Jackson and Repatriation Commission [2010] AATA 1039 (22 December 2010)

Last Updated: 23 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1039

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5427

VETERANS’ APPEALS DIVISION		)
	Re		PETER JACKSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe and Dr G J Maynard, Member.

Date 22 December 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Senior Member

CATCHWORDS

VETERANS’ COMPENSATION – whether PTSD is related to operational service – scare charge – whether applicant experienced a life-threatening event – applicant’s life was not in immediate danger – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth), s 120

REASONS FOR DECISION

22 December 2010

Senior Member Bernard J McCabe and Dr G J Maynard, Member.

1. Mr Peter Jackson says he has developed post traumatic stress disorder (“PTSD”) as a result of events he experienced during operational service aboard HMS Sydney in 1965. He has claimed a pension under the Veterans’ Entitlements Act 1986 (“the Act”) in respect of that condition but the Repatriation Commission and the Veterans’ Review Board say his PTSD is not related to his operational service. The outcome of our review of the application turns on whether we regard what happened to him in 1965 while aboard HMAS Sydney in Vietnamese waters was a category 1A stressor within the meaning of the relevant statement of principles.

BACKGROUND

2. The applicant joined the Navy in 1964 at the age of 18. He was trained as an engineering mechanic and worked in the engine/boiler rooms of a number of ships. He was serving on HMAS Sydney in 1965 when that vessel made two voyages to Vietnam. He made a number of trips to Vietnam in other vessels. He was also serving aboard HMAS Melbourne when it collided with the USS Frank E Evans. That horrible accident occurred in 1969 but the applicant was not on operational service at the time – which means he cannot use any injuries he sustained in the collision as the basis for a claim under the Act.
3. Mr Jackson left the navy in 1976. He was employed in the transport industry for a number of years. He ceased work in 2008.
4. Mr Jackson experiences a number of other health problems which have been accepted as being connected to his service. They are not in issue here.

DIAGNOSIS

5. The expert medical evidence provided by Drs Anderson and McColl makes it clear (and we accept) that the applicant suffers from PTSD. There was also some evidence suggesting Mr Jackson suffers from an alcohol abuse condition. We were told at the outset of the hearing that the applicant did not pursue a claim in respect of that condition. We do not need to express a view on that condition in those circumstances.
6. The real question for us here is whether the applicant’s condition can be connected to what happened to him while he was on operational service in 1965. If it is instead connected to what occurred to him in 1969, he cannot succeed.

IS THERE AN HYPOTHESIS LINKING THE APPLICANT’S DIAGNOSED CONDITION WITH HIS OPERATIONAL SERVICE?

7. The applicant says he developed PTSD as a result of incidents he experienced while working in the machinery spaces of the Sydney while it was in Vietnamese waters in 1965. He claimed those events were category 1A or 1B stressors of the kind contemplated by the relevant statement of principles. We are satisfied that there is material pointing to that hypothesis.
8. The relevant statement of principles (“SoP”) issued by the Repatriation Medical Authority is that relating to PTSD. It is No 5 of 2008.

DO THE EVENTS DESCRIBED BY THE APPLICANT “FIT” THE SOP?

9. Section 120 of the Act requires that we firstly consider whether the applicant’s story is capable of satisfying the relevant provisions of the SoP. We do not make a judgment at this point about whether or not the events described by the applicant actually occurred; we take him at his word and decide whether his story is capable of meeting the criteria in the SoP.
10. The applicant referred to a number of incidents involving scare charges being dropped around the ship when it was in Vung Tau harbour, including one incident on the second voyage to Vietnam when a large number of charges were dropped simultaneously or in quick succession. Most of the evidence led at the hearing referred to the first scare charge incident which we will discuss below. For the sake of completeness, we confirm we are not satisfied that the description of any of the other incidents was capable of meeting the definition of category 1A or 1B stressor in the SoP.
11. We turn now to the first scare charge incident on the Sydney in May or June 1965. The applicant explained the context of the incident in his evidence and in his statement. He said he had been told by senior sailors that the ship was vulnerable to mine attack and other misadventures (it was only a year since HMAS Melbourne collided with the Voyager, for example) and that he was in the worst possible place in the ship to get out if it began to sink. He said the senior sailors had been quite explicit about the damage that could be done in the event of a successful mine attack. They said the super-heated steam would cut a man in half if the pipes broke, and everyone would drown when the sea-water rushed in. He noted that he was only 20 years old at the time and that he did not have extensive experience in the Navy. He also said there were few, if any, briefings conducted in relation to Operation Awkward. He said he had never heard a scare charge explode before and he did not know what expect. Once the ship moored in Vung Tau harbour, there was no advance notice of when charges were to be dropped. (He learned subsequently that the charges were dropped regularly while the ship was in port. He did not know that at the time.) He pointed out that the ship’s broadcast system did not work in the boiler room. If warnings about scare charges were broadcast, he would not have heard them. It was so noisy in that space that he was unlikely to hear announcements in any event.
12. The applicant appears to have had a rough time of it at the hands of senior sailors. He said they liked to frighten him: he referred to one incident when he was beneath the boiler room in the bilges and someone dropped a spanner on the plates above his head.
13. The event that the applicant said amounts to a category 1A stressor unfolded like this. The ship lay at anchor in Vung Tau harbour. The applicant was on duty in the boiler room. He was instructed to go into the bilges beneath the boiler room floor for maintenance purposes. The bilges were accessed by removing one of the metal plates that formed the floor of the boiler room. He climbed into the darkened, confined space of the bilges which are at the very bottom of the ship, beneath the water line. He was working there when a scare charge unexpectedly exploded nearby in the water. He said he heard the loud noise and felt the vibration against the side of the ship. He said he recalled thinking “Here I come God”. He said he did not know if the ship had been struck by a bomb or a mine or a missile from the shore. He said he jumped in the confined space because he was startled and hit his head. He then scurried out of the space. When he emerged from the space a few seconds after, he noticed everyone was unperturbed. At least one of the senior sailors was laughing at him. The applicant would have been aware at that point that nothing was amiss.
14. Does this incident qualify as a category 1A stressor within the meaning of the SoP? We note that one of the examples of a category 1A stressor in the SoP is “experiencing a life threatening event”. We accept the applicant’s story suggests he actually perceived that his life was in danger – hence the comment “Here I come God”. But was that perception reasonable in all the circumstances? We note those circumstances include the applicant’s age and his relative inexperience, and perhaps the absence of any warning or briefings on what to expect.
15. We do not think the applicant could be said to have experienced a life threatening event. We accept a person in his circumstances would certainly have been startled, and maybe even momentarily afraid when the explosion occurred nearby. If there had been any impediment to him escaping from the confined space, the situation might have been different. But he was not trapped. He was able to get out of the bilges in a matter of seconds and discover what had occurred. The incident he described was actually similar to the incident in which a spanner was dropped on the plates nearby as a joke. In each case, he heard a sudden loud noise and vibration. It may have been temporarily unnerving, but he did not have enough time or information for him to form a view that his life was in immediate danger.
16. In those circumstances, we are unable to accept that the events the applicant described are capable of fitting the template in the SoP. His claim cannot succeed.

CONCLUSION

17. The reviewable decision is affirmed.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Member.

Signed: ..........................[Sgd].................................................

Patrick MacDonald

Dates of Hearing 11 and 12 November 2010

Date of Decision 22 December 2010

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Ms C Haney, Haney Lawyers

Advocate for the Respondent Mr J Stoner