ZHVP and Repatriation Commission (Veterans' entitlements) - [2021] AATA 3020

ZHVP and Repatriation Commission (Veterans' entitlements) [2021] AATA 3020 (24 August 2021)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2018/6707
Re:ZHVP
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:24 August 2021
Place:Melbourne

The Tribunal affirms the decision under review.
...................[SGD].....................................................
Senior Member
Catchwords
VETERANS’ AFFAIRS – Veterans’ Entitlements – claim for disability pension – claims for PTSD and ischaemic heart disease – whether conditions defence-caused – conditions not defence-caused – decision under review affirmed
Legislation
Acts Interpretation Act 1902 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning Ischaemic Heart Disease (Balance of Probabilities) (No. 2 of 2016)
Statement of Principles concerning Posttraumatic Stress Disorder (No. 83 of 2014)
Cases
Bucknall v Military Rehabilitation and Compensation Commission (2007) AATA 2014
Bull v Attorney-General for New South Wales (1913) 17 CLR 370
Davenport v Repatriation Commission (1995) 39 ALD 560
Freeman and Repatriation Commission (Veterans’ entitlements) [2020] AATA 1650
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Grant v Repatriation Commission [1999] FCA 1629
Haughey and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 969
Holthouse v Repatriation Commission [1982] FCA 113
James Thomas Mcdermott v the Commonwealth of Australia [1981] FCA 214
Kaluza v Repatriation Commission (2011) 122 ALD 448
Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Paddon v Repatriation Commission [2010] FCA 1147
Reinhard and Repatriation Commission [2013] AATA 522
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite [1993] FCA 39
Robertson and Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 222 CLR 115
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Simmons and Repatriation Commission (Veterans' entitlements) [2019] AATA 4362
Smith v Repatriation Commission [2014] FCAFC 53
Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 786
Wedderspoon v Minister of Pensions (1947) 1 KB 562
Youngnickel v Repatriation Commission (2004) FCA 1691
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2013, 5th ed)
REASONS FOR DECISION
Senior Member C. J. Furnell
24 August 2021

Subject to and in accordance with the Veterans’ Entitlements Act 1986 (Cth) (Act), the Commonwealth is liable to pay to a “member of the Forces” a pension by way of compensation where the member is incapacitated from a “defence-caused injury or defence-caused disease.”[1]
[1] Act, s 70.
The Applicant made a claim for such a pension in relation to a number of medical conditions which he contends are defence-caused.[2]
[2] Claim of 24 May 2017, received by the Respondent on 5 June 2017: T24.
As for the procedural history of that claim:
(a)On 27 September 2017, it was rejected by a delegate of the Repatriation Commission (Commission) on the basis that either the various conditions in relation to which it was made were not defence-caused or the alleged condition was not a medical condition.[3]
(b)On 15 August 2018, the Commission’s rejection of the claim was affirmed by the Veterans' Review Board (VRB).[4]
(c)On 15 November 2018, the Applicant applied to the Tribunal for review of the VRB’s decision[5] (which, for the purposes of the review, is taken to be the decision of the Commission as affirmed by the VRB).[6]
[3] T29.
[4] T32.
[5] T2.
[6] Act, s 175
In conducting that review, the Tribunal stands in the shoes of the decision-maker in order to “do over again” that which was done by the decision-maker.[7]
[7] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
Standing in those shoes, the Tribunal is required to consider all matters which, in its opinion, are relevant to the Applicant’s claim and to determine the claim as provided by subsection 19(3) of the Act.[8]
[8] Act, ss 19(1) and 71.
As so provided, the determination of the Applicant’s claim involves:
(a)First, determining whether he is entitled to be granted a pension in respect of incapacity from a defence‑caused injury or defence‑caused disease.
(b)Second, if it is determined that he is so entitled, assessing the rate or rates at which the pension would have been payable from time to time during the “assessment period,” and is so payable.[9]
[9] Act, s 19(5C).
In this proceeding, the Applicant is seeking to have the determination of his entitlement to a pension addressed, with the matter of assessment of the rate of his pension to be dealt with by the Commission on remittal. The Applicant is also seeking a decision to the effect that his pension entitlement commenced on 5 March 2017.[10]
[10] Being three months before the Respondent’s receipt of the Applicant’s claim. There is some suggestion that the claim was received earlier, on 8 May 2017 (Applicant’s Statement of Facts and Contentions of 29 January 2020 at [28]), but this seems unlikely given that much of the material included within the claim is dated in late May 2017: see ss 14, 20 and 177 of the Act.
The medical conditions which are said by the Applicant to constitute his defence-caused injuries or defence-caused diseases comprise post-traumatic stress disorder (PTSD) and ischaemic heart disease (IHD).[11]
[11] In his claim for a pension, mention was made of a number of conditions (including hypertension) (T29, p.190) but, on the first day of the hearing of this proceeding, the Applicant limited his claim to PTSD and IHD. Insofar as the Applicant’s claim referred to other medical conditions, that was “unambiguously withdrawn”: see Davenport v Repatriation Commission (1995) 39 ALD 560.
The Respondent accepts that the Applicant suffers from IHD and, in the course of the hearing of this proceeding, came to accept that he suffers from PTSD. This left as the issue in dispute between the parties the question of whether these conditions were defence-caused.
I am satisfied that they are not. Accordingly, I have determined that the Applicant is not entitled to a pension by way of compensation in respect of incapacity from PTSD or IHD and, hence, have decided to affirm the decision the subject of review.
Before outlining my reasons for this conclusion, I should first outline the questions in issue and some aspects of the factual context of relevance to those questions.
QUESTIONS IN ISSUE
Those questions arise out of the legislative context.
First, that context dictates that, in determining the Applicant’s pension entitlement, no onus of proof applies.[12] The determination and any decisions to be made in arriving at it are to be made and arrived at to the Tribunal’s reasonable satisfaction.[13] Moreover, in making such a determination, there is required to be taken into account (and I have endeavoured to take into account) any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance.[14]
[12] Act, s 120(6).
[13] Act, s 120(4); Simmons and Repatriation Commission (Veterans' entitlements) [2019] AATA 4362 [82]. Subsection 120(4) requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction, which, as explained in Repatriation Commission v Smith (1987) 15 FCR 327, is the civil standard of proof.
[14] Act, s 119.
Second, in the circumstances here under consideration, the Tribunal can only be reasonably satisfied that any PTSD or IHD suffered by the Applicant is defence-caused if:
(a)the material before the Tribunal raises a connection between the PTSD or IHD and some particular service rendered by the Applicant; and
(b)a “statement of principles” is in force which upholds the contention that the PTSD or IHD is, on the balance of probabilities, connected with that service.[15]
[15] Act, s 120B(3). As a general rule this does not apply if no statement of principles has been determined in relation to the relevant condition: Act, s 120B(4).
Third, a statement of principles will only uphold a contention that any PTSD or IHD of the Applicant is connected with his defence service if:
(a)the Repatriation Medical Authority has determined a statement of principles with respect to PTSD or IHD (as applicable) (something which it would have been obliged to do if it was of the view that PTSD or IHD could be related to defence service);
(b)a factor identified in a statement so determined exists in relation to the Applicant; and
(c)a factor so identified and which so exists is related to the Applicant’s defence service.[16]
[16] Act, s 196B(3). The function of a statement of principles is to relate particular kinds of injury or disease to the circumstances of service rendered by veterans for the purposes of the standards of proof in the Act: see Paddon v Repatriation Commission [2010] FCA 1147 at [11].
Four, such a factor will be related to the Applicant’s defence service if (amongst other things) it caused or contributed to any PTSD or IHD of the Applicant and it arose out of or was attributable to that service or it would not have occurred but for either the rendering of that service or changes in the Applicant’s environment consequent upon him having rendered that service.[17]
[17] Act s 196B(14). The provisions of this section are largely replicated in s 5Q(1B) of the Act which identifies when, for the purposes of the Act, an injury, disease or death may be considered to relate to service rendered by a person.
Along these lines, the Tribunal will be taken to be satisfied that any PTSD or IHD of the Applicant is defence-caused if it arose out of or was attributable to any of his defence service[18] or would not have occurred but for either his having rendered defence service or changes in his environment consequent upon rendering defence service.[19]
[18] Act, s 70(5)(a).
[19] Act, s 70(7).
Given these aspects of the legislative context, I would need to be reasonably satisfied about each of four matters before it could be determined that the Applicant is entitled to a pension in respect of incapacity from PTSD or IHD as defence‑caused injuries or defence‑caused diseases.
The first is that the Applicant now suffers from PTSD or IHD or did so in the “assessment period”[20] – i.e., the period between the date of lodging his application and the date of this decision.[21] While the Respondent now, as mentioned earlier, concedes this, the Tribunal still needs to be reasonably satisfied that this is the case.
[20] Act s 19(9).
[21] “In determining eligibility [for a pension], a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”. This period starts on the “application day” and ends when the claim or application is determined – s 19(9), definition of ‘assessment period’.”: Simmons and Repatriation Commission (Veterans' entitlements) [2019] AATA 4362 at [78]. See also Smith v Repatriation Commission [2014] FCAFC 53 at [40].
The second is that the Repatriation Medical Authority has determined a statement of principles with respect to PTSD or IHD, as applicable, which identifies a factor that exists in relation to the Applicant (a relevant statement).
The third is that a factor in a relevant statement that exists in relation to the Applicant causes or contributes to his PTSD or IHD (as applicable).
The fourth is that the relevant factor arose out of or was attributable to the Applicant’s defence service or would not have occurred but for either the rendering of that service or changes in the Applicant’s environment consequent upon him having rendered that service.
ASPECTS OF FACTUAL CONTEXT
The Applicant was born in 1959.
He served in the Royal Australian Navy (RAN) in the period 1975 to 1985.[22] I note in passing that, as a result of this service, the Applicant is, for the purposes of the relevant provisions of the Act, a “member of the Forces.”[23]
[22] Hence, s 70A of the Act does not operate to preclude a characterisation of ZHVP’s injures and diseases as defence-caused. The Applicant’s service was not rendered on or after commencement of the Military Rehabilitation and Compensation Act 2004 (Cth) on 1 July 2004.
[23] The Applicant served in the Defence Force on a continuous full-time basis for a continuous period of more than three years commencing after 7 December 1972 and ending before 7 April 1994: see Act, ss 68 and 69.
Prior to joining the RAN in 1975, the Applicant’s emotional stability was assessed as normal.[24]
[24] T35, p.231.
In 1976, when aged 16, he commenced service at HMAS Cerberus as a cook.[25]
[25] T21; T30.
The Applicant’s oral evidence was to the effect that within about two months of his arrival at the base, he commenced drinking at a hotel near the base with fellow cooks. This involved him, in civilian clothing, taking leave of the base after completion of his formal duties, being leave conditional on his return before midnight. He would be driven by a fellow cook to the hotel.
After one drinking bout at the hotel in 1976, the Applicant was sexually assaulted. The fact of this assault is not in issue. It and the consequences of it lie at the heart of the Applicant’s pension entitlement claim. In his claim, it is said that his defence service caused, contributed to or aggravated his PTSD because he was the “subject of sexual assault at HMAS Cerberus as a teenage sailor (16@time).”[26] His IHD is said to have been caused, contributed to or aggravated by his defence service due to his “exposure to class 1A stressor - sexual assault while a teenage sailor in Navy…”.[27]
[26] T24.
[27] Ibid.
At the time of the assault, the Applicant was aged around 16 (according to material lodged on behalf of the Applicant) or 17 (according to the Applicant’s oral evidence at the hearing of this proceeding).
In April 2017, the Applicant described the assailant as a member of the RAN, a petty officer.[28] At around the same time, the Applicant would appear to have told a consultant psychiatrist that “He has no idea who the man was though he believes he was a sailor, but does not think he was based as [sic] Cerberus,” and, while he “never saw him again,” he thought him to be a petty officer.[29]
[28] T21, p.119: Statutory Declaration of the Applicant of 13 April 2017.
[29] T22, pp.120-121.
The assault is said to have occurred when the Applicant was intoxicated, being “very drunk”.[30] The only thing he could recall of it was being in pain and asking the assailant to “pull it out”.[31] It is not suggested that either the Applicant consented to having sexual relations with the assailant or that he was intimidated into them. The clear inference the Tribunal was asked to draw was that the assault would not have occurred if the Applicant had not been so intoxicated that he only became conscious or aware of the assault during the course of it.
[30] T21.
[31] T21. “His first memory is feeling something in his anus…”: T22, p.120. The Applicant “was quite intoxicated and has no memory of leaving the pub or being in the car with this bloke”: T28, p.174.
For around two years in the period 1977 to 1979, the Applicant served on the HMAS Melbourne.[32] The Applicant stated that, at sea, he increased his consumption of cigarettes from around four to five a day to about 30 to 40 a day as they could be purchased at duty free prices.[33] In October 1978 he was smoking 20 to 30 cigarettes a day.[34] He ceased smoking temporarily around the time of a heart bypass procedure in October 2005 (down from 35 cigarettes a day)[35] but soon re-commenced (in March 2008, two cigarettes a day, [36] in March 2009, 15 cigarettes a day[37] and in April 2017, 30 cigarettes a day[38]).
[32] T33, p.219.
[33] T32, p.213 [35]: evidence before the VRB which the Applicant confirmed at the hearing was accurate.
[34] T35, p.266: RAN records.
[35] [Town] Medical Group medical records, 25 August 2007.
[36] Ibid, 18 March 2008.
[37] Ibid, 30 March 2009.
[38] Ibid, 6 April 2017.
In October 1978, a medical officer recommended a psychiatric referral of the Applicant, noting episodes of violence when drunk.[39] At that time, the Applicant’s engagement with the RAN was not proceeding smoothly. His retention in the RAN had not been recommended by his commanding officer. His efficiency was characterised as being at a barely acceptable level. He was said to have recently contemplated suicide.[40]
[39] T35, p.265.
[40] T35, pp.267-8.
Consequent on that referral, the Applicant was hospitalised for around five days as an in-patient. This was said to be for the purpose of evaluating “a 12-month history of intermittent episodes of violence and suicidal thoughts, strongly associated with excess alcohol consumption”.[41]
[41] T35, p.273.
In the psychiatric referral, the Applicant’s condition was characterised as dependent immature personality and alcohol dependence.[42] That diagnosis was repeated on completion of his treatment as an in-patient.[43]
[42] T35, p.270.
[43] T35, p.272.
After his hospitalisation, the Applicant was said to have resolved to reduce markedly his alcohol consumption,[44] a resolution that he would seem to have honoured for at least several months.[45] In the result, in January 1979, he was said to be working better, enthusiastic about his job and consuming less alcohol.[46]
[44] T35, p.270.
[45] T35, p.275: In December 1978, the Applicant was said to be still resolved to abstain from alcohol.
[46] T35, p.278.
Nevertheless, in the context of a medical examination conducted in February 1983 in relation to the Applicant’s contemplated re-engagement by the RAN, his emotional stability was assessed as being abnormal.[47] Reference was made to the 1978 psychiatric examination concerning his high alcohol intake and personality problems. It was, however, then noted that he “appears to have had no recent problems.”[48]
[47] T35, p.319.
[48] Ibid p.320.
In January 1985, on discharge from the RAN, the Applicant stated that he did not then suffer from any disabilities and had not suffered from any disabilities during his service.[49] He was found to be fit for discharge albeit that his emotional stability was not then examined.[50]
[49] T35, p.312.
[50] T35, p.316.
The Applicant’s evidence was to the effect that he continued to drink heavily for 10 to 15 years after his discharge from the RAN. He stated that he ceased to drink heavily around the time of a heart bypass procedure in 2005.
In or about the year 2000, the Applicant “…suffered an emotionally traumatic event… when, while working as a taxi driver, a female passenger held him up at gunpoint for about three hours.”[51] As a result of this incident, the Applicant was incapacitated for work for around six months[52] and was diagnosed with and treated for PTSD.[53] The Applicant’s evidence was that he eventually recovered from that PTSD (“although both my wife and I feel that I have never really been the same since then”).[54]
[51] Applicant’s Statement of Facts and Contentions of 29 January 2020 [5].
[52] T22, p.122 where it is said that the Applicant “was on WorkCover for six months”.
[53] See [Town] Medical Group medical records of 25 June 2000 referring, in the context of the Applicant, to “ongoing post-traumatic stress disorder”.
[54] T21: At the same time as saying he had not been the same since the incident in 2000, the Applicant stated that he had gradually recovered from the incident.

In July 2005, the Applicant presented at his general practitioner’s surgery with chest pain.[55] After a stress test in August 2005 and an angiogram in September 2005, he underwent a coronary artery bypass procedure in October 2005.[56] At the hearing of this proceeding, the Respondent accepted that the onset of the Applicant’s IHD could be tied to these events, so that it could be considered to have occurred in July 2005.
[55] [Town] Medical Group medical records of 23 July 2005.
[56] T7, p.41; T26, p.152.
In a claim for a disability pension lodged in or around September 2007 for disabilities relating to his heart, elbow and alleged alcohol abuse, the Applicant was said to have been diagnosed with IHD on the basis of an angiogram conducted in 2005, a condition then alleged to have been attributable to his smoking on service.[57]
[57] T4,15. At T7, clinical onset of IHD was said to have occurred in July 2005.
In January 2008, the Applicant completed a lifestyle questionnaire. In it, he suggested that the disabilities for which he was claiming a pension severely affected his relationships, with him being able to relate only to particular, or few, people, that he had markedly reduced mobility (with assistance being needed to cope with public or private transport) and that he was either unable to work full-time in a normal occupation or had to change occupation or number of hours worked (or both) because of the accepted conditions.[58]
[58] T6.
I note that:
(a)The effect on the Applicant’s relationships was then said to be attributable to disabilities that did not include PTSD or any similar mental health disorder;
(b)The description of the effect which the relevant disabilities were said to have had on the Applicant’s employment is difficult to reconcile with material before the Tribunal suggestive of the Applicant working 50 to 60 hours per week as a taxi driver at the time he made his pension claim[59] (having worked as a taxi driver since 1993[60]), him continuing to work as a taxi driver for around 40 hours per week in 2008[61] and him working around 90 hours per week as a convenience store owner in the 2013 to 2016 period.[62]
[59] T4, p.18.
[60] T4,19.
[61] T12, p.74.
[62] T17, p.107; T24, p.137; T25, p.150.
Also in January 2008, Dr Connell (who appears to have been a general practitioner) opined that:
(a)The date of clinical onset of the Applicant’s IHD was July 2005;[63]
(b)The Applicant was not then suffering any symptoms of IHD;[64]
(c)At the time of clinical onset of what was then characterised as the Applicant’s alcohol dependence or alcohol abuse, he was not suffering from a psychiatric disorder and had not experienced a “severe stressor” in the two-year period prior to that time.[65]
[63] T7, p.37. I note that at T26, p.152, onset of IHD is said to have occurred on 24 August 2005.
[64] T7, p.41.
[65] T7, pp.39-40.
In April 2008, Dr Chambers, consultant psychiatrist, reported[66] that:
(a)The Applicant had provided a history involving heavy drinking from his late teens until approximately three years ago (i.e., until approximately 2005);
(b)The Applicant was then drinking approximately six light beer stubbies every week;
(c)After having been threatened with a gun while working as a taxi driver approximately five years previously, the Applicant had suffered significant anxiety and was seen by a psychologist for around 18 months;
(d)The Applicant continued to work as a taxi driver;
(e)The Applicant “did not report any symptoms suggestive of” PTSD, anxiety or depression;
(f)Examination of the Applicant revealed no features of anxiety, depression or PTSD;
(g)The Applicant’s wife had indicated that the Applicant had features of social withdrawal, “more prominent in the last 5 years”, and that there had been frequent discord with family members during the Applicant’s period of heavy alcohol use;
(h)The Applicant had experienced a reduction in his social activities.
[66] T8.
In July 2008, the Applicant completed another lifestyle questionnaire.[67] Amongst other things, he complained of neck and back pain, albeit that he was then still working full-time as a taxi driver for around 40 hours per week. More specifically, he stated that he did not sleep well, was often tense and irritable, was often “cranky” from pain and was withdrawn. In oral evidence, the Applicant said he did not recall any significant change in his health in the period after his assessment by Dr Chambers to the time of completing this questionnaire.
[67] T12.
In August 2008, the Applicant’s claim for a disability pension was accepted in relation to certain conditions (cervical and lumbar spondylosis) with the result that a pension at 30% of the general rate was granted. The Applicant’s claim in relation to certain other conditions (including IHD), however, was rejected.[68] As for IHD, while there was a temporal connection between a connecting factor (smoking) and the Applicant’s service, there was found to have been no causal connection.[69]
[68] T13.
[69] T13, p.82.
The Applicant’s evidence is to the effect that he experienced several adverse temperamental changes during the course of 2016 as a consequence of the publicity then being given to institutional child abuse. He stated that: “I was managing okay until all of the media exposure about sexual misconduct in the Catholic Church, the Salvation Army and the Juvenile Justice system. I started getting very angry and upset and I would 'blow up' over little things.”[70]
[70] T21, p.119. I note, however, that the Applicant has on several occasions expressed concerns about being prone to anger, something he had attributed to back and leg pain (in a March 2017 lifestyle questionnaire: T17) and back and neck pain, and/or heart problems (in the July 2008 lifestyle questionnaire: T12).
In November 2016, Dr Emonson, the Applicant’s general practitioner, diagnosed the Applicant as suffering from mild symptoms of PTSD. This diagnosis was said to have been made after the Applicant had related a history of being sexually abused by a senior sailor when he was a young Navy recruit.[71]
[71] T14.
In a declaration dated January 2017,[72] the Applicant’s wife stated that:
(a)ZHVP had gone through a period of depression after the incident involving a passenger threatening him with a gun in the year 2000;
(b)After treatment with a psychologist, he had eventually improved;
(c)Up until the last 12 months, ZHVP had been the quieter, more tolerant one in their relationship;
(d)In the last 12 months, however, ZHVP had changed, being very quick to anger (something said to be out of character for him) and had become very restless in sleep;
(e)These changes escalated in around August 2016;
(f)The Applicant had, in October 2016, told her that he had been sexually assaulted when he was a junior sailor;
(g)The Applicant is socially withdrawn;
(h)The Applicant had commenced counselling with a psychologist in November 2016.
[72] T16. The declaration was, however, clearly made after January 2017 given that it describes events said to have occurred in February 2017
I digress to note that I accept the wife’s evidence to the effect that, in 2017, the Applicant had only recently exhibited certain adverse temperamental changes. It is consistent with other evidence before the Tribunal (such as the Applicant’s own evidence) as well as the history she apparently provided to Dr Redmond[73] (a point to which I will return), albeit that it appears somewhat inconsistent with:
(a)The description of the Applicant’s temperament given in 2008 by both the Applicant and Dr Chambers;
(b)The description of the Applicant’s temperament said by Dr Chambers to have been provided in 2008 by the Applicant’s wife;[74]
(c)Material in records of the Applicant’s general practitioner. In particular, in September 2012, the Applicant is said to have disclosed that, according to his wife, he had been swearing and violent in his sleep, hitting his wife twice.[75]
[73] T22.
[74] When, as mentioned, the Applicant’s wife was said to have indicated that the Applicant had features of social withdrawal “more prominent in the last 5 years” and that there had been frequent discord with family members during the applicant’s period of heavy alcohol use: T8.
[75] [Town] Medical Group medical records of 4 September 2012.
In February 2017, the Applicant made a disability pension claim with respect to tinnitus, a claim which ultimately resulted in an increase in his pension to 60% of the general rate.[76] Apparently in connection with that claim, in March 2017, the Applicant completed a further lifestyle questionnaire.[77] As with the questionnaire he completed in July 2008, the Applicant stated that he did not sleep well, was often tense and irritable, was often “cranky” from pain and was withdrawn (saying he did not go out and tended to avoid contact with people). He stated that his hearing loss and tinnitus had made it difficult for him to socialise with people, noting that he had given up active involvement in his local RSL branch. Pain in his back and legs was said to have caused him to be frustrated and angry.
[76] T19.
[77] T17.
I again digress to note that within around two months of completing this lifestyle questionnaire, the Applicant became president of the RSL branch he stated that he had ceased to be actively involved in.[78]
[78] T25, p.147.
In March 2017, the Applicant’s treating psychologist, Ms Thompson, opined that the Applicant’s symptoms were consistent with him suffering mild post-traumatic stress. According to Ms Thompson, the Applicant felt that he had never fully recovered from the incident in the year 2000 when he was held at gunpoint. The sexual assault he had endured more than 40 years earlier had, according to Ms Thompson, a “big impact”.[79]
[79] T18.
In April 2017, the Applicant’s general practitioner, Dr Lim, opined that the Applicant needed ongoing psychology to reduce symptoms of depression and anxiety.[80]
[80] T20.
Also in April 2017, Dr Redmond, a psychiatrist, diagnosed the Applicant as suffering from PTSD secondary to the sexual assault of 1976.[81] The basis for the diagnosis appeared to be that the Applicant had “ruminations, nightmares and intrusive recollections that are related to both his own assault as well as the fate of other children who are assaulted in such a way.”[82] Consistently with her statutory declaration several months earlier, the Applicant’s wife apparently told the psychiatrist that, in behaviour not typical of him, the Applicant had become irritable and cranky, had become more withdrawn and was experiencing restless sleep:[83] “[s]he noted he had become more withdrawn and had very restless sleep, he was yelling out and fighting in his dreams…”.[84] I note that in August 2017 Dr Redmond provided a second report which, to a large extent, replicated her April 2017 report.[85] The August report was, however, accompanied by a medical impairment assessment. Some of Dr Redmond’s responses would appear to have been relied on by the Respondent when initially contending that the Applicant’s PTSD diagnosis had not been established, as discussed in more detail later.
[81] T22.
[82] T22, p.123; T28, p.179.
[83] See also T28, p.185.
[84] T22, p.123; T28, p.177.
[85] T28.
In May 2017, the Applicant lodged his claim for a disability pension in relation to PTSD and IHD. Both conditions were said to have been caused, contributed to or aggravated by the sexual assault on him while serving at HMAS Cerberus.[86]. The sign or symptom of his IHD was “excessive smoking for more than 30 years”. The signs or symptoms of his PTSD that he listed were anger, sleeplessness, abuse of alcohol, feelings of dependency and self-harm.
[86] T24.
In a lifestyle questionnaire completed in connection with his May 2017 disability pension claim,[87] it was said that the Applicant did not sleep well, was often tense and irritable, “got cranky” with pain[88] and was more withdrawn[89] (as was said when the Applicant completed a similar questionnaire in July 2008 in connection with the claim relating to back and neck pain and heart problems, and in March 2017 in connection with his hearing loss and tinnitus claim[90]). In the May 2017 questionnaire responses, the Applicant was also said to have become wary of and defensive with people as a result of the 1976 sexual assault.
[87] T25.
[88] T25, p.143.
[89] T25, p.144.
[90] In that March 2017 claim, hearing loss and tinnitus were said to have made it difficult for the Applicant to socialise with people: T17, p.100.
In a submission associated with his May 2017 claim, in terms of IHD, the sexual assault was said to have caused an increase in consumption of cigarettes and alcohol; the Applicant “… increasingly turned to an increase in smoking and alcohol consumption to calm himself and dispel thinking about his bad experience.”[91]
[91] T23, 126.
As indicated earlier, the Applicant’s May 2017 claim was rejected by the Repatriation Commission in September 2017,[92] a decision affirmed by the VRB in August 2018.[93]
[92] T29.
[93] T32.
Does the Applicant now suffer from PTSD or IHD or did he so suffer in the “assessment period”?
The Respondent accepts that the Applicant now suffers from both IHD[94] and PTSD[95] (albeit that it may be that he does not suffer any symptoms of the former condition[96]). The Respondent was right to do so.
[94] Respondent’s Statement of Facts, Issues and Contentions (SFIC) [4.5].
[95] The Respondent accepted that the Applicant suffers from PTSD at the hearing of this proceeding, after hearing from Doctors Strauss, Mendelson and Redmond.
[96] T26, p.167 (Medical Impairment Assessment completed by Dr Lim in July 2017).
In terms of IHD, in the material before me there are multiple references to the Applicant having been diagnosed with the condition. For example, as mentioned earlier, Dr Connell stated in January 2008 that the date of clinical onset of the Applicant’s IHD was July 2005. In July 2017, Dr Lim certified that the Applicant suffered from IHD. [97] In June 2019, reference was made in records of that practice to the fact that the Applicant had been diagnosed with IHD in 2005.
[97] T26, p.152.
As for PTSD, the picture from the material before me is less clear-cut. Ultimately, however, I am satisfied that the Applicant suffers from it. In essence, all the expert evidence before me ended up favouring that conclusion.
Two psychiatrists were called to give evidence by the Applicant, Dr Redmond (whose reports were referred to earlier) and Dr Strauss (who provided reports of 10 December 2019 and 14 January 2020). The Respondent called a single psychiatrist, Associate Professor (AP) Mendelson (who provided a report of 24 June 2019).
As stated earlier, Dr Redmond opined in her reports that the Applicant suffered from PTSD secondary to a sexual assault of 1976. In his December 2019 report, Dr Strauss expressed agreement with Dr Redmond’s comments. He diagnosed the Applicant as suffering from “mild chronic post traumatic stress disorder as a result of the alleged abuse he suffered many years ago when he was in the Navy.”
According to Dr Redmond, the Applicant’s PTSD became symptomatic in or around 2016. The history she took from the Applicant suggested that his mental state had deteriorated significantly in the two-year period prior to her seeing him in April 2017. This was said to have occurred after the Applicant had become aware of the publicity concerning the abuse of children in institutional care,[98] enlivening his otherwise repressed memory. In oral evidence, Dr Redmond stated simply that the Applicant’s symptoms were triggered by media reporting about children in institutional care. It was then, according to Dr Redmond, that the Applicant’s behaviour changed.
[98] T22, p.123.
While both Dr Redmond’s and Dr Strauss’ diagnoses were clear, the basis for them was not. Dr Redmond stated in her reports that the Applicant had “ruminations, nightmares and intrusive recollections that are related to both his own assault as well as the fate of other children who are assaulted in such a way.”[99] Similarly, Dr Strauss spoke of the Applicant experiencing “nightmares and flashbacks to the …[sexual assault]”. No explanation was offered in the doctors’ reports as to why the Applicant experiencing these things justified the diagnoses arrived at. In oral evidence, however, both Dr Redmond and Dr Strauss stated that they had applied the diagnostic criteria for PTSD set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V). However, their reports made no reference to it. Both doctors were cross-examined about the extent to which it could properly be concluded that those criteria were met in the case of the Applicant.
[99] T22, p, 123; T28, pp.177-9.
Dr Strauss was asked, in particular, about:
(a)Criterion B relating to the presence of intrusion symptoms such as recurrent, involuntary, intrusive and distressing memories of the relevant event. Dr Strauss’ response focussed on the meaning he attributed to the term “flashback”, something which he saw was a reference to reliving the relevant experience;
(b)Criterion C and criterion D concerning the “persistent” avoidance of stimuli and negative alterations in cognition and mood associated with the relevant event. Insofar as these criteria relate to avoidance of or inability to remember relevant events, Dr Strauss simply noted that the history he took from the Applicant was somewhat vague;
(c)Criterion G concerning the issue of whether the “disturbance” suffered by the Applicant had caused clinically significant distress or impairment. Here, Dr Strauss was asked how the conclusions arrived at by Dr Redmond in a medical impairment assessment completed by her in August 2017[100] could be reconciled with a conclusion that the Applicant had suffered clinically significant distress or impairment. Dr Strauss agreed that some aspects of that assessment were inconsistent with that conclusion[101] but then went on to suggest that it would be an error to be too focussed on DSM-V’s diagnostic criteria.
[100] T28, p.182.
[101] Noting that Dr Redmond, had, for instance, stated in the assessment that the Applicant’s distress was sometimes apparent, that he suffered minimal or no interference with most aspects of living, his occupation or leisure activities, and that he experienced only a minor reduction in social interaction: T28, pp. 184-6.
Dr Redmond was also asked about how her assessment of August 2017 could be reconciled with a conclusion that criterion G of DSM-V was met. Her response was to the effect that the assessment she had made did not weigh against that conclusion. Like Dr Strauss, however, I find it difficult to see how that could be the case. Nevertheless, I note that Dr Redmond did state, by way of explanation, that she was not opining that the Applicant’s PTSD was significant.
Initially, the Respondent contended that the Applicant did not suffer from PTSD, principally in reliance on AP Mendelson’s report.[102]
[102] Respondent’s SFIC [4.3].
In that report AP Mendelson opined that “at the present time … [the Applicant] does not have any diagnosable psychiatric disorder.” More specifically in terms of PTSD, AP Mendelson stated that “…any current symptoms related to the sexual assault in 1976 that… [ZHVP] does experience do not meet the diagnostic criteria for Post-traumatic stress disorder.” While the publicity in 2016 associated with institutional child abuse may have led to understandable distress, it “…did not lead to specific psychiatric symptoms the nature and severity of which met the diagnostic criteria for Post-traumatic stress disorder.”
AP Mendelson’s report was detailed and comprehensive and (unlike the reports of Dr Redmond and Dr Strauss) expressly identified DSM-V as the source of the “diagnostic criteria for Post-traumatic stress disorder” of relevance and which AP Mendelson considered had not been met in the case of the Applicant. While, in the report, AP Mendelson did not deal with each of the DSM-V criteria, a reading of the report would suggest that his focus had been on criterion G concerning the issue of whether the “disturbance” suffered by the Applicant had caused clinically significant distress or impairment. In particular, AP Mendelson stated that “there is no indication that …[the Applicant] had experienced specific emotional symptoms that could be considered as having developed as the result of the sexual assault in 1976 that had led to clinically significant distress or impairment in social, occupational, or other area of functioning, until he told his wife about that incident during 2016...” and that, while the then recent publicity concerning institutional child abuse may have caused the Applicant to ruminate about the sexual assault, “… this had not resulted in what, in my view, could be considered as significant impairment in any important area of functioning.”

The difficulty I had with AP Mendelson’s evidence lies not in what is said in his report (which, as I mentioned, was both detailed and comprehensive) but in, rather, what he said about the report under cross-examination. In particular, he largely resiled from it. First, despite the express terms of his report, he denied applying the diagnostic criteria set out in DSM-V. He said he preferred to use other criteria because DSM-V reflected a medicalisation of everyday problems. Second, after being taken through the DSM-V criteria, despite initial denials, he ultimately accepted that they were met in the case of the Applicant (including criterion G).
AP Mendelson’s apparent change of heart resulted in the Respondent accepting, in closing submissions, that the Applicant did, indeed, suffer from PTSD. Given that the expert evidence ended up pointing in only one direction, the Respondent was right to do so.
Two additional points ought to be made about the expert evidence.
First, the case of PTSD diagnosed by both Dr Redmond and Dr Strauss was not the same as that from which the Applicant had been diagnosed as suffering in the year 2000 (when, as mentioned earlier, he had been involved in an incident in which he had been held up at gunpoint by a passenger in his taxi). Dr Redmond seemed to accept that the PTSD from that incident had resolved.[103] Dr Strauss was also of that view, suggesting that the Applicant had made a reasonable recovery from the trauma suffered as a result of the incident.[104]
[103] T22, p.122: “It sounds as if he made a good recovery from this incident.”; T22, p.123; T28,177-179- “Whilst there is a previous incident of PTSD, it seems that this incident resolved spontaneously and did not leave him functionally impaired…”;T28,p. 176 “He reports that with time, his symptoms diminished and he has made a good recovery from this incident.;T28, p.178: “He developed some symptoms of PTSD but states he fully recovered from this over time.”
[104] Report of December 2019, p.6.
Second, given all three doctors’ views about the timing of the Applicant’s symptoms, I find that clinical onset (a concept I will discuss later) of the Applicant’s PTSD occurred in or around the year 2016.
According to Dr Redmond, with the exception of the incident in the year 2000, prior to 2016 the Applicant did not report any psychological symptoms before, during or after his service with the RAN.[105]
[105] T28, p.178.
While Dr Strauss reported a history of the Applicant’s PTSD having “troubled him for many years” and the Applicant having been a heavy drinker for many years as a form of self-medication, a finding that any PTSD consequent upon the sexual assault in 1976 only became symptomatic around the year 2016 is consistent with Dr Strauss’ evidence that the Applicant only commenced experiencing relevant “flashbacks” after seeing the publicity accorded to investigations into institutional child abuse.[106]
[106] Report of December 2019, pp. 5-6.
Similarly, while in his report of June 2019, AP Mendelson noted a comment of the Applicant to the effect that the sexual assault of 1976 had always been in the back of his mind, the history recorded by AP Mendelson was indicative of any PTSD from the sexual assault only having become symptomatic in or around the year 2016.[107]
[107] “When I asked …[the Applicant] why it had been considered necessary for him to start seeing a psychologist in late 2016, he told me that after he told his wife about what he said had been the sexual assault he developed sleeping problems, as well as ’’mood swings", and had been "easy to snap".: Report of June 2019, p.9. “He did not acknowledge having experienced any specific symptoms as the result of what he said had been the sexual assault in 1975 or 1976 until after he had spoken about it to his wife in October 2016.”: Report of June 2019, p. 13.
A finding that clinical onset of the Applicant’s PTSD did not occur until around 2016 is generally consistent with the material before me. While there are some indications to the contrary,[108] I note that: in Dr Chambers’ report of 2008, no symptoms or features of PTSD were reported by the Applicant or revealed on examination; the Applicant was first diagnosed in late November 2016 as suffering mild symptoms of PTSD;[109] the Applicant commenced counselling with a psychologist in November 2016[110] (albeit acknowledging that he underwent around 18 months of counselling as a result of the incident in the year 2000); the Applicant’s wife gave evidence to the effect that he underwent adverse temperamental changes in around 2016;[111] and the Applicant stated that he felt that the publicity over institutional child abuse had “brought back my PTSD”.[112]
Has the Repatriation Medical Authority determined a statement of principles with respect to PTSD or IHD, as applicable, which identifies a factor that exists in relation to the Applicant?
[108] I refer, for example, to a certificate given by Dr Lim in July 2007 in which it was stated that the Applicant’s PTSD resulted in the onset in August 2007 of “alcohol consumption”: T26, p.160. I note that this is contradicted by a report of Dr Connell who, in January 2008, opined that at the time of onset of an alcohol use disorder the Applicant was not suffering from any psychiatric condition: T7, p.40. I note also that the April 2008 report of Dr Chambers indicates that, rather than commencing in 2007, any problems that the Applicant had with alcohol consumption had been mitigated by 2007: T8
[109] With the reference to “first diagnosed” being a reference to PTSD from the sexual assault, acknowledging that the Applicant had been diagnosed with PTSD in around the year 2000 as a result of being held up at gunpoint in that year.
[110] T18.
[111] Albeit that this evidence seems, as noted earlier, somewhat inconsistent with other material before the Tribunal.
[112] T21, a statutory declaration made in April 2017. I note that in that declaration the Applicant states that he recovered from the incident in the year 2000 but then says that he feels that he was never really the same since the incident.
The Repatriation Medical Authority has determined a statement of principles with respect to each of PTSD and IHD.
As for PTSD, as contended on behalf of the Applicant, the applicable statement is that numbered 83 of 2014. It applied when the primary decision was made by the Repatriation Commission in 2017. While there is a more recent statement of principles for PTSD (numbered 87 of 2018), the earlier statement applies. This is because statements of principles issued under the Act attract the general principle[113] that, absent a clear intent to the contrary, an amendment of a legislative instrument does not have retrospective effect on accrued rights and interests.[114] I note, in any event, the Respondent’s submission that there is no material difference between the two statements.
[113] Acts Interpretation Act 1902 (Cth) s7(2). “The purpose of s 7(2) of the Acts Interpretation Act is to avoid construing repeals, revocations or amendments as having a retrospective effect on substantive rights or interests.”: Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 [62].
[114] Repatriation Commission v Keeley [2000] FCA 532 at [42-76]. Moreover, and in any event, as I see it, applying the Statement of Principles applicable in 2017 is consistent with the decision of the High Court in Frugtniet v ASIC (2019) 266 CLR 250 where (at [14-15]) the role of the Tribunal was described being (with my emphasis):
“…not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision. Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide.”
There is no relevant misalignment between a diagnosis of PTSD based on DSM-V and the concept of “PTSD” as defined in Statement of Principles 83 of 2014. Indeed, that definition is said in the Statement to be “derived from DSM-V”.
Statement of Principles 83 of 2014 includes, as a factor that must exist before it can be said that PTSD is connected to a person’s service, “experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.” [115] The Applicant submitted that it was this factor that exists in relation to him.[116] I accept that submission.
[115] Statement of Principles 83 of 2014, cl 6.
[116] Applicant’s SFIC [19].
The Applicant did experience a category 1A stressor. He was subject to a “serious physical attack or assault including rape and sexual molestation”.[117] The Applicant experienced that stressor before the “clinical onset” of his PTSD. PTSD is a “disease”.[118] The clinical onset of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[119] No finding can be made of clinical onset unless all the symptoms of the disease can be shown to be present.[120] There is no suggestion in the material before me that the Applicant was experiencing symptoms of PTSD before experiencing the category 1A stressor constituted by the assault on him in 1976.
[117] Statement of Principles 83 of 2014, cl 9.
[118] Act, s 5D: disease is defined to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) (but not including its aggravation).
[119] Repatriation Commission v Cornelius [2002] FCA 750 at [26], approving Robertson and Repatriation Commission (1998) 50 ALD 668 at [670]. The purpose of this judicial definition was to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from the condition in question: Kaluza v Repatriation Commission (2011) 122 ALD 448 (‘Kaluza’) at [63]. It is for a doctor to say when clinical onset occurs by the presence of features or symptoms. It can precede the date of first treatment: Kaluza at [51] and [66].
[120] Youngnickel v Repatriation Commission (2004) FCA 1691; Reinhard and Repatriation Commission [2013] AATA 522.
Accordingly, I find that the applicable statement of principles with respect to PTSD identifies a factor that exists in relation to the Applicant, constituted by his having experienced a category 1A stressor by reason of the 1976 sexual assault.
As for IHD, as contended by the parties, the applicable statement is that which currently applies to IHD, numbered 2 of 2016.
That statement of principles includes, as a factor that must exist before it can be said that IHD is connected to a person’s service, “having a clinically significant disorder of mental health as specified for at least the five years before the clinical onset of ischaemic heart disease.”[121] The Applicant submitted that it was this factor that exists in relation to him. [122] I reject that submission.
[121] Statement of Principles 2 of 2016 cl 9(17).
[122] Applicant’s SFIC [26]. In the Applicant’s SFIC at [26], reliance was also placed on cl 9(1): “having hypertension before the clinical onset of ischaemic heart disease”. As stated earlier, however, the Applicant dropped his claim that he had defence-caused hypertension on the first day of the hearing.
This factor does not exist in relation to the Applicant.
Clinical onset of the Applicant’s IHD occurred in either July 2005 (according to Dr Connell) or August 2005 (according to Dr Lim).[123] Either way (and as accepted by the parties), it occurred in 2005. The Applicant did not have a clinically significant disorder of mental health as specified for at least five years before then.
[123] T7, p.37; T26, p.152.
The concept of a “clinically significant disorder of mental health as specified” encompasses PTSD if it is of sufficient severity to warrant ongoing management (such as would be the case were the Applicant to have had at least monthly visits to a counsellor).
The Applicant has suffered two cases of PTSD. As mentioned earlier, both Dr Redmond and Dr Strauss appeared to consider that the case of PTSD they had diagnosed was not the same as that from which the Applicant had been diagnosed as suffering in the year 2000.
Taking the latter case of PTSD first, I note that in closing the Applicant declined to rely on this case of PTSD as the relevant “clinically significant disorder of mental health.” In any event, I am not satisfied on the material before me that it subsisted for at least five years before the clinical onset of the Applicant’s IHD in 2005. Both Dr Redmond and Dr Strauss accepted that this case of PTSD had resolved or that the Applicant had recovered from it. Counselling as a consequence of the incident in 2000 was only engaged in for around 18 months.[124] The records of the Applicant’s general practitioner make no reference to the Applicant suffering from PTSD in the period from February 2001 until well after 2005. As stated earlier, in April 2008, Dr Chambers reported that the Applicant was not then reporting any symptoms or features of PTSD and none were revealed on examination.
[124] See the April 2008 report of Dr Chambers referred to earlier: T8, p.45.
As for the case of PTSD diagnosed by both Dr Redmond and Dr Strauss, the Applicant did not have it (or, at least, did not have it of a severity sufficient to warrant ongoing management) for at least five years prior to clinical onset of his IHD in 2005. Indeed, I am not satisfied on the material before me that the Applicant was suffering from this case of PTSD before the year 2016. In essence, it only became symptomatic in (or around) 2016. As outlined earlier, the evidence of Dr Redmond, Dr Strauss and AP Mendelson suggests that clinical onset of this case of PTSD did not occur until then. It is only then that the Applicant’s PTSD became sufficiently severe as to warrant ongoing management (noting that the Applicant’s sessions with his psychologist, Ms Thompson, began in November 2016).[125]
[125] Albeit noting the 18 months of counselling which it said the Applicant underwent in relation to the separate case of PTSD which arose from being held up at gunpoint in the year 2000
On the Applicant’s behalf, it was submitted that he began to suffer from PTSD in the latter half of the 1970s. In closing, it was suggested that clinical onset of the Applicant’s PTSD occurred in 1978. This was said to be evidenced by him having then been diagnosed as suffering from dependent immature personality and alcohol dependence subsequent to him spending several days as an in-patient consequent upon a psychiatric referral.
As is apparent from the view I expressed earlier about when the Applicant first had PTSD, I do not accept that submission. While the material before me suggests that the Applicant engaged in aberrant behaviour in the latter half of the 1970s, it does not suggest that this behaviour was reflective of him then suffering PTSD. Moreover, I am not satisfied on the material before me that all of the features of PTSD (including diagnostic criteria) were present in the latter half of the 1970s such that it could be concluded that clinical onset of the Applicant’s PTSD had then occurred.[126]
[126] Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [55]. It has been suggested that to establish the date of clinical onset of a disease, the Tribunal is not confined to considering medical evidence, but can also consider lay evidence as to symptoms, and then decide whether those symptoms would enable a doctor to say that the disease was present: see Re Rodsted and Repatriation Commission (2009) 50 AAR 217 at [88] and [103]–[105].
Each of Dr Redmond, Dr Strauss and AP Mendelson was asked about the Applicant’s conduct while in the RAN that led to the diagnosis made in 1978. Dr Redmond’s response was that it might have been connected to the 1976 sexual assault, something she simply categorised as a possibility. Dr Strauss stated that there was a “possible” link between the sexual assault and the dependent immature personality diagnosis then made. However, he went on to indicate that the 1978 diagnosis was unlikely to have been one reflective of the Applicant then suffering PTSD, given that PTSD is not a personality disorder. AP Mendelson accepted that it was possible that the Applicant’s conduct in 1978 was linked to the 1976 sexual assault but then said that “anything is possible.”
A mere possibility is not a foundation on which to build a conclusion which requires a state of reasonable satisfaction. Moreover, somewhat inconsistently with the Applicant’s submission that he began to suffer from PTSD in the latter half of the 1970s, I note that in January 2008 the Applicant’s then general practitioner, Dr Connell, stated that the Applicant was not suffering a psychological disorder in 1976.[127]
Did a Statement of Principles factor that exists in relation to the Applicant cause or contribute to his PTSD?
[127] T7, p.40. Dr Connell in fact stated that the Applicant was not suffering a psychological disorder at the time of clinical onset of alcohol abuse or alcohol dependence. He also stated, however, that the symptoms of such abuse or dependence were first noticed in 1976
I address this causation question only in relation to the Applicant’s PTSD, given my rejection of the Applicant’s submission in relation to the question of whether a factor in the Statement of Principles applicable to IHD exists in relation to him.
I find that the category 1A stressor constituted by the 1976 sexual assault on the Applicant did cause or contribute to his PTSD.
In the material before me only two traumatic events were identified as potentially having a causal connection with the Applicant’s PTSD. They were the sexual assault in 1976 and the incident involving the Applicant being threatened at gunpoint in 2000. As Dr Redmond and Dr Strauss both appeared to consider that the case of PTSD they had diagnosed was not the same as that from which the Applicant had been diagnosed as suffering as a result of the incident in the year 2000, I find that the more recently diagnosed PTSD is causally linked to the 1976 sexual assault.
This finding is consistent with the opinions expressed in the material before me by various health professionals.
In November 2016, Dr Emonson, the Applicant’s general practitioner, diagnosed the Applicant as suffering from mild symptoms of PTSD. This diagnosis was made only after the Applicant had related a history of being sexually abused by a senior sailor when he was a young Navy recruit.[128] In April 2017, Dr Redmond, reported that the Applicant’s PTSD was secondary to the sexual assault.[129] Dr Strauss opined that the Applicant’s PTSD was “a result of the alleged abuse he suffered many years ago when he was in the Navy.”[130]
Did a Statement of Principles factor that exists in relation to the Applicant and which causes or contributes to the Applicant’s PTSD arise out of, or was attributable to, his defence service or would such a factor not have occurred but for either the rendering of that service or changes in the Applicant’s environment consequent upon him having rendered that service?
[128] T14.
[129] T22.
[130] Report of December 2019, p.4.
Again, I address this question only in relation to the Applicant’s PTSD, given my rejection of the Applicant’s submission in relation to the question of whether a factor in the statement of principles applicable to IHD exists in relation to him.

Paraphrased, the question is essentially whether the category 1A stressor experienced by the Applicant and constituted by the 1976 sexual assault arose out of or was attributable to the Applicant’s defence service or would not have occurred but for his defence service or but for environmental changes made consequent upon his defence service.[131]
[131] See Freeman and Repatriation Commission (Veterans’ entitlements) [2020] AATA 1650 [10].
In addressing this question, I break it down into two components; an “arise out of or attributable to” component and a “but for” component.
Did sexual assault arise out of, or was it attributable to, defence service?
I am not satisfied that the 1976 sexual assault either arose out of or was attributable to the Applicant’s defence service.
While the expressions “arose out of” or “was attributable to” are to be given a broad and generous meaning,[132] nevertheless, a causal, not merely temporal, connection must exist between a person’s defence service and an event for the event to be considered to arise out of or be attributable to that service.[133] The connection need not be direct or proximate. Further, defence service need not be the sole or dominant cause of the relevant event.[134] It must, however, be a contributing cause.[135]
[132] Roncevich v Repatriation Commission (2005) 222 CLR 115 at [27].
[133] Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1 at [55].
[134] Roncevich v Repatriation Commission (2005) 222 CLR 115 at [27].
[135] Repatriation Commission v Law (1980) 31 ALR 140 at 151 where it is said that “It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.” See also Re David Guy Holthouse v Repatriation Commission [1982] FCA 113 where, in discussing legislative provisions analogous to those here under consideration, Davies J concluded that the required connection “…need not be the sole, dominant, direct or proximate cause and effect. It is sufficient if there be a contributory cause or connection... it is sufficient that there be a causal connection and that that causal connection has contributed in a material way to the incapacity or death”.
There will be a sufficient causal connection between a person’s defence service and a particular event if the event occurred in circumstances arising by reason of something which the person concerned was required or expected to do in carrying out the person’s duties.[136]
[136] Roncevich v Repatriation Commission (2005) 222 CLR 115 at [23]: “…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.” See also Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525 at [69] where it is said that “The scope of “defence service” has been extended by the courts to include not only activities required to be done but also “expected or authorised”.
The Applicant submits that there is the requisite causal connection in his case. He contends that there was an expectation of him at the relevant time that he drink alcohol and, inferentially, the sexual assault would not have occurred if he had not been so intoxicated that he only became conscious or aware of the assault during the course of it.
I reject that submission for two reasons.
First, I am not satisfied that there was an expectation of the Applicant at the relevant time that he consume alcohol.
The Applicant’s evidence was to the effect that he was encouraged to socialise with other cooks based at HMAS Cerberus and that this socialisation often entailed drinking alcohol. According to the Applicant, drinking was a necessary component of fitting in. He estimated that of the roughly 40 cooks then engaged at HMAS Cerberus, 39 were drinkers. Consistent with this, the Applicant noted that at the relevant time he was driven to the local hotel by others engaged at HMAS Cerberus. More directly, the Applicant is said to have told Dr Redmond that underage drinking was encouraged at the time of the sexual assault in 1976.[137] On his behalf it was submitted that alcohol was “readily available to all ranks regardless of age”.[138]
[137] T22, p.122.
[138] T23, p.125.
While I accept that the culture prevailing in 1976 might well have encouraged the drinking of alcohol by RAN personnel generally, I am not satisfied that this expectation then extended to the Applicant. At the time of the sexual assault in 1976, he was not legally permitted to consume alcohol on licensed premises and the RAN had a policy of “restricting underage drinking on base”.[139] As acknowledged by the Applicant at the hearing of this proceeding, he was then barred by RAN rules from drinking “ashore.” While almost all those working with the Applicant at the time may have been drinkers, according to the Applicant, he was the only one among them who was a minor.
[139] Ibid.
The fact that there was no expectation of the Applicant at the time of the sexual assault in 1976 that he consume alcohol is reflected in evidence he apparently provided to the VRB. Before the VRB he is said to have stated that, at the time of the assault, he was not accustomed to going on shore leave and drinking alcohol. The night of the assault apparently represented only the second time he had been at the relevant hotel.[140]
[140] T32, p.209.
Second, even if at the relevant time there was an expectation that, in carrying out his duties, the Applicant drink alcohol, it is not inherent in such an expectation that the Applicant drink to such an extent that he became so intoxicated that he would lose situational awareness. In this regard, it is not contended that the sexual assault occurred because the Applicant drank alcohol. Rather, I am asked to infer that it would not have occurred but for the fact that the Applicant was so intoxicated that he only became conscious or aware of the assault during the course of it.
Here, the Applicant’s intoxication on the night concerned did not arise out of and was not attributable to his defence service. The Applicant’s evidence is that he only engaged in “modest drinking” involving two to three glasses of beer per session prior to the sexual assault in 1976.[141] Rather than reflecting an expectation of him in carrying out his RAN duties, the Applicant’s intoxication on the night in question arose in his “own personal or domestic sphere.” The Applicant was then off on a frolic of his own.[142] At most, the Applicant’s defence service provided no more than the setting in which the assault on him occurred.[143]
[141] T27, p.173.
[142] James Thomas Mcdermott v the Commonwealth of Australia [1981] FCA 214 where the Court was dealing with an appeal from a decision of the Tribunal to the effect that there was no liability to compensate an employee attending a lakeside barbecue who was injured when he went for swim in the lake because he was then “off on a frolic of his own”.
[143] Wedderspoon v Minister of Pensions (1947) 1 KB 562 at 563-4; Repatriation Commission v Tuite [1993] FCA 39 at [6]
In Bucknall,[144] the Tribunal was addressing a claim under the Safety, Rehabilitation and Compensation Act 1988. In doing so, consideration was given to questions of relevance in this proceeding, in particular, questions as to when a sexual assault on a person may be considered to arise out of employment or but for employment. The facts involved a cadet who was sexually assaulted by another cadet when returning to base after an evening spent socialising off-base with other cadets. It was found that the assault arose out of the cadet’s employment. The causal linkage between the assault and the cadet’s employment was considered to arise because of “…the encouragement of the employer for the socialisation to take place, the fact that the assault was occasioned by a fellow employee who had requested Ms Bucknall accompany him, and the assault occurring as Ms Bucknall was returning to the College from a social gathering of her peers.”[145]
[144] Bucknall v Military Rehabilitation and Compensation Commission (2007) AATA 2014 (‘Bucknall’).
[145] Bucknall at [31].
Unlike Bucknall, however, here we are not dealing with an assault that occurred in circumstances of socialisation encouraged by an employer. Rather, we are dealing with an assault that occurred in circumstances which I am not satisfied the RAN encouraged, to wit, the Applicant’s consumption of alcohol and his intoxication. This is not a matter where, as a matter of common sense, there is “some substantial link or connection with the employment which is causal, and not merely temporal.”[146]
Would the sexual assault not have occurred but for defence service or environmental changes made consequent on defence service?
[146] Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1 at [55] (‘Roberts’).
I am not satisfied that the 1976 sexual assault would not have occurred but for the Applicant’s defence service or but for environmental changes made consequent upon his defence service.
While this “but for” test is to be construed to give “the fullest relief which the fair meaning of its language will allow,”[147] in applying the test, a “…common sense or practical” approach… or a requirement for some degree of “proximity” … may be necessary to confine the unbounded logical possibilities of a “but for” test within limits that may be imputed to the legislature as acceptable.”[148]
[147] Roberts at [60] citing Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384. Roberts was a case which, like Bucknall, concerned a claim under workers compensation legislation. See also Haughey and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 969 at [42].
[148] Roberts at [61].
Indeed, it is clear that the imputed limits that flow from the adoption of a common sense approach to the legislation require that there be a causal nexus between an event and a person’s defence service before it can be concluded that the event would not have occurred but for the service.[149]
[149] Holthouse v Repatriation Commission [1982] FCA 113 per Davies J who stated, when commenting on analogous legislation, that it did not “abbrogate [sic] the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause of the incapacity or death”. Roberts at [62] where it is said that “…that the concept of ‘but for’ implies, indeed is synonymous with, some kind of causal connection.”
In Roberts, a RAAF officer was sexually assaulted in her on-base residence late at night. Madgwick J found that it would not have occurred but for her employment. In residing on-base she was “…doing what her employer envisaged and expected she would do.”[150]
[150] Roberts at [64].
Here, the sexual assault did not occur in circumstances in which the Applicant was doing what the RAN envisaged and expected the Applicant to be doing. For the reasons previously stated, I am not satisfied that there was an expectation of the Applicant at the relevant time that he consume alcohol, let alone that he engage in the consumption of alcohol to an extent that he would become so intoxicated as to lose situational awareness. The Applicant’s consumption of alcohol on the night concerned to that level of intoxication was a matter purely within his private life.[151] He was not induced or encouraged by the RAN to make the choices he did on that night.[152]
[151] Holthouse v Repatriation Commission [1982] FCA 113 where a claim for compensation was denied to a person injured when moving a pot plant, a move the claimant elected to make because he was being removed to a RAN ship.
[152] Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 786 at [29].
In Bucknall, for the reasons that the assault on Ms Bucknall was considered to arise out of her employment, it was also found that it would not have occurred but for her employment.[153] The Tribunal, referring to the decision in Roberts, stated that in “… that matter the Court described the injured employee as ‘doing what her employer envisaged and expected she would do. She was in no sense behaving in such a way that it would be anomalous to say that ensuring violence would not have the … occurred ‘but-for’ the employment.’ This description is equally applicable to Ms Bucknall.”[154] This is not, however, a description that could be applied to the conduct of the Applicant. In drinking alcohol and in drinking it to an extent that he was heavily intoxicated, the Applicant was not doing what the RAN envisaged and expected he would do.
[153] Bucknall at [36].
[154] Bucknall at [37].
WAS THE APPLICANT’S IHD DEFENCE-CAUSED BECAUSE OF SMOKING?
As is apparent, both the PTSD and IHD aspects of the Applicant’s claim seek to base a connection between those conditions and his defence service on him having suffered a sexual assault as a teenage sailor based at HMAS Cerberus. While that reflects the “case” articulated by the Applicant, I am bound not to limit my determination to that case if the material before me takes me in a different or additional direction.[155]
[155] Grant v Repatriation Commission [1999] FCA 1629 at [18]
In this matter, the material before me raises a case about the Applicant’s IHD and whether a factor concerning his smoking results in the contention that the IHD is connected with the Applicant’s defence service being upheld.
Under the applicable statement of principles concerning IHD, smoking on average at least three cigarettes a day for a year before the clinical onset of IHD is one of the factors that must exist before it can be said that, on the balance of probabilities, IHD is connected with the circumstances of a person’s defence service.[156]
[156] Statement of Principles 2 of 2016 cl 9(5). This factor is of relevance because the Applicant had not ceased smoking before the clinical onset of his IHD.
That factor exists in relation to the Applicant. As outlined earlier, clinical onset of the Applicant’s IHD occurred in 2005. On the material before me I am satisfied that he was smoking more than three cigarettes a day on average for more than a year before then. In October 1978, he was smoking 20 to 30 cigarettes a day[157] and just prior to his heart bypass procedure in October 2005 he was smoking 35 cigarettes a day. [158]
[157] T35, p.266 (RAN records).
[158] [Town] Medical Group medical records of 25 August 2007.
I am also satisfied that smoking caused or contributed to the Applicant’s IHD. In July 2017, Dr Lim nominated smoking as a causal factor in relation to the Applicant’s IHD.[159]
[159] T26, p.159.
I am not satisfied, however, that the Applicant’s smoking arose out of, or was attributable to, his defence service or would not have occurred but for either the rendering of that service or changes in the Applicant’s environment consequent upon him having rendered that service.
As previously mentioned, in August 2008, it was determined that the Applicant’s IHD was not defence-caused.[160] While there was said to be a temporal connection between the Applicant’s smoking and his defence service there was then found to be no causal connection.[161] Nothing before me warrants a different conclusion. This is so despite it being claimed in a submission associated with the Applicant’s May 2017 pension claim that the 1976 sexual assault of the Applicant caused him to increase his consumption of cigarettes; the Applicant “… increasingly turned to an increase in smoking … to calm himself and dispel thinking about his bad experience.”[162] That submission was not pursued at the hearing of this proceeding and the material before me does not support it. Indeed, that material suggests a different reason for the Applicant having increased his consumption of tobacco while serving with the RAN. In particular, in the period April 1977 to May 1979, the Applicant served on HMAS Melbourne.[163] The Applicant stated that, at sea, he increased his consumption of cigarettes from around four to five a day to about 30 to 40 a day as they could be purchased at duty-free prices.[164]
[160] T13.
[161] T13, p.82.
[162] T23, p.126.
[163] T33, p.219.
[164] T32, p.213 [35]: evidence before the VRB which the Applicant confirmed at the hearing was accurate.
CONCLUSION
For the foregoing reasons, the Tribunal affirms the decision the subject of review.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell

.....................[SGD]...................................................
Associate
Dated: 24 August 2021

Dates of hearing: 27–29 October 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Carolyn Symons

Williams Winter Solicitors

Counsel for the Respondent:

Solicitors for the Respondent:

Ms Cathy Dowsett

Sparke Helmore Lawyers