Beveridge and Repatriation Commission
[2005] AATA 962
•3 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 962
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/724
VETERANS' APPEALS DIVISION )
Re KEVIN BEVERIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date3 October 2005
PlaceBrisbane
Decision
The Tribunal:
(a) affirms the decision under review in relation to alcohol dependence;
(b) sets aside the decision under review in relation to post traumatic stress disorder and substitutes its own decision that post traumatic stress disorder is war-caused in accordance with section 9 of the Veterans’ Entitlements Act 1986 (the Act); that Mr Beveridge is entitled to receive a pension under the Act for any incapacity associated with that condition from and including 19 December 2002; and that the matter of assessment be remitted to the Repatriation Commission.
.....................[Sgd].......................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – post traumatic stress disorder – alcohol dependence - application of Statements of Principles – reasonable hypothesis of relevant relationship to service not raised for alcohol dependence – decision affirmed - reasonable hypothesis of relevant relationship to service raised for post traumatic stress disorder – condition war-caused – decision set aside – assessment of rate of pension remitted to Repatriation Commission
Veterans’ Entitlements Act 1986 ss 6C, 14, 19, 21A, 22, 69, 120, 120A, 177
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Sly v Repatriation Commission [2004] AATA 958
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Constable v Repatriation Commission [2005] FCA 928
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331REASONS FOR DECISION
3 October 2005 Mr RG Kenny, Member Background
1. Kevin Beveridge (the applicant) served in the Royal Australian Navy (RAN) from 1961 to 1976. His service included a period on HMAS Perth in 1970 and 1971 in South Vietnamese waters and he now contends that he suffers health problems that are related to events that occurred during that time. On 19 March 2003, he lodged a claim for acceptance by the Repatriation Commission (the respondent) of “substance abuse”, “generalised anxiety disorder” and “hearing loss and tinnitus” as being related to his service. That claim was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act)
2. On 29 August 2003, the respondent determined that Mr Beveridge suffers from bilateral sensori-neural hearing loss with tinnitus which was service-related. It assessed pension at 40% of the general rate under sections 21A and 22 of the Act for associated incapacity. It also determined that he suffers from alcohol dependence and post traumatic stress disorder but rejected his claim that these conditions were service-related. On 18 August 2004, the Veterans’ Review Board affirmed the decision in relation to post traumatic stress disorder and alcohol dependence, set aside the assessment decision and substituted its decision that pension was payable at 20% of the general rate with effect from a date to be set by the respondent. On 15 September 2004, Mr Beveridge sought review of those decisions by the Administrative Appeals Tribunal (the Tribunal).
Mr Beveridge’s Service
3. It is common ground that Mr Beveridge served in the RAN from 7 April 1961 to 9 April 1976 and that he completed four periods of eligible war service in the form of operational service, in accordance with sections 7 and 6C, respectively, of the Act as well as a period of defence service as provided for in sections 68 and 69 of the Act. Further, it is not disputed that the only period of service relevant to contentions raised by Mr George of counsel, who represented Mr Beveridge at the hearing, is that comprising operational service on HMAS Perth from 14 September 1970 until 8 April 1971.
Relationship of Conditions to Service
4. Subsection 9(1) of the Act provides that a condition will be taken to be war-caused if it resulted from an occurrence that happened when Mr Beveridge was rendering operational service or if it arose out of, or was attributable to, any eligible war service rendered by him. The standard of proof applicable to that determination is set out in subsection 120(1) of the Act which reads:
“(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.”
5. The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA).
Diagnosis
6. The standard of proof for determining diagnostic matters is provided for in subsection 120(4) of the Act and this requires that such matters be determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. It is not disputed and I am satisfied that Mr Beveridge suffers from post traumatic stress disorder and alcohol dependence. To that end, I have noted the reports of Mr Beveridge’s treating psychiatrist, Dr Josh Geffen, and of consultant psychiatrist, Dr William Kingswell.
Principles of Causation: The Deledio Steps
7. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first step requires that there be material which points to an hypothesis connecting a claimed condition with service. Mr George referred to four events and submitted that each of them constituted such an hypothesis for both post traumatic stress disorder and alcohol dependence. I accept that submission. They are:
diver incident
Mr Beveridge was required to perform duty in the No. 1 boiler room in HMAS Perth while action was taken to determine whether a mine had been attached to the hull of the vessel by an enemy diver;
prisoner incident
Mr Beveridge saw Viet Cong prisoners taken on board HMAS Perth where they were required to lie naked and bound on the hot deck, searched and transferred to a South Vietnamese vessel and, subsequently, Mr Beveridge was advised that they had been executed;
scoreboard incident
In the galley of HMAS Perth, Mr Beveridge saw a notice, described by him as a “scoreboard”, which indicated that the vessel’s bombardment of shore positions had resulted in damage to a hospital; and
fuel oil incident
Mr Beveridge was required to assist in the cleaning up of fuel oil in the No. 2 boiler room of HMAS Perth.
8. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the Repatriation Medical Authority (RMA). For post traumatic stress disorder, this is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. For alcohol dependence, it is Instrument No. 76 of 1998.
9. The third Deledio step requires a consideration of whether any of the advanced hypotheses is a reasonable one and this requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. For post traumatic stress disorder, they read:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other 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;”
10. For alcohol dependence, they read:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or 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;”
11. If any of the hypotheses for either of the conditions under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
Mr Beveridge’s Evidence
first hypothesis: diver incident
12. Mr Beveridge described this as the most stressful of all the incidents that occurred to him during his service. It occurred while HMAS Perth was cruising on the gun line and a member of the ship’s crew reported to the bridge that he had seen something in the water to the port side. He thought it may have been an enemy diver thereby raising concerns that a mine may have been attached to the hull of the ship. Mr Beveridge heard about the sighting when the message came through the intercom to the No. 1 boiler room. The captain of the vessel ordered that the ship be taken into deeper water at speed. The ship then stopped and navy dive teams examined the hull. No mine was found.
13. Mr Beveridge described the No. 1 boiler room as being deep in the ship just above the keel. There was a total of five crew working in the boiler room and Mr Beveridge said that, for two hours, he was in fear of a hole being blown into the port side hull of the ship at a point which would flood the No. 1 boiler room. He said that the ship had been closed up to a status which required all of the watertight compartments to be locked and this meant that the only means of escaping was through a vertical escape tunnel located on the starboard side of the boiler room. He said that this was approximately 40 feet from the port side where he was working and where the diver had been sighted. He agreed with a suggestion by Mr Smith that they were all “edgy” but also said that he was in fear of what might happen and believed that he might be killed.
second hypothesis: prisoner incident
14. Whilst cruising on the gun line off the Vietnamese coast in February 1971, HMAS Perth was flagged down by a fishing boat which came alongside. On board were the boat’s Vietnamese crew and seven Viet Cong defectors. Mr Beveridge said he was aware that it was the policy of Australia and the United States of America to encourage North Vietnamese to defect. The prisoners, some of whom had burn scars, were taken on to HMAS Perth. There, they were stripped naked and required to lie on the deck. Mr Beveridge said that it was a very hot day and he could tell that they were feeling the heat from the steel deck of the boat. After about two hours, during which time the men were interrogated and then clothed and fed, they were transferred to a South Vietnamese patrol boat. Mr Beveridge saw this boat leave the ship and he then went below deck. Later, it was reported to him by others on the ship that gunfire had been heard and that bodies had been seen being thrown into the water. Mr Beveridge said that, at the time, he believed that the men had been executed. In his evidence, he said that he heard about the shooting of the Viet Cong within half an hour of them leaving the ship although, in a statement completed by Mr Beveridge on 13 April 2004, he said that “the buzz went around the ship a couple of days later that the prisoners had been executed.”
15. Mr Beveridge said that the prisoners looked distressed and that he “felt for them” because of their being searched and because they were made to lie on the hot deck. In evidence were photographs identified by Mr Beveridge as depicting the prisoners on the deck of HMAS Perth. One of these revealed four or five persons lying naked and bound but in a shaded area of the ship’s deck. Mr Beveridge said that the others were in open space and in the sun.
third hypothesis: scoreboard incident
16. One day on HMAS Perth, Mr Beveridge was told by another sailor that a “scoreboard” had been posted on the bulkhead outside the main galley. The sailor told Mr Beveridge that he was distressed by what he saw and Mr Beveridge went to look at it for himself. It indicated that various targets, including a sampan and a Vietnamese hospital, had been hit by gunfire from HMAS Perth. He said that there was discussion amongst the crew about the hospital and they believed that this had occurred. There was no confirmation of this but Mr Beveridge thought that it may have been “hushed up” by authorities.
fourth hypothesis: fuel oil incident
17. The crew in No. 2 boiler room on HMAS Perth were carrying out routine maintenance on high pressure fuel oil filters when, due to some faulty mechanism, oil was sprayed all through the engine room. Mr Beveridge was not in the boiler room at the time but an emergency shut-down of the unit was ordered and Mr Beveridge was one of a group required to enter the boiler room through the escape tunnel. Mr Beveridge believed that, before he arrived, there had been a small fire which had been extinguished by the crew. He was involved in cleaning up the boiler room and was concerned that the fuel would ignite. He said that he was horrified that the men were covered in oil and he could see that they were petrified with fear. He thought there may be a disaster. He said no-one was injured and he felt relieved afterwards when it was cleaned up.
Other Incidents
18. Mr Beveridge recounted another incident which he encountered in Jervis Bay 1966 when he was serving on HMAS Vendetta. That vessel was required to provide assistance to a bucket dredge, the Atlas, which had capsized in bad weather. When they arrived at the dredge, they discovered that the crew was dead and their task was to salvage the bodies. They did this with a grappling hook. They managed to bring all of the bodies on board with the exception of one which, at the side of the Vendetta and in view of Mr Beveridge, was attacked by a shark. Mr Beveridge said that he was devastated by what he saw. He also said that, as the bodies had become rigid in a position with their arms outstretched while floating, it had been necessary for medical staff on the ship to fracture their arms and align them with the torso. Mr Beveridge said that he accidentally entered the area where this procedure was being performed and he was greatly affected by what he saw.
Medical Evidence
19. Dr Geffen is Mr Beveridge’s treating psychiatrist. In diagnosing post traumatic stress disorder in his report, dated 29 May 2003, he made reference to stressful events experienced by Mr Beveridge. He identified the 1966 incident in Jervis Bay involving the recovery of bodies and the shark attack on the body of a victim. He described Mr Beveridge as still remembering those events vividly and being disturbed by the image. Dr Geffen also recorded the following accounts from Mr Beveridge of the four incidents on HMAS Perth:
diver incident
In this period he describes being fearful of ‘frogmen’ who might sabotage the boat. At one stage they had seen one in the water and the boat was hurriedly taken out to sea and the sailors were ordered to go to ‘the highest part of the ship’ in case of explosive charges at this time he was below decks in the machinery section.
prisoner incident
They took prisoners on board, many of whom had severe burns. They handed these prisoners over to the Coast Guard, but later heard a rumour that the prisoners were shot. He was distressed by both the injuries that he witnessed amongst these prisoners and the possibility that the rumour may be true.
scoreboard incident
During this period he noted that a ‘scoreboard’ was kept on the boat of ‘hits’ on targets. He remembers being horrified when he saw on this scoreboard that the ship had hit a hospital.
fuel oil incident
An oil spill occurred in the number two fire room. Mr Beveridge was among sailors called down to the area and there was a major risk of being trapped in a fire. He has vivid recollections and nightmares about this event.
20. Dr Geffen did not identify the scoreboard incident or the fuel oil incident as being significant traumas. He did identify the other two events which he summarised as the events involving “exposure to wounded prisoners” and “fear of sabotage” as constituting significant trauma to Mr Beveridge.
21. In a report, dated 24 February 2005, Dr Kingswell said that Mr Beveridge had described “a number of events” which he found traumatic. He said that Mr Beveridge identified the diver incident and the prisoner incident as being the most important. Dr Kingswell declined to comment on whether either of these met the requirements of the Statements of Principles. However, in relation to the shooting of the Viet Cong prisoners, it was noted that Mr Beveridge told him that he did not witness the incident but did hear the gunfire and was very distraught by it. Additionally, Dr Kingswell made reference to the incident relating to the Atlas and the recovery of mutilated bodies.
Evidence from Writeway Research Service
22. Writeway Research Service was engaged by the respondent to prepare a report on the contentions raised by Mr Beveridge. The report, dated 4 August 2005, was completed by Phillip Mulcare. He served in the RAN for 37 years and retired in 1991 with the rank of Commodore. As part of his investigations, Mr Mulcare consulted Reports of Proceedings and Ships’ Logs for HMAS Perth. He also spoke to former RAN personnel who had served at the time of HMAS Perth’s service in Vietnam.
23. Mr Mulcare spoke with Ian Burnside who was the commanding officer when Mr Beveridge served on HMAS Perth. Mr Burnside recalled the incident concerning the sighting of an alleged enemy diver. He said that the ship was on the gun line at the time of the alleged sighting and under way at about 4 knots and at least 5,000 yards off the shore. He recalled the initial report as one which probably sounded as though the sailors had seen a fish rather than a diver. However, he decided to treat it as a suspected attack although he believed that the chances that it was an attack were extremely low. Mr Burnside also said that another consideration was that this incident occurred very early on in the deployment and he wished to reinforce the message that personnel should always be alert and report any unusual circumstances promptly and he wanted to demonstrate that any such report would be taken seriously and prompt action taken. He confirmed that no mines had been found on the hull of the vessel.
24. In relation to the scoreboard incident, Mr Mulcare spoke with Derek Marrable who had been a lieutenant and the ship’s gunnery officer at the relevant time. He said that, to his knowledge, no Viet Cong field hospital had been reported as having been damaged by the ship’s guns. Mr Burnside also had a vague recollection of the incident. He recalled that, at the time, he was concerned that the board was unofficial and that anyone could put information on it which could be quite misleading and so he directed that it be removed.
25. In 2004, Mr Mulcare completed research reports concerning claims by veterans other than Mr Beveridge in relation to the fuel oil incident and the interrogation of prisoners on HMAS Perth. These were contained in the “T” Documents which were prepared by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 and were dated 10 January 2004 and 12 March 2004, respectively. Mr Mulcare spoke with Mr P Hardy who was lieutenant commander and the marine engineering officer at the time of the fuel oil incident and he also spoke to Mr K Roe who was a lieutenant on the vessel at the time. Mr Mulcare wrote:
“They both described the operation as a daily routine, and as they recall it, the oil was released when the wrong filter was opened. But whether it was a wrong filter or a seal failure the result was the same. However, Boiler Room personnel were frequently exercised in dealing with major incidents, including emergency boiler shut downs, and this potentially very serious incident showed the value of this training.”
Mr Hardy wrote that the prompt action of the boiler room crew in shutting down the equipment significantly reduced the possibility of a major fire.
26. In his report concerning the Viet Cong prisoners, Mr Mulcare gave the following account:
“They were stripped and bound as they came onboard and held under guard before being taken individually to a bathroom in the after superstructure where they were examined by the Doctor and Sick Berth Attendant and given a shower and clean clothing. They were then returned to the upper deck where they were given food and drink and cigarettes.”
He said there was no evidence of inappropriate treatment of them on HMAS Perth or, indeed, after they were transferred to the South Vietnamese patrol boat.
Submissions
27. Mr George submitted that each of the hypotheses relied upon by Mr Beveridge met the requirements of the Statements of Principles for each of the two conditions claimed and, therefore, were reasonable. He referred to the alcohol consumption patterns of Mr Beveridge prior to the incidents on HMAS Perth but submitted that this was merely part of naval culture. He submitted that, on the evidence, the Tribunal could not be satisfied beyond reasonable doubt that the factual bases have not been established and that, therefore, the conditions should be accepted as being related to Mr Beveridge’s service.
28. Mr Smith submitted that the material did not raise a reasonable hypothesis for either post traumatic stress disorder or alcohol dependence. He submitted that, to be a severe stressor, an incident had to be at least as severe as any of the examples given in the Statement of Principles. He noted Mr Beveridge’s contention that the diver incident was the worst of the stressors that he faced. He referred to Mr Beveridge’s evidence of how he felt “edgy” at the time and submitted that this was an appropriate response because of the unlikelihood of there being a mine on the hull of the vessel. Mr Smith referred to the decision of Sly v Repatriation Commission [2004] AATA 958 which involved a veteran who had been in the No 2 boiler room on HMAS Perth at the time when the fuel oil incident occurred. He distinguished this case on the basis that Mr Beveridge had came after the incident occurred for the purpose of cleaning up the oil and did not face the same degree of trauma as would have been faced by Mr Sly.
29. Mr Smith submitted that Mr Beveridge may well have experienced stressors of the kind described in the Statement of Principles but these were related to his motor vehicle accident in 1962 and the retrieval of dead bodies in 1966 and were not related to his operational service. He also submitted that Mr Beveridge’s alcohol consumption problems were well entrenched prior to the incidents on HMAS Perth.
Reasonableness of Hypotheses
30. This third step of the Delidio process does not involve findings of fact and, for the purposes of considering the reasonableness of the hypotheses, I have accepted the evidence given by Mr Beveridge. The analysis of experiencing a severe stressor involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, it is not a requirement that there be an actual threat: see Stoddart at paragraphs 30 and Woodward at 131-142. In Stoddart the Full Federal Court adopted the following statement from Woodward’s case (at paragraph 142):
“The definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partially subjective connotation.”
31. I am satisfied that the evidence in relation to the Viet Cong prisoners, to the scoreboard incident and to the fuel oil incident does not point to circumstances in which Mr Beveridge experienced a severe stressor in either Statement of Principles.
32. The first aspect in relation to the prisoners is the effect on Mr Beveridge of seeing the men on the deck of the ship; the second aspect is the alleged shooting of them by South Vietnamese. The first aspect was not an event that involved actual or threat of death or serious injury or a threat to the physical integrity of anyone. Rather, the evidence points to the routine processing of prisoners before delivering them to South Vietnamese authorities as part of a procedure concerning defectors which Mr Beveridge said he was aware of. The second aspect was not something that was experienced or witnessed by Mr Beveridge. In the sense that it was related to him, it could constitute being confronted with the news of the shooting but that does not constitute being confronted with the event itself. That is also the case with the notice of hospital damage. All that Mr Beveridge observed was an unofficial notice with no confirmation of the hospital being damaged. The incident involving the fuel oil occurred in the ship’s boiler rooms and the evidence is that Mr Beveridge entered the area as part of a cleaning operation. By 1970, Mr Beveridge was an experienced sailor in the company of fellow seamen and the evidence points to them putting into practice the skills developed from frequent training in relation to such incidents. I am satisfied that there was no actual threat and, looked at objectively, I am satisfied that a reasonable person in the position of Mr Beveridge would not have conveyed to him a risk of death or serious injury or threat to physical integrity in the cleaning up of the oil.
33. With the diver incident, no mines were located on the hull of the Perth and, therefore, there was no actual threat. However, as noted above, there need not be an actual threat as long as the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of Mr Beveridge, was capable of conveying, and did convey, the risk of death or serious injury. I am satisfied that this requirement is met in relation to the diver incident. Of particular significance is the evidence from the captain of the Perth who treated the situation as an actual emergency even though he considered that it was unlikely that a mine would be found. A reasonable seaman, even one as experienced as Mr Beveridge, would perceive a threat of at least serious injury in the circumstances that Mr Beveridge was in and his evidence was that he feared that he would be killed. I am satisfied that the material before me in relation to the diver incident is consistent with the template for experiencing a severe stressor in the Statement of Principles for post traumatic stress disorder.
34. For alcohol dependence, the definition of experiencing a severe stressor has components additional to those in the definition of the same term for post traumatic stress disorder. First, the event experienced must be such as might evoke intense fear, helplessness or horror and, secondly, the material must point to the clinical onset of alcohol dependence within two years of the stressful event: see Constable and Repatriation Commission [2005] FCA 928 at para 13.
35. As to the first of those matters, while the material before me points to Mr Beveridge being in fear during the period when the ship’s crew were dealing with the possible mine, his reference to being “edgy” and also the relatively unlikely prospect of there being a mine, do not suggest that the event would evoke feelings of intense fear or horror. That the men in the No 1 boiler room were able to carry out their duties does not point to feelings of helplessness and I am satisfied that the circumstances of Mr Beveridge during the diver incident do not fit that part of the template of the Statement of Principles for alcohol dependence.
36. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. The material in relation to Mr Beveridge does not point to the clinical onset of alcohol dependence within that time-frame. Rather, it points to an onset which pre-dates the events on HMAS Perth.
37. Mr Beveridge was involved in a serious motor vehicle accident in 1962 and spent most of that year in hospital recovering from injuries which included a fractured skull. He said that he began to consume alcohol in 1963 when he was serving on HMAS Yarra. He became a regular consumer of alcohol and said that this was part of the culture of the navy for crewmen to drink together whilst ashore. He said that his drinking increased after his experiences on HMAS Perth in 1970 and 1971 and that he has remained a heavy drinker since that time.
38. Mr Beveridge was referred to entries in his service medical records and, in particular, to entries in 1967 where he is noted to have been suffering from alcoholic amnesia. He said that this was an occasion when he had not consumed much alcohol and where someone had “spiked” his drink in a bar. However, his records also include a history of similar episodes of amnesia and violence after drinking since the 1962 accident. Further, instead of the relatively few beers that Mr Beveridge said he had on the occasion of his amnesia in 1967, the record indicates that it followed a “bout of heavy drinking”. It was noted that he had previously lost his memory on about six different occasions, always after alcohol. He was noted to have twenty schooners of beer on a “good” occasion and, in his evidence, he explained that this might be over a twelve hour period during shore leave. He was also referred to an entry, dated 6 December 1967, in his service medical records that he had considered undergoing psychological interviews because of his previous troubles with alcohol but he denied that he had undergone any such sessions.
39. The history taken by a medical practitioner may constitute material before the Tribunal for the purposes of the third stage of the Deledioprocess: see Lees and Repatriation Commission (2002) 125 FCR 331 at 338. Both Dr Geffen and Kingswell made reference in their reports to Mr Beveridge’s alcohol consumption history. In his report, dated 29 May 2003, Dr Geffen said that Mr Beveridge had described heavy drinking as being part of Navy culture and to increasing use of alcohol during his service. He referred to problems that Mr Beveridge had and these included a drink driving charge, an episode of being drunk and increasing problems with alcohol in and after his Navy service. Dr Geffen does not refer to the incidents involving Mr Beveridge’s alcohol consumption in the 1960s. Dr Kingswell, in his report dated 24 February 2005, advised that he was aware of the service medical records relating to alcohol use by Mr Beveridge in that period. He wrote:
“The history obtained in 1967 was of alcohol related periods of amnesia and bouts of violence following a motor vehicle accident in 1962 indicating that significant alcohol problems were present long before 1970 and 1971.
40. The medical evidence in this matter points to a clinical onset of alcohol dependence some years before Mr Beveridge served on HMAS Perth and, for that reason, another essential element of the relevant factor for alcohol dependence is not pointed to by the material before me. It follows that the hypothesis advanced by Mr George does not fit the template in the Statement of Principles for alcohol dependence. In that situation, the claim for alcohol dependence must fail. The condition is not war-caused.
Deledio Step 4: Is Post Traumatic Stress Disorder War-caused?
41. Applying step 4 of the Deledio procedure, post traumatic stress disorder will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
42. The diver incident is well documented in information provided by Mr Burnside to Mr Mulcare and in the Ship’s Log and Reports of Proceedings of HMAS Perth. The “diver” was sighted at 7.45 pm on 11 October 1970 off the port bow. At 7.51 pm, the ship increased speed from 4 knots to 24 knots and turned seawards. It stopped after 17 minutes and was closed up to “NBCD State 1 Condition Z” which is noted in Mr Mulcare’s report to be “the highest state of damage control preparedness and watertight integrity”. From 8.43 pm until 10.10 pm, divers searched the hull. At 10.16 pm, there being no mines found, a lower state of readiness was adopted and the ship returned to the gun line. Mr Burnside said that there had been a negligible chance that there would have been a mine because of the combination of the speed of the ship on the gun line and the distance from shore. These were 4 knots and at least 5,000 yards, respectively. Despite that, he decided to treat it as an exercise to reinforce the message that personnel should remain alert and to demonstrate that any reports would be taken seriously and prompt action taken.
43. I accept Mr Beveridge’s evidence that he was in the No 1 boiler room and that this is located deep in the ship and below the waterline. I also accept his evidence that he feared for his life because of his location in the ship, his proximity to the port side of the vessel where the “diver” had been seen and, in the event of flooding in the boiler room, the need for him and the other 4 crew to utilise the escape hatch which was located on the starboard side of the ship. There was no mine; but that was not revealed until after the searches were conducted. The action taken by the Captain was consistent with the presence of a mine. There is no evidence of facts inconsistent with the hypothesis advanced by Mr George concerning the diver incident and none of the facts necessary to sustain the hypothesis has been disproved. In that situation, I can not be satisfied beyond a reasonable doubt that Mr Beveridge’s claim for post traumatic stress disorder is not established.
44. The evidence of Dr Geffen was that the diver incident was causally associated with Mr Beveridge’s post traumatic stress disorder although he also considered other incidents to be of causal relevance. One of these was exposure to wounded prisoners and there is no evidence that this occurred. I understood Mr Beveridge’s evidence in relation to burn scars as being related to some past events and not wounds at the time that he observed them. Another incident was Mr Beveridge’s experience in 1966 on HMAS Vendetta, described above. That incident did not occur during a period of eligible service and can not be considered in applying the Statements of Principles. While there may have been contribution from the incident on the Vendetta, I can not be satisfied beyond reasonable doubt that there was not also a material contribution to the condition from the diver incident on HMAS Perth.
45. I find that the condition of post traumatic stress disorder is war-caused and that Mr Beveridge is entitled to receive a pension under the Act for any incapacity associated with that condition from and including 19 December 2002. This date is the earliest that can be set in accordance with the terms of subsection 177(2) of the Act and was agreed between the parties.
Assessment
46. In conducting an assessment, section 19 of the Act requires a consideration of the applicant’s circumstances throughout the assessment period which, in this case, commenced with the lodgement of the initiating claim on 19 March 2003. The Act also requires the utilisation of the “Guide to the Assessment of Rates of Veterans’ Pensions” (GARP) in assessment matters. The first step in the GARP process is to determine impairment ratings for accepted disabilities. This process is dependent on having medical evidence of incapacity. There is material before the Tribunal in relation to Chapter 7 of GARP for bilateral sensori-neural hearing loss with tinnitus and also in relation to Chapter 4 for the combined impairment for post traumatic stress disorder and alcohol dependence. It was submitted by Mr Smith that this latter rating could only be utilised if both psychiatric conditions were found to be war-caused. I accept his submission in that regard and, because alcohol dependence has not been so found, I am satisfied that there is not sufficient evidence before me to complete the assessment process. Accordingly, the matter of assessment is remitted to the Repatriation Commission.
Decision
47. The Tribunal:
(a) affirms the decision under review in relation to alcohol dependence;
(b) sets aside the decision under review in relation to post traumatic stress disorder and substitutes its own decision:
· that post traumatic stress disorder is war-caused in accordance with section 9 of the Act;
· that Mr Beveridge is entitled to receive a pension under the Act for any incapacity associated with that condition from and including 19 December 2002; and
· that the matter of assessment be remitted to the Repatriation Commission.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 1 September 2005
Date of Decision 3 October 2005
Counsel for the Applicant Mr E George
Solicitor for the Applicant Sciaccas Lawyers
Solicitor for the Respondent Mr Malcolm Smith
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