Clarke and Repatriation Commission [2003] AATA 579 (30 May 2003)

Last Updated: 23 June 2003

DECISION AND REASONS FOR DECISION [2003] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1059

VETERANS' APPEALS DIVISION	)
	Re	DARRYL ALEXANDER CLARKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr B J McCabe, Member

Date 30 May 2003

Place Brisbane

Decision

The Tribunal sets aside the decision under review.

(Sgd) B J McCabe

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - pension - post-traumatic stress disorder and alcohol abuse - whether applicant has suffered a severe stressor - whether the events, judged objectively from the point of view of a reasonable person with the knowledge of the applicant, are capable of and would convey the risk of death or serious injury or to physical integrity

Veterans' Entitlements Act 1986

Stoddart v Repatriation Commission [2003] FCA 334

WRITTEN REASONS FOR ORAL DECISION

17 June 2003

Mr B J McCabe, Member

1. This is an application by Darryl Alexander Clarke for review of a decision of the Veterans' Review Board, which affirmed an earlier decision of the Repatriation Commission. The Commission decided the applicant's post traumatic stress disorder and alcohol dependence/abuse were not war-caused.

2. This matter was heard by the Tribunal on 30 May 2003. On that day, the Tribunal determined the decision under review should be set aside. The following are brief written reasons for that decision.

3. The issue in this case is whether the applicant has suffered a severe stressor, as required under the relevant Statements of Principles relating to post traumatic stress disorder (Instrument No 4 of 1999 (as amended by Instrument No 55 of 1999)) and alcohol abuse (Instrument No 77 of 1998).

4. The applicant, who was born on 10 September 1958, served with the Navy from 6 April 1976 to 22 April 1982. He served on HMAS Perth in the Persian Gulf region during 1980 and 1981. There is no dispute that this period of service constitutes eligible defence service for the purposes of the Veterans' Entitlements Act 1986 (the Act).

5. The applicant gave evidence of certain incidents that occurred during his war service which, it was contended, amount to "severe stressors" under the relevant Statements of Principles. I found the applicant to be a credible witness and I accept his evidence that there was an incident, during his first tour of duty, where two F14 fighter planes approached the Perth.. The applicant had detected the aircraft on his radar and notified senior officers. He gave evidence that the aircraft had "locked on" to the vessel with their radar, and that the ship, in response, "locked on" to them and was preparing to fire if the fighters did not swerve away. Although there were some factual disputes about dates and places, in substance I accept the applicant's account of what occurred.

6. I accept that there was some confusion on Mr Clarke's part (confusion he readily admitted) about some of the details. Nonetheless, it appears that whether this incident occurred close to the shore, as he said, or somewhat further out, the vessel was still within range of what the applicant assumed to be Iranian F14 fighters. I further accept that it was not unreasonable for the applicant to assume the fighters were Iranian F14 fighters.

7. The applicant also gave evidence of an incident which occurred during his second tour of duty with Perth.. The vessel was approached by a Russian Alligator class troop carrier. The applicant plotted the approach on his radar until it came so close that it was lost from the radar screen. I accept the applicant's evidence about the incident and the near collision, or, at least, the coming into close proximity, with the Russian Alligator vessel. That followed an earlier encounter with the same ship.

8. The applicant has a specific and vivid memory of these events, and I think in those circumstances his evidence should be accepted.

9. The question of whether an incident would amount to a "severe stressor" was recently considered in Stoddart v Repatriation Commission [2003] FCA 334. At paragraph 55, Mansfield J said

"In my judgment the language of the definition of `experiencing a severe stressor' caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity."

I think the answer in this case is yes - the events, judged objectively from the point of view of a reasonable person with the knowledge of the applicant, are capable of and would convey the risk of death or serious injury or to physical integrity.

10. I accept that, during the Cold War in particular, there was a degree of "cat and mouse" behaviour, and indeed even some confrontations, between rival Navies on the high seas and that, from time to time, vessels would stalk each other and sometimes those practices would result in collisions. But I think this case can be set apart from the usual run of competitive behaviour on the high seas.

11. In particular, I am impressed by the fact that the Captain of the Perth, according to Mr Clarke, appeared to instruct his crew that they needed to be on the top of their game because of the very important nature of the work being done. This was reinforced by a video from the Minister played as the ship left port. The video emphasised that this was going to be a difficult and dangerous mission. It was at a time of heightened tension, after all.

12. There was a great deal of activity in the area with various Navies, including the Russians, but I note the concern in particular with the F14s was not about the Russians. It was actually about the Iranians who had recently behaved in an unpredictable and menacing fashion towards the Americans in particular. There was some concern that Perth, a DDG class destroyer, might have been confused for a member of one of the American fleets in the area and that, in those circumstances, the applicant had reason to believe they might be a target.

13. The absence of the "IFF" indicator ("identification friend or foe") and the applicant's low opinion of the US pilots, combined with his wariness of his Captain's own tolerance for risk, might have left him in the position of thinking, as the F14s approached and as the officer in charge of the area was reaching for the firing button on the ship's self-defence systems, that he was in danger, along with everyone else on the ship, of death or serious injury or a risk to his physical integrity.

14. I think that, perhaps to a lesser extent, the incident with the Russian ship also amounts to a severe stressor. The applicant was in a position to follow the ship on the radar until it disappeared. He believed that meant the ship was very close and there was a serious risk of a collision. I think that was a reasonable belief.

15. That leaves us the next question, which is whether the alcohol abuse set in relatively quickly after the incident or incidents. There is evidence to suggest it did. The applicant's statement and certainly Professor Jones' evidence indicated the applicant responded to the incidents: he wanted to be taken off the console and moved because he was upset after what he had experienced. He also left the Navy relatively quickly thereafter because his heart was no longer in it and he appeared to be shaken up by what he had seen.

16. I am satisfied the applicant experienced intense fear, helplessness or horror, as required under the relevant Statement of Principles as a result of his experiences.

17. In those circumstances, the Tribunal is satisfied the requirements of both Statements of Principles have been made out and therefore the Tribunal sets aside the Veterans' Review Board decision and decides in favour of the applicant. The Tribunal further directs that this matter be remitted to the respondent for reconsideration in accordance with the Tribunal's reasons for decision.

18. The date of effect of this determination is 5 December 2000.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed: .......................................................................................

Associate

Date of Hearing 30 May 2003

Date of Decision 6 June 2003

Date of Written Reasons 17 June 2003

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Gilshenan & Luton

For the Respondent Mr J Kelly, Departmental Advocate