Bedson and Repatriation Commission
[2004] AATA 124
•10 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 124
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1295
VETERANS' APPEALS DIVISION ) Re FRANKLYN JOHN BEDSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Member Date10 February 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] Ms N Bell Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – Disability Pension – whether dysthymic disorder, depressive disorder and/or anxiety disorder are war-caused within the meaning of section 9 – whether veteran suffers from a condition – whether appropriate diagnosis – application of relevant Statement of Principles - whether applicant experienced severe psychosocial stressor during his operational service – standard of proof – whether reasonable hypothesis – clinical onset of condition – decision affirmed
Veterans’ Entitlements Act 1986 sections 6D, 9, 20, 119, 120 and 120A
Statement of Principles No. 58 of 1998 – Depressive Disorder
Statement of Principles No. 1 of 2000 – Anxiety Disorder
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200
Benjamin v Repatriation Commission [2001] FCA 1879
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
10 February 2004 Ms N Bell, Member 1. This is an application by Mr Franklyn Bedson for review of the decision of the Repatriation Commission that refused his claim for anxiety disorder and assessed the Disability Pension payable to the Applicant at 60 percent of the General Rate.. The decision was dated 27 February 2002. That decision was reviewed and affirmed by the Veterans' Review Board on 15 August 2002. The Applicant lodged an application for review with this Tribunal on 5 September 2002.
2. At the hearing before the Tribunal the Applicant was represented by Mr Brian Winship, solicitor and the Respondent was represented by Mr Stephen Modder. The Applicant gave oral evidence to the Tribunal as did Drs Dinnen and Haik, in a concurrent evidence session. The following documentary evidence was before the Tribunal :
Exhibit
Description
Date
TD1
T1-16, pp1-121
10/10/2002
A1
Applicant's Statement of Facts and Contentions
6/02/2003
A2
Report of Dr Dinnen
29/11/2002
A3
Sketch of the Applicant
Not dated
R1
Respondent's Statement of Facts and Contentions
28/03/2003
R2
Veterans' Review Board transcript
15/08/2002
R3
Clinical Notes of Dr Nabil Loutfy
Various
R4
Report of Dr Haik
23/01/2003
R5
Writeway report of Commodore Mulcare
12/01/2003
Issues and Legislation
3. A central issue in this application is the correct diagnosis of the Applicant’s condition. The Applicant asserts that he suffers from anxiety disorder and the Respondent asserts that the Applicant suffers from dysthymic disorder. There is also dispute as to whether the Applicant’s condition, however properly diagnosed, is war caused. The question of the date of clinical onset of the Applicant’s psychiatric condition is a feature of this issue. There is also dispute as to whether both of the relevant incidents of stress complained of by the Applicant are within a period or periods of operational service.
4. The relevant legislation in this application is the Veterans’ Entitlement Act 1986 (“the Act”) and in particular sections 6D, 9, 20, 119, 120 and 120A. The Statements of Principles (“SoP’s”) relevant to this application are Instruments Nos 58 of 1998, concerning depressive disorder and 1 of 2000 concerning generalised anxiety disorder.
applicant's evidence
5. The Applicant described to the Tribunal his childhood in England during WW2. He said that he experienced air-raids, bombing and devastation. He became accustomed to planes in bombed out buildings and spent nights in air-raids shelters, usually holes in the ground with people in the neighbourhood packed in together.. He said that he observed three or four different people, having hanged themselves from rafters of destroyed buildings. He said that his father was away at war and his mother worked very long hours at the local Michelin tyre factory. He was effectively brought up by his grandmother.
6. The Applicant was reunited with his parents together when he was eight or nine and the family came to Australia in 1951 when the Applicant was 14 or 15 years old. He was happy to be migrating to Australia and looked forward to a new start.
7. The Applicant described a number of failed apprenticeships and described himself, as a youth, as being always agitated, always nervous and worried about everything. He said he thought, usually, that someone was trying to get at him. He noted, however, that he was a good sleeper until he began smoking and drinking in the Navy.
8. At his father's instigation, the Applicant joined the Navy as a boy musician at the age of 16, learning saxophone and violin. When he turned 18 he changed to engineering and cannot recall why he made this choice.
9. The Applicant said his first draft was the HMAS Vengeance, a ship on loan to Australia from the British Navy. Although he was not aware of it at the time, he now knows that on this ship he went to Korea. He said the Vengeance was taken back to England and decommissioned and then in October 1955 HMAS Melbourne was commissioned and taken back to Australia through the Suez Canal. The Applicant said that he remained on the Melbourne until 4 September 1957.
10. The Applicant described his service in Malaya from 21 to 28 September 1956 doing warm up exercises.
11. Prior to this, on 9 September 1956 the HMAS Melbourne was 23 miles from Cape Morton heading for Malaya. He said that on that day the first plane off deck was a Sea Venom and the crew went on deck to watch its launch by catapult. The Applicant said that he was a member of the deck crew responsible for the operation of the arrestor wires for planes. The Applicant said that after becoming airborne the Sea Venom dipped and rolled to one side and hit the water.
12. The Applicant explained to the Tribunal, by reference to a sketch made by him (Exhibit A3) the position on deck of the sponson from which the arrestor wires were operated. He explained that as no plane was yet in the air he was not inside the sponson at the time the Sea Venom hit the water. He explained that his job was to "catch the planes" as they came into land. He said some 8 to 10 planes landed per day and some landed at night. He described that as a very responsible job which he took very seriously and noted that there was always a danger that a plane would slip and hit the sponson. He described the escape hatch straddled by him to be jumped into in such an instance and explained that on one occasion he had to jump down the escape hatch to avoid an incoming plane.
13. The Applicant said that when he saw the plane go into the sea his stomach turned and he was very upset and sickened. He said that two people were in the plane and he felt helpless, insignificant and unable to do anything in the face of two people dying. The Applicant said that he did not know the pilots' names but knew them as pilots and used to play basketball with them on board. He described the funeral service that was held in which two wooden crosses were cast into the water.
14. The Applicant said that the Melbourne proceeded north for operational service in the Malayan emergency and joined the Far East Strategic Reserve from 29 September 1956 to 1 October 1956. From 2 October 1956 to 12 October 1956 the HMAS Melbourne was in Malaya again.
15. On 12 October 1956 the HMAS Melbourne entered Hong Kong Harbour and the Applicant went ashore that morning at about 9 or 10 AM. He said that he was walking with a fellow sailor sight seeing when a black American soldier ran past him and knocked him and jumped on a tram. He said he was followed by two American Military Police who got on either end of the tram and then shot the soldier and dragged him off "like a piece of meat".
16. The Applicant said that he was horrified and sickened by this incident. He said he never told anyone about it for years and that he has dreams and nightmares about it.
17. He said that usually when onshore he would have a few beers but after this incident he and his fellow got very drunk over the rest of the day and night and when they arrived back on the HMAS Melbourne they were very drunk indeed.
18. The Applicant said that the HMAS Melbourne then went to either Manilla or Singapore and then returned to Australia.
19. The Applicant said when he returned to Australia he was never the same again. He said he felt different as his life didn't mean anything any more, and wasn't worth much. He said that he drank more, that his attitude to life and people changed and that he didn't care.
20. The Applicant said that he was married in 1958 and had a normal relationship with some domestic arguments and that they drifted apart. The Applicant described himself as having always been a loner.
21. In answer to some questions from the Tribunal, the Applicant said that as a young man he thought that everyone was stupid and the way they thought to do things was wrong or stupid. He said that he did not get angry with people but went inside himself instead. He described himself as a person who worried about everything. When asked to describe his nightmares the Applicant described a dream in which he is either falling and wakes just in time or he is being kept in a confined space. With the both types of nightmares he wakes up startled. He described himself as not being cranky but being more inclined to just walk away from a conflict.
22. In cross-examination the Applicant agreed that alcohol was part of Navy culture and noted that sailors received a free bottle of beer every night. He also noted that everyone smoked. He said that he would look forward to going onshore.
23. The Applicant noted that he did not drink or smoke before he joined the Navy, being only 16 and that he was not allowed to drink or smoke as a boy musician. He described his time after he left HMAS Melbourne as being boring and that all there was to do was drink.
24. The Applicant said that the first time he mentioned his symptoms to anyone was to Dr Loutfy in 2001. He said he first received medication for his psychiatric problems from Dr Koller in August 2001. He said that Dr Koller took a full history from him but did not ask him many questions. He said that he did not tell Dr Koller about the American soldier because he had never told anyone about that.
25. The Applicant said that his drinking has remained the same over many years and that when he referred, in discussion with Dr Koller to drinking "a few beers" he meant about eight to ten schooners.
26. The Applicant said that his first marriage stayed together for security reasons but he was not very dependent on his first wife. He described himself as dependant on his current partner, with whom he said he enjoys a platonic but very pleasant relationship.
27. The Applicant noted that when he was diagnosed with prostate cancer his reaction was one of panic. He said that he has never been the same since his radiotherapy and described some consequences of that therapy including a profound effect on his sexuality.
28. The Applicant said that he often feels depressed, that he over eats and over drinks, has problems sleeping and has fatigue. He said he has an average to high self esteem, has difficulty concentrating for long, feels hopeless, doesn't want to be involved in decision making and rather than getting cranky will walk away from a conflict instead.
29. The Applicant said that he has been treated with the medication Prothiadon and claims not to have had much benefit from this medication. The Applicant added that he suffers from muscle tension and cramps in his legs.
30. When asked why he did not seek treatment in the Navy he said it was because it is not the done thing and one would be seen as weak.
medical evidence
31. The report of Dr Anthony Dinnen, Consultant Psychiatrist, dated 29 November 2002 details the Applicant's interview with Dr Dinnen and the opinions and conclusions reached by Dr Koller:
"…
Indeed, it took considerable discussion for some of the more relevant information to come to light during the interview. The most important aspect of this difficulty seemed to be the patient's feeling that he would rather not have to talk about any of these matters. He considers that it is all behind him and no good will be served by bringing it all back to his mind. When talking about the loss of the aeroplane for example, he initially was quite comfortable and detached, talking about the matter in a general way. He said he had been confused when he first saw Dr Koller. Towards the end of the interview, when I had asked him for some more specific information, he became objectively more unsettled and apprehensive. Throughout the interview he appeared to be tense, and his calm appearance belied the symptoms of chronic anxiety which he described.
He told me he had seen Dr Koller for about twelve months. He has seen him every three months, and is taking Prothiaden. He observed that Dr Koller said that this would help him to feel better and help him to sleep, but so far it has done nothing to help him. Nothing has changed. He will be discussing this when he next sees Dr Koller, he told me.
The patient commenced the interview by talking about the incident on the flight deck of HMAS Melbourne. Later in the interview I obtained a great deal more information about his activities in the Navy, and that helped to put these matters in context. He was obviously preoccupied with the need to tell me about these events, because when I explained at the beginning of the consultation that I wanted to know what was wrong with him and what he thought had caused it, he immediately told me about these events. After telling me about the plane, he mentioned two incidents in Hong Kong. He concluded that "it's plagued me ever since". He said as a result he "hit the bottle" and it has all been down hill since then.
Symptoms: He told me he doesn't sleep. He has hot flushes. He has nightmares. He is always thinking something bad is going to happen to him, He doesn't know what it is but that feeling is constant. His marriage broke up five years ago after 38 years, because he was drinking so much. He told me he feels worn out, weary, too tired for anything.
The patient said that he had had six beers the day before, and had drunk less than usual because it was a hot day and he had stayed inside with the air conditioning on. They were crown lagers, the best. He also had a bottle of wine with dinner. Through the years he has drunk steadily, at least 10 schooners of beer daily.
…"
32. Dr Dinnen set out the Applicant's description of his experiences on the HMAS Melbourne:
"…
Traumatic experiences on HMAS Melbourne: The patient emphasised that he cannot be certain of the time sequence of events. He said that he remembers vividly the loss of the aeroplane. He had thought it had crashed on take off, from the flight deck, but on further reflection he is certain it happened when the aircraft was launched from the catapult. (They were apparently on exercise, preparatory to going on operational duty. According to the documents this incident occurred off the Australian coast.)
The patient said that there was always a plane ready to be launched from the catapult at any time. This was the case throughout his two years on the Melbourne. He could not recall whether the airmen were sitting there ready to be launched or not, but the plane was always prepared for launch.
The event that he recalls is that the aircraft, a Sea Venom, was taking off from the aircraft carrier when it lost power and went into the ocean. The Melbourne was steaming at 18 knots, at the time. The patient said everyone who was there from the flight deck crew, which comprised in total 30 to 40 men, would have seen the plane crash. It was a terrible experience, "to see the man die". There were two pilots, and he could not tell me whether or not they would have been able to escape. He thought that they may have been bolted in to the aircraft and had no idea, when I asked him, if they could have released the canopy. In any event, "the ship went over the top of him". I asked if they stopped the ship and he replied that it was not an easy thing to stop such a large vessel at that speed, and it normally took 5 miles to do so. When they got back to the site of the crash there was nothing to be found. They sent boats to search, but could find nothing except perhaps a few bits and pieces.
He said that subsequent to this incident there were two events which occurred in Hong Kong. That was the first time that they were on operational service.
They were warned about the civil unrest in Kowloon. He was walking along the street. A Negro was running along, passed him and jumped on a tram. Two white American military Policemen chased him, got on the tram "and shot him dead in front of us". The patient said it was the most shocking thing he has ever seen in his life. He had no idea that the whites could do that to the blacks in America.
On the same visit, on the last day they were in port, he was coming back to ship when he heard gunfire. "Someone said, hit the deck. I was trying to hide".
I asked if he recalled any other incidents. He said on one occasion they lost a helicopter. He was with the flight deck crew and saw the aircraft hovering off the starboard quarter. He believes on this occasion the pilots got out, but "they never tell you".
I asked if he knew the names of the pilots who had died in the Sea Venom, He said that they knew all the pilots because they played volleyball in the hangers with them. However they didn't know their names and "they probably didn't want to know ours".
Emotional response during service: He said he has always been a "worrier". I asked him if he would describe this as being "highly strung", and he was adamant that that was an excellent description. "That's the word". He said that this got worse after he was those things in Hong Kong. He could never report the way he felt to a doctor as that wasn't done.
He said he would worry about the risk of the aircraft missing a launching.
I asked how much he drank during the time he was in the Navy. He said he would drink the two bottles of beer that were issued to him on board ship, and would drink a lot more heavily when he was ashore. However it seems he was not in trouble because of his drinking.
The patient said that after the incident in Hong Kong he changed in his attitude. "I thought, what is the use?" He said that was a part of life he had never seen. He had never seen cold blooded murder. He had seen death during the war. He recalled the people who lost their houses would hang themselves, and he had seen that.
Duties on HMAS Melbourne: I asked him to describe in more detail the nature of his duties on the Melbourne. Quite a deal of specific questioning was required to ascertain this material. He said the planes that they had on the Melbourne were Sea Venoms and Gannets. "My job was to catch them".
He said he was in charge of the arrestor wires. There were ten of them and they had to be reset after each plane landed, to be ready for the next plane. Planes would generally fly eight or ten at a time, and would land several minutes apart from each other. He would watch the plane landing, and it was expected that it would catch on to at least one of the arrestor wires, which would then enable it to land safely. "Whenever a plane was in the air, I was there."
If a plane missed the arrestor wire a flare would go up that would warn the pilot and the pilot would then be able to use the angle deck of the carrier to gun his engines and abort the landing and take off. He said that happened a number of times, but he could not recall how many times. It had never occurred that such a missed landing ended in the plane landing in the sea, so far as he could recall.
He said the whole process was "touch and go". He had no idea how the flare would be let off if the landing failed, and thought it may have even been done automatically. He was one of perhaps four or so men who would do this work, but only one would be on duty at a time.
He commented that it was a reasonably dangerous job. I asked what he meant by that. He explained that he would stand on the flight deck with his legs astride an open hatch. The hatch below him had a wire chute which enabled him to go 10ft below to the next deck. He said he was to jump in that hatch if a plane did not catch on the arrestor wire properly and "screwed". He said there was one occasion when it was coming towards him on the sponson, and he jumped in the hatch. He did that by closing his feet together. The propeller was still spinning when he did so. Later on the others joked that it was a good thing that he did what he did, otherwise it would have hit him.
His other duties included engine room duties, operating the laundry and boiler room duties…."
33. Dr Dinnen then gave his opinion and conclusion:
"…
Opinion: The patient gave a history of long standing anxiety symptoms. He was frank and genuine. His childhood experiences during the second war and the difficulty he had in settling down to employment before his father arranged for him to enter the Navy indicate a degree of nervousness prior to service. There is no doubt that he settled well into the Navy but was not encouraged to continue with that as a career. His competence and his ability to acquit himself well in situations is obvious from both his service and post service employment record.
It is essential, in any psychiatric assessment, to determine whether or not the patient's character is flawed, whether he is a truthful witness, whether his understanding of the nature of his symptoms and the causation is reasonable, and whether his account provides sufficient detail to warrant a psychiatric diagnosis. Life events and/or genetic predisposition have to be considered as causative factors.
Accordingly, it is my view that this man is a genuine witness, and that he gave a truthful account. I am not bothered by the difficulties in remembering detail which have emerged, as to whether or not the plane lost at sea came off the catapult or the flight deck. Now when his mind is directed towards it, he is certain that the historical record which has been shown to him is the correct one. What he remembers, quite simply, is the sight of the plane in the water, the ship going ahead, the return to the scene of the accident and the failure to retrieve any survivors.
Events need to be taken in context. This man's context was that he spent many months witnessing planes landing on the flight deck of the Melbourne, at close quarters, as the person in charge of the arrestor wires. The fearful spectacle of planes crashing into the sea, on landing or takeoff, would therefore be constantly in the fore front of his mind. The heightened anxiety which he reports as having been present from those times indicates the heightened vigilance which was required to do his job. The almost off hand manner in which he described the existence of the escape hatch, and the way that he had to use it, given his phlegmatic character and approach should not mislead as to the psychological impact.
The patient himself said that the incident in Hong Kong, when the American black was shot dead in front of him was the most horrific experience in his life. Coming as it did subsequent to the loss of the plane, and occurring in the context of his ongoing duties on the flight deck of the Melbourne it triggered an anxiety disorder of clinical proportion from that time onwards. His chronic excessive use of alcohol through the years has apparently been without any major problem, presumably because of his constitution and tolerance for alcohol, but obviously is of assistance to someone with a chronic anxiety state.
Conclusion: You asked me to address two matters. The nature of the "pschosocial stressor" and the nature of "the onset" of the patient's condition. I am satisfied that both matters should be decided in the veteran's favour. He may well be regarded as having had a predisposition to an anxiety disorder because of his childhood in the United Kingdom, during the war. The clinical onset of anxiety disorder can only be defined in terms of the patient's awareness of his own's subjective feelings of anxiety, and he dates this back to his service, according to the history provided in this report.
Alternatively, if one is to rely on the definition which you quoted, and which is quoted by the Veterans' Review Board, that "clinical onset in its ordinary English usage means the first time the patient (veteran) notices anything to do with the actual disease" he could be regarded as having a preexisting anxiety state when he entered the Navy. This was aggravated by the psychosocial stressors which occurred before operational service (on the balance of probabilities) and during operational service. In addition I would emphasize that the nature of his duties on the flight deck of the Melbourne were such as to heighten his sense of apprehension and anxiety setting a stage for a life long pattern of anxiety disorder, modified by chronic excessive use of alcohol."
34. Dr Robert Haik, Psychiatrist, in his report dated 23 January 2003, set out, as described to him by the Applicant, the stressors experienced by the Applicant in the Navy and their effect on him:
"…
In 1956, while working on deck of HMAS MELBOURNE setting arrester wires to stop planes overshooting the runway, Mr Bedson watched a plane, a Sea Venom, catapulted off the deck. He recalled the plane dipped, turned right and crashed into the sea. After some calculation he determined that the plane may have hit the water some 150 metres in front of the ship and that the ship sailed right over the place where the plane had hit the water. He said it took the ship some 5 miles to stop. About 4 miles out, boats were dropped and returned to the crash site after some 15 minutes but no survivors were found. He also recalled that the helicopter, which was always in the air when planes were taking off or landing, could find no evidence of the crashed plane or the airmen. At a burial ceremony later in the day, attended by the ship's complement, two coffins were dropped overboard when the search proved futile. He said the experience was emotionally upsetting.
Mr Bedson remarked, rather vaguely, that this plane crash was the beginning of his habit of excessive drinking and he explained that while on board the sailors were allowed one bottle of beer a day. Mr Bedson compared the loss of life of those airmen as being different to seeing the dead bodies from the bombing whilst a child in England. When asked in which way his drinking increased following the crash, Mr Bedson simply said 'When you went on shore you were on a binge'.
He said that sometime in 1956 he was allowed shore leave in Hong Kong on the day of the ship's arrival at a time when there was civil unrest on the mainland. He was told to remain away from certain areas on shore because of the unrest. He went ashore with the other stoker on the footpath. He recalled 'An American Negro ran past me and jumped on a tram and 2 white American MPs got on the tram at either end and one of them shot him. I heard one shot. He recalled that the victim and pursuers were all dressed in white military uniforms. Mr Bedson calculated he was 6 or 7 metres away from the man who was shot. He said he saw the shot man drop and added: 'They dragged him off the tram. We took off. Wd didn't want to get involved in that. We took off to a bar, went for a drink. We didn't want to be witnesses, nothing. We had a bar crawl, about 10 bars'.
Mr Bedson said that he began drinking some time that afternoon after seeing the shooting and continued to drink until they returned to the ship 'early the next morning' - some 12 hours of drinking. He did not report the incident when he returned on board because he didn't want to get involved. He could not recall ever having contact with his fellow stoker after they left the in 1957. (There may have been 30 stokers on board.) He said he may have mentioned the event to some peers at the time.
2.4 Consequence of these traumatic experiences and psychiatric treatment
Mr Bedson said that as a result of these incidents 'I didn't care about anything in life anymore. You just went ashore, drinking, and go back to the ship and do your work. I get the nightmares now and then but I don't remember the dream. I didn't tell anybody about it (Hong Kong incident). It's my problem. You don't tell people about other people getting killed.'
He did not consult any doctors for any emotional consequence of either incident until seeing Dr Loller in 2001. He said he didn't mention the Hong Kong incident to Dr Koller on their first meeting because 'It had nothing to do with him.' He said he told Dr Koller about the Hong Kong incident on the second visit when recommended to do so by Mr Casey.
He has continued to consult Dr Loller since then and they meet each 3 months.
He said about one year ago Dr Koller prescribed the antidepressant, Prothiade 75 mb (a sedating antidepressant) and this was increased to 100 mg on the following visit. He claimed that the Prothiaden has not improved his emotional state or his insomnia. When asked, Mr Bedson said he remains depressed.
When asked in which way Dr Koller deals with or discusses the problem of the stressors, Mr Bedson replied that they haven't talked about it because it is Mr Bedson's problem and that 'It's up to Dr Koller why he didn't talk about it'.
…"
35. Dr Haik described the Applicant's current complaints as follows:
"…
When asked what now are the consequences of his stressful experiences in the navy Mr Bedson replied:
· Ruminations about his life experience: 'I drink a fair bit. It seems to dull it all - always thinking about life itself. It's easier not thinking. I think my life's been a shambles, the whole lot. I don't know why I went to stokers compared to being a musician. I've always done the wrong thing. They would take me back [as a musician]. In retrospect I should never have got married. I had some good jobs and I threw them in - the water treatment job. The grass always looks greener'.
· Used alcohol excessively: although he was vague as to when his alcohol intake increase significantly, he simply suggested it was after 1956. He said that since then and until the present he drinks between 8 and 10 bottles of beer (mostly Crown Lager) each day. He said the volume of alcohol has not increased over the years. He drinks this volume between 4PM and 7PM at home. He added that, with his de facto, he drinks almost all of a bottle of wine with dinner as she only drinks one glass. He said he is in bed by 7:30PM every night. He then proffered 'I'd better not tell you what I drank recently'. Without prompting, he gratuitously explained that with his de facto's brother, he himself drank 10 pints of Guinness. He told his de facto he was capable of driving and he drove them home, only 5 minutes away, without protestation from her. He said he has never been charged with DUI. He said his de facto has never complained about his drinking.
· He then listed a variety of physical ailments: prostate cancer, hot flushes from female hormones for the cancer, smoking till 1998 when he couldn't afford it, as well as being a loner since childhood.
· When asked specifically about what emotional problems he has suffered as a result of the incidents of the plane crash and the shooting in Hong Kong, Mr Bedson simply replied 'I didn't want to get involved in all this. They're calling me a liar because I can't remember the right dates'. Again when pressed about consequences of those experiences, he replied that he has recurrent thoughts. When drawn on this, he said that he thinks about these events once a day, every day since 1956.. He calculated that the thought lasts about one minute. When asked what emotion is attached to the thoughts he replied 'It's not on'. When asked what he meant by this he replied that he is very upset by these thoughts but has never sought medical or psychiatric help because 'It's no-one's business'.
…"
36. Dr Haik formed the following impression and opinion of the Applicant:
"…
4.1 There are a number of contradictory issues in Mr Bedson's psychiatric assessment. He made it clear to Dr Dinnen and myself that he has had some type of nervous personality since childhood. To Dr Dinnen he was 'always nervous, even when they came out to Australia' (para 3.3). He told me he has been a loner since childhood (paras 2.2, 2.5). The semantics of the words nervous, worried, anxious or depressed abound in this assessment.
When he explained to the Veterans' Review Board about if and when he sought medical help for his stressful experiences in the navy, he said 'It's a thing when you are 20 you are stainless steel' (para 3.5). And when pressed by the Board about the onset of the 'anxiety condition', he explained to the Board 'So that an anxiety thing, it's built up over the years but you don't realise that you have got it until it, you know, things really start to fall apart' (para 3.5).
Thus Mr Bedson makes it clear that, from his perspective, life's experiences mount up and he only discovered he suffered from emotional symptoms when 'things really start to fall apart'. It is obvious that those things were the diagnosis of prostate cancer in the mid-1990s, its treatment with radiotherapy, the subsequent increase in PSA, and need for hormones, the prostatectomy for obstruction, and his wife's instruction to leave the house because of her discovery of 'the other woman' in about 1998.
Death wasn't new to Mr Bedson. He reported to Dr Dinnen that as a child during the war in England he had seen people who had hanged themselves when they lost their homes (para 3.3). To me he explained 'I'd seen dead bodies in bombing in England. As kids we'd take it as a joke.' (para 2.1).
Therefore, Mr Bedson made it clear he had been exposed to the trauma of death in childhood and not been particularly bothered by it. And despite being 'highly strun' since childhood (para 3.3), he admitted he dealt with the shipboard stresses because, when aged 20, he was as impervious as 'stainless steel'.
It might be reasonably argued that Mr Bedson's use of alcohol progressively increased over the years because of his miserable marriage. He and his wife slept in different rooms, had little in common and lived divergent lives. This marital disappointment was assuaged with alcohol. Yet, when Mr Bedson told Dr Koller in August 2001 'Now I only drink a few beers' (para 3.2) it would imply the good relationship with his new partner greatly reduced his use of alcohol. Unfortunately, Mr Bedson told me each day he drinks 8-10 beers and most of a bottle of wine (para 2.5). Yet, there is little reason for his claim of an alcohol increase in the last 16 months - unless he had a need to embellish for an ulterior motive.
4.2 Mr Bedson had made no complaint of any detrimental navy experience until a friend recommended he consulted the advocate, Mr Casey, in about 2000 (para 2.2). Until then, Mr Bedson had not consulted any doctor for psychiatric symptoms. He had worked assiduously since his navy discharge in 1960. In fact, in hindsight, he believed he was 'stupid' to have left the navy because 'When you think back then you had a good job, you were looked after' (para 2.1).
He claimed his first significant disappointment came when he was made redundant in 1998. He believed it was wrong for P&O to allegedly claim he was not sufficiently qualified for his job of 26 years. It was a bad year for him, 1998. Not only did he lose his job but his wife ordered him out of the house and she received the house and his redundancy pay-out in the property settlement. Simultaneously, he had prostate cancer and diabetes and trouble sleeping. It is not surprising that he developed an emotional reaction on top of whatever personality difficulties existed. In other words, it is plausible that Mr Bedson tolerated the disappointing nature of his marriage and used alcohol to allay his despondency but the events of the late 1990s overwhelmed him - hence the search for help.
4.3. He underwent a psychiatric assessment by Dr Koller in 2001 at the suggestion of his advocate because of a number of medical setbacks. Dr Koller attributed the breakdown of his first marriage to hi drinking and did not consider that Mr Bedson drank to cope with his unsatisfactory marriage.. Again, it is a concern that he told me he now uses alcohol to excess and that his partner never complains about it - even his drinking 10 pints of Guinness and then driving home (para 2.5.).
When Dr Koller enquired about his navy experiences, Mr Bedson only offered the trauma of the plane crash. The reasons for not mentioning the s0-called killing in Hong Kong are varied. He told me that he didn't mention it to Dr Koller because 'It had nothing to do with him [Dr Koller]' (para 2.4) and that Dr Koller 'didn't ask me if there was anything else'. Both of Mr Bedson's replies are obviously absurd in the context of the assessment. It was after the advocate prompted him that he then mentioned the Hong Kong incident to Dr Koller.
Mr Bedson's story about the alleged killing in Hong Kong is variously reported. In his reply to research on this matter, Commodore Mulcare mentioned that Mr Bedson observed the US serviceman was shot by Hong Kong Police (para 3.4) but one could not find the original reference to Hong Kong Police. In the VRB document it simply refers to 'police'. In both of these documents it is mentioned the US serviceman was waving a knife 'near' a Hong Kong tram. To Dr Dinnen and myself, the knife wasn't mentioned and the serviceman was said to have boarded a tram where he was shot. It is rather unusual that Mr Bedson's reports would differ so significantly.
4.4 Dr Koller considered that because Mr Bedson watched the plane crash into the water, he suffered from Generalised Anxiety Disorder. Dr Dinnen considered Mr Bedson's pre-naval anxiety state was 'aggravated' by psychosocial stressors in the navy.
However, one finds it difficult to attribute the plane crash to being a psychosocial stressor. Even though any loss of life is a tragic event, it was not personalised for Mr Bedson: the plane and pilots were never found, the ship's complement atended the burial service and Mr Bedson continued to work setting the arrester wires for any adverse emotional reaction and there is no material or objective evidence of any deterioration in his functionality in the navy because of it. Neither can it be shown that his drinking suddenly increased because of it (para 3.5). The crash is implausibly a psychosocial stressor.
The matter of the Hong Kong shooting is equally difficult to consider as a psychosocial stressor. Close attention to the research of the incident has revealed many issues that engender doubt including the unlikelihood that US navy personnel were in the Hong Kong area at the time and that the matter was not reported in the substantial newspaper over the subsequent days. More telling is the fact that Mr Bedson failed to report his upset about the event given Dr Dinnen's belief he was 'highly strung'. And if the event was as devastating as the plane crash, why would he not tell Dr Koller of the shooting even before he mentioned the matter of the plane crash. It seems improbable tof Mr Bedson to propose his secretiveness about the shooting with Dr Koller was because 'It had nothing to do with him' (para 2.4) and that he only mentioned it because he was prompted by his advocate.
It is very important to note that Mr Bedson had referred to 'nightmares' from these navy incidents but on close inquiry he admitted 'I get the nightmares now and then but I don't remember the dream' (para 2.4). He has never actually had 'dreams' of traumatic events and only presumes it must be these events because he wakes 'distressed'. And it is difficult to believe he recurrently thinks of these events every day since 1956 as he told me (para 2.5). And it is not surprising he sleeps poorly as he reported he goes to bed by 7:30PM, far too early for someone who rises at & AM (para 2.5).
Lastly, there is no evidence from his work history that his employment ability was ever impaired by his navy experience. After all, Mr Bedson said to me he rued the day he didn't re-enlist. And it was only after he suffered the series of misfortunes around the late 1990s that Mr Bedson sought professional help. This would support the notion that his navy experiences did not have an adverse influence upon his life.
4.5. Mr Bedson told Dr Dinnen that 'he was always nervous even when they came out to Australia'. He told me he has bee 'a loner' since childhood. He also explained that 'I think my life's been a shambles, the whole lot' (para 2.5) and that he ruminated about his marriage and jobs he should never have left. He reported to Dr Koller of poor sleep, worry, moodiness, poor memory and concentration.
Given these apparently long term gloomy declarations and his tolerance of a most unsatisfactory marriage, it is highly likely that Mr Bedson suffers from the DSM IV diagnosis of Dysthymic Disorder. This is defined as:
A. Depressed mood for most of the day, for more days than not for at least 2 years.
B. Presence, while depressed, of 2 or more of the following:
1. poor appetite or overeating
2. insomnia or hypersomina
3. low energy or fatigue
4. low self-esteem
5. poor concentration or difficulty making decisions
6. feelings of hopelessness
C. During the 2-year period of the disturbance, the person has never been without the symptoms in A or B for longer than 2 months at a time.
D. No Major Depressive Episode has been present during the first 2 years of the disturbance, and there has never been a manic or hypomanic episode, and the disturbance has not occurred in the course of a Chronic Psychotic Disorder, and the symptoms are not due to the direct physiological effect of a substance.
E. The symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
concurrent evidence session
37. In concurrent oral evidence before the Tribunal, Dr Dinnen and Dr Haik agreed that the Applicant suffered from a mild psychiatric condition prior to entering the Navy. Dr Dinnen considered that the Applicant suffered from Anxiety Disorder and Dr Haik considered that he suffered from Dysthymic Disorder. It was noted by both doctors that the Applicant is currently being treated with Prothiaden and they agreed that that medication is prescribed for both depression and anxiety.
38. Dr Dinnen considered the incident concerning the plane crash by reference to the particular context in which the crash took place, that is, with the Applicant being responsible at the time for the operation of the arrestor wires and his physical position on the deck as the plane was to land. He considered that the loss of the plane under those circumstances would have had greater impact on the Applicant than it would have had on someone else who wasn't involved in actually working with the planes when they were landing. Dr Dinnen also noted that the Applicant knew the pilots involved.
39. Dr Haik, on the other hand, considered that this incident had no measurable effect on the Applicant and was just one of a large number of adversities or negative instances in his life.
40. Dr Dinnen considered that the Applicant's failure to mention the incident was an extremely common response to a stressful experience. Dr Haik disagreed and noted that the Applicant had no difficulty discussing the incident with him at interview.
41. In relation to the second incident, concerning the shooting in Hong Kong, Dr Dinnen and Dr Haik agreed that the incident was a severe psychosocial stressor and both doctors agreed that the Applicant had experienced substantial distress. Dr Haik, however, questioned the duration of that distress. Both doctors agreed that it was reasonable for the Applicant to have had feelings of substantial distress.
42. Dr Dinnen was of the view that the Applicant may have coped better with the second incident had he not been through his earlier distressing experiences.
43. Dr Dinnen was of the view that the Applicant's symptoms of anxiety disorder of a more than mild nature had its clinical onset in the Hong Kong incident, that is, the second incident. Dr Haik was of the view that the Applicant's condition, diagnosed by him as dysthymic disorder, had its clinical onset at the time the Applicant first consulted a medical practitioner about his condition, that is, 30 May 2001.
Consideration
44. Section 5D of the Act provides:
“Injury/disease definitions
(1) In this Act, unless the contrary intention appears: blinded in an eye has the meaning given by subsection (3).
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);
45. Section 9(1) of the Act provides:
“Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
46. The first issue for the Tribunal to consider is whether the Applicant has a disease. The Federal Court has held that the questions of whether an applicant is suffering from a disease and the diagnosis of that disease are to be determined to the Commission’s or the Tribunal’s reasonable satisfaction, that is, in accordance with section 120(4) of the Act (Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307; Repatriation Commission v Budworth (2001) 116 FCR 200).
47. On the basis of the evidence of Drs Dinnen and Haik, the Tribunal is satisfied that the Applicant suffers from a psychiatric condition which, in accordance with section 5D of the Act, is a disease.
48. In considering the issue of diagnosis, the Tribunal also had regard to the decision of the Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879. In that decision Moore, Emmett and Allsop JJ held that the first question for the Tribunal is how to characterise the psychiatric problems exhibited by a veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, as it is in this case, the second question will be whether there is a SoP in force in respect of the disease. The diagnosis of that disease and the determination of whether or not there is a SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in section 120(4) of the Act. The Court also held that the characterisation of a disease, for the purposes of determining whether or not there is a SoP in force in respect of that kind of disease, is separate from the question of whether a claim relates to the operational service rendered by a veteran within section 120(1). The Court went on to say that if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Tribunal will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of section 120(1).
49. In considering the question of the characterisation of the condition claimed by the Applicant to be anxiety disorder, the Tribunal looked to the definition of that disease in SoP No. 1 of 2000 concerning anxiety disorder. In doing so the Tribunal had regard to the decision of the Federal Court in Repatriation Commission v Gosewinckel (supra) where Weinberg J said at 703:
“ It is clear that the AAT could not accept Dr Wahr’s opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP. As the Full Court held in Sheldon v Repatriation Commission (1999) 85 FCR 587 at [6] the SoP requires that the disease in question be ‘manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease.”
50. SoP No. 1 of 2000 sets out the following diagnostic criteria:
“generalised anxiety disorder” means a psychiatric disorder with the
following features:
A. Excessive anxiety and worry (apprehensive expectation), which
occur on more days than not for a continuous period of at least six
months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for
more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying
sleep; and
D. The focus of the anxiety and worry is not confined to features of
any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C.
above) cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological
effects of a substance or a general medical condition and do not
occur exclusively during a mood disorder, a psychotic disorder, or
a pervasive developmental disorder;”
51. The Applicant’s evidence was that he “worries about everything” and has muscle tension. He told Dr Dinnen that he doesn’t sleep, always thinks something bad is going to happen to him and that the feeling is constant. He also told Dr Dinnen that he feels worn out, weary and too tired for anything. On the basis of this evidence and of Dr Dinnen’s expert opinion, the Tribunal is satisfied that SoP 1 of 2000 applies to the kind of disease suffered by the Applicant.
52. SoP 58 of 1998 defines dysthymic disorder, in the context of depressive disorder, as:
“(b) For the purposes of this Statement of Principles, “depressive
disorder” is defined as:
(A) the presence of major depressive disorder, dysthymic
disorder or depression not otherwise specified where:
(i) major depressive disorder is either a single episode
or recurrent episode as defined in DSM-IV; and
(ii) dysthymic disorder, as defined in DSM-IV, is a
chronic mood disturbance, of at least two years
duration, involving depressed mood, or loss of
interest or pleasure, with manifestation of the
symptoms used to diagnose major depression such as
neurovegative signs, social withdrawal, cognitive
impairment and suicidal ideation;”
53. The relevant diagnostic criteria in DSM-IV, as referred to by Dr Haik, are:
“A. Depressed mood for most of the day, for more days than not for at least 2 years.
B. Presence, while depressed, of 2 or more of the following:
1. poor appetite or overeating
2. insomnia or hypersomina
3. low energy or fatigue
4. low self-esteem
5. poor concentration or difficulty making decisions
6. feelings of hopelessness
C. During the 2-year period of the disturbance, the person has never been without the symptoms in A or B for longer than 2 months at a time.
D. No Major Depressive Episode has been present during the first 2 years of the disturbance, and there has never been a manic or hypomanic episode, and the disturbance has not occurred in the course of a Chronic Psychotic Disorder, and the symptoms are not due to the direct physiological effect of a substance.
E. The symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning.”
54. While Dr Haik found those symptoms to exist in the Applicant and whilst it could be said that his symptoms are, at least in part, covered by SoP 58 of 1998, the Tribunal considers that SoP 1 of 2000 more completely covers the range of symptoms, including excessive worrying, described by the Applicant. On this basis the Tribunal prefers the view, expressed by Dr Dinnen, that the Applicant suffers from anxiety disorder.
55. There is no dispute, and the Tribunal agrees, that the incident of the shooting of the black American soldier in Hong Kong on 12 October 1956 took place during a period of operational service by the Applicant. There is dispute, however, as to whether the earlier incident, of the plunging of the plane into the sea on 9 August 1956, took place during a period of operational service.
56. Section 6D of the Act provides:
“6D Operational service - other post World War 2 service
(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a) was assigned for service:
(i) in Singapore at any time during the period from and including 29 June1950 to and including 31 August 1957; or
(ii) in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or
(iii) in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or
(b) was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act.
(2) A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was r rendering continuous full-time service as:
(a) a member of the Defence Force; or
(b) a member of a unit of the Defence Force;
while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).
(3) For the purposes of subsection (2), the operational service of a person to whom this section applies:
(a) is taken to have started:
(i) if the person was in Australia on the day (relevant day) from which his or her unit was assigned for service as described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be)—on the day on which the member left the last port of call in Australia for that service; or
(ii) if the person was outside Australia on the relevant day—on that day; and
(b) is taken to have ended:
(i) if the member was assigned for service in another country or a area outside Australia (not being an operational area)—the day from which the member was assigned to that other country or area, or the day on which the member arrived at that other area, whichever is the later; or
(ii)in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.”
57. The Tribunal requested information from the Respondent as to whether an instrument of the kind described in section 6D(1) in respect of service on the HMAS Melbourne on 9 August 1956 had been issued. The advice received from the Respondent was that it had not and this was supported by a copy of the Department of Veterans’ Affairs Advisory No. 1 of 2001 – RAN Ships - VEA coverage - 1950-1972.. It follows, given the terms of section 6D(1) of the Act, that on 9 August 1956 the Applicant was not on operational service.
58. It is convenient to set out the relevant provisions of sections 120 and 120A of the Act:
“120 Standard 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.
…
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…
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;
…
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
59. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Federal Court summarised the steps that are to be taken by the Tribunal in applying the above provisions, in relation to a condition contended to arise out of operational service and deciding whether a disease or injury is war-caused. The Tribunal adopted these steps in consideration of this application.
60. The Tribunal has already concluded that SoP No. 1 of 2000 concerning anxiety disorder is relevant to the Applicant’s condition. The hypothesis put forward by the Applicant was that the incidents on 9 August 1956 and 12 October 1956 amounted to severe psychosocial stressors which in turn gave rise to either an aggravation of the Applicant’s condition with clinical worsening of the condition or, if both incidents fell within a period of operational service, then the first incident brought on the Applicant’s condition and the second incident aggravated it. Mr Winship, for the Applicant, favoured factor 5(a)(v) of SoP No.1 of 2000 but also suggested factor 5(a)(ii) as a point of consistency between the SoP and the Applicant’s hypothesis. SoP No.1 of 2000 provides relevantly:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting anxiety disorder or
death from anxiety disorder with the circumstances of a person’s
relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise
specified, only
(i) being a prisoner of war before the clinical onset of anxiety
disorder; or
(ii) experiencing a severe psychosocial stressor within the two
years immediately before the clinical onset of anxiety
disorder; or
(iii) having a clinically significant psychiatric condition within
the two years immediately before the clinical onset of
anxiety disorder; or
(iv) having a major illness or injury within the two years
immediately before the clinical onset of anxiety disorder;
or
(v) experiencing a severe psychosocial stressor within the two
years immediately before the clinical worsening of anxiety
disorder; or
(vi) having a major illness or injury within the two years
immediately before the clinical worsening of anxiety
disorder; or
(vii) having a clinically significant psychiatric condition within
the two years immediately before the clinical worsening of
anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only,
having an endocrine, cardiovascular, respiratory, metabolic or
neurological disorder, where the disorder is a direct physiological
cause of the anxiety at the time of the clinical onset of the anxiety
disorder; or
(c) inability to obtain appropriate clinical management for anxiety
disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(a)(v) to 5(a)(vii) and 5(c) apply only to material
contribution to, or aggravation of, anxiety disorder where the person’s
anxiety disorder was suffered or contracted before or during (but not
arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e),
70(5)(d) or 70(5A)(d) of the Act refers.”
61. The question of whether the Applicant’s hypothesis conforms with and is upheld by SoP No. 1 of 2000 depends largely on the question of when clinical onset of his anxiety disorder occurred or when clinical worsening of that condition occurred. Factor 5(a)(ii) of the SoP requires clinical onset within two years after the severe psychosocial stressor. Factor 5(a)(v) of the SoP requires clinical worsening of the condition to occur within two years after the severe psychosocial stressor.
62. The Tribunal has already concluded that it is only the second incident in Hong Kong on 12 October 1956 that falls within a period of operational service. The Tribunal also notes that both Dr Dinnen and Dr Haik agree that the Applicant suffered from a pre-existing but mild psychiatric condition prior to entering the Navy. However, there is no material before the Tribunal that addresses or points to the Applicant having met the diagnostic criteria in SoP No.1 of 2000 prior to entering the Navy or indeed prior to the second incident in October 1956. In the absence of such material the notion of aggravation or clinical worsening does not arise.
63. Both doctors agreed that the Hong Kong incident amounted to a severe psychosocial stressor within the definition of that term in SoP 1 of 2000, evoking substantial distress in the Applicant. It would appear, therefore that the factor most relevant to the Applicant’s circumstances is factor 5(a)(ii) of the SoP which requires clinical onset of anxiety disorder within two years after the occurrence of the stressor.
64. Dr Dinnen was of the view that the Applicant’s symptoms of anxiety disorder of a more than mild nature had their clinical onset at the time of the incident in Hong Kong in October 1956. Dr Haik was of the view that clinical onset occurred at the time the Applicant first consulted a medical practitioner about his condition in May 2001.
65. The Tribunal had regard to the decision of the Full Federal Court in Lees v Repatriation Commission [2002] FCAFC 398. The Court said:
“In relation to SoP1, the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is para C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. In our view, the Tribunal did not err in its approach to the meaning of the expression "clinical onset". “
66. It is therefore necessary to consider whether there is material before the tribunal which points to the clinical onset of the Applicant’s psychiatric condition, accepted by the Tribunal as anxiety disorder, by reference to the features or symptoms of that disorder as defined in the SoP, within two years after the Hong Kong incident.
67. Dr Dinnen’s evidence was that the Applicant reported that his being a “worrier” and “highly strung” increased after the incident in Hong Kong, that after the incident in Hong Kong his attitude changed and he thought “what’s the use?” and that the incident in Hong Kong was the most horrific of his life. His evidence was also that the Applicant’s awareness of his own symptoms of anxiety dates from the time of the incident in Hong Kong. He said that “he experienced something in Hong Kong which he said he’d never seen at any other time in his life , which caused him a major changed nature, which had great impact on his psychology, his emotional state …I would say the previous experience which he describes as having impact, was his witnessing the plane go overboard, raised his level of anxiety to such a state that that incident in Hong Kong was sufficient to trigger off a clinical onset which he would say, with which he could not any longer suppress or avoid acknowledging.” (transcript p16)
68. This falls significantly short of the range of symptoms of anxiety disorder listed in the definition of that disorder in SoP No. 1 of 2000. While the Tribunal found, on the balance of probabilities and by reference to that range of symptoms, that the Applicant suffers from anxiety disorder now, there is no material before the Tribunal which points to the Applicant suffering from that range of symptoms within the two years following the incident in October 2000. The Tribunal is mindful that it is not required to make a finding of fact in relation to clinical onset but only to determine whether there is material before it pointing to clinical onset within the period required by the relevant factor in the SoP. Careful consideration of the material before the Tribunal, including the Applicant’s evidence and the evidence of Dr Dinnen, shows that there is not material before the Tribunal that points to the Applicant having suffered the range of symptoms required by the definition in the SoP.
69. It follows that the hypothesis raised by the Applicant does not conform with the Statement of Principles relevant to that hypothesis and is therefore not reasonable within the meaning of sections 120 and 120A of the Act. It follows that the Applicant’s anxiety disorder is not war caused.
Decision
70. The Tribunal affirms the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDates of Hearing 5 June 2003, 19 August 2003
Date of Decision 10 February 2004
Counsel for the Applicant Brian Winship, Barrister & Solicitor
Solicitor for the Applicant Rockliffs Solicitors & Attorneys
Solicitor for the Respondent Stephen Modder
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