Post-traumatic stress disorder
15 The Act gave Mr Summers an entitlement to claim a pension (whether at a special rate or otherwise) if he had become incapacitated by a war-caused disease: s 13(1).
16 An important element in making good his entitlement to a pension was, therefore, the establishment as a fact that he was incapacitated by a war-caused disease. So much arises from the language of s 13(1)(b) which, in terms, confers the pension where "a veteran is incapacitated from a war-caused injury or a war-caused disease". Consequently two distinct inquiries are involved. The first is one of diagnosis: does the veteran suffer from a disease or injury? The second is one of causation: was the disease or injury war-caused?
17 Commonsense suggests, and the course of authority in this Court confirms, that there can be no embarkation on the second question of whether an injury or disease is war-caused unless and until there has been an anterior determination that the veteran is incapacitated by a disease or injury: "It is, however, only after a decision-maker determines that a veteran is suffering from a particular injury or disease (or this fact is agreed or conceded) that the question arises as to whether the particular injury or disease is war-caused…": Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136 at [37] per Kenny J (with whom Spender and Tamberlin JJ agreed).
18 Mr Summer's case was that he was incapacitated by PTSD and that it was war-caused. Consequently, the first question which required resolution, as might naturally be expected, was whether Mr Summers was, in fact, suffering from PTSD. On the determination of this central issue the Act provides explicit guidance on the level of satisfaction that the Tribunal had to feel that Mr Summers was suffering from PTSD. Section 120(4) provides that in making any determination under the Act the Commission (and in its shoes, the Tribunal) is to "decide the matter according to its reasonable satisfaction". The expression "disease" is defined in s 5D to mean, inter alia, "any physical or mental ailment, disorder, defect or morbid condition" so that the question for the Tribunal was whether it was reasonably satisfied that he was suffering, in this case, from a mental ailment.
19 The question of whether Mr Summers had PTSD was, at least on its face, one of diagnosis involving expert medical opinion.
20 In relation to a number of kinds of ailment there exist Statements of Principles which are delegated instruments under the Act. There is such a statement in the case of PTSD: Statement of Principles concerning Post Traumatic Stress Disorder (SoP No 5 of 2008). It defines the condition in cl 3 in the following terms:
Kind of injury, disease or death
3. (a) This Statement of Principles is about posttraumatic stress disorder and death from posttraumatic stress disorder.
(b) For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
(c) Posttraumatic stress disorder attracts ICD-10-AM code F43.1.
(d) In the application of this Statement of Principles, the definition of "posttraumatic stress disorder" is that given at paragraph 3(b) above.
21 For the Tribunal to be satisfied that Mr Summers suffered from PTSD it therefore had to be reasonably satisfied of the six matters in sub-cll (b)(A)-(F).
22 Debate in this case centres around the subject matter of cl 3(b)(A), that is, the need for there to have been a traumatic incident and for Mr Summers to have had a response involving fear, helplessness or horror. The Tribunal approached this issue by asking what was required by the definition of PTSD in the Diagnostic and Statistical Manual of Mental Disorders (4th Ed, Text Revision) (DSM-IV). This was in precisely the same terms as cl 3(b)(A). There is no utility in deciding, therefore, whether the Tribunal should have limited itself to the definition in the Statement.
23 In order for the Tribunal to make a finding about cl 3(b)(A) it therefore needed to be reasonably satisfied as to the occurrence of a traumatic event - here falling off a cliff - and of Mr Summers having experienced a response involving feelings of fear, helplessness or horror.
24 There were two ways in which these matters might have been found by the Tribunal. These were that:
(a) the fall down the cliff was a traumatic event and that it had immediately engendered in Mr Summers a response involving feelings of fear, helplessness or horror; or
(b) the fall down the cliff was a traumatic event and that, when he regained consciousness in the hospital the following day (and perhaps in the days which followed), reflection on the devastating events which had befallen him engendered the requisite feelings of fear, helplessness or horror.
25 Before the Tribunal counsel for Mr Summers opened his case in a way which did not distinguish these two possibilities, Indeed beyond referring to Mr Summers as having suffered a "fairly decent drop" the submission (which was, to be fair, only a summary outline) was that the fall was:
an incident which might have caused - a near death incident that might have caused his post-traumatic stress disorder.
26 In its opening the Commission accepted that Mr Summers had fallen down the cliff and signalled that its defence would be that he could not remember the incident:
[S]o if that is correct, Mr Summers in fact had no memory of the incident. He woke up in hospital and that was it. He had injuries in hospital. So in that situation, it's hard to have a severe stressor, if you were drunk and then you woke up without memory of the incident. If it were an assault that one was cognizant of, certainly, that would be a category 1A stressor.
27 At least at the start of the hearing before the Tribunal it is clear, therefore, that no case was being advanced that the feelings of fear, helplessness or horror had only occurred during the aftermath in hospital.
28 Mr Summers denied being so drunk that he could not remember the incident. Significantly, no evidence was elicited from Mr Summers that he had suffered feelings of fear either at the time he had fallen down the cliff or during the aftermath in hospital.
29 This was a serious omission. It meant that there was no direct evidence of one of the necessary elements for a diagnosis. Four psychiatrists gave evidence. Of these only one - Dr Pomorin - mentioned the fall down the cliff (at that stage other traumatic events, not necessary to relate here, were still being put forward by Mr Summers) but he did not accept that Mr Summers had PTSD. Dr Velakoulis thought Mr Summers had PTSD but he took no history from Mr Summers about the fall and did not express an opinion that the PTSD was a result of the fall.
30 Furthermore, the cross-examination by counsel for Mr Summers of the psychiatrist called by the Commission - Dr Strauss - resulted in evidence from him that he did not think that Mr Summers had suffered a trauma in a psychological sense from the fall at all:
But did you think that there was something that could be taken into account? --- Well, it was taken into account that he was drunk. His memory of it is very patchy and many people having traumatic experiences have traumatic memories of their time in hospital as opposed to the actual experience. I'm not convinced that he found that experience traumatic in the psychological sense. He may have found his time in hospital improving from it traumatic, but I wasn't left with the impression that the actual experience was traumatic.
But if you wake up in hospital and you know that you fell over a cliff and they tell you that you nearly got washed away with the tide, somebody pulled you up, and then you went through the trauma of intensive care, surely that in itself would be an event sufficient to give you a traumatic - post-traumatic stress disorder? --- Well, yes, but is it the period in hospital, or is it the actual experience? I'm not convinced that - I'm not convinced he's got a post-traumatic stress disorder from that. I don't think he's got a post-traumatic stress disorder. So we're talking hypothetically. Sure, being pushed over a cliff and being aware of it could well produce that condition. I can't argue with that.
31 Of this evidence two matters might be observed. First, whilst Mr Summers' inability to recall the incident by reason of alcohol was consistent both with a case that he had suffered a psychological trauma which he had forgotten and also the proposition that, by reason of drunkenness, no psychological trauma had been suffered at all, Dr Strauss's evidence supported the latter view. Secondly, Dr Strauss was willing to accept as a theoretical possibility that Mr Summers might have found his time in hospital traumatic in the requisite sense. Of course, Mr Summers had not given any evidence to that effect.
32 This evidence from Dr Strauss immediately enlivened counsel for Mr Summers into an application to call Dr Velakoulis to give evidence about this aspect of the matter. The following exchange took place:
Mr De Marchi: I'm not sure, sir, whether you would be assisted by Dr Velakoulis, given that evidence. I don't think it's going to turn on the facts of the case as to whether you accept that there was the assault and the falling over, and also the increased alcohol consumption when he was here in Australia after the funeral.
Mr Friedman: Yes, the only thing is, Dr Velakoulis didn't refer to that in his diagnosis.
Mr De Marchi: No, no, he didn't have that, and Dr Strauss has, you know, clearly indicated, you know, he didn't think that he knew about it, and therefore couldn't have suffered any stress.
Mr Friedman: Well, if you - I think ---
Mr De Marchi: Maybe I should attempt to ---
Mr Friedman: I think someone wants to say something.
Mr Summers: Originally when I saw Dr Velakoulis it was mentioned, and - well, I mentioned it to him, because he's my psych, but I was told it had nothing to do with , you know, any claims or that, because - what I was told then, I didn't even think. So Dr Velakoulis just doesn't hasn't… and never really, you know, been into it with me.
Mr Friedman: That raises a question, Mr De Marchi, whether you believe Dr Velakoulis should be asked - should be given the opportunity to consider it.
Mr De Marchi: About that, yes. I think other than those circumstances ---
Mr Friedman: Given that he's the treating psychiatrist.
Mr De Marchi: Yes.
Mr Friedman: So I would have thought his evidence might be important on that aspect.
Mr De Marchi: Perhaps if I could be given another 10 minutes?
33 Dr Velakoulis was not able to attend in time that afternoon. The Tribunal therefore adjourned the proceedings part-heard to Thursday 14 October 2010. During its recess Mr Summers again consulted with Dr Velakoulis on 1 September 2001. At that time Dr Velakoulis took a more detailed history of the incident. Upon the resumption of the hearing counsel for Mr Summers elicited evidence of the fact that Dr Velakoulis was now aware of Mr Summers having fallen down the cliff. The following evidence was then elicited on the diagnostic issues:
Right. Now, one of the issues in this case is that that incident by the quirk of the application of the Veterans' Entitlements Act is, in fact, still considered to be operational service as far as Mr Summers is concerned. So the occurrence there - the question is, is that an occurrence that could trigger a post-traumatic stress disorder? --- It certainly could be, yes.
Yes. And, certainly, is an occurrence that could trigger an alcohol abuse problem as well? --- Possibly a stressor, possibly.
Right. Now---? --- But possible a sequelae.
Yes? --- That might be less robust than, for example, the causation of a post-traumatic stress.
Yes, right. All right. And now, you hold this opinion fairly, that he's suffering from post-traumatic stress disorder and alcohol dependence? --- Yes.
34 This evidence - or, more accurately, the questions which elicited it - failed to observe the distinction which had been drawn by Dr Strauss between immediate psychological trauma resulting from the fall and subsequent psychological trauma resulting from the aftermath.
35 Dr Velakoulis was cross-examined extensively by counsel for the Commission. Much of this cross-examination was directed to suggesting that Mr Summers could not have been traumatised by an event which he could not remember. On re-examination counsel for Mr Summers elicited this further evidence:
Now, having sort of been found on the beach and taken into intensive care, what would be - when you woke up and you found yourself post-operation, what sort of - what psychological events could that cause to an individual? --- Well, he - given as well he had a head injury, he might be suffering what is called a delirium or a confusional state, where he might have difficulty with knowing his whereabouts or time of day. It might be associated with difficulty recalling events from around that period, and it might be associated with mood or anxiety-type symptoms.
Yes? --- But given that basically the - he's had injury of his spleen and other abdominal injuries and also to his skull, it ends up being a difficult time for the brain to try to make sense of what might be happening, potentially.
Yes. Now, now that you know more specifically about the Watsons Bay incident, do you think it is an important factor in his post-traumatic stress disorder --- Look, I would suggest it's - it may well be a very important factor.
And could such an injury trigger post-traumatic stress disorder? --- Yes.
36 The question first asked above did, it is true, connect with Dr Strauss's observation that mental trauma resulting from the aftermath might theoretically be available. However, the answer given by the witness was not sufficient for that purpose. Following another round of cross-examination there then ensued yet further re-examination which marked the end-point for the present arguments:
Doctor, if we accept that the investigating officer's report that the incident occurred, that the injuries were sustained and that Mr Summers was, indeed hospitalised for that period of time, what part does it play, do you think, in his post traumatic stress disorder given that it occurred immediately during the end of his service in Vietnam? --- Well, I think, as I stated before, it could be one - one aspect of an accumulated trauma load which might tip him over the edge in terms of symptom expression of PTSD. In addition to that, the causation of potentially causing PTSD he may - and it's very hard to know in retrospect, but he may have suffered a confusional delirium state afterwards. But, yes, that's hard for me to know.
Would you need to, perhaps, speak to him again? --- I think if you took a further history it might give you some insight into his mental state in the - in the time that he was in hospital. Yes, it might give you a rough idea. I mean, if, for example, he - I mean, this is just a hypothetical, but if a patient says "I was in hospital and I thought that snakes were crawling out of the cupboards and that the nurses were out to kill me", that might indicate a delirium with paranoia, for example.
Yes, right, thank you for that.
(Emphasis added.)
37 At this point evidence of an expert kind had been elicited which suggested that it was possible that the psychological trauma might have been suffered in the aftermath. The difficulty with that case was, as Dr Velakoulis pointed out in the passage above, that there was no history from Mr Summers which supported it. Such a history had plainly not been given to Dr Velakoulis and it was this which gave rise to his suggestion that Mr Summers might need to be spoken to again. More importantly, and as already noted, there had been a concomitant failure to elicit before the Tribunal any evidence from Mr Summers about feelings of fear, helplessness or horror either at the time of the fall or afterwards at the hospital. This was, in a sense, a fatal flaw in the PTSD case.
38 Counsel's closing address to the Tribunal was not illuminating. It failed to distinguish between the two types of trauma; it failed to grasp that Dr Strauss's evidence was not that there could be no PTSD if the trauma be forgotten but rather that, because Mr Summers could not remember the incident, as a matter of fact, he did not think that a trauma had been suffered; most importantly it skated over the absence of any evidence from Mr Summers about his feelings of fear, helplessness or horror. The short submission which was made was thus:
Now, that brawl occurred during a period of time that confers on Mr Summers the beneficial proof of having to establish it on a reasonable hypothesis. And we can be convinced that it occurred, that he was hospitalised and that is a state of mind that he was in on the 10th day of his hospitalisation, still in intensive care, when he has been interviewed by the warrant officer and he doesn't remember much about the incident. Dr Strauss, in his evidence, has conceded that the events in Sydney could be the catalyst for a post traumatic stress disorder. Now, he didn't think that there was a reaction required because Mr Summers was unconscious when he was found and then hospitalised.
It's up the tribunal to make an assessment on that but considering a person in hospital with severe injuries, a major operation having been performed - removing his spleen. And finding himself in that situation after the death of his father not very many days beforehand and attending his funeral. In my submission, the tribunal can find that it had an effect and indeed Dr Velakoulis who has been treating him since 2007, finds that it was a factor in the diagnosis of post traumatic stress disorder.
Now, I agree with my friend. You can criticise the lack of precision of that September attendance that he had with my client. It's been difficult to - psychiatrists are very, very busy nowadays. It's very difficult to get them focused on what is really a legal process when they're interested in the psychological process of their clients, and that's been the difficulty in this particular case. Obviously my temptation would be, from what happened today, to go back to Dr Velakoulis. We did ask for another report, and to obtain that report and bring it to the tribunal. That would be the ideal situation. But we've had that evidence, and the only other evidence that we've had was Dr Strauss, that says, "Yes, I can see that it could happen, but I don't think it happened because he was unconscious."
That's the only really rider in terms of Dr Strauss, and the incident occurred, we say, on the balance of probabilities, looking at this in a pragmatic way, and given the circumstances of all of these accidents, the tribunal should be satisfied that, in fact the treating psychiatrist has got the right diagnosis of post-traumatic stress disorder, and that you do have those factors that clearly made a contribution to it. And it doesn't have to be a large contribution. It's a reasonable hypothesis case. As long as the event that's being claimed occurred can be verified, and as long as we can verify that it played a part, that is all that is required under the legislation and the decisions of the court, and I'm referring to Law v Repatriation Commission, and the cases decided after that.
39 The reference to a reasonable hypothesis reveals a confusion on counsel's part as to the forensic contest with which he was confronted. The language of reasonable hypothesis springs from s 120B but its elaborate machinery is directed to the question of whether an ailment - already proved to exist - is war-caused. In this case, Mr Summers was confronted with a more basic objection to his case, namely, that he was not suffering from the ailment of PTSD at all.
40 The Tribunal rejected Mr Summers' case on PTSD, finding instead that he did not suffer from that condition. In relation to the fall down the cliff it reasoned this way:
[22] In respect of the Watson's Bay event the Tribunal takes into account that Mr Summers suffered life-threatening injuries and was not discovered until the day after his altercation with the sailors. The Tribunal accepts that the incident prevented Mr Summers from returning to Vietnam and had far-reaching consequences regarding his physical and psychological health. However Mr Summers admitted that he was intoxicated at the time and had no recollection of the incident itself, and only remembered the altercation at the hotel and its immediate aftermath when he said that the sailors followed him. Dr Velakoulis made no mention of the incident in his report, and only clarified the matter with Mr Summers on 1 September 2010, which was after the matter had been raised as a significant stressor by Mr Summers on the first day of the Tribunal hearing. Dr Debenham diagnosed PTSD but gave no reasons.
[23] The only objective report of the incident was by an investigating officer shortly after the event. That officer referred to a fall over the cliff after wrestling and that the personnel involved were intoxicated. The Tribunal takes into account that Dr Pomorin referred to the incident as a fight but reported Mr Summers had not described any emotionally traumatic event. In all the circumstances the Tribunal concludes that the material supports Dr Strauss' evidence that there is insufficient reliable information to substantiate the claim of risk of death or serious injury, particularly as Mr Summers had only a vague memory of events on the night in question and no recollection of any assault or accidental fall from the cliff. Therefore the Tribunal finds that the Watson's Bay event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.
(Emphasis added.)
41 The Tribunal was required to determine in the first instance whether Mr Summers had, as a matter of fact, experienced any feelings of fear, helplessness or horror at all. There was no evidence from Mr Summers himself that he had and the evidence of Dr Strauss was that he was inclined to infer that the fact that Mr Summers could not recall the incident tended to suggest that he had not experienced such feelings.
42 In light of that it may be observed that, read literally, the manner in which the Tribunal dealt with this issue (in the italicised portion above) is, with respect, confused. It suggests that the risk of death or injury was not substantiated. One would have thought that falling down a cliff and suffering life threatening injuries - a matter which was not in dispute - was sufficient to make good that matter. The suggestion that Dr Strauss had said such a thing was also erroneous - his point was not that falling off a cliff was not life threatening but rather that he did not think that Mr Summers had suffered feelings of fear, helplessness or horror (otherwise he would remember the incident).
43 The strangeness, with respect, of the penultimate sentence of [23] needs to be seen in the context of the last sentence which is the Tribunal's actual conclusion. There it found or assumed (contrary to the preceding sentence) that the fall had occurred but found that Mr Summers had not experienced a response involving fear, helplessness or horror.
44 In our opinion the better reading of [23] is that the Tribunal was directing itself to the question of whether Mr Summers had experienced the requisite response and the difficulties of the second last sentence do not reflect an underlying failure on the part of the Tribunal to pose for itself the correct question. We take that approach cognisant of the need not to approach the reasons of administrative tribunals with an eye closely attuned to the detection of error: cf. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J.
45 So viewed, the Tribunal's conclusions on this issue were not only sustainable but, in view of the absence of any evidence from Mr Summers that he had experienced such a response to his fall down the cliff, inevitable.
46 What then of the case based on the aftermath at the hospital? There was undoubtedly an attempt to formulate before the Tribunal a case that Mr Summers had suffered the requisite response at that time. There is, however, simply no treatment of this issue in the Tribunal's reasons. A failure to deal with a properly formulated argument presented for its determination can amount to a breach of the rules of procedural fairness: "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to afford Mr Dranichnikov natural justice": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 at 326 [24] and 340 [95]; applied in Plaintiff M61/2010E v Commonwealth (2010 243 CLR 319 at [90]. The difficulty is that the manner in which this entire issue was addressed by counsel for Mr Summers was very far from being able to be described as clear. Although we have sought to dissect with some care what took place before the Tribunal it has to be said that the submissions which were addressed to it on Mr Summers' behalf failed to come to grips with the reasonably complicated issues which had arisen. We have set out the passages from counsel's address above which are pertinent. It is quite likely that these did not amount to a sufficient flagging of the issue so as to require the Tribunal to deal with the issue.
47 It is not, however, necessary finally to determine that question. The Tribunal was under its own obligation to follow up and consider any case which might reasonably appear from the materials. This case - that is, the response of fear, helplessness and horror in the aftermath - was touched on in the evidence. The Tribunal ought to have looked at the issue in its reasons.
48 Had it done so, however, it would have found that the material before it did not include any evidence from Mr Summers that he had a response consisting of feelings of fear, helplessness or horror in the aftermath. On the evidence which was before it we do not see that the Tribunal could have arrived at a different conclusion even if it had considered the issue. The evidentiary footings for such a case had simply not been laid.
49 We conclude therefore that there was no material error by the Tribunal in reaching the conclusions it did on the issue of PTSD.