Arnott and Repatriation Commission - [2001] AATA 1042

DECISION AND REASONS FOR DECISION [2001] AATA 1042

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1357

VETERANS APPEALS DIVISION           )
           Re      MICHAEL ARNOTT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr A. Argent, Member Mr G. Friedman, Member

Date5 December 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
  .…... Sgd. Mr J. Handley   ........
  Senior Member
CATCHWORDS

Veterans Entitlements - Applicant a Seaman on HMAS Torrens in Vung Tau in February & December 1972 - Subsequent diagnosis of Post Traumatic Stress Disorder - whether 'experienced a stressor' - decision affirmed.
Administrative Appeals Tribunal Act 1975
Repatriation Commission v Gorton 2001 FCA 1194

REASONS FOR DECISION

5 December 2001 Mr J. Handley, Senior Member Mr A. Argent, Member Mr G. Friedman, Member

This is an appeal by Mr Michael Arnott ("the applicant") against a decision of the Veterans' Review Board ("VRB") which determined, inter alia, on 13 October 1999 that his post-traumatic stress disorder ("PTSD") was not war caused or defence caused.
The VRB affirmed the respondent's ("the respondent") determination of 19 October 1998.
Based on the medical reports taken in as evidence, it was common ground between the parties that the veteran suffers from PTSD. Indeed, since 4 May 1998 the veteran receives hospital and medical treatment for PTSD at the expense of the Department of Veterans' Affairs. The respondent submitted that this entitlement does not imply acceptance of PTSD as a service related disability or any rights to a pension.
Therefore, the only matter before the Tribunal was whether the veteran's PTSD was connected to his operational service in Vietnam waters in Vung Tau harbour 28 and 29 February 1972 or his subsequent defence service, 7-9 December 1972.
Mr Moore, of counsel, appeared for the veteran and Mr Nyhof, a departmental advocate, for the Commission. When the hearing resumed on 22 October 2001 Mr Purcell appeared for the Commission.
The Evidence
The Tribunal had before it the documents ("the T documents) lodged by the respondent pursuant to section 37 of the Administrative Appeals Act 1975 and took in as evidence:
Exhibit A - Report by Dr J R Carroll, dated 4 Jun 01
B - Letter from Admiral E R Zumwalt, USN (ret), dated 18 Apr 89
1 - Report by Commodore P M Mulcare RAN (ret) dated 14 Nov 00
            2 - Report by Dr L A Walton, psychiatrist, dated 27 Apr 00
            3 - Report by Dr L A Walton, psychiatrist, dated 11 Oct 00
            4 - Notes from Dr B Kenny, psychiatrist, dated 21 Dec 98
Exhibit 5 - Notes from Dr Bennett
6 - Notes from Defence Personnel Executive
  7 - Notes of Dr B J Holwill, psychiatrist, dated 23 Apr 99
  8 - Notes from Weaver and Associates, dated 30 Nov 98
  9 - Report and Clinical Notes from Dr Shum

Michael Arnott

In his evidence the applicant said he was born on 5 December 1954, left school at age 15, was employed as a sheet metal worker and then as a textile worker until, following the family tradition, he enlisted in the Royal Australian Navy ("Navy") on 12 May 1971. He was then aged 16 5/12 years and his medical category was 'Fit'. He completed the normal recruit training of 12 weeks at HMAS Cerberus and with 18 other ordinary seaman he joined HMAS Torrens for further training on 14 August 1971. During his recruit and further training he fired small arms, witnessed shore-to-sea firing of ships' calibre guns and was familiar with the noise of helicopters.
He said Torrens was a destroyer escort with a complement of about 250. Some months after he joined Torrens it sailed from Australian waters. He knew they were going to Vietnam. Torrens first exercised with other ships off the Philippines in February 1972. During these exercises Torrens visited Subic Bay and Manila. In Manila Bay the ship practised Operation Awkward measures, that is, protection when at anchor or tied to a buoy in preparation for their first visit to Vietnam. In late February Torrens escorted HMAS Sydney, (which had been an aircraft carrier but was then a fast troop and resupply transport), into the Vung Tau anchorage, South Vietnam.
He said before Torrens entered Vietnamese waters the ship's captain briefed the crew on possible dangers awaiting them, a leading seaman mentioned the ship would be in range of enemy mortars and rockets from Long Son Island and that there were dangers from enemy divers and swimmers who could attach explosives to the ship. Ship's Standing Orders and Daily Orders also gave details of precautions to be taken in Vietnamese waters. He said all this information made him apprehensive.
On the approach to the harbour the ship closed up to the second stage of readiness. He and three others were assigned to the forward magazine hoist of the 4.5 inch guns for a four hour watch. He said the armaments were manned and loaded, all hatches were closed, the hatch cover where he was could not be opened from the inside, the magazine was below the waterline, he was terrified because he had never been there before and believed if there were an explosion he would be drowned.
He said the ship entered Vung Tau anchorage and tied up to a buoy within sight of the shore. Sydney unloaded its stores during the day and together with Torrens left harbour and spent the night off the coast. With Torrens leading, both ships returned to their anchorages next morning. He was detailed for duties connected with Operation Awkward. This involved being one of two sailors in a small boat and being equipped with grappling hooks and scare charges. Scare charges were thrown at random to deter or destroy possible enemy swimmers or divers and grappling hooks were towed to snag bodies. Other ordinary seamen in his group were detailed for similar duties. The veteran said he was terrified of handling the scare charges because he had no previous experience with them. He added, in reply to a question, that the other sailor (a leading seaman) demonstrated about a dozen times how to light the fuse and toss the charge before he (the veteran) was told to throw them. He was in the small boat on this duty for a watch of four hours.
In answer to questions the applicant said, as far as he could recall, his appetite was normal during the time the ship was at Vung Tau and that he regularly ate his meals. Concerning his apprehension of the threats of rocket fire from Long Son Island he said he could not now recall the island's distance from the ship or its direction because the ship swung at the buoy.
He said Torrens and Sydney sailed from Vung Tau that afternoon. There were no enemy attacks on any of the ships at Vung Tau.
When his sea-time in Torrens was completed he said he finished his training at Cerberus. He applied for a discharge from the Navy because of trouble at home between his father and mother. Following his discharge on 9 December 1972 he worked for 11 years in security at Myer, five to six years part-time with Brambles and then in home maintenance with the Geelong West Council until retrenched. He then was a security officer at Point Wilson but resigned from this in 1999 because the presence of naval vessels, which re-ammunitioned there, brought memories that upset him. He was not worked since and lives alone at Leopold, near Geelong. He has few friends. He said alcohol consumption led to a break-up of a relationship with his girl friend.
Dr John R Carroll
Dr Carroll, a Research Fellow at Monash University, worked at the Williamstown Dockyard, from 1954-1962 was in the Navy Reserve and from 1966-1973 served in HMAS Sydney and Yarra (a sister ship of Torrens) as a shipwright. He was later employed in the Department of Defence as a technical officer. He is presently the honorary secretary of the HMAS Sydney and Vietnam Logistic Support Veterans' Association and has gathered a considerable amount of history concerning the operations of RAN ships in Vietnamese waters. See Exhibit A.
He said there were random enemy rockets fired at Vung Tau, principally at the airfield, because of its size and stationary nature. It would be difficult to hit a ship with a rocket or mortar bomb from Long Son Island. He said no Australian ships at Vung Tau came under enemy attack from rockets, mortars or from swimmers or divers. He added South Vietnamese navy divers had replaced the RAN clearance teams at Vung Tau in 1970 and the belief was they were not as effective as the Australians had been.
The evidence of Dr Carroll concerning ship readiness on entering and leaving Vung Tau and the precautions taken under Operation Awkward when tied to buoys or at anchor corroborated that given by the veteran.
He also explained that there was an exit from the forward ammunition hoist position where the veteran was located when Torrens first entered Vung Tau on 28 February 1972. This could be used in an emergency when there was nobody available above to open the fastened hatch cover mentioned by the veteran.
The hearing of the review resumed on 22 October. The applicant was recalled to give further evidence having had the opportunity to read transcript from the first day of the hearing. The applicant was taken to p. 56 of the transcript where he described the scare charges. He said he did not ignite fuses attached to the scare charges as he previously said in evidence. The scare charges that were thrown by him did not have fuses. He was shown a number of drawings of scare and demolition charges which were attached to a report completed by Commander Linton who gave evidence on the second day of hearing. Mr Arnott said that the depiction of a scare charge was similar to the scare charge he had used. The demolition charges as depicted were not used. Mr Arnott said that he wore an anti flash hood (similar in construction to a balaclava) and gloves. He said the hood and the gloves were fireproof.
In cross-examination Mr Arnott said that after Torrens anchored on 28 February 1972 he had been stationed on the bridge. He was commanded by the Chief Bosun's Mate to man a 4.5 inch gun in a forward magazine. He said he entered it via a hatch. Mr Arnott was taken to his evidence from the first day where he said the hatch cover was closed from the outside and it was not possible for him to open it from the inside. He said the experience was frightening because he was exposed to noises and had not ever entered a magazine previously. He was adamant that it was locked down and his exit was denied.
He was taken to construction drawings of Torrens produced by Commodore Mulcare who was later to give evidence. The drawings depict the magazines on the ship, and detailed drawings of the hatches and the clips which secure the hatch both from the outside and from the inside. Mr Arnott said he could not recall any clips on the inside of the hatch but acknowledged that his memory may be deficient. He acknowledged that he had undergone training previously at Cerberus and during an exercise in Subic Bay en route to Vietnam but his memory of hatch covers for magazines was confined only to their water tight rating.
Mr Arnott also acknowledged that he had been engaged in an Operation Awkward exercise prior to entering Vietnamese waters but did not use live ammunition. He had no recollection of scare charges then being used and said that he had never used scare charges before he travelled to Vietnam.
Commodore Mulcare
Commodore Phillip Mulcare gave evidence in these proceedings. Commodore Mulcare is a retired member of the Royal Australian Navy, having served for 37 years. He provided two reports to the respondent dated 14 November 2000 and 19 October 2001, both of which were received into evidence. Both reports contained a number of annexures which will be referred to in these reasons. The first report contained a copy of the report of proceedings of HMAS Torrens during the time that it entered Vung Tau harbour. The proceedings (completed by the Commanding Officer) records that the ship adopted an Operation Awkward organisation (which is apparently standard practice), where all magazine and other hatches were closed. The witness produced copies of construction drawings of HMAS Torrens depicting the location of hatches. Specifically there was one drawing of the locking mechanism which showed that in a magazine hatch the cover can be opened and closed from outside and from inside.
In cross-examination Commodore Mulcare was adamant that the magazine hatches were not altered after initial construction because there were no drawings available or shown to him of any such alterations. He said that had there been alterations he would have had access to the drawings. Additionally he said that the magazine hatches would have had an internal lever to permit exit otherwise the procedure on board the ship would have been to have a sentry posted on the outside of the hatch. He said the only hatches which did not contain internal levers were in storage areas where people did not remain for long periods.
The witness said the Operation Awkward stage undertaken upon arrival at Vung Tau harbour was general practice and assumed a stage of readiness as if the ship were to become under attack. He said this strategy involved the use of divers, scare charges and boat patrols. Concern was also held with respect to enemy swimmers, floating mines and rockets from on shore. Apparently there had been rockets launched from Long Son Island onto a neighbouring airfield but were regarded more as area weapons and were not specific and it was felt that ships were not a realistic target. Additionally, Long Son Island was more than three miles from where HMAS Torrens was moored.
Commodore Mulcare was acquainted with the applicant's evidence that he had been frightened by the sound of a scare charge exploding in the water whilst he (the applicant) was in the 4.5 inch magazine. The witness acknowledged that this could be a frightening experience, however he said that the applicant would have been aware that the ship was undertaking Awkward manoeuvres.
Commander Linton
The respondent also called Commander Edward Linton who served as a member of the Navy between 1952 until his retirement in 1986. He held extensive experience as a clearance diver and as a clearance diver instructor. He was also engaged in demolition and had extensive experience involving scare charges and demolition charges. He served in HMAS Torrens in 1972 and was on board in February 1972 as it entered Vung Tau harbour. The witness could not recall the applicant.
Commander Linton said that scare charges are only used by qualified personnel, having previously been assembled on board and kept in a magazine or locker pending use. He said the scare charges are thrown from 17 foot open aluminium boats, which patrol naval vessels to deter the potential of enemy divers. He said the practice was for the patrolling boats to be manned by a coxswain who would hold the rank of leading seaman. He said the coxswain would have a bowman and one other sailor so there would be a crew of three. He said the seaman throwing the scare charges would have had prior training or use of the charges, however he said he could not deny the possibility that an ordinary seaman, without prior experience, would have thrown charges. He said that had this occurred it would not have been his preference or his command.
Commander Linton was shown the drawings of scare and demolition charges which were appended to his report. He said the scare charges used during this voyage would have been as depicted in the drawings. He said it is unlikely that demolition charges, which contain a safety fuse, would have been used. He said the procedure for discharging the scare charges was to hold it by the right hand and extract a pin (which is depicted by a circular ring) with the left hand. He said this procedure was adopted to ensure that in the course of removing the pin the charge was kept away from the body and was thrown in a backhand or underhand manner towards the water. He said that once the pin was removed the charge does not become active until a striker mechanism is also released (in the course of throwing the charge) and the charge would then be detonated between 8 and 11.5 seconds later. He said anyone who had used scare charges from the patrolling boats would have been trained in this method.
Commander Linton was also shown copies of the record of proceedings and to the extent that the commanding officer recorded that Torrens was engaged in zigzag manoeuvres, the witness said that this would have been adopted to ensure that the vessel did not travel "too far" and would have been an unusual manoeuvre because it is a waste of time and fuel. He said there was no known underwater threat from enemy divers and the zigzag manoeuvre would not have been adopted to counter or prevent the risk of enemy divers.
In cross-examination the witness did not deny that only the applicant and another person would have been on board the patrol boat, however Commander Linton said this would have been unusual. He also agreed that being ordered into the boat by a leading seaman to discharge scare charges would have been contrary to standing orders, and he assumed that there was no report of this in the ship's log because it would have disclosed the breach of the standing orders. He said he could not recall any other persons ever using anti-flash hoods or gloves and said that the use of the gloves particularly would have been a cumbersome process and made it difficult to remove the pin. He acknowledged that had the scare charge been dropped after it had been activated, both the applicant and the coxswain would not have survived and he also acknowledged that the applicant would have been frightened on this occasion, indeed throughout the operation Awkward manoeuvre, because it was known that US ships had previously been attacked in this harbour.
In re-examination Commander Linton said that the applicant would have been engaged in Awkward training manoeuvres previously on board Torrens in Subic Bay en route to Vietnam. He said he had no recollection of any persons training in anti-flash gear and was surprised to hear that the applicant had worn it on the occasion that he released scare charges. He said he was also surprised to learn that the applicant, being untrained in the use of scare charges, was engaged in this operation and said that had he known about it at the time he would have disciplined the coxswain.
Commander Linton said that he had knowledge of Vietnam by his prior experiences in both Vung Tau and in Da Nang, and he regarded the threat of swimmer attack as being small. Nonetheless, he acknowledged that in February 1972 he was 35 years of age and had broad prior experience. He acknowledged that the applicant was then 17 years of age and was engaged in his first overseas voyage.
Conclusion & Reasons For Decision
On the second day of hearing Mr Moore submitted that the 'relevant' Statement of Principle was number 15 of 1994. Mr Purcell did not dispute that contention.
On reflection we think that what was intended to be submitted was having regard to a number of Statements of Principles issued by the Repatriation Medical Authority with respect to post traumatic stress disorder, Instrument No. 15 of 1994 is more likely to uphold the hypothesis (upon the facts of this application) than Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999.
These comments have their genesis in the recent decision of a Full Federal Court in Repatriation Commission v Gorton 2001 FCA 1194. The court then extensively discussed authorities as to whether an Instrument which existed at the date of the primary decision was to be considered in order to determine whether a hypothesis was reasonable or whether an instrument subsequently issued but prior to the hearing was to be considered.

At paragraph 42 of the decision in Gorton, Heerey J said that the "starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which is "in force". At paragraph 43 he said that if "the current SoP does not uphold the hypothesis the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP".
The relevant factor in Instrument No. 15 of 1994 relied upon by Mr Arnott was 1(a) namely "experiencing a stressor prior to the clinical onset of Post Traumatic Stress Disorder". A similar factor exists in Instrument No. 3 of 1999, namely "experiencing a severe stressor prior to the clinical onset of Post Traumatic Stress Disorder".
The addition of the word "severe" in the latter instrument has a significant consequence because the words "experiencing a stressor" as defined in Instrument No. 15 of 1994 are very different to the definition of the words "experiencing a severe stressor as defined in Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999.
The words "experiencing a stressor" as defined in Instrument No. 15 of 1994 are as follows-
""experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;"
The words "experiencing a severe stressor" as found in Instrument No. 3 of 1999 read as follows-
"experiencing a severe stressor" means 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 services where the Veterans' Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"
The definition of "experiencing a stressor" was amended by Instrument No. 54 of 1999 - and it would appear that the amendment was to correct an omission from the definition in Instrument No. 3 of 1999 - by adding the word "severe" in the paragraph described as "events that qualify as stressors". That is to say the added word "severe" appears before the word "stressors" in that sub-paragraph.
There are many decisions of the Tribunal with respect to the concept of "experiencing a stressor" as found in Instrument No. 15 of 1994. (Refer particularly Budworth and Repatriation Commission 2000 AATA 127; Boyd and Repatriation Commission 2000 AATA 615; Howe and Repatriation Commission 1999 AATA 1006; Jehn and Repatriation Commission 2000 AATA 484; Mulvany and Repatriation Commission 2000 AATA 535; Slattery and Repatriation Commission 1998 52 ALD 90; Thompson and Repatriation Commission 2000 AATA 635; Cranage and Repatriation Commission 2000 AATA 1119).
All of the above decisions regarded paragraph (a) above to be interpreted objectively and paragraph (b) above to be interpreted subjectively.
Some of the decisions (particularly Re Budworth and Re Cranage) discussed the evidence of medical witnesses who were critical of the rigidity of the above definition. Indeed in Re Cranage one of the medical witnesses gave evidence that submissions were made at a conference convened by the Repatriation Medical Authority which were intended to "soften" the language found within the definition of "experiencing a stressor".
It would appear that the Repatriation Medical Authority has in fact imposed greater rigidity in the concept of "experiencing a stressor" by the addition of the word "severe", the removal of sub paragraph (b) and inserting events that are said to "qualify" as severe stressors (refer above definitions).
In any analysis of sub-paragraph (a) within the definition of "experiencing a stressor" under Instrument No. 15 of 1994, there must be material which points to the applicant having "experienced, witnessed, or (being) confronted with an event ….". The words "experienced", "witnessed" and "confronted" were discussed in Re Slattery and Re Thompson. The Tribunal adopted the Slattery analysis in Re Cranage.
In Re Slattery, Deputy President Forgie at paragraph 79 said-
"The word "witnessed" suggests that the person was present at the event involving real or present (that is actual) or threatened death. The word 'experienced' suggests that the person observed or encountered such an event and the word 'confronted' that he or she was faced with such an event".
In Re Thompson Senior Member Dwyer together with Members Campbell and Fricker extensively discussed the word 'confronted'. Having analysed a number of dictionary definitions the Tribunal then accepted a submission of the Repatriation Commission that being confronted with an event required coming face to face with such an event. The Tribunal concluded (paragraph 49) "when the word "confront" is used in the sense of being confronted with an event, we consider it does indicate that the person saw the event or the physical aftermath or consequences of the event".
Unfortunately the applicant does suffer from Post Traumatic Stress Disorder as diagnosed by his treating doctors, but he would not meet the definition within the Instrument. The contest is whether there is an association between Post Traumatic Stress Disorder and his service. Relevantly the service of Mr Arnott was a period of two days in February 1972 in Vung Tau Harbour and a period of three days of defence service in December 1972. We agree with the observations of Commander Linton that at those times the applicant would have been 17 years of age and was on his first overseas voyage. Commander Linton was then 35 years of age, had had broad prior experience and regarded - based on his experience - the threat of underwater activity as being of small risk. He was also surprised to learn that a properly manned boat was not used to discharge scare charges and that the applicant had had little prior experience in the discharge of scare charges. He acknowledged also that the applicant may have found those experiences frightening.
Commodore Mulcare acknowledged that Torrens would have been engaged in Operation Awkward measures and would have from time to time adopted a state of readiness described as "Condition Zulu". However he described this as being standard practice when entering a harbour irrespective of whether there is a known or apparent threat. Additionally, he produced charts and drawings depicting the hatch cover which demonstrated that the applicant would have been able to exit hatches because of the presence of an internal leaver.
We regard the applicant as a witness of truth who did not exaggerate. Certainly his memory was deficient and he volunteered corrections of his earlier evidence on the second day of hearing. But we are not satisfied on the evidence heard that the applicant experienced, witnessed or was confronted with an event producing the consequences recorded at paragraph (a) of the definition of "experiencing a stressor".
We cannot be satisfied that the applicant "experienced ……. an event" because there is nothing to suggest that he observed or encountered an event involving actual or threatened death or serious injury or a threat to him or another persons physical integrity. Objectively, Torrens was never fired upon nor did it discharge any weapons. No underwater swimmers were ever detected and the threat of mortar or rocket attack from Long Son Island was largely dismissed although it was acknowledged that mortars and rockets had been discharged at Vung Tau airfield. The applicant did experience the sound and vibration of a scare charge being discharged when he was inside a gun magazine but the charge was discharged at random as part of ordinary preventative measures and not in response to any known or apparent threat. The applicant did tell us that he was frightened using the scare charges of which, he said, he had no prior experience but he did not drop a scare charge nor did any scare charge malfunction, as was his concern.
Further to the above, there is nothing that points to the applicant having "witnessed ….. an event" to the extent that he was present at an event involving real or present or threatened death. Additionally we cannot be satisfied that the applicant was "confronted with an event …." because there is nothing which points to the applicant coming face to face with or the applicant seeing an event or the physical aftermath or consequences of an event which involved real or present or threatened death.
For the above reasons we cannot find the hypothesis raised to be 'reasonable', because it is not consistent with the 'template' found in the 1994 Instrument. It certainly would not satisfy the latter (& most recent) Instrument.
The decision of the VRB under review also concerned a rejection of emphysema and chronic bronchitis as war caused. This part of the VRB decision with withdrawn prior to the commencement of these proceedings.
Accordingly, for the reasons given above, the decision of the VRB made on 13 October 1999 is affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member, Mr A. Argent, Member & Mr G. Friedman, Member.
Signed:         ....Carolyn Irons................................
  Secretary
Date/s of Hearing  24 July 2001, 22 October 2001
Date of Decision  5 December 2001
Counsel for the Applicant        Gary Moore
Solicitor for the Applicant
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent