Egan and Repatriation Commission [2002] AATA 739 (30 August 2002)

Last Updated: 2 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/889

VETERANS' AFFAIRS DIVISION )

Re BRIAN PAUL EGAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date 30 August 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd).....................

KL Beddoe

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - pension - post-traumatic stress disorder - whether condition is war-caused - whether applicant has experienced a "severe stressor" - whether a reasonable hypothesis can be raised connecting the condition to the applicant's operational service

Veterans' Entitlements Act 1986

REASONS FOR DECISION

30 August 2002 Senior Member KL Beddoe

1. The applicant seeks review of a decision of the Repatriation Commission which refused a claim in relation to the claimed condition of depressive disorder. That decision was subsequently affirmed by the Veterans' Review Board.

2. It is now accepted by both the applicant and respondent that the correct diagnosis of the applicant's condition is as made by Dr Gibson in his report of 2 September 1999, that is, that the applicant suffers from post traumatic stress disorder ("PTSD"). It is also agreed between the parties that the relevant Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 in relation to PTSD.

3. At the hearing the applicant was represented by Mr Clutterbuck of Counsel and the respondent was represented by Mr McAninly, a Departmental Advocate. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" Documents and the Tribunal also had the following documents before it which were tendered by the parties:

* Exhibit A Report of Rodney T Nott dated 9.1.02; comments on Supplementary Report of Professor McCarthy; Curriculum Vitae of Rodney T Nott

* Exhibit B Letter by Department of Defence dated 9.5.02

* Exhibit C Letter from Department of Veterans' Affairs dated 23.1.02

* Exhibit D Applicant's Statement filed on 7.6.01 and attachments

* Exhibit 1 Reports of Professor McCarthy dated 14.4.01 and 24.1.02

4. The applicant gave evidence about three incidents during the course of his service in the Royal Australian Navy as a Tactical Communications Officer. The total period of his Naval Service is from 8 March 1963 to the date of his discharge on compassionate grounds, being 1 February 1968. The relevant events occurred while the applicant was serving on HMAS Duchess and each of the events occurred during what has been accepted by the parties as periods of operational service.

5. The first event which the applicant says was a relevant stressor in relation to his PTSD occurred on 22 January 1966 when HMAS Duchess collided with an Indonesian boat carrying passengers and goods. On the basis of the applicant's evidence it appears that the goods included live animals and also included a load of copra. It also appears that the number of passengers on the boat was somewhere in the vicinity of 30 together with a crew. There is no clear description of the boat. Its name has been given as the Mutaria and it appears to be a fishing-type vessel probably about 20 metres in length. The incident occurred at approximately 2 am on a moonless night when both the Duchess and the Mutaria were proceeding in a darkened state. Apparently, when the Duchess was on patrol it proceeded without navigation lights but there is no explanation as to why the Mutaria was without navigation lights.

6. The presence of the Mutaria was noted by the radar operators on the Duchess but they mistook the outline on the radar for a floating log and apparently the bridge was not advised of the impending collision until the Indonesian vessel was sighted by the watch. That caused the Duchess to manoeuvre sharply in two directions but it was unable to avoid the collision and the Mutaria hit the Duchess amidships. The damage to the Duchess seems to have been no more than a paint scrape. The damage to the Mutaria was more than severe and it seems that the boat was in immediate risk of sinking if action was not taken.

7. The Duchess responded by manoeuvring to starboard so as to keep the Mutaria next to it. The Mutaria was floodlit by the Duchess so that it could be boarded to investigate its circumstances and in the result the Mutaria was made secure, the passengers and crew were taken on to the Duchess, the boat was searched, the boat was repaired and taken in tow to Tawau where it was handed over to a Royal Naval Officer.

8. The applicant said, and I accept, that he became apprehensive as to the immediate safety of the Duchess and it seems that the collision re-ignited emotional feelings which had been with the applicant since the collision between HMAS Melbourne and HMAS Voyager in 1965. The significance of the Voyager disaster in relation to the applicant is that he lost friends in that disaster including a particular friend whom he had encouraged to join the Navy and as a result of the loss of that friend in the Voyager disaster he had been the subject of criticism or ill-feeling by members of the friend's family.

9. The second incident relied upon by the applicant is that after the Duchess tied up at Tawau the applicant was required to go ashore and deliver a message and in the course of proceeding ashore he was confronted by heads of two people who had been decapitated, he thought by either Ghurkhas or Dayaks. Apparently, the severed heads were the subject of attention on the wharf and the applicant saw both the people responding to the severed heads and also the heads themselves. As a consequence he was severely nauseated to the extent of vomiting and had to clean himself up before proceeding with his task of delivering the message. He did however proceed with that task and subsequently returned to the ship to find that the severed heads were no longer on the wharf.

10. The third incident relied upon by the applicant is somewhat equivocal as to what actually happened but it seems that the Duchess engaged in hostile gunnery fire on three separate occasions. The gunnery fire was hostile in the sense that it was fire requested by the Australian Army units on land and the co-ordinates for the fire were provided by the Army. As to whether there were actual targets or whether the Naval guns were firing into the jungle is not apparent from the material before the Tribunal but I accept that on each occasion the guns were activated because of what were perceived to be enemy forces, even if for only the purpose of harassing those forces.

11. The hypothesis connecting the applicant's PTSD with his experiences on operational service has its genesis in a report by Dr Gibson dated 2 September 1999. The factual basis set out by Dr Gibson varies quite significantly from the facts that I have relayed above but that seems to have been caused mainly by the applicant's confused state at the time he saw Dr Gibson, because at that time he was admitted to hospital at Greenslopes for psychiatric care. Those admissions have been in June 1999 and from 30 July 1999 to 3 September 1999.

12. The issue before the Tribunal centred around the incidents related by the applicant and the evidence in relation to those incidents by Mr Nott, a Retired Naval Officer expert in historical research and by Professor McCarthy of the Australian Defence Force Academy, also an expert in historical research. Mr Nott was called for the applicant and Professor McCarthy was called for the respondent.

13. Whether the hypothesis connecting the applicant's PTSD with the events of his operational service is a reasonable hypothesis will depend upon whether that hypothesis comes within the terms of the relevant Statement of Principles which is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999.

14. I am satisfied that the applicant suffers PTSD which comes within Clause 2 of the Instrument and in particular I am satisfied that the applicant experienced events which he found to be traumatic during the course of that operational service.

15. Clause 5 of the Statement of Principles requires that, for the purposes of this case, at least one of the factors set out in Clause 5 must be related to any relevant service rendered by the applicant. In this case the relevant service is the applicant's operational service and, in particular, his service on HMAS Duchess in January 1966.

16. Clause 5 requires that in this case the factor that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the relevant service, is experiencing a severe stressor prior to the clinical onset of PTSD.

17. The PTSD was diagnosed in 1999 by Dr Gibson so that it is quite clear that the stressors experienced by the applicant during his operational service occurred prior to the clinical onset. Even if it is accepted that the earlier diagnosis of depressive disorder was a mis-diagnosis of PTSD, Factor 5(a) is still satisfied.

18. The question then is whether the experiences of the applicant come within the definition of "experiencing a severe stressor" as set out in Instrument No 54 of 1999.

19. I accept that the applicant experienced severe emotional responses in relation to the collision with the Mutaria and also in relation to the severed heads on the wharf. The evidence in relation to the hostile gunnery is less certain because the applicant merely described the reactions of HMAS Duchess when the ship is firing its heavy guns. While the gunnery can be described as hostile, there was no response from an enemy force so that there was no basis for apprehension that the Duchess was in some sort of danger from enemy forces. It is clear on the evidence that each of the three gunnery exercises was really just that, except that the targets were targets provided by the Australian Army and so far as the ship was concerned, were unseen targets. It is difficult to understand why the reaction to such a gunnery exercise would be any different from training exercises.

20. To come within the definition of "experiencing a severe stressor" the person must have experienced, witnessed, or been confronted with an event or events that involve actual or threat of death or serious injury or a threat to the person or any person's physical integrity. The definition goes on to provide an inclusive definition of:

"(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence."

21. In relation to the collision, it is clear enough on the evidence that there was no perception from the officers in command of the Duchess that the ship was in any threat of danger from the Indonesian vessel. If there had been a perception of danger to the Duchess it is reasonable to assume that the Duchess would have turned away, that is to port, to distance itself from the Indonesian vessel whereas it took the opposite tact and maintained the starboard direction so as to keep the Indonesian vessel next to it until the Indonesian vessel could be secured. I am not satisfied, therefore, that there was any real threat to the Duchess or its crew arising from the collision.

22. The applicant's immediate response was one of apprehension no doubt affected by his memory of the Voyager disaster but, given the response of the ship, that apprehension must have been very short lived because the Duchess and its crew were always in charge of the situation and did not take any evasive action because of any apparent threat to the ship. The fact of the Indonesian crew being, in effect, imprisoned does not satisfy me that there was any particular threat and the ship's officers were merely taking the usual precautions in relation to such persons.

23. I am satisfied that the question of whether there was a threat to the wellbeing of the person is a question that has to be decided on an objective basis rather than merely relying upon the emotional response of the person who experienced the stressor. So while I can accept that the applicant did suffer an emotional response of apprehension as to his wellbeing for what must have been only a short period of time, I do not accept that on an objective basis there was any real threat of death or serious injury or threat to the applicant's physical integrity.

24. The applicant's experience in relation to the severed heads on the wharf is also something that is likely, as it did in this case, to cause a very emotional response but once again that was a response that was purely subjective and there was no objective threat to the applicant's wellbeing other than his immediate reaction of vomiting at the sight of the severed heads.

25. In relation to the hostile gunnery operations, once again I am satisfied that there was no threat to the applicant's wellbeing because the gunnery exercises did not provoke any hostile reaction and any apprehension of threat to the applicant's wellbeing has no basis in fact.

26. It follows from the above that I am not satisfied that the applicant's experiences come within the definition of "experiencing a severe stressor" which means that I am not satisfied that Clause 5 of Instrument No 3 of 1999 has been satisfied.

27. It follows that I am not satisfied that the hypothesis raised is a reasonable hypothesis and that I am therefore satisfied that the decision under review is the correct decision and should be affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed: Sarah Oliver

Associate

Date of Hearing 19 August 2002

Date of Decision 30 August 2002

Counsel for the Applicant Mr R Clutterbuck

Solicitor for the Applicant Streeting Haney, Solicitors

Solicitor for the Respondent Mr D McAninly, Departmental Advocate