Splatt and Repatriation Commission [2009] AATA 46 (22 January 2009)

Last Updated: 22 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/1568

VETERANS’ APPEALS DIVISION )		)
	Re		Mark Splatt

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Mr G L McDonald, Deputy President Dr K Breen, Member

Date 22 January 2009

Place Melbourne

Decision

The decision under review is affirmed.

..............................................
Deputy President
VETERANS’ ENTITLEMENTS ACT – whether the applicant suffered from a medical condition – whether applicant’s post traumatic stress disorder was war-caused – whether the applicant suffered an extreme traumatic stressor – decision under review affirmed

Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 6C and 9

Mines v Repatriation Commission [2004] FCA 1331; (2005) 86 ALD 62
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

REASONS FOR DECISION

22 January 2009

Mr G L McDonald, Deputy President Dr K Breen, Member

1. The applicant is applying for review of a decision of the respondent dated 12 September 2005, affirmed on review by the Veterans’ Review Board in a decision dated 4 April 2007, refusing to pay him a veteran’s pension for a claimed Post Traumatic Stress Disorder (PTSD) condition on the basis the condition was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act).

THE HEARING

2. The Tribunal had before it the documents prepared and filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, a statement of the applicant, an additional medical report from Dr William Glaser, a consultant psychiatrist, clinical notes of the applicant’s general medical practitioner as well as notes from other medical clinicians, a job description by the applicant’s employer (the Metropolitan Fire Brigade), the transcript from the hearing conducted by the Veterans’ Review Board, a report from Writeway Research and an alcohol questionnaire completed by the applicant on 14 April 2004.
3. The applicant and Commodore Philip Mulcare, who conducted the research for the Writeway report, gave oral evidence.

THE BACKGROUND

4. The applicant enlisted in the Royal Australian Navy (RAN) on 10 April 1971, at the age of 15 years, almost directly after leaving school. He undertook his training at HMAS Leeuwin before being posted to HMAS Cerberus and from there at the age of 17 years in August 1972 to HMAS Sydney. He was by then a qualified seaman and gunner.
5. In November 1972 HMAS Sydney was sent to Point Klang (Malaysia), Singapore Naval base, Vung Tau (in the then South Vietnam) en route to Hong Kong and subsequently Subic Bay (Philippines). It went to Vung Tau for the purpose of unloading stores. It was estimated that the unloading in Vung Tau would take about two days. According to the undisputed evidence HMAS Sydney berthed about 1200 to 1400 yards from shore at Vung Tau on 23 November 1972 at 6:30am. HMAS Sydney was accompanied by HMAS Vampire. It remained there until late afternoon and left the harbour to cruise up and down the coast before re-entering the harbour to continue the unloading the next day. On the second day it remained at berth for three or four hours before proceeding to Hong Kong.[1]
6. The applicant’s service aboard HMAS Sydney when it was off the coast of Vietnam constitutes ‘operational service’ for the purposes of s 6C of the Act.
7. On the first day when HMAS Sydney was moored in Vung Tau Harbour the applicant stated he was initially on sentry duty which involved him patrolling the deck. He claimed to be issued with a loaded rifle and given orders to shoot as a last resort at anything which approached the ship. While he stated that he was not required to, and did not, fire a weapon when on sentry duty, the responsibility and burden of knowing he may be required to shoot another human being added to his anxiety. He was concerned that HMAS Sydney may have come under enemy fire. The applicant stated that he heard the distant sound of guns being fired on shore but realised that land fire was not a risk to HMAS Sydney because the ship was too far from the land action.
8. Later that day he said he was involved in moving stores of what he described as ‘live’ ammunition below deck and below the waterline. The applicant stated that as a 17 and a half year old youth he found the experience of being in war zone, on high alert and working below deck moving live ammunition (where, if the ship had been struck, he was in a particularly vulnerable position in the armoury) to be a frightening experience.
9. The applicant was aware of divers patrolling to protect the ship and of scare charges being utilised to deter any hostile undersea approaches. The applicant also said he saw helicopters flying overhead which he assumed were carrying wounded allied troops.
10. The applicant claims that as the result of his operational service he suffers insomnia, flashbacks about his war service, anxiety, depression, irritability, poor libido and that he is easily startled and has significantly reduced his social contacts. He claims to drink alcohol to excess in order to help him relax and sleep.
11. Since his discharge from the navy on 12 April 1997, he has worked at the Metropolitan Fire Brigade. While being involved in rescue work, including following fatal motor vehicle accidents, the applicant claims that the experiences have not “significantly contributed to his current emotional problems.”[2] The applicant is also engaged in a truck driving business, which he undertakes on the days he does not work as a fireman.

THE MEDICAL EVIDENCE

(A) DR SEABRIDGE, CONSULTANT PSYCHIATRIST

12. Dr Colin Seabridge interviewed the applicant and provided a report dated 12 August 2005 to the respondent.[3] Dr Seabridge reports that the applicant told him that he (the applicant) had three tours of duty to Vietnam on HMAS Sydney taking ammunition and stores and bringing troops back (to Australia). Dr Seabridge reports the applicant as never having sought any medical attention for symptoms associated with stress and depression and that “he has had no problems with substance overuse.”[4] He is reported as keeping in touch with a navy colleague and as not having any history of avoidance. Dr Seabridge opined:

It is difficult to reconcile the difference in his reported response to the two situations, namely his time in Vung Tau Harbour on the “Sydney”, and his active role as a firefighter, and a member of a first response team to road trauma.[5]

13. Dr Seabridge concluded that there was nothing to substantiate the existence of any war-caused psychiatric disorder.

(B) DR BONWICK, CONSULTANT PSYCHIATRIST

14. Dr Richard Bonwick interviewed the applicant on 7 March 2006 and prepared a report, dated 7 April 2006[6], in which he opined that the applicant suffered PTSD.
15. The applicant reportedly told Dr Bonwick that when undertaking sentry duty in Vung Tau Harbour he had fired at objects coming towards HMAS Sydney on about four occasions.[7] In addition to the evidence relating to his fear of the ship being blown up the applicant also stated that he had seen LCDs (that is, landing craft barges, the doctor giving an incorrect acronym) pushing over fishing vessels and sinking them in the harbour.
16. The applicant reportedly told Dr Bonwick that he began to drink heavily and described himself as being moody and irritable. He is reported as claiming that those symptoms have continued ever since. In addition and more recently he experienced insomnia, waking and thinking of Vietnam, imagining what destruction may have been caused as the result of the use of the ammunition he was involved in unloading. Additionally, he said he avoided conversations about Vietnam and experienced brief episodes of depression.
17. In the interview the applicant outlined traumatic events in which he had been involved in his work with the Metropolitan Fire Brigade, including on one occasion the removal of half a body from a vehicle. The applicant denied that his intrusive thoughts or nightmares were associated with his work in the Fire Brigade.
18. It was Dr Bonwick’s opinion that the applicant’s work in the fire brigade “may well have contributed to his current diagnosis of PTSD, although that in no way diminishes the effect of his experiences in Vietnam.”[8]

(C) DR SHEEHAN, CONSULTANT PSYCHIATRIST

19. Dr Anthony Sheehan interviewed the applicant and provided answers to questions asked of him by the Veterans’ Review Board. The questions were asked in order to clarify what psychiatric conditions the applicant suffered, the date of the clinical onset of the conditions and their aetiology. Dr Sheehan was provided with the reports of Drs Seabridge and Bonwick as well as other material which presented a different picture of the events than that portrayed by the applicant as to the applicant’s role on HMAS Sydney in Vung Tau Harbour.
20. The applicant is reported on this occasion as believing that there were a couple of tours to Vietnam. Apart from that he outlined symptoms and experiences similar to those he had previously described to Drs Seabridge and Bonwick, including that while he shot at objects when on sentry duty he had not ever shot at people. Additionally, he claimed that he drank heavily on weekends and that he was intoxicated three out of four weekends. He repeated to Dr Sheehan that seeing injured and dead people in the course of his work as a fireman did not bother him.
21. Dr Sheehan considered the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria for PTSD and concluded that the applicant suffered chronic PTSD.[9]
22. In addressing the aetiology of the conditions Dr Sheehan was asked to consider the effect of the Statements of Principle[10] (SoP) criteria for PTSD. Dr Sheehan concluded that the applicant met the following three criteria as the result of his confinement below deck in the armoury:
    • (i) threat of serious injury or death;
    • (ii) engagement with the enemy; and
    • (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.[11]
      

(D) DR GLASER, CONSULTANT PSYCHIATRIST

23. Dr Glaser interviewed the applicant on 15 July 2008 and provided a report dated 29 July 2008 (that is, the report was prepared after the appeal to the Veterans’ Review Board) addressed to the respondent.[12] Dr Glaser confirmed with the applicant that he would have needed his parents’ consent to sail to a war zone given his then age of 17 and a half years. The applicant told Dr Glaser that he spent two days at Vung Tau Harbour undertaking armed patrols on the deck and unloading ammunition below deck. The applicant told Dr Glaser that he did not discharge any firearm but confirmed that the orders were to fire on any unauthorised person coming towards the ship.
24. Dr Glaser appears to have based his conclusion that the applicant suffered a traumatic event on the evidence of the applicant being aged 17 and a half years, that he was confined below deck engaged in unloading ammunition and was not able to know what may have been going on above deck. The doctor expressed the view that the above fitted with the description in the SoP criteria.

OTHER EVIDENCE

25. T document T11 contains statements from the applicant’s father, Mr Merv Splatt,[13] the applicant’s former and current spouses (Ms Margaret Arnold[14] and Mrs Denise Splatt[15] respectively) and his Metropolitan Fire Brigade colleagues (Mr Mark Narayan[16] and Mr Adrian Talbot[17]). Mr Merv Splatt and Ms Arnold stated that the applicant smoked heavily upon his return from Vietnam and drank excessively – the latter stating it was the cause of the break-up of their marriage. Mr Merv Splatt also commented on the applicant suffering mood swings which were not present before his operational service. Mr Narayan recorded that the applicant had discussed the stress which he experienced as the result of recalling memories of Vietnam. Mr Talbot stated that the applicant had on numerous occasions been removed from driving duties because of mood swings and aggression behind the wheel. Mrs Splatt, who has been married to the applicant for 26 years, commented on the applicant’s mood swings which she said led to him becoming depressed, his disturbed sleeping patterns and the fact that the applicant comments that he recalls and thinks about his time in Vietnam.
26. Commodore Mulcare researched, prepared two reports,[18] and gave oral evidence regarding the movements and purpose of HMAS Sydney’s visit to Vung Tau, the issued orders, the Reports of Proceedings and HMAS Sydney’s logbooks during the occasion the applicant served on board. The report contained in the T documents was prepared at the request of the Veterans’ Review Board in order to clarify the claims made by the applicant as to the stressors he encountered while undertaking operational service. The Commodore’s research included speaking to officers who also served at the relevant time on HMAS Sydney and an examination of naval records.
27. The research revealed that, while ammunition formed part of the cargo, it was not offloaded at Vung Tau (the ammunition was instead unloaded at Point Klang, Singapore Naval Base and Subic Bay). The principal threat to HMAS Sydney while at Vung Tau arose from divers attaching explosives to the ship or from floating charges or mines. There was also the possibility (considered remote) of mortar attack or small boat attack. Defensive measures were put in place including clearance diving, posting of sentries, boat patrols which among other measures set off scare charges at random intervals (and when the divers were not in the water), and the ship remained ready to sail at short notice.
28. It was reported that while one officer heard firing connected with unrelated onshore conflict, there was no such activity which interfered with the unloading of the cargo. While there is no record as to whether the applicant was assigned sentry duty it is likely that the orders concerning sentry duty were the same as those which were in place for previous visits conducted by HMAS Sydney to Vietnam. Those previous instructions were for the posting of two armed sentries (for the forecastle and the quarterdeck) and four unarmed sentries to patrol the open deck spaces. The sighting of any suspicious circumstance was to be alerted by the sentry by blowing a whistle and reporting by telephone to the bridge. The orders included the following:

ARMED SENTRIES
The FX and AX sentries will be armed with SLR rifles and one magazine each. Ten one pound scare charges will be placed on the FX and AX under the supervision of the sentries concerned.
Rifles are only to be loaded and fired if the ship is being directly menaced by an observed swimmer, and on instruction from an officer.
One pound scare charges are only to be fired or thrown when, on sighting a bubble trail or suspicious object, and on direction by the PCO or ORO.[19]

29. Commodore Mulcare’s research did not reveal any record of who may have carried out sentry duty, of guns being fired from HMAS Sydney nor any sinking of fishing boats in the harbour (supported by the report of the Lieutenant Commander Haughey[20]). These are events which would be likely to be reported had they occurred and no mention of any such events is recorded in the log book.[21] While helicopters may have flown overhead there was no possibility of anyone on HMAS Sydney seeing what they were conveying. The airfield on which those helicopters would have landed was used by both military and civilian aircraft.
30. The research determined that there was no ammunition unloaded at Vung Tau. However, it could not be discounted that that the applicant may have been engaged in activity involving moving ammunition from one deck to another during the time other cargo was being unloaded. That movement would have related to redistributing the load to ensure the ship remained stable.

DISCUSSION

31. While there are apparent discrepancies in some of the events outlined by the applicant, the Tribunal is satisfied the applicant was on board HMAS Sydney on one occasion only when it visited Vung Tau Harbour and that was on the 23 and 24 November 1972. The Tribunal is satisfied as to the following:
    • he was engaged in sentry duty on the morning of 23 November 1972;
    • that even if he was one of the armed sentries, the applicant did not fire a shot and no shots were fired on either of the two days of HMAS Sydney’s visit to Vung Tau in November 1972;
    • no fishing or other vessels were sunk in the operation of ensuring the safety of HMAS Sydney;
    • sounds of artillery from unrelated onshore military activity could be heard on board HMAS Sydney, but no threat was presented from that or any military activity;
    • scare depth charges were utilised to ensure the safety of HMAS Sydney and the resulting explosion of the charges could be and were heard by the applicant when he was working below deck;
    • the applicant was probably working in the ship’s armoury moving ammunition, but he was mistaken in maintaining that the ammunition was being discharged as cargo when at Vung Tau; and
    • the applicant could not know whether helicopters, when observed from HMAS Sydney, contained wounded or dead soldiers and he could not and did not see any injured or dead soldiers.
      
32. The Tribunal accepts that at the age of 17 and a half years a posting to a war zone is a frightening experience and that the applicant was genuinely scared for his safety. His fear was exacerbated by working below deck and hearing random scare depth charges exploding.
33. The first thing which the Tribunal must determine is whether the applicant suffers from a medical condition including, but not necessarily limited to, the claimed PTSD condition. This is to be undertaken as a preliminary step[22] before considering whether the applicant meets any of the four criteria determined in cases where service personnel have undertaken operational service.[23] A veteran cannot be said to suffer a condition if the perquisites for a finding cannot be met. The prerequisites are found in the normal diagnostic criteria applied by the medical profession to determine the existence of a disease.
34. Generally PTSD is diagnosed by reference to the definition contained in DSM-IV. DSM-IV requires there to an ‘extreme traumatic stressor’ preceding the onset of listed characteristic symptoms. It may be supposed that all military personnel entering a war zone may experience fear. If such a reaction was covered by the description of ‘extreme traumatic stressor’ then it would be open for many, if not all personnel, to claim PTSD. However, DSM-IV relevantly qualifies what is meant by extreme stressor by confining it to “involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; ....”[24]
35. Dr Seabridge made no mention of whether the applicant’s circumstances met the criteria contained within DSM-IV but felt he was unable to reconcile the circumstances faced by the applicant during his operational service and those experienced by the applicant in his work as a fireman. The facts demonstrate that the applicant faced more incidents of the type of trauma contemplated by DSM-IV in his work as a fireman than he experienced in his operational service. It seems likely that this was the basis of Dr Seabridge’s opinion that the applicant’s operational service was not the cause of any PTSD.
36. Dr Bonwick did refer to DSM-IV in concluding that the applicant suffered PTSD.[25] Dr Bonwick referred to the following six instances as supporting his finding that the applicant experienced an extreme stressor:

(i) “we could have been blown up at any moment”;

(ii) he could hear artillery fire near by, probably just outside the harbour precinct;

(iii) he reported that when on sentry duty he had fired at objects coming towards the ship on about four occasions;

(iv) he observed LCB’s pushing over and sinking fishing boats in the harbour;

(v) he observed helicopters delivering injured soldiers to the harbour area; and

(vi) when unloading live ammunition he did not know what was going on above sea level.[26]

37. Against the background of the Tribunal’s finding of facts it is desirable to consider each of the enumerated instances.
38. Instance (i) is a generalised statement. The evidence from the applicant was that he was aware that divers were patrolling to ensure the ship’s safety and that sentries were posted. Not any of the servicemen deployed in those activities apparently reported any direct threat. There was no suggestion that any artillery firing that the applicant heard was directed towards HMAS Sydney. The Tribunal has determined that the applicant was mistaken in his account of fishing boats being rammed and sunk. There is no evidence, other than from the applicant, that any passing fishing boats presented a threat to HMAS Sydney while in the Vung Tau Harbour. There is no sufficiently cogent evidence arising from this instance which would comply with the criteria of an ‘extreme traumatic stressor’ of the sort contemplated by DSM-IV.
39. Instance (ii) is also a general statement. There is no evidence to suggest that the artillery were engaged in firing at HMAS Sydney. Nor is there any evidence to suggest HMAS Sydney was even remotely likely to be even accidentally hit by the artillery. The artillery fire was restricted solely to land based activity. There is no evidence to suggest the distance between where the artillery fire was occurring and HMAS Sydney. There is nothing to confirm that it was occurring just outside the harbour precinct. There is no report of anyone seeing smoke arising from artillery fire and this would suggest that it was located some distance from the harbour precinct. In any event, the evidence of the applicant hearing artillery being fired is not such that it could give rise to the extreme traumatic stressor required in DSM-IV.
40. Instance (iii) is not supported by the evidence. The applicant has given inconsistent accounts of whether he fired at objects. For example, to Dr Bonwick he stated he fired about four times at objects, whereas to Dr Sheehan he stated he fired about two times and Dr Glaser reports the applicant as not having discharged any firearms. In his statement the applicant claims Dr Bonwick mistook his evidence on this point and stated that it was the thought of firing at another human which he said caused his anxiety.[27] It seems strange that both Drs Bonwick and Sheehan should have misquoted what the applicant told them about what would be a significant event. It is also inconsistent with the evidence, outlined by Commodore Mulcare, as to the procedures to be followed if a gun was to be fired. The Tribunal is satisfied that the applicant did not engage in shooting at anything or anyone during his period of operational service. The thought of being put in a situation of having to shoot someone is speculative and does not satisfy the criteria of ‘an extreme traumatic stressor’ as provided for in DSM-IV.
41. The only evidence of instance (iv) occurring is the uncorroborated evidence of the applicant. Had the incident occurred it could be expected to be entered in the ship’s log. As the Writeway Research paper comments, had such an incident occurred then there would have been rescue attempts made to save any fishermen. Again there is no mention of any such activity in circumstances where it could be expected to be recorded. The then Sub-Lieutenant on board HMAS Sydney at the time and the officer responsible for the LCB craft stated that no such incident occurred.[28] The Tribunal is satisfied that no such incident occurred.
42. With respect to incident (v) the Tribunal accepts that helicopters were flying in sight of HMAS Sydney. Whether they were military or civilian helicopters is unclear. However, assuming them to be military helicopters the purpose of their journey is not established. That they were or might have been ferrying wounded troops is speculative. There is no suggestion any helicopter with wounded troops landed on, or even in sight of anyone on, HMAS Sydney. The applicant does not assert he saw any dead or wounded troops and the evidence is that if there were any on the helicopters they could not be seen from HMAS Sydney. This incident too is speculative and is not capable of meeting the criterion of an ‘extreme traumatic stressor’.
43. Incident (vi) is a description of the applicant’s subjective reaction to the circumstances in which he was then engaged. It was his evidence that he was aware that divers and sentries were protecting the ship. While the fact he was undertaking duties in the armoury below sea level may have added to his anxiety, there is no objective evidence which points to any actual threat which would support the degree of fear he experienced. Any fear he experienced was based on speculation as to what may happen in the event that the ship’s hull was penetrated as the result of enemy action. There is no evidence of any such action occurring in the vicinity of HMAS Sydney which would or could support this as constituting an ‘extreme traumatic stressor’.
44. It follows from the above that the Tribunal is unable to accept that the applicant was involved in experiencing any ‘extreme traumatic stressor’ of the type contemplated in DSM-IV. It follows that, despite the opinions of Drs Bonwick and Glaser to the contrary, that the applicant does not meet the first criterion necessary for a finding of PTSD. The Tribunal observes that the establishment of whether circumstances meet the criterion of an ‘extreme traumatic stressor’ is a question of fact. It is not, with the greatest of respect to them, a matter which lies within the purview of the opinion of the reporting specialists.
45. The applicant’s application to be paid a veteran’s pension on the basis of him suffering PTSD cannot succeed.
46. Additionally, in this case there is some evidence that the applicant suffers from alcohol abuse or dependence. This is not, however, substantiated by any of the reporting doctors nor is it a condition in respect of which a claim for payment of a pension is made. On the balance of probabilities the Tribunal is not satisfied on the evidence before it that the applicant suffers from alcohol abuse or alcohol dependence.
47. For the above reasons the decision under review is affirmed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President and

Dr K Breen, Member

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

Grace Horzitski Associate

Date/s of Hearing 10 December 2008

Date of Decision 22 January 2009

Counsel for the Applicant Mr A Larkins

Solicitor for the Applicant Williams Winter

Solicitor for the Respondent Ms J McCulloch, departmental advocate

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[1] T documents, T14, pages 75 and 76.
[2] Exhibit A1, page 3.
[3] T documents, T7.
[4] T documents, T7, page 32.
[5] T documents, T7 page 32.
[6] T documents, T12, page 44 (the report is incorrectly dated 2005).
[7] T documents, T12 page 45.
[8] T documents, T12, page 47.
[9] T documents, T14, page 124.
[10] Statement of Principle Instrument No 3 of 1999 (as amended by No 54 of 1999) concerning PTSD.
[11] T documents, T14, page 124.
[12] Exhibit A2.
[13] T documents, T11, page 39.
[14] T documents, T11, page 38.
[15] T documents, T11, page 42.
[16] T documents, T11, page 40.
[17] T documents, T11, page 41.
[18] T documents, T14 dated 18 November 2006 and Exhibit R4 undated, faxed on 8 December 2008.
[19] T documents, T14, page 78.
[20] T documents, T14, page 91.
[21] T documents, T14, pages 105-108.
[22] Mines v Repatriation Commission [2004] FCA 1331; (2005) 86 ALD 62 at 71 per Gray J.
[23] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98.
[24] DSM-IV, Fourth Edition, page 463.
[25] T documents, T12, page 46.
[26] T documents, T12, page 45.
[27] Exhibit A1, page 2.
[28] T documents, T14, page 89, Statement by Captain de Waard.