Murray and Repatriation Commission [2002] AATA 16 (14 January 2002)

Last Updated: 14 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/372

VETERAN'S APPEALS DIVISION )

Re RHONDA EILEEN MURRAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 14 January 2002

Place Brisbane

Decision The Tribunal sets aside the decision under review, namely that of the Repatriation Commission dated 7 October 1997, as affirmed by the Veterans' Review Board on 23 February 1999, and in substitution therefor decides that the death of the veteran, Lindsay Murray, was war-caused and that the applicant, Rhonda Eileen Murray, is entitled to receive a war widow's pension with effect from 16 March 1997.

(Sgd) EK CHRISTIE

MEMBER

CATCHWORDS

VETERANS' AFFAIRS - veteran's entitlements - disability pension - service in the South West Pacific Area - whether veteran suffered from war-caused post traumatic stress disorder or depression - suicide - whether Statement of Principles satisfied - whether a hypothesis - whether hypothesis reasonable.

Veterans' Entitlements Act 1986 ss 8, 120, 120A

Connors v Repatriation Commission [2000] FCA 783

East v Repatriation Commission (1987) 74 ALR 518

E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238

McKenna v Repatriation Commission (1999) 29 AAR 70

Repatriation Commission v Bey (1997) 47 ALD 481

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Law (1981) 36 ALR 411

Repatriation Commission v McKenna (1998) 28 AAR 7

REASONS FOR DECISION

14 January 2002 Dr EK Christie, Member

1. This is an application by Rhonda Murray to review a decision of the Veterans' Review Board (the "VRB") which decided on 23 February 1999 that the death of her husband, Lindsay Murray on 27 June 1988 was not related to service. The VRB decision affirmed the decision of the Repatriation Commission made on 7 October 1997.

2. In reaching its decision, the VRB concluded that:

"In order for there to be a reasonable hypothesis, there needs to be some evidence in relation to particular events during Mr Murray's service. Without such evidence, the claim must fail. It fails firstly because there is not before it a diagnosis of post traumatic stress disorder. Secondly, even if the Board was to conclude that the veteran did in fact suffer from post traumatic stress disorder (which is contrary to the Board's findings), there was no evidence which would enable it to find that it was the veteran's war caused experience which led to the onset of this condition.

In reaching that finding, the Board had no doubt in accepting that the veteran rendered onerous service under difficult conditions. However in view of the absence of any specific evidence about the veteran's war experiences, neither Factor 5(c) of the relevant Statement of Principles nor any other of the factors set out therein are raised.

There not being before the Board a reasonable hypothesis connecting the veteran's suicide with his service, the Board is satisfied beyond reasonable doubt that there is no sufficient ground for finding that his death was war caused." (T5 Folio 41)

3. Rhonda Murray now seeks to have the decision of the Veterans' Review Board reviewed because -

"The Veterans' Review Board failed to consider or place sufficient weight upon evidence presented on behalf of Mrs Murray establishing a link between her late husband, Lindsay Murray's death, and his war or defence service." (T1 Folio 'C').

4. At the hearing Rhonda Murray was represented by Mr D O'Gorman of Counsel, instructed by Messrs Gilshenan and Luton. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.

5. At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit A) and the following exhibits:

* Exhibit 1 Statement of Rhonda Murray - 7.12.00

* Exhibit 2 Expert Report of Dr Rosalie Troup - 22.9.99

* Exhibit 3 Letter from Frank Walker to Gilshenan & Luton dated 11.4.01

* Exhibit 4 Letter from Frank Walker to General Manager, Latrobe Council (undated)

* Exhibit 5 Statement - Narelle Marshall (Exhibit A, Folio 33)

* Exhibit 6 Statement - Lindsay Murray Jnr - 17.11.00

* Exhibit 7 Statement - Lynette Mahon (nee Murray) - 27.5.01

* Exhibit 8 Statement - Makineti Jones - 12.5.99

* Exhibit 9 Series of letters written by Lindsay Murray whilst on service

and for the respondent:

* Exhibit B Expert report of Dr Peter Mulholland - 5.7.00

Facts

6. Based on the oral evidence and documents before the Tribunal, the general facts were that the late veteran served in the Royal Australian Navy from 4 January 1943 until 24 July 1946 in the South-West Pacific Area, enlisting in the Navy at the age of 17 years. The late veteran had served on a number of ships, including HMAS Latrobe - a ship that was engaged in the bombardment of the Borneo Coast, involvement in the landings at Tarakan and Balikpapan, Borneo, as well as minesweeping operations.

7. There was no dispute that the late veteran exhibited features of depression with behaviour problems or that the late veteran had been exposed to many stressful situations during war service that had a significant impact upon him (see T5 Folio 40).

Evidence of Rhonda Murray (widow of late veteran)

8. Rhonda Murray met the late veteran in 1970 and had cohabited with him before they were married in 1977. Her evidence was that the late veteran had infrequent, irregular and unpredictable periods of depression/withdrawal from 1970 and that there were no explanations for the "triggers" for each event. In addition, during periods of withdrawal the late veteran was "unreasonable" and his behavioural patterns were unusual and strange. Throughout their 18 years together the late veteran resisted any suggestion to seek medical attention for his depression/withdrawal state.

Evidence of Frank Walker (formerly Lieutenant HMAS Latrobe)

9. Mr Walker described the day-to-day activities during war-time service aboard the Corvette HMAS Latrobe on which the late veteran served from around April to September 1945. Mr Walker dismissed the suggestion that the late veteran's role as a cook on the Corvette meant that he would be in little danger. Mr Walker said that in "action station" mode the late veteran's task was to feed ammunition from the magazine room to the Bofors guns stating that, whilst every position was dangerous on the Corvette in action stations mode, the magazine room was the "most dangerous place".

Evidence of Dr Rosalie Troup (Psychiatrist)

10. Dr Troup stated that her report (Exhibit 2) had been prepared in September 1999 without access to information contained in the late veteran's war-time letters (Exhibit 9). Accordingly, based on all the available materials, her assessment had been revised such that her diagnosis for the late veteran was now post traumatic stress disorder (PTSD), substance abuse disorder and major depression.

11. In arriving at this diagnosis, Dr Troup referred to the war-time correspondence of the late veteran, as well as relevant evidence contained in documentary material before the Tribunal.

12. Dr Troup made the following statements in relation to the late veteran's war-time correspondence (Exhibit 9):

* Letter 1: Based on the late veteran's description of trauma from the fear of bombing, and his reference to dead bodies, the diagnosis of PTSD was fulfilled. Moreover, this letter indicated the following symptoms of PTSD: lack of concentration, poor concentration due to hyper-arousal, memory problems and sleep disorder. Thinking about the horrific incidents described in this letter would "eat away" at the late veteran over time.

* Letter 2: The late veteran displayed symptoms of Alexythymia (a change in personality when a person undergoes prolonged trauma). That is, the late veteran would have entered the war with normal values (e.g. childhood, spiritual, parental) but, on return, these values would be replaced with a simple black and white assessment - "with no shades of grey". This change was consistent with trauma.

* Letter 3: This letter was significant as it described trauma wherein the late veteran described events on land (namely, where the Army was engaging the enemy - but where the late veteran was not involved) and were indicators of PTSD.

* Letter 4: Dr Troup described the late veteran's sleeplessness at night ("inability to sleep") as a symptom of PTSD and suggestive of the avoidance criteria.

13. Dr Troup referred to the following materials before the Tribunal, which dealt with post-war observations of the late veteran, to confirm her diagnosis of PTSD:

* Narelle Marshall (Exhibit A, T4 Folio 33) - the failure of the late veteran to talk about his war-time experiences was indicative of trauma associated with them. In addition, his sleeplessness and avoidance behaviour was characteristic of PTSD. She acknowledged that his alcohol abuse problem was a means to escape memories;

* Lindsay Murray Jnr (Exhibit 6) - the late veteran's silence over time of his war experiences was a further confirmation of PTSD; and

* Judith Mahon (née Murray) [Exhibit 7] - the late veteran's traumas described in Judith Mahon's statement plus problems of sleeplessness confirmed her diagnosis of PTSD and Alexythymia.

14. Dr Troup's diagnosis of the late veteran's condition of PTSD, with respect to SoP (Suicide or Attempted Suicide) and the description of the psychiatric condition of PTSD, was based on all of the following criteria being satisfied:

"'post-traumatic stress disorder' means a psychiatric condition meeting the following description (derived from DSM-IV):

(a) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved .... or horror; and

(b) the traumatic event is persistently re-experienced in one or more of the following ways:

.........

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

........

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg, unable to have loving feelings);

.......

(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

........

(iii) difficulty concentrating;

........"

15. Dr Troup was cross-examined as to the evidence that the late veteran had re-experienced traumatic events in later life [namely criteria (b)(iv) and (b)(v)]. Dr Troup responded by stating that it was "difficult to say which circumstances that he reacted to but that the change in the late veteran's personality was typical of someone with PTSD".

Evidence of Dr Peter Mulholland

16. Dr Mulholland described the following as some of the issues involved in making a posthumous diagnosis:

(a) a requirement for an accurate and reliable history at the time;

(b) psychological reactions at the time; and

(c) contemporaneous information on psychiatric treatment at the time or close to the events.

He said that the ideal was to have medical notes relative to notes from relatives and friends.

17. Dr Mulholland stated that there was very little contemporaneous information in the late veteran's case. During cross-examination, Dr Mulholland conceded that he did not have the late veteran's war-time letters available (Exhibit 9) when preparing his report.

18. In response to the war-time letters of the late veteran, Dr Mulholland gave the following answers during cross-examination:

* Letter 1 Dr Mulholland expressed the opinion that no conclusions on PTSD could be made from the symptoms described in the letter (hyper-arousal, memory problems, lack of concentration, sleep disorder) as these would be the normal reaction or behaviour in the circumstances of the late veteran at this time.

* Letter 3 The events described in this letter could not produce PTSD as they were not stressors associated with this psychiatric condition as the late veteran was not at risk of death, himself, when making these observations. However, he acknowledged that they were "unpleasant issues".

* Letter 4 Dr Mulholland acknowledged that these symptoms could possibly be indicators of hyper-arousal but, in itself, were not an indicator of PTSD. Other factors unrelated to PTSD (e.g. sleeping quarters characteristics) may have caused the hyper-arousal.

19. Based on the information available to him when he prepared his report (5 July 2000), Dr Mulholland concluded that it was "suggestive of the late [veteran] having had some sort of significant psychiatric condition, whether that be post traumatic stress disorder plus or minus chronic depressive illness plus or minus chronic alcohol abuse/dependence". However, there was not enough information to make these diagnoses with any degree of confidence. (Exhibit B, paragraph 50)

20. During cross-examination on the SoP (Suicide or Attempted Suicide), Dr Mulholland stated that criterion (a)(i) and criterion (b)(v) were "possible".

21. Under further cross-examination as to the diagnosis of the late veteran's condition incorporating information contained in the letters to his wife (Exhibit 9), as well as his children's statements (Exhibits 6 and 7) - information not available to Dr Mulholland when he prepared his report, Dr Mulholland conceded that this information would definitely increase the likelihood of the diagnosis of depression and possibly increase the likelihood of the diagnosis of PTSD.

Contentions of the Parties

22. Mr Smith contended that, in relation to the late veteran's depression condition, there was no evidence, based on the diagnostic criteria contained in the SoP, that the onset of depression was within two years of any severe psycho-social stressor during operational service and that there was no evidence that actually linked the late veteran's depression back to war-time.

23. In relation to Dr Troup's diagnosis of PTSD, Mr Smith contended that it was imprecise and vague as to the actual stressor. It was his further contention that the diagnostic criteria for PTSD contained in the SoP had not been fully met. Rather, the whole of the evidence relied upon by the applicant "seems to have been to pick out bits and pieces, often minor comments, and try to force them artificially into the diagnosis of PTSD".

24. Mr O'Gorman contended that the conclusions in Dr Mulholland's report (Exhibit 5, 5 July 2000), based on the information available to him at this time, were suggestive that the late veteran had some form of significant psychiatric condition.

25. However, with further information made available for the hearing of this application for review, Mr O'Gorman contended that Dr Mulholland in his oral evidence was "relatively comfortable" that the condition of depression was in fact present in the late veteran.

26. Mr O'Gorman submitted that it was significant that Dr Troup had not been prepared to diagnose PTSD in her original 1998 report because of insufficient material available to evaluate such a condition. However, with the additional material that subsequently became available, an assessment of the diagnostic criteria for PTSD contained in the SoP against all the information available, satisfied Dr Troup that a diagnosis for PTSD could be made.

27. Mr O'Gorman concluded that the SoPs for both PTSD and depressive disorder had been satisfied in the late veteran's circumstances.

Legal Framework

28. Two SoPs were relevant in this application for review:

* Statement of Principles Instrument No. 71 of 1996 as amended by Instrument No. 177 of 1996 ("Suicide or Attempted Suicide"); and

* Statement of Principles Instrument No. 65 of 1996 as amended by Instrument No. 181 of 1996 ("Depressive Disorder")

29. Despite the significant modifications to Section 120 of the Veterans' Entitlements Act 1986 by the issue of Statements of Principles by the Repatriation Medical Authority and the associated amendments to the legislation (refer particularly Section 120A), an "hypothesis" which is "reasonable" needs to be "raised".

30. With the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Court at 206 recorded the four stages as follows:

"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

31. The plain meaning of "hypothesis" was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:

"A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption."

32. The line of authority concerning the development and comprehension of the phrase "reasonable hypothesis" commenced after the High Court decision in O'Brien v Repatriation Commission (1985) 155 CLR 422 when the parliament amended the legislation to take account of the decision of Brennan J. The Act was then amended significantly to reflect His Honour's conclusions in O'Brien's case.

33. In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:

"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

34. In reaching this conclusion, the Court relied on an unreported Veterans' Review Board decision in Stacey decided on 26 June 1985 where it was stated -

"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. It is the opinion of the Board to be reasonable, a hypothesis must possess some degree of acceptability or credibility; it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the board, we think it must find some support in that material; that is the material must point to and not merely leave open a hypothesis as a reasonable hypothesis."

35. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges summarised the historical development of the concept of "reasonable hypothesis". At page 490 the Court said:

"Any doubt that attends the status of East as a correct exposition of the law relating to s.120(3) should be dispelled."

36. The Court also at page 490 concluded:

"A reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."

37. In Connors v Repatriation Commission [2000] FCA 783 at paragraph 14, Kenny J rejected a submission made by Counsel that "no individual part, or parts of the hypothesis need be supported by facts raised in or by evidence". Her Honour decided:

"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material.....If the material does raise the hypothesis, then the decision maker must determine whether it is reasonable."

38. Her Honour then relied on a passage from the decision of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 where His Honour said:

"For the purposes of s.120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles, is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated the hypothesis has to point to a connection, which starts with a disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and if need be by more than one Statement of Principles."

39. The question of an adjudicative forum discharging the civil standard of proof when divergent medical opinion exists has been succinctly described by the Court of Appeal (NSW) in E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242:

"But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try."

Conclusion and Reasons for Decision

40. This application for review is a tragic case as it involves a deceased veteran who eventually took his own life some 40 years following discharge from service in the Navy in 1946.

41. The Tribunal has adopted the four sequential stages for decision-making, as set out in Deledio's case in order to decide whether the death of the late veteran was related to war service.

* Whether an Hypothesis Connects the Death of the Late Veteran with Circumstances of Service.

42. The hypothesis relied upon by the applicant is that the war service of the late veteran was connected to the late veteran suffering the psychiatric condition of PTSD or depressive disorder and that either of these conditions led to his subsequent suicide. Applying the legal principles in Connor's case ("hypothesis"), McKenna's case ("hypothesis") and Laws' case ("attributable to war service") to the circumstances of the late veteran's service, the Tribunal concludes that an hypothesis arises in this application.

* Whether a SoP is in Force

43. The Tribunal concludes that a SoP is in force as determined by the authority under subsection 196B(2) or (11) [see paragraph 28].

* Whether the Hypothesis is Reasonable

44. The Tribunal firstly considers the SoP for "Suicide or Attempted Suicide". The Tribunal concludes that the hypothesis raised is reasonable because it is consistent with the template for "Suicide or Attempted Suicide". The hypothesis contains one or more factors which the authority has determined to be the minimum that must exist and are related to the late veteran's war-service.

* Whether Analysis of Facts Discharges the Legal Standard of Proof

45. Initially, the Tribunal has considered the diagnostic criteria for PTSD and the SoP for "Suicide or Attempted Suicide".

46. The Tribunal makes the following findings of fact based on the expert opinion evidence of Dr Troup and Dr Mulholland as well as all the evidence and information before the Tribunal up to the time of this hearing:-

(a) Dr Troup's assessment of the diagnostic criteria for PTSD [(a) "Exposure to a Traumatic Event"; and (b) "Persistent Re-experience of the Traumatic Event": paragraph 14] are supported by objective facts and direct inferences given in her oral evidence before the Tribunal (see paragraphs 12 and 13) which establish that the late veteran suffered these symptoms or characteristics associated with PTSD;

(b) In relation to the SoP for "Suicide or Attempted Suicide", Dr Mulholland gave evidence that it was "possible" that the late veteran had been exposed to a traumatic event and that it was persistently re-experienced through physiological reactivity (see paragraph 20). Applying the reasoning in E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242 (see paragraph 39) to Dr Mulholland's evidence, together with all the evidence and information before the Tribunal [Dr Troup's assessment and diagnosis as well as lay evidence, particularly the evidence of Frank Walker], the Tribunal finds that the traumatic events which triggered off the late veteran's PTSD arose whilst he served on the HMAS Latrobe;

(c) Furthermore, Dr Troup's diagnosis of PTSD in the late veteran based on her evaluation of diagnostic criterion (c) ["Persistent Avoidance of Stimuli Associated with the Trauma"] and (d) ["Persistent Symptoms of Increased Arousal"] is supported by additional evidence before the Tribunal and the statements of family and work colleagues (see Exhibits 1, 3, 5, 6, 7, and 8).

47. Given the preceding findings, the Tribunal concludes it is satisfied beyond reasonable doubt that there is sufficient ground for finding that the late veteran's death was war-caused. The Tribunal concludes that the late veteran suffered PTSD and that probably contributed to his suicide. Moreover, that the late veteran's PTSD was connected to service on the HMAS Latrobe.

48. Given these findings, there is no need for the Tribunal to consider the SoP for "Depressive Disorder" in this application for review.

49. For all of the above reasons, the Tribunal sets aside the decision of the Repatriation Commission dated 7 October 1997, as affirmed by the Veterans' Review Board on 23 February 1999, and in substitution therefor decides that the death of the veteran, Lindsay Murray was war-caused and that the applicant, Rhonda Eileen Murray is entitled to receive a war widow's pension with effect from 16 March 1997.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed: Denise Burton

Secretary

Date/s of Hearing 11 July 2001

Date of Decision 14 January 2002

Counsel for the Applicant Mr D O'Gorman

Solicitor for the Applicant Messrs Gilshenan and Luton

Solicitor for the Respondent Mr M Smith, Departmental Advocate