Delahunty v Repatriation Commission

background 9 There is a great deal of common ground between the parties as to the facts so that the issue for determination is in short compass. Specifically, the question for determination turns on whether the veteran can be said to have experienced a severe stressor in the course of his operational service. 10 The veteran was born in 1931. He joined the Royal Australian Navy in 1951, at the age of 20. He served as a stoker in the engineering branch in HMAS Tobruk from 14 April 1953 to 1 September 1954. In that period, he had operational service off Korea from 3 June 1953 to 12 February 1954. He completed his service engagement in 1957. He married shortly after leaving the Navy, and worked as a panel beater for three years, before working for Australian Iron and Steel Pty Limited, at Port Kembla, for a further three years. From 1963 until he ceased work in 1983, he was employed as a coal miner by Australian Iron and Steel at Coalcliff Colliery. He ceased work after a mine cave-in which killed his partner. For a number of years thereafter he underwent intensive psychiatric treatment. He has not worked since 1983. 11 The veteran claims that he experienced a "severe stressor" during the operational service period which led to his condition of post traumatic stress, which he said occurred during the operational service period disorder. The veteran's evidence was that while serving on HMAS Tobruk he witnessed the sinking of a junk/sampan that had been blown up by HMAS Tobruk off the north cost of Korea, on about 16 July 1953. A diary entry in evidence indicates that on that date HMAS Tobruk carried out a sweep north up to the border with Russia, and that on the return passage it sank one large motor sampan. Although there were some variations in the veteran's evidence, for example, as to the number of vessels seen, the substance of his evidence is that he believed that women and children were killed when the sampan was sunk by gun-fire. This belief, the veteran said, was to some extent based on the fact that he had previously seen, in Asian ports, families living on sampans. His belief was that there would have been a mother and possibly a couple of children aboard the boat, because that was the way he considered people lived in those days and that is what he remembered and what he could never forget. He said that he was on board a ship that killed civilians and particularly, and which was worse, probably involved the death of a mother and couple of children. He also gave evidence that if contrary to his evidence he had believed there were only military personnel or sailors on the vessel, then he would not have suffered the same shock. There is no evidence in fact that there were any women, children or families on the vessel blown up. 12 It s not clear from the evidence whether the vessel that was attacked and blown up by the Tobruk was a sampan or a junk. A junk is an Asian flat-bottom ship without keel or prominent stem, and with huge masts in one piece. Whatever it was, the vessel was at a distance of approximately seven kilometres from the Tobruk when shelled, and the veteran had only observed an outline of the vessel from the Tobruk. The evidence indicates that on 16 July 1953, one large motorised sampan was destroyed along the north Korean coast by gun fire from HMAS Tobruk. The record indicates that such craft were sometimes used to great effect as mine layers by the enemy along the coast of Korea and were destroyed whenever seen. There was a note that fog hampered this patrol but the note does not indicate what times during the day the fog was present. It is common ground that no personnel were observed on board the sampan or junk by the veteran or anyone else. There was no investigation of the wreckage after the sinking. The veteran had originally stated that he saw three vessels, but there was no evidence that three sampan/junks were encountered and sunk by the Tobruk on that occasion or at any other time. 13 It is common ground that the correct approach in applying the provisions of the Act set out above is outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio"), and that in a case where there is operational service there are four steps to be considered when deciding whether an applicant suffered war-caused injury or disease. The steps referred to in that decision are as follows: "(i) 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. (ii) 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. (iii) 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. (iv) 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 that 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." (Emphasis added) 14 The Court in this case is concerned with step (iii). 15 In the present case, the AAT proceeded on the basis that the hypothesis raised by the material and formulated by the veteran was that, as a result of an event that took place during the veteran's operational service, which involved the shelling of a sampan that the veteran believed killed a woman and her children, the observation of death and perceived atrocity gave rise to post traumatic stress disorder as a consequence of his operational service. 16 The AAT accepted that there was material before the Tribunal which pointed to the hypothesis as formulated, connecting the disorder with the veteran's operational service. 17 In relation to the second question, it is common ground that there is in force, a relevant SoP determined by the Repatriation Medical Authority, in terms of SoP 3/1999, as amended, which defines the factors that must be related to services as follows: "Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are: (a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or (b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or (c) inability to obtain appropriate clinical management for post traumatic stress disorder. (Emphasis added) Factors that apply only to material contribution or aggravation 6. Paragraphs 5(b) to 5(c) apply to material contribution to, or aggravation of post traumatic stress disorder where the person's post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person's relevant service; …" (Original emphasis) 18 The expression "experiencing a severe stressor" is defined under paragraph 8 of the SoP to mean that: "… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veteran's Entitlements Act applies, events that qualify as severe stressors include (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observance of casualty clearance, atrocities or abusive violence." (Emphasis added) 19 The AAT perceived the significant issue before it as being whether the veteran experienced a severe stressor such that it had been established that the hypothesis was reasonable and consistent with the SoP. The AAT considered that the position of the veteran was that his belief that a woman and children were killed when the sampan was sunk by gun fire had not been disproved and that he had been confronted with death and observed an atrocity. The respondent's case is that this argument turns on a fantasy given that no persons were observed to be on the sampan, and, in particular, there was no evidence that a women or children were on the vessel at the time it was blown up.

reasoning of the aat 20 The AAT's reasons for decision introduce the nature of the matter, set out the issues, refer to the applicable standards of proof, and set out the background. There is then a summary of the evidence of the veteran and of the psychiatric evidence, together with other records and material. The evidence is discussed in detail. The submissions of the veteran and the respondent are then set out and the SoP is considered in relation to the psychiatric condition of the veteran. The case law and the severe stressor test are adverted to and considered. 21 The AAT found that the veteran had not experienced a severe stressor. This was because it considered that the claim was based on imagination in circumstances where the veteran had not seen anyone in the junk or sampan, which was blown up. It recorded evidence that the vessel was 8,000 yards away and that the veteran only saw an outline of it in the distance. The AAT took into account that the vessel was located at the time of shelling in an area where vessels had been laying mines off the coast. The AAT considered that there were many inconsistencies in the evidence of the veteran such as his initial claim that there were three vessels. It concluded that the hypothesis was not a reasonable one, and therefore that step (iii) in Deledio had not been satisfied.

reasoning on appeal 22 When considering whether a veteran has experienced "a severe stressor", the parties agree that the proper question to be considered is that posed by Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 ("Stoddart") at [50], where his Honour said: "… if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them." 23 This formulation was approved by the Full Court in Woodward v Repatriation Commission (2003) 200 ALR 332 ("Woodward") at [139] and [141] in the following terms: "[139] Mansfield J concluded that the AAT erred in law in its understanding of the expression 'experiencing a severe stressor" in each of the relevant SoPs by requiring there to be actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, 'experiencing' should be construed as having at least this partially subjective connotation. … [141] We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation where the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant in the present case …" 24 In Woodward, the Full Court pointed out at [77] that the "experience" had to be based on an "event" and that a figment of the imagination such as might arise through "paranoid ideation" would not be sufficient to meet this requirement. The Woodward Full Court took the view that there was no suggestion of any such "delusion" on the part of Mr Woodward. The Court noted that it was submitted for Mr Woodward that it was his "experience" which had to be the focus of the AAT deliberation, a point which the AAT appeared not to have appreciated. The Full Court also pointed out at [123] that, as a matter of ordinary usage, to be "confronted" with something meant to be brought face to face with it either physically, or, perhaps more commonly, in the mind. If the thing being confronted is an event, ordinary usage does not require that the person be present at the event in order that he or she could be said to "confront" the event. At [136] the Court said: "When the question ultimately in issue involves the effect of an objectively stressful event upon a person's mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shot gun (in fact unloaded) are just two such examples." 25 The AAT determined that for the purposes of step (iii) under Deledio, the objective and subjective criteria for a severe stressor had not been met and therefore the claim failed. The member referred to expressions such as "figment of the imagination" and "paranoid ideation" and pointed out that a severe stressor based on a "figment of the imagination" was not addressed by the Full Court in Woodward, and that the circumstances of Mr Woodward's claim did not make this necessary. The reasons then state that the veteran's claim was based on imagination insofar as there was a belief that women and children had been on board the sampan/junk because the veteran had observed families living on board such vessels in Asian ports. The decision-maker attached importance to the consideration that there was no evidence before the AAT that such circumstances actually existed on the occasion of the sinking of the sampan/junk, because the veteran had not seen anyone, and neither had the ship's gunnery officer, who had the advantage of the use of binoculars. 26 In my view, the AAT reasons indicate that there was an incorrect understanding of the relevant principles. On the criteria adopted by the Woodward Full Court, it is necessary to ask whether there was an event. In my opinion, there was an objective event, namely the violent destruction of a sampan or junk. This is an objective fact. The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran's position and knowledge was. The answer is that he associated these vessels with families of women and children because of his observations on relation to similar vessels in Asian ports. At that time he had the position of a relatively junior member of the ship's contingent. He had a limited education. He perceived a vessel of a type that he associated with women and children, from a distance in circumstances where similar vessels were suspected of laying mines. He said that if he had believed, contrary to his evidence, that there were men and not women on board, then he would not have regarded the sinking of the vessel as an atrocity, and nor would he have been shocked. 27 The term "stressor" denotes something which leads to stress. It is inherent in the notion of "stress" that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. It is clearly not a purely objective construct such as is applied in negligence cases. It is not a case of deciding how "the man on the Clapham omnibus" might react. There is more. The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive. 28 There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor. 29 One can readily conceive of scenarios where associations between the nature of a conveyance and its occupants could be rationally made. By way of illustration, a person may witness an accident at some distance in which a "school bus" is involved where the bus goes over a cliff. Although no children may have actually been on the school bus, a reasonable observer may well experience a severe stressor as a result of a perception based on the understanding from past experience and observation that children are usually on school buses, and the consequent belief that the crash may have injured or killed children. This may be especially so in country areas where school buses assume greater importance and have greater familiarity. Such an association as the consequence of observation and past experience is capable, on a reasonable basis, of giving rise to an experience of severe stress and it would be wrong to exclude such an event as a severe stressor simply on the ground there were in fact no children on the bus. 30 In the present case, the AAT has not brought to bear, in its determination, a correct understanding of the importance of the subjective and individual element in the exercise. On my reading it has simply treated the perception by the veteran as a figment of his imagination or a "paranoid ideation". The fact is that there was a real event, namely the sinking of a vessel and that the veteran had interpreted it in a certain way because of his association of families with similar vessels, because he had seen women and children living on them. This is not in any way fantasy, or baseless imagination, or delusion. It is a reaction which could be found to have been rationally based, having regard to the veteran's previous specific experiences. The reasoning of the AAT on this question is, in my view, at least somewhat tenuous. It does not properly analyse the basis for the belief. As a consequence, it has failed to appreciate and apply the correct understanding of the definition of "extreme stressor". In so doing, it fell into an error of law. 31 Having regard to the context and to the material referred to by the AAT, I do not consider that it can be said that the veteran's apprehension that women and children were killed by the shelling was "paranoid ideation", or a "fanciful" figment of his imagination without any reasonable basis in fact. Objectively, the fact is that there were no women or children on the vessel. However, the nature of the vessel could reasonably engender a belief, from an objective viewpoint in a person with the knowledge and in the position of the veteran, that women and children were on board. 32 For this reason, I consider that the AAT erred in concluding that it was unable to form an opinion that the hypothesis raised was a reasonable one. The reasons, in my view, reflect a misunderstanding of the import and extent of the requirement that regard must be had to the position of the veteran, including the knowledge or reasonable understanding of the veteran, and the significance of the question whether, in this situation, the blowing up of the vessel was capable of conveying, and did convey, a risk of death to women and children on board. 33 Accordingly, I consider that the appeal should be allowed. 34 The second argument advanced by Counsel for the veteran was that it was sufficient, for the purposes of satisfying the definition of "experiencing a severe stressor", to reach a conclusion on the facts that someone was probably killed by the destruction of the vessel, regardless of whether men, women or children were involved. As Counsel for the respondent pointed out, however, this argument raises a different hypothesis to that on the basis of which the proceeding was conducted before the AAT. She submits that if this hypothesis had been advanced on the hearing below, then additional evidence could have been presented and the conduct of the proceeding would have been different. I accept this argument. 35 The precise formulation of the hypothesis on which the claim is to proceed is central to a proper determination of whether the injury is war-caused. There are important and substantial differences between an hypothesis (i) to the effect that a person has witnessed the blowing up of a vessel which may have had on board crew but the type of occupant is not material to the experience of severe stress, and (ii) an hypothesis to the effect that there were women and children on board and that it was because of this specific perception that the veteran suffered stress but would not have suffered such stress in other circumstances. In the latter case it is clear that any examination would proceed on a basis (women and children on board) which is materially different from the other hypothesis (no women and children). It does not make sense, in my view, to contend that where a person claims to have suffered severe stress from an event described in a particular detailed manner, such as stress from the perception of women and children being killed, that one can then attempt to justify the claim on the different basis that the perceived death of a crew member may have been sufficient to come within the SoP regardless of the presence of women and children. This in substance is what the alternative submission on behalf of the veteran postulates. Moreover, in the present case the alternative hypothesis relied on is directly contrary to the veteran's evidence as to his perception and belief at the time of the incident. 36 A change in the formulation of the hypothesis would have had a significant effect on the conduct of the hearing. The hypothesis advanced on this ground is that a death on the vessel, with post traumatic stress following as a consequence, is sufficient to satisfy the SoP definition of "experiencing a severe stressor". This has an air of unreality, because the evidence of the veteran was that he would not have experienced post traumatic stress if he had not believed that a woman and children were aboard the vessel. In my view, it is not permissible to "split" or reformulate the hypothesis as contended for by the veteran on appeal. It would cause prejudice to the respondent, and in any event, there does not appear to be any substance in it. In these circumstances, I do not consider that leave should be granted to permit the grounds of appeal to be amended to make this contention.

conclusion 37 For the above reasons, and having regard to the ultimate outcome in favour of the veteran, the appeal should be allowed with costs. The decision of the AAT should be set aside and the matter remitted to the AAT for determination in accordance with law. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Applicant: Dibbs Barker Gosling

Solicitor for the Respondent: Australian Government Solicitor