressed and started to have trouble breathing. She blacked out. She next recalled waking up, naked, in a strange house. She was disorientated and frightened with “absolute fear” and not knowing where she was. Her genitals were sore, bruised and swollen. Semen was in and around her genitals. She felt dirty and unclean, shamed and embarrassed. She caught a taxi back to the base. Concerned that she might have contracted a sexually transmitted disease, she had a test for AIDS at the base hospital. It was negative. She tried to report the incident to her superior a couple of days later, but he told her to be quiet and to forget it. She did not discuss the attack with anyone else as she was scared of retribution. She later discovered that her assailant was a young trainee naval aviation officer.[17]
[17] Exhibit 9, T Documents, T 28, page 142, Applicant’s statement dated 28 November 2012.
In 1988, she was on duty one night in the guard house. She requested that she be woken at 1:00 am as her shift started at 2:00 am. She was asleep in bed when she says that “all hell broke loose”, the door opened without warning and a large Navy Alsatian patrol dog raced into the room and attacked her. She put her hand up to protect herself, but was bitten. She next saw the handler, who called back the dog, thinking it was a joke.[18]
[18] Transcript of proceedings, page 54 (lines 37-47)-page 55 (lines 1-14).
Also in 1988, the Applicant says she was threatened with a weapon, which caused her fear. She recounted that the Nowra base was used as a training ground for SAS troops. One night, she was going to an aircraft hangar to change. Initially the door would not open, but when she tried it again, she was met with a gun in her face with a soldier demanding to know who she was and why she was there. She said that she was “absolutely petrified”. The soldier told her it was not a joke, and that his gun was loaded. The Applicant says she was “horrified” and thought that the soldier was going to shoot her. He checked her ID and then told her to keep going. Later, she says there were several SAS troops in the hangar who then proceeded to pretend to take pot shots at her and the other ATAs as they worked on aircraft.[19]
[19] Ibid page 55 (lines 21-45)-page 56 (lines 1-5).
The Applicant also described an incident in March 1991, when a parachute exercise went wrong. She was at work when she heard shouting. She looked up to see parachutists descending over the buildings. She saw one drift towards the rotating blades of a helicopter, which had to be shut down urgently. She witnessed men hitting buildings and the roofs of hangars. She said she “froze” and panicked. She did not believe what she was seeing. The scene was chaotic; it was “like a war zone”, with men screaming with head injuries, breaks and cuts. She gave assistance to some of the men. One had a bone protruding through his leg. Others had head and back injuries. There was a lot of blood and she used a chux cloth to try and stop the bleeding until medical staff arrived.[20]
[20] Ibid page 58 (lines 22-47)-page 59 (lines 1-15) and Exhibit 9, T Documents, T 28, page 143, Applicant’s statement dated 28 November 2012.
Besides these specific events to which she testified at the hearing, the Applicant also described to her psychiatrist various other stressful occurrences and experiences over her time in service. She told her psychiatrist about being hung upside down from a crane for 30 minutes at a time and being ridiculed for her reaction.[21] She also said that she had to clean the rescue nets in the helicopters which were used to fish bodies out of the water. She also saw photos of helicopter crashes with dead crew still in the aircraft, which she described as “extreme horror”.[22]
[21] Exhibit 9, T Documents, T 26, page 133, report of Dr Andrea Boros-Lavack dated 5 October 2012.
[22] Exhibit 9, T Documents, T 21, pages 124-125, Applicant’s statutory declaration declared 27 March 2012.
The medical evidence – an overview
Dr Boros-Lavack authored several reports and gave evidence at the hearing by telephone.
She testified that the Applicant suffered from MDD as well as PTSD. Asked whether MDD stood on its own, she said that the Applicant would still have MDD even if she did not have PTSD. She said that the two disorders were independent; they had their origins in different causes, but that there was an inter-play between them.[23]
[23] Transcript of proceedings, page 15, lines 31- 41.
Dr Boros-Lavack was of the opinion that the ingredients of the MDD were twofold: the physical injuries and pain that the Applicant suffered from her two falls and the repetitive injuries which caused Osteoarthritis and Fibromyalgia; and the negative experiences the Applicant encountered as a result of the male dominated culture in which she worked, with its related chronic harassment and bullying. She said the MDD only came to the fore when the Applicant was pregnant with her first son (which would have been about late 1991/early 1992).[24]
[24] Ibid page 16, lines 1-24.
Questioned specifically as to the date of clinical onset of the MDD, Dr Boros-Lavack said:
…So the depression actually started during the Navy, in terms of the bullying and harassment, and the series of traumatic incidents in the Navy, together with the painful physical injuries, and that kind of come to the crunch with the first – or second trimester when she got into a premature labour. And then it continued into postnatal depression, and later at the post – postnatal depression with her second child. So this is how it started. It started with low degree of - of dysthymia or coming to major depression around pregnancy with the first child, which she decided to leave the Navy afterwards and got this postnatally, and then second with the second child, but the depression emanating from her service since she joined in the 1980s.[25]
[25] Ibid page 24, lines 4-14.
Even though the accounts of the various incidents emerged over a period of time, Dr Boros-Lavack considered the Applicant to be a reliable reporter. She saw nothing unusual with different recollections emerging over time. She said that the Applicant had originally lacked the words, insight and understanding to explain the psychological distress from which she was suffering; it was like a “mish-mash” of subjects that would emerge and come to the fore at different times, being triggered by different recollections or events. They might not emerge in a logical order or sequence. Dr Boros-Lavack used that to explain why the Applicant had only recounted the sexual assault relatively recently, compared with a number of the other reported incidents.[26]
[26] Ibid pages 16 (line 35)-17 (line 25) and page 34 (lines 11- 37).
At the hearing, Dr Boros- Lavack expressed the opinion that the PTSD originated with the rape. She said there was then a series of incidents, but that the parachute incident aggravated the existing PTSD.[27]
[27] Ibid page 23 (lines 1-5) and page 35 (lines 9-19).
Dr Boros-Lavack was questioned about her report of 11 February 2015, in which she described the parachute incident as the root cause of the PTSD. She conceded that the comment was made with the PTSD SoP in mind, and the view that the rape was not defence-caused. She acknowledged that if she had her time again, she would not have expressed her opinion in that way.[28] She said that after the PTSD originated with the rape incident, the Applicant suffered further traumatic incidents (of which the parachute incident was one of the key ones) which deteriorated her mental state and PTSD. Taken either individually or collectively, they aggravated the condition which she had. Even though those incidents would not be considered traumatic by other people, they would have been very traumatic in the Applicant’s mind “because she was primed by the rape and the PTSD which happened a few years before that”.[29]
[28] Ibid page 36, lines 24-41.
[29] Ibid page 37, lines 5-19.
No medical evidence was led on behalf of the Commission.
Was PTSD defence-caused?
Based on Dr Boros-Lavack’s evidence, I am reasonably satisfied that the Applicant suffers from PTSD.[30] At the hearing, the doctor indicated that the PTSD is related to several incidents, commencing with the sexual assault in about 1987:
..so that PTSD, she never recovered from the rape. Still – still there. But it had - it had gone down a little bit…[31]
…So she was – she was already in a hyper emotional state and – and therefore the parachute accident was real traumatic for her, aggravating her PTSD from the rape.[32]
…Further traumatic incidents occurred that aggravated her chronic PTSD, so we’re talking about a serious aggravation of her chronic PTSD since the rape.[33]
[30] See Veterans’ Entitlements Act 1986 (Cth) s 120(4).
[31] Transcript of proceedings, page 22, lines 30-32
[32] Ibid page 23, lines 3-5.
[33] Ibid page 23, lines 10-12.
As I mentioned earlier, in determining a claim, the Commission (and the Tribunal) is to be reasonably satisfied that the injury or disease in question was defence-caused only if the material before it raises a connection between the injury or disease and some particular service rendered by the person, and there is a SoP that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service. It is therefore necessary to first consider whether the material before me raises a connection between the Applicant’s service and her PTSD. If so, the question then arises as to whether that contention is upheld by the PTSD SoP. I deal with those two considerations below.
Connection between the injury/disease and service?
The sexual assault
Based on Dr Boros-Lavack’s evidence, the sexual assault of the Applicant in about 1987 was the initial cause of her PTSD. Therefore, the question on which I have to be reasonably satisfied is whether the material before me concerning that incident raises a connection between the PTSD and the Applicant’s service.
I am not reasonably satisfied that such a connection is raised. My reason for saying that is because, on the material available, I am not reasonably satisfied that the sexual assault occurred as contended.
The only evidence of the alleged assault is from the Applicant herself. Notwithstanding her treatment by a number of doctors and health professionals over an extended period, and despite her having made a number of unsuccessful claims for PTSD, Depressive Disorder and Pain Disorder, this allegation first emerged considerably late, in about 2011, during an out-patient group therapy session. That raises questions for me as to its reliability and accuracy.
Dr Boros-Lavack offered an explanation as to why this late disclosure might have occurred, noting that memories can be repressed or “unconscious”.[34] Questioned by the Commission’s representative about false memories and whether it was possible that the Applicant was fabricating her story, Dr Boros-Lavack responded that, as a woman, she understood the Applicant more and more, and did not think that she would lie.[35] In response to a question by me, the doctor said that now that she had a number of sessions with the Applicant and had got to know her, she considered that she would be the best judge as to whether she was fabricating the story or not.[36] Notwithstanding Dr Boros-Lavack’s opinion as to the veracity of the allegation, I note that she did not seek any independent corroboration of the assault, saying that the Applicant provided her with a list of “her submissions…for what happened”, which was enough for her.[37] Given the absence of any attempt at corroborating or verifying what she was told, I do not think that Dr Boros-Lavack’s opinion on the veracity or otherwise of the allegation advances the matter very far.
[34] Ibid page 30, lines 1-47.
[35] Ibid page 31, lines 1-13.
[36] Ibid page 33, lines 11-13.
[37] Ibid page 31, lines 40-46.
Nor do I think the fact that the Applicant received a reparation payment under the Defence Abuse Repatriation Scheme is conclusive. The partially redacted letter produced to the Tribunal does not provide any detail as to the incidents in respect of which the payment was made.[38] Significantly, none of the material presumably provided to the Defence Abuse Response Taskforce was produced to the Tribunal.
[38] Exhibit 7, letter Defence Abuse Response Taskforce to the Applicant dated 27 October 2014.
I am also conscious of the lack of any objective evidence surrounding the incident. After the assault, the Applicant says that she went to the base medical office to have a test for AIDS or other sexually transmitted diseases, which proved negative.[39] There is a reference in the Applicant’s medical records of her having requested a HIV test, although that was in the following year, in October 1988.[40] As far as I can see, the notes contain no further detail, such as of an examination having been undertaken. At the hearing, the Applicant testified that no one had broached the subject of the incident with her after the event; nor was there any chatter about it.[41] That seems at odds with what the Applicant told the VRB. During that hearing, the Applicant was asked how she came to know that a young trainee officer was the perpetrator of the assault. She replied that she had been told that he had discussed it with other men.[42] That is significant, not only because the evidence conflicts with what she told the Tribunal, but also because it raises the question as to why corroborating evidence was not led.
[39] Transcript of hearing, page 69, lines 17-22.
[40] Applicant’s service medical records, out-patient record dated 12 October 1988. Another form, HIV/HBV testing results, shows that HIV and HBV tests were also undertaken in 1990 and 1991.
[41] Ibid page 59, lines 22-24.
[42] Exhibit 9, T Documents, T 2, page B5, VRB decision and reasons for decision dated 22 September 2014, [25].
Having regard to those matters, I am not reasonably satisfied that the sexual assault occurred as alleged.
The other incidents
Although there may be some factual disputes concerning them, I am reasonably satisfied, based on the material before me, that the other incidents (namely the dog attack, the firearm incident and the parachute incident) each raise a connection between the Applicant’s PTSD and her service. It is therefore necessary to consider whether the PTSD SoP upholds the relevant contention on the balance of probabilities.
Does the PTSD SoP uphold the contention?
The PTSD SoP relevantly concerns a psychiatric disorder which arises from exposure to actual or threatened death, serious injury, or sexual violence in one or more of the following ways: directly experiencing the traumatic event(s) or witnessing in person the event(s) as it occurred to others.[43]
[43] Statement of Principles concerning Posttraumatic Stress Disorder (No 83 of 2014), cl 3(b)A.
It is therefore necessary to consider each of the remaining events to determine if the contentions are upheld by the PTSD SoP.
Clause 5 of the PTSD SoP relevantly provides that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person. Those factors, one of which must exist before it can be said, on the balance of probabilities, that PTSD is connected with the person’s relevant service, include:
(a)experiencing a category 1A stressor before the clinical onset of [PTSD]; or
(b)experiencing a category 1B stressor before the clinical onset of [PTSD];…
A category 1A stressor means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.[44]
[44] Ibid cl 9.
The appropriate tests to be adopted in assessing the Category 1A stressors described in paragraphs (a), (b) and (c) of the definition were considered by the Federal Court in Border v Repatriation Commission (No. 2).[45] In that case, Reeves J made the following observations:
Based on these authorities, the answer to the question posed… in relation to the event described in subpara (a): ‘experiencing a life-threatening event’ is this. The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.[46]
Elsewhere in the decision, discussing subparagraphs (b) and (c), his Honour remarked:
Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as ‘experiencing a life-threatening event,’ the other two subparas – (b) and (c) – focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it. Thus, they variously refer to: ‘a serious, physical attack’, ‘assault’, ‘rape’, ‘sexual molestation’, ‘being threatened with a weapon’, and ‘being held captive, being kidnapped or being tortured’. Whilst all of these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition….It follows, in my view, that there is no subjective element involved in determining whether a veteran’s hypothesis fits within, or is consistent with, one or more of the events described in subpara (b) or (c) of the definition of ‘a category 1A stressor’.[47]
[45] (2010) 191 FCR 163.
[46] Ibid180 [67].
[47] Ibid175-176 [50]-[51].
A category 1B stressor relevantly means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness
(c)…;
(d)…; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties.[48]
[48] Statement of Principles concerning Posttraumatic Stress Disorder (No 83 of 2014), cl 9.
“Eyewitness” is defined to mean “a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident”.[49]
[49] Ibid.
With those matters in mind, I turn to consider the remaining specific events contended by the Applicant.
The dog attack
In her evidence at the hearing, the Applicant described the door of her room opening without any knock or warning, followed by a “great big huge Alsatian” coming at her. She put her hand up because she “feared (her) life”; she thought the dog was going to attack her, and it did actually bite her. She was “horrified”.[50]
[50] Transcript of proceedings, pages 54 (lines 45-48).
While the Applicant may have feared for her life, I do not consider, applying the objective/subjective test in Border, that her perception, that the attack posed a threat of death, was reasonable. The dog’s handler was present and laughing, treating the incident as a joke. Although the Applicant did not see him before she saw the dog, it would have been obvious that someone was present to open the door. I therefore do not believe that this incident falls within the terms of subparagraph (a) of the definition of category 1A stressors.
Nor do I consider that this incident falls within paragraph (b) of the category 1A definition; while the Applicant may have sustained a dog bite, I do not think it could be reasonably regarded as a “serious” physical attack, especially when read in the context of the other events listed in that subparagraph, namely rape and sexual molestation.[51]
The firearm incident
[51] See also Forster v Repatriation Commission (2015) 229 FCR 179, 192-193 [66]-[73] (Mansfield J).
The Applicant described this event as having occurred after she initially attempted to open a hangar door. After she finally succeeded in opening the door, she stated:
… I had a gun in my face telling me, ‘Who are you, what are you doing here’- just interrogating me.
She was “absolutely petrified”. The man, whom she identified as an Army man, told her it was not a joke and the gun was loaded. After checking her identification, he told her to keep going and to keep to her own business. She was not to touch their things, which were laid out on the ground; there were other men in the hangar. The Applicant knew that they repelled out of the Sea King helicopters. After she and her co-workers went to do maintenance work on an aircraft, the soldiers pointed guns at them, “pretending to take pot shots”.[52]
[52] Transcript of proceedings, page 55, lines 25-39.
While the Applicant was horrified by the episode and thought she was going to be shot, such subjective factors are not relevant to the consideration of subparagraph (c) of the definition.[53]
[53] See Border v Repatriation Commission (No. 2) (2010) 191 FCR 163.
The Macquarie Dictionary attributes the following meanings to “threaten”: “1. to utter a threat against; menace. 2. to be a menace or source of danger to. 3. to offer (a punishment, injury, etc.) by way of a threat. …5. to utter or use threats. 6. to indicate impending evil or mischief”.[54]
[54] Macquarie Dictionary (rev 6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013); see also Repatriation Commission v Stoddart (2003) 134 FCR 392, 400 [36] (Carr, Finn and Sundberg JJ).
Although a gun was pointed at the Applicant, that was in the context of a soldier on guard at a military base questioning her identity. After he satisfied himself as to the Applicant’s identity, he let her pass. No actual threats were made to the Applicant, in the sense of indicating that she was to be harmed or punished by way of retaliation or forced to act in a particular way. Once she satisfied the soldier of her identity, she went about her duties, knowing that the soldiers were pretending to take pot shots at her and her co-workers. Viewed objectively, I do not consider that this incident falls within subparagraph (c) of the definition.
The parachute incident
The Applicant described the wind on the day of the parachute incident as “really bad”. She saw the aircraft take off and shortly afterwards witnessed parachutists hitting the hangars and being dragged down the road. She recalled the screaming and said the scene resembled a warzone. It was “horrendous” and she froze for a minute. She described the scene:
I saw bones protrude out the skin and the leg, head injuries, back injuries, broken arms, people that are – yes, it just- they’re strewn all over the place. Blood, you know, from head injuries. It was everywhere just spurting out. I had a Chux in my pocket so I tried to help stop the bleeding, and I’m not qualified to fix any breaks or anything like that, but we’re just trying to assess and try to help until the medical people came.[55]
[55] Transcript of proceedings, pages 58 (lines 43-47) and 59 (lines 1-2).
The Applicant also called as a witness, Mr Andrew Feron, who was the Applicant’s supervisor on the day in question. He described a mass parachute drop of approximately 70 to 80 paratroopers who were blown off course during their descent. He noted that some had suffered severe injuries, such as shattered limbs, severe bleeding and internal injuries. Some were treated at the RAN Sick Quarter, with others transferred to Nowra Hospital for treatment, because of the limited facilities at HMAS Albatross.[56]
[56] Exhibit 8, letter from Mr Andrew Feron dated 6 February 2015.
The Applicant’s and Mr Feron’s recollections of the event are at odds with what was reported at the time by the Commanding Officer in the medical section of his HMAS Albatross Report of Proceedings 1 January 1991 to 31 March 1991:
There has only been one incident of note during the reporting period. On 4 March, 31 parachutists were dropped over buildings at the Air Station. A total of 13 patients were treated in the Hospital with various minor fractures, sprains, bruises and lacerations.[57]
[57] Exhibit 10, Attachment to report of GH Solutions dated 31 August 2015, HMAS Albatross Report of Proceedings 1 January 1991 to 31 March 1991 dated 16 April 1991, [92].
When that passage was put to Mr Feron, he conceded that, not being medically qualified, he would have “no knowledge of the number of people that were actually treated, or the types of injuries incurred”.[58]
[58] Transcript of proceedings, page 44, lines 1-3.
While I understand that the scene would have been chaotic on the day, I am inclined to favour the Commanding Officer’s written, objective record at the time, in preference to the Applicant’s and Mr Feron’s recollections of events some 25 years earlier. I therefore find that injuries were sustained by 13 parachutists and that those injuries were of a minor nature. In light of that finding, I do not believe that this incident falls within either subparagraphs (a) or (e) of the definition of a category 1B stressor. The parachutists were not “so seriously injured or ill as to be in danger of dying”.[59] As such, the Applicant did not either witness them being critically injured nor participate in the clearance of critically injured casualties.
Summary - does the PTSD SoP uphold the contention?
[59] Collins Australian Dictionary (rev 5th ed, Harper Collins Publishers (Australia) Pty Ltd, 2014).
It follows from what I have said that I do not consider that the PTSD SoP upholds the Applicant’s contentions in respect of the various events she pursued at the hearing.
At different times, I understand that the Applicant had also described other events to Dr Boros-Lavack, such as her having to clean the rescue nets used to retrieve bodies from the water, and viewing photographs and films of helicopter crashes showing dead crew, but they were not advanced before me. In any event, I do not consider that those events would fall within the definition of a category 1B stressor, as the Applicant was not an “eyewitness” to the relevant events.
I have also considered the Statement of Principles which was in force at the time of the Commission’s decision, namely No. 6 of 2008, but do not consider it is materially different to the current PTSD SoP.
Was MDD defence-caused?
As mentioned earlier, Dr Boros-Lavack also considered that the Applicant suffers from MDD. I accept her diagnosis.
The doctor identified two ingredients of the depression: the first, the painful physical injuries the Applicant suffered in the service when she had two major falls, and the repetitive injuries which caused Osteoarthritis and Fibromyalgia; and the second, the systematic bullying and harassment which she experienced in the Navy.[60] She put the date of clinical onset as around the time of the Applicant’s pregnancy with her first son (that is, about late 1991/early 1992).[61]
[60] Ibid lines 1-12.
[61] Ibid page 23, lines 43-47 and page 24, lines 1-15.
Connection between injury/disease and service?
I am reasonably satisfied that the material before me raises a connection between MDD and the Applicant’s service.
The Applicant suffers from a number of accepted physical conditions, particularly Lumbar Spondylosis, Thoracic Spondylosis and Osteoarthritis in both knees. As a result of those conditions, she has experienced, and continues to experience, severe, debilitating pain.[62]
[62] Exhibit 2, Applicant’s statement dated 5 July 2015.
Further, there is extensive evidence of physical, verbal and emotional bullying and harassment of female ATAs and of a negative male dominated culture at HMAS Albatross during the time of the Applicant’s service. It is unnecessary for me to catalogue those matters in detail here. Suffice it to say that the evidence was led, not just from the Applicant and her husband (who was also in the Royal Australian Navy based at HMAS Albatross),[63] but also from Mr Feron and the Applicant’s supervisor at the time, Mr David Suffolk.[64]
[63] Statutory declaration of Applicant’s husband, declared 27 March 2012.
[64] Exhibit 9, T Documents, T 23, pages 128-129, letter from Mr David Suffolk dated 11 April 2012.
Does the Depressive Disorder SoP uphold the contention?
Submissions on behalf of the Applicant sought to rely on factors 9(1)(a) and (b) and 9(1)(k) of the Depressive Disorder SoP (No. 84 of 2015) to uphold the contention.
Factors 9 (1)(a) and (b) relate to the person experiencing a category 1A stressor or category 1B stressor respectively within the two years before the clinical onset of depressive disorder. I do not consider that either factor applies in this instance. The reasons that I expressed in relation to those similar factors concerning PTSD are equally apposite here. In particular, I am not reasonably satisfied, on the material before me, that the sexual assault occurred as contended. I do not consider that either the dog attack or the firearm incident constituted a category 1A stressor for the reasons I advanced earlier. Nor do I think that the parachute incident constituted a category 1B stressor, as the parachutists attended to by the Applicant were not critically injured.
Factor 9(1)(k) of the Depressive Disorder SoP talks of the person “having persistent pain of at least six months (sic.) duration at the time of the clinical onset of depressive disorder”. There is no doubt that at the time of clinical onset of MDD in late 1991/early 1992, the Applicant had been suffering persistent pain (as defined),[65] from her Lumbar Spondylosis, Thoracic Spondylosis and Osteoarthritis in both knees for at least six months. It is equally clear that those conditions were defence-caused, they having previously been accepted conditions. I therefore consider that the contention is supported by the Depressive Disorder SoP in that respect.
[65] See Statement of Principles concerning Depressive Disorder (No. 84 of 2015) cl 1 to Schedule 1 (Dictionary).
I also consider that there is a potential, additional basis on which the contention can be upheld by the Depressive Disorder SoP. Factor 9(1)(e) talks of the person experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder. Category 2 stressor is defined in cl 1 of Schedule 1 (Dictionary) as one of a number of listed negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry. Subparagraph (c) relevantly provides:
having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment.
There is clear evidence of severe disharmony between the grossly outnumbered female ATAs and a number of their male colleagues. Bullying of the female ATAs was rife. However, the evidence as to when those events occurred, by reference to the date of clinical onset of MDD, is not as precise as one would hope. That is understandable, given the ongoing, systematic bullying and harassment that the Applicant and her female colleagues experienced.
Based on the evidence before me, I am satisfied, on the balance of probabilities, that the culture at HMAS Albatross was so ingrained and systemic that the harassment and bullying experienced in the mid to late 1980s continued at least into the early 1990s while the Applicant was still posted there. In that regard, I derive support from the Applicant’s evidence:
I nearly lost my first child from the bulling (sic.) at which I complained but again it was blown off or I was told my husband’s career would suffer.[66]
[66] Exhibit 9, T Documents, T 21, page 125, Applicant’s statutory declaration declared 27 March 2012.
Further, I note the evidence of the Applicant’s husband regarding the Navy’s response to the care of their first child, in circumstances where he was to be posted to seagoing flight and the Applicant was to be posted to Sydney for further trade courses. It was that move, and the suggestion that their young son be cared for by family members, that caused the Applicant to leave the Navy.[67] That is illustrative of another aspect of paragraph (c) of the definition of the category 2 stressors, namely, the perceived lack of social support within the work environment at about that time. On that basis, I also consider that the events in question amounted to category 2 stressors within paragraph (c) of the definition and that they were experienced by the Applicant within the six months before the clinical onset of her MDD.
[67] Exhibit 9, T Documents, T 22, page 126, statutory declaration of Applicant’s husband dated 27 March 2012.
For those reasons, I am satisfied, on the balance of probabilities, that the Depressive Disorder SoP supports the contention and therefore, that the Applicant’s MDD was defence-caused.
CONCLUSION
While I do not consider that the Applicant’s PTSD was defence-caused, I am reasonably satisfied that her MDD was defence-caused.
Accordingly, the decision of the VRB under review is set aside. In its place, the following decision is substituted:
(a)The Major Depressive Disorder was defence-caused.
(b)The Post Traumatic Stress Disorder was not defence-caused.
(c)Remit to the Commission the question of the rate of assessment of disability pension in respect of the Major Depressive Disorder.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter .....................[sgd]...................................................
Associate
Dated: 5 May 2016
Date of hearing
Date final submissions received
1 February 2016
10 March 2016
Advocate for the Applicant Noel Payne Solicitors for the Respondent Department of Veterans' Affairs
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