Barrett and Repatriation Commission
[2004] AATA 679
•28 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 679
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/41
VETERANS' APPEALS DIVISION ) Re ERNEST GAIRN BARRETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date28 June 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – if applicant’s conditions of PTSD and alcohol dependence or alcohol abuse are war-caused – did applicant experience severe stressors during his operational service? – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986 ss 120, 120A
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999REASONS FOR DECISION
28 June 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 30 April 2001 insofar as it refused a claim for payment of Disability Pension in relation to the applicant’s conditions of post-traumatic stress disorder (PTSD) with alcohol abuse. The Veterans’ Review Board (VRB) affirmed the decision on 3 December 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Liptak appeared as counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Doube represented the Commission, which called Captain H Josephs, Historian, as a witness. Captain Josephs gave his evidence by way of telephone link-up.
3. The applicant served as a merchant mariner on HMAS Jeparit (the Jeparit) from 14 January 1972 until 16 March 1972. For the purposes of consideration under the Veterans’ Entitlements Act 1986 (the Act), the applicant rendered operational service between 14 January 1972 and 11 March 1972.
4. The applicant maintains that his conditions relate to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
5. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that his conditions relate to his operational service, in that on the whole of the material, the severe stressor, the “rocket incident”, which he experienced during his operational service, and within the 2 years immediately before the clinical onset of the alcohol abuse condition, connects his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the factors set out in clause 5, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
7. The relevant Statement of Principles for alcohol abuse is Instrument No 76 of 1998 (the Alcohol Abuse SoP), and the applicant contends that Factor 5(a) or (b) is satisfied:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
The psychiatric disorder is “PTSD”.
“Experiencing a severe stressor” is defined in the Statement of Principles as:
“… 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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ 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 observation of casualty clearance, atrocities or abusive violence;”
8. The relevant Statement of Principles for the condition of PTSD is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that Factor 5(a) of the PTSD SoP is satisfied:
“(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;”
“Experiencing a severe stressor” is defined in the Statement of Principles as:
““… 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 Veterans’ Entitlements Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iv)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
9. The Commission maintains that the applicant did not suffer a severe stressor during his operational service; that he was not, as a result of his operational service, suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse. In relation to the applicant’s alcohol abuse there is no evidence as to the onset of the condition within 2 years of the alleged experience of a severe stressor. The Commission submits also, that the inconsistencies in the applicant’s version of events indicate, at best, that he is a poor historian, or at the worst, that he attempted to mislead Dr Ewer and the Tribunal as to the nature of the “rocket incident”.
10. The applicant gave lengthy oral evidence. He was cross-examined closely, but fairly. He was an unimpressive witness. It became clear, as his evidence unfolded, that the history he provided to Dr Ewer was unreliable and inconsistent in important areas, when compared with his oral evidence at the Hearing, and the evidence he provided to the VRB. The inconsistencies were legion. This does not mean that I reject the whole of his evidence, but that I prefer to rely upon other evidence in any area of dispute in the evidence. In the course of his oral evidence, Dr Ewer said that he relied for his opinions on the veracity of the applicant’s account of events; and I have taken this aspect into account in my assessment of the weight to be given to Dr Ewer’s opinions and testimony. I consider that Captain Josephs was an objective and truthful witness, and I prefer his evidence to that of the applicant in any area of dispute in the evidence.
11. The applicant, who is 72 years of age and was born in Scotland, became a merchant seaman in the UK in 1947, at the age of 16. He trained as a radio officer. He was not employed by the shipping company, Shaw Saville Line, but by Marconi (the Company). He was paid by the Company, and assigned by the Company to perform radio officer duties on passenger ships, cargo ships and oil rigs. He said in evidence that in 1948 the Company had a contract with the British War Office, and he performed his duties aboard three ships over a two year period, until 1950, ferrying troops and equipment to Malaya and the Yemen, during the emergencies.
12. The applicant said in evidence that on one occasion the ship berthed at Penang, the crew went ashore, and two of the deck trainee cadets were shot by terrorists. One of the cadets died, and the other was seriously injured. He said that when the ship berthed at Singapore, there were terrorists around, trying to attack ships; he saw armed British troops who were protecting the wharves, and he heard gun fire at the back of the storage sheds. He said that he did not regard these incidents as a threat to his life, because he was young. He cannot remember being upset by these incidents.
13. The applicant said in evidence that in 1954, he commenced a 15 month Radio Operator Certificate Course, which he completed in 1955, when he was nearly 24 years of age. He continued to work for the Company on various vessels that travelled to Penang, Port Swettenham and Borneo. He visited Australia, and decided to seek employment with Amalgamated Wireless Australasia (AWA). He settled in Australia in 1961. In 1971 he married a lady who worked for AWA also, and continued with AWA until 1992, when, at the age of 62, he and some other radio officers were retrenched. He worked then, for the next 3 years as a car park attendant, until he turned 65.
14. The Jeparit, a 6,341 ton Australian National Line coastal cargo ship, was chartered by the Department of Shipping and Transport on 9 June 1966, on behalf of the Department of the Army, to convey equipment and supplies to Vietnam for the use of the first two Australian Army Battalions. The Jeparit soon became known to Australian troops as “the big J”, and the passage of time to her arrival, with welcome supplies (especially Australian beer) was marked by “J-days”. “Military supplies and civil aid cargoes carried to South Vietnam in the Jeparit’s forty-three voyages totalled 173,820 tons” [Exhibit A3]. On 10 December 1969, due to the refusal of Sydney waterside workers to work the ship, the Minister for Labour and National Service announced that the Jeparit would be commissioned into the Royal Australian Navy (the Navy), and would be loaded and unloaded by service personnel. The Navy detachment remained on board, with the civilian crew of 19 officers and men electing to remain also. The Jeparit was paid off in Sydney on 15 March 1972, 4 days after the cessation of the applicant’s operational service.
15. The Jeparit was allotted for service in Vietnam from 10 January 1972 until 11 March 1972. The applicant said in evidence that he was called urgently by AWA to join the Jeparit, as the previous radio officer had taken ill. He flew to Cairns on 14 January 1972, and joined the ship on its voyage to Singapore, and then on its last voyage to Vietnam. The Australians were coming home, and it loaded cargo for return to Australia over a 1½ day period, from 3 to 5 February 1972. The applicant was 40 years of age at that time, and had been a merchant seaman for 24 years.
16. The Record of Proceedings of the Jeparit for the relevant period reads as follows:
“…
All Times Zone – 8 hours
12. With favourable weather and a clean bottom, Jeparit made good speed, arriving in the War Zone at 1500, 2nd. February; and was secured alongside DeLong Pier, Vung Tau at 1818 the following day.
13. Cargo operations commenced at 1930, and were continued until 1150 tons of cargo had been loaded, at 1950, 5th. February. At 0724, 6th; Jeparit cast off and proceeded to B16 Anchorage to lash cargo and prepare for sea. Whilst lashing cargo, 3 boxes of anti-personnel grenades (each containing 20) were found to be left on board the vessel by the Australian Army, and were taken into immediate custody. These anti-personnel grenades are used, by the Australian Army, at Vung Tau to deter any enemy under-water swimmers from mining the ship whilst she is alongside DeLong Pier. The anchor was weighed at 1157 and the ship proceeded for Singapore and Penang. The above grenades were individually ditched by CPOWM R.S. Brett about 20 miles off the Vietnam Coast. All the grenades were seen to sink.
14. At 1130, 7th February; Jeparit cleared the War Zone.
…” [Exhibit R1, Attachment 1]
17. On 3 August 2000, the applicant, with the assistance of Mr Coxon of the Vietnam Veterans’ Association, lodged a claim for Disability Pension in respect of the conditions. He stated that he first became aware of the symptoms of PTSD in 1994. He requested to be assessed by Dr Ewer. On 22 December 2000 Dr Ewer reported to the Department of Veterans’ Affairs, in part, as follows:
“…
Mr. Barrett was exposed to a number of stressful experiences during his active service. The experiences Mr. Barrett spoke to me about were:
1. Mr. Barrett told me that the Jeparit was in Vung Tau Harbour when the enemy started using rocket launchers. The enemy were only 200 metres away from the Jeparit. They were aiming for the airfield which was beyond the Jeparit but the rockets flew directly over the Jeparit. There was also an American tanker nearby. Mr Barrett said “the rockets flew right over the top of us. The enemy didn’t seem to mind whether they hit the airfield, the tanker or us”. Mr. Barrett told me that he could cope with his stress when he was above deck and he could see where the rockets were going. However he told me that it was a terribly frightening experience being in the radio room and hearing explosions nearby. Mr. Barrett said “I couldn’t tell if the rocket hit us or something else”. Mr. Barrett felt frightened and helpless. He told me the situation was made worse by the fact that he was concentrating on what was on the radio and he would then be distracted by a loud explosion. Mr. Barrett felt intensely frightened. The rockets were often exploding only 300 yards away from the Jeparit.
2. Mr. Barrett told me that it was common practice to drop hand grenades over the side of the ship to deter swimmers. Mr. Barrett told me that a sailor pulled the pin on a hand grenade and was then distracted. At the last minute he threw the hand grenade but it exploded above the waterline. Mr. Barrett was nearby and he felt intensely frightened.
…
PAST PSYCHIATRIC HISTORY
Mr. Barrett smoked twenty cigarettes a day prior to going to Vietnam. Whilst in Vietnam he smoked sixty cigarettes a day. He continued to smoke upon returning to Australia.
Mr Barrett described himself as a “social drinker” prior to going to Vietnam. Upon closer enquiry it would seem that he drank in moderation prior to going to Vietnam. Whilst in Vietnam he regularly drank six stubbies of beer a day as well as three glasses of Scotch. Mr. Barrett’s alcohol abuse continued to escalate after his trip to Vietnam and he was regularly drinking two to three bottles of Scotch a week. Over the years his alcohol abuse has been complicated by falls and vomiting.
…” [T8/40-41]
18. Dr Ewer reviewed the applicant, prior to the VRB Hearing, at the request of Mr Coxon. He reported on 13 July 2001, in part, as follows:
“…
I asked Mr. Barrett to tell me more detail about the stressors he was subjected to in Vietnam. He told me the first stressor occurred in February 1972. This is stressor number 1 referred to in my previous report. Mr. Barrett told me the enemy fired rockets towards the Jeparit on two occasions. One occasion was at dusk and the other was at approximately 10.00 p.m. Mr Barrett explained the Viet Cong had rocket launchers on a nearby delta and mud flap. He once again told me that the enemy were aiming rockets at the nearby airstrip. He told me that the rockets went over the bow of the Jeparit. He once again told me there were two American tankers nearby and he explained these vessels were being used as an emergency power supply for the nearby airbase. He stated that American helicopters fired upon the enemy with 50 caliber [sic] machine guns. Mr. Barrett reiterated that he experienced fear and feelings of helplessness during these traumas.
Mr. Barrett told me again of the incident involving a hand grenade. I asked Mr. Barrett further detail about the hand grenade and he told me the hand grenade had been modified specifically for the purpose of dropping overboard into the water to deter enemy divers. He told me the hand grenade was quite capable of wounding people within some metres of it. He once again told me that a fellow sailor was distracted and that the hand grenade exploded above the water. This caused him to feel intensely frightened.
Mr. Barrett told me there is some dispute between himself and the Department of Veteran[s’] Affairs as to whether the stressors occurred as Mr. Barrett has described them. He once again asserted that they did occur and he told me that he would have no hesitation in approaching another sailor on the Jeparit to acquire a Statutory Declaration stating the stressors occurred as described. I also note there was consistency between the history regarding the stressors given to me by Mr. Barrett at his first interview and at the second.
Mr. Barrett once again reiterated that he abused alcohol after the stressors to help him cope. He once again reiterated that he was significantly changed when he returned to Australia.
…” [T14/71]
19. Dr Ewer reviewed the applicant again, at the request of the applicant’s solicitors, and reported on 24 October 2002, in part, as follows:
“…
7. SUBSEQUENT HISTORY
I obtained the following history when I most recently reviewed Mr. Barrett.
7.1I note you are particularly interested in the incident which took place involving the rockets in Vung Tau Harbour. Mr. Barrett told me that this occurred in early 1972 during his trip to Vietnam aboard the Jeparit. Mr. Barrett told me the Jeparit berthed in Vung Tau Harbour approximately 150 metres away from two American ships which were supplying power to the nearby airfield. Mr. Barrett told me there were mudflats approximately three kilometres from the Jeparit. Mr. Barrett told me Viet Cong soldiers regularly fired rockets from the mudflats attempting to hit the airfield. In order to get to the airfield the rockets had to go over the top of the Jeparit. Mr. Barrett told me that one rocket landed as near as 200 metres away from the Jeparit. Mr. Barrett told me that he saw a number of explosions caused by rockets landing.
7.2Mr. Barrett told me about his first night in Vung Tau Harbour. Mr. Barrett and other sailors went ashore to an Army camp. There as a red alert and therefore Mr. Barrett had to return to the ship. Whilst Mr. Barrett was at the Army camp he was told that the Viet Cong were aiming rockets towards the airport in an attempt to hit either the airfield or the ships supplying power to the airfield. This caused Mr. Barrett considerable anxiety and concern as the Jeparit was only 150 metres away from the ships supplying power. As a result of the red alert Mr. Barrett returned to the Jeparit and he went directly to the radio room. In that position he was able to hear explosions caused by the rockets landing nearby. He said that he was “terribly frightened”. His particular fear was that rockets would fall short and hit the Jeparit. Mr. Barrett recalls being so frightened that his heart was racing and that he was sweating profusely. Mr. Barrett felt particularly helpless hearing explosions whilst being in the radio room. He felt there was nothing he could do and that he had no sense of control and was not able to observe what was occurring.
7.3Mr. Barrett told me that he was aware of emotional and psychological distress on his way back to Australia from Vietnam.
7.4Mr. Barrett recalls that he started drinking alcohol in increased quantities on the ship on the way back from Vietnam. In particular he recalls starting to drink spirits.
…
7.8Mr. Barrett currently consumes one or more bottles of spirits per week. He often consumes one bottle of spirits over a two day period. This leads to conflict with his wife and he avoid social activities when he has been drinking. He seemed aware this level of alcohol intake may adversely affect his health.
…” [Exhibit A2]
20. The applicant outlined the details of the “grenade incident” in his statement dated 26 January 2004, in the following terms:
“When we were in the Vung Tau harbour, the ships were cleared of mines by clearance divers on a regular basis and then in between the clearance divers, hand grenades were thrown over constantly. I recall one occasion when we were standing on deck and a chap pulled the pin to throw the hand grenade but someone talked to him and instead of throwing it he must of lost track of what he was doing and held onto it too long and only threw it at the last minute. The hand grenade exploded above the water. It actually seemed funny at the time although it could have been quite dangerous.” [Exhibit A1]
21. The applicant had at all times prior to the Hearing of this matter, maintained that the “grenade incident” was a severe stressor; but at the commencement of the Hearing, his counsel informed me that the applicant no longer maintained that the “grenade incident” constituted a “severe stressor” for the purposes of the legislation. He relied only on the alleged “rocket incident”.
the rocket incident
22. The applicant said in evidence that the Jeparit was moored alongside the DeLong Pier. A couple of war ships were anchored on the other side of the wharf, and an American oil tanker provided power to the airfield and installations ashore. He said that on the first evening, 3 February 1972, the Captain and some others were invited ashore to the Australian Army camp. They were presented with a memorial plaque, and there was a performance by the entertainment troop. They were informed that there was a “red alert”. An attack was imminent, and they were to return to the ship immediately. Their truck was preceded by an armed personnel carrier, with another at the rear. The applicant said that he returned to duty in the radio room of the Jeparit, and that at about 10.00 pm there was a louder than usual explosion which frightened him; and when he came off duty some 15 minutes later, one of the deck officers said that a rocket had landed to the land side of the wharf. Helicopters were flying overhead on the sea side, and he saw gun flashes as they fired at the mud flats 5 kilometres away. He was scared that the enemy was trying to hit the oil tanker, or the airfield. He said that they talked about what had been going on, and decided that they had been lucky not to be hit. He said in the course of cross-examination however, that when he told Dr Ewer that the enemy started using rocket launchers, and were only 200 metres away, and that he actually saw rockets exploding, and landing 300 yards away, he was not telling the truth. He said that in fact, there was only one rocket, which he did not see himself, nor did he see where it landed.
23. The applicant said in evidence that he did not tell Dr Ewer of the visit to the Army Headquarters, and the “red alert” until his third interview, in October 2002, nearly 2 years after the first interview in December 2000; nor did he tell Dr Ewer about a second visit to the Army camp on 5 February 1972, the night before the Jeparit sailed. He gave no explanation for these omissions. The applicant gave evidence that on this second occasion he was again with the Captain, another plaque was presented, and again a “red alert” was called at about 10.00-10.30pm. As they were being escorted back to the Jeparit by armed personnel, he saw the glare of an explosion, which he thought had come from the direction of the airport. Helicopter gunships passed over the Jeparit, and again fired at the mud flats. He says that he was frightened. He did not tell the VRB about either visit to the Army camp, nor about the two alleged “red alert” incidents.
24. Captain Josephs reported on 4 June 2003 [Exhibit R1] that the departure from Vung Tau of 4RAR and RAAF helicopters in HMAS Sydney on 9 December 1971 marked the end of major Australian involvement; and when on 29 February 1972 the Sydney embarked the remaining 457 miscellaneous troops, only a small number of soldiers remained, to maintain security at the Australian Embassy in Saigon, and to provide some training support to the South Vietnamese Army. Major US ground forces had also been withdrawn during 1971. When the Jeparit visited Vung Tau on her final voyage from 3 to 6 February 1972, control of the harbour, port and dockside facilities, the airfield and all other local functions had been transferred to Vietnamese functionaries.
25. Captain Josephs reported that Lieutenant Colonel Taylor, the Major OC of D Company 4RAR, which was the infantry security force detailed to protect Australian interests at Vung Tau until the final embarkation in Sydney on 29 February 1972, had no recollection of any enemy actions at Vung Tau during this period. Captain Daniel, the Commanding Officer of the Jeparit in February 1972 responded to some questions Captain Josephs put to him. His responses are recorded in the following terms:
“…
·The atmosphere in Vung Tau during the visit was calm, and there were no rocket attacks in the vicinity during the period 3-6 February 1972.
·He was not aware of any reports of the Viet Cong being only 200 metres from JEPARIT or of rockets exploding only 300 metres from the ship during the visit.
·Captain DANIEL confirmed that one evening a group of officers including himself went ashore to a nearby army unit for a social visit and presentation, and while they were at the unit he was informed that a rocket attack on Vung Tau might occur. He said that there was no “Red Alert” and the whole thing was very “low key”, but in case it became necessary for him to move the ship from De Long Pier to an anchor berth off shore he decided it would be prudent to get the group back on board and warm up the ship’s engines. This was an essential precaution if the ship had to be moved at short notice, but the necessity did not arise.
·Captain DANIEL also confirmed the grenade explosion described by Mr BARRETT. He explained that the Australian Army was responsible for the security of the ship while she was alongside in Vung Tau, and soldiers on security watch threw grenades into the water frequently day and night. He could not recall the exact date but one night there was a grenade explosion powerful enough to trip the electrical circuit breaker connected to the ship’s generator causing a power failure. The generator did not stop and power was quickly restored. He believed the grenade had exploded about half way from the upper deck to the water, and he was unable later to determine the cause. (The standard Army grenade incorporated a 4-seconds delay between release of the firing lever and detonation, and if properly deployed should not have detonated until well below the surface of the water). Captain DANIEL concluded that the most probable explanation was that someone had been “skylarking” with a grenade. He could not confirm that Mr BARRETT had been nearby when the explosion occurred.
…” [Exhibit R1]
26. Captain Josephs said in evidence that in relation to the alleged rocket incident, it was inconceivable, in his view, that personnel aboard the Jeparit would observe such actions, and the Captain of the ship be unaware of rocket attacks. I accept Captain Josephs’ evidence.
27. Dr Ewer said in evidence that on the assumption that the applicant’s history of the event was accurate, he considered the rocket incident a severe stressor, requiring a subjective reaction, which was much more than mere worry and concern. In my view, it is patently clear on the applicant’s own admissions in the course of his evidence, that the incident, as he described it to Dr Ewer, did not occur in the manner outlined by him. Having examined the whole of the evidence carefully and in detail, I am satisfied on the evidence, beyond reasonable doubt, that no such incident occurred in the manner alleged by the applicant.
28. There was another incident the applicant outlined in his Statement [Exhibit A1], and in his oral evidence, which he does not allege now was a “severe stressor”, but is included in these Reasons for Decision as an element of the history outlined by the applicant. He stated in paragraphs 34 and 35 of his Statement:
“34.I remember another incident where we dumped what I knew to be Agent Orange near the shore. This has always bothered me a lot since that time as I would have been worried about what effect it might have had on the local Vietnamese.
35.17 US 50 gallon drums of Agent Orange were loaded on the 4th of February 1973 and stowed on deck at the starboard break leading up to the poop deck. These drums contained concentrated TCDD (Dioxin) not the diluted stuff sprayed by aircraft and also by the Army tanker trucks around the camp. These same trucks delivered drinking water to the Jeparit to top up our fresh water drinking tanks on board. We stopped the ships some 20 miles off Vung Tau in approximate position 9.46N 106.35E and the captain came into the radio room and told me to go on the bridge and keep a radar watch and inform him if any ship or aircraft came towards the Jeparit. We then proceeded to dump the 17 drums of Agent Orange overboard and these were seen to sink.” [Exhibit A1]
29. Captain Josephs reported on 4 June 2003 that Captain Daniel denied that this alleged incident occurred. Captain Josephs’ report reads, in part, as follows:
“Captain DANIEL denied Mr BARRETT’s allegation that 17 US-50 gallon drums of Agent Orange were taken on board JEPARIT at Vung Tau and dumped in the sea 20 miles off the coast. He does not recall that any such cargo was loaded, and asserts that the only items dumped at sea were the Australian Army grenades which were mentioned in paragraph 13 of his ROP. He also denies that he ordered Mr BARRETT to go to the Bridge and keep a lookout for any ships or aircraft approaching JEPARIT while anything was being dumped.” [Exhibit R1]
30. Paragraph 13 of the Jeparit’s Report of Proceedings, referred to in paragraph 16 of these Reasons for Decision, refers to 3 boxes of anti-personnel grenades (each containing 20) being individually ditched about 20 miles off the Vietnam coast. I prefer the Navy’s Report of Proceedings to the applicant’s evidence in relation to this alleged incident.
31. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe stressor” during his operational service, and that Factor 5(a) of the Post-Traumatic Stress Disorder Statement of Principles is not satisfied; nor is Factor 5(b) of the Alcohol Abuse Statement of Principles. The applicant was not suffering from a service related psychiatric condition at the time of the clinical onset of alcohol abuse, and Factor 5(a) of the Alcohol Abuse Statement of Principles is not satisfied. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of post-traumatic stress disorder with alcohol abuse were war-caused.
32. For these reasons the Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 26/27 February 2004
Date of Decision 28 June 2004
Counsel for the Applicant Mr P Liptak
Solicitor for the Applicant Lempriere Abbott McLeod
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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