Blanch and Repatriation Commission

[2003] AATA 963

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1419

VETERANS' APPEALS  DIVISION		)
Re		JOHN JOSEPH BLANCH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms S M Bullock,   Senior Member
Dr J D Campbell, Member

Date26 September 2003

PlaceSydney

Decision The decision under review is affirmed.

...............................................

Ms S M Bullock
  Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Entitlement - Disability Pension - Diagnosis – Post Traumatic Stress Disorder - Alcohol Dependence - Reasonable Hypothesis

LEGISLATION

Veterans' Entitlements Act 1986 ss 5D, 9, 13, 31, 119, 120, 120A

AUTHORITIES

Benjamin v Repatriation Commission (2001) 70 ALD 622

Freeman v Repatriation Commission [2002] FCA 576

Re Weyling and Repatriation Commission [2000] AATA 248

Re Powell and Repatriation Commission [2000] AATA 385
Re Mackay and Repatriation Commission [2000] AATA 483
Re Boyd and Repatriation Commission [2000] AATA 615
Re Symons and Repatriation Commission (2000) 63 ALD 93
Re Shooter and Repatriation Commission [2000] AATA 1076
Re Cranage and Repatriation Commission (2000) 63 ALD 312
Re Jackson and Repatriation Commission [2001] AATA 63
Re Meakin-Jones and Repatriation Commission [2001] AATA 662
Re Stevenson and Repatriation Commission [2002] AATA 130
Re Meehan and Repatriation Commission [2002] AATA 273
Re Burgess and Repatriation Commission [2002] AATA 702
Re Atkinson and Repatriation Commission [2002] AATA 491

Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 200 ALR 332

Mason v Repatriation Commission [2000] FCA 1409

REASONS FOR DECISION

26 September 2003   Ms S M Bullock, Senior Member
  Dr J D Campbell, Member   

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, John Joseph Blanch, of a decision of the Repatriation Commission ("the Commission") made on 23 February 2000 (T2, T18) as affirmed by the Veterans' Review Board (“the Board”) on 26 July 2001 (T24). The Respondent, the Commission, had decided pursuant to subsection 31(6) of the Veterans' Entitlements Act 1986 to revoke the determination that the Veteran's accepted disability of post traumatic stress disorder with alcohol dependence was war-caused.  Pension was accordingly reduced from 40 per cent to 20 per cent of the General Rate with effect from 9 March 2000.

2. A Hearing was conducted in Sydney before the Tribunal on 18 December 2002. The Applicant provided oral evidence and was represented by Mr B Winship, solicitor of Rockliffs Solicitors. Oral evidence was also provided by Commodore P M Mulcare (Rtd). The Respondent was represented by Mr J Marsh, Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-26). The following exhibits were also taken into evidence:

Exhibit No	Description	Date
A1	Applicant's Statement of Facts and Contentions	9 September 2002
R1	Respondent's Statement of Facts and Contentions	16 December 2002
R2	Report of Dr R Lewin, Adult General and Forensic Psychiatrist	2 August 2002
R3	Report of Commodore P M Mulcare RAN Rtd, Writeway Research Services	22 June 2002
R4	Transcript of Veterans' Review Board Hearing	26 July 2001

service history

3.      Mr Blanch served in the Royal Australian Navy ("the Navy") from 4 January 1967 until 22 December 1976.  Mr Blanch had operational service in HMAS Duchess in Vietnam from 16 November 1969 to 29 November 1969; 3 April 1971 to 8 April 1971 and 17 May 1971 to 1 June 1971. Mr Blanch also has eligible defence service from 7 December 1972 until 22 December 1976.

issues

4.      The issues before the Tribunal in this matter are:

i.What is/are the correct diagnosis/diagnoses of Mr Blanch's psychiatric condition(s)?

ii.Is/are Mr Blanch's psychiatric condition(s) however diagnosed, war-caused?

5.      In the event of Mr Blanch having service-related conditions, it was agreed by the parties that the assessment of any such condition should be remitted to the Respondent.

legislation

6.      A determination in this matter requires a consideration of the Veterans' Entitlements Act 1986 ("the Act").

7.      Mr Blanch rendered both operational and defence service. Because the specific events which Mr Blanch claims link his psychiatric conditions to service occurred during his operational service in Vietnam, the Tribunal will confine its attention to that period of Mr Blanch's service.

8. Section 5D of the Act deals with the definition of injury and disease.

9. Section 9 of the Act deals with war-caused injuries and diseases and provides as relevant:

"War-caused injuries or diseases

(1)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."

10. Section 13 of the Act deals with eligibility for pensions.

11. The standard of proof to be used in relation to Mr Blanch's operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:

"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.

…

(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."

12. Section 119 of the Act reflects that decision-makers are not bound by the technicalities and decision-making under the Act is of an administrative rather than judicial nature and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or deficiency in records.

13. Section 120A of the Act deals with Statement of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority ("RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act says:

"Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

(b)      a claim under Part IV that relates to:

(i)        the peacekeeping service rendered by a member of a  Peacekeeping Force; or

(ii)      the hazardous service rendered by a member of the Forces.

Note 1:          Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

(2) 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."

evidence of mr john joseph blanch

14.     Mr Blanch told the Tribunal that on enlisting he was 15 and a half years old. His health was good, he used to play sport including cricket, football and athletics. Mr Blanch described a good social life and he was not consuming alcohol because he was too young.  Mr Blanch described having a supportive family background noting that sadly his father died early and he was reared by his mother for most of his life with two older brothers and his sisters, living at Hunters Hill. The family was very close.

15.     When Mr Blanch joined the Navy, he was in fact still at school and was posted to HMAS Leeuwin in Western Australia, which at that time provided junior recruit training.  Mr Blanch had never left home previously..  He spent 12 months in HMAS Leeuwin and completed his schooling there as well as undertaking naval subjects such as seamanship.  Mr Blanch stated that he completed his education to the equivalent he believed of Year 3.  During his period of recruit training, Mr Blanch stated that the consumption of alcohol was banned and indeed he was only 15 and a half years old at the time and thus well below the legal age for the consumption of alcohol.

16.     After 12 months training, Mr Blanch selected the branch of the Navy which allowed him to work as a radar plotter. Mr Blanch believed he was posted to HMAS Yarra, which was a frigate, when aged approximately 16 and a half years.  He thought that he was in Melbourne for about six months and again the discipline was very strict.  Training as a radar plotter involved tuition in all the different types of radar application used in Navy vessels.  His later training included exercises with United States Navy ships, and also ships from New Zealand, the United Kingdom and Asia.  These exercises tried to simulate the effects of war and the different factors of battle.  His training also involved learning about Action Stations and all that that involved.  When he was about 18 years of age, Mr Blanch was posted to HMAS Duchess.  This was in about 1969.  By that stage he had been to New Zealand for various training exercises in HMAS Yarra.

17.     When aged 18 years, Mr Blanch believed he commenced the consumption of alcohol.  At that time he estimated that he might have had an occasional drink of beer, perhaps once per month and consuming two beers when he was ashore.

18.     Mr Blanch believed that he left Sydney for Vietnam in HMAS Duchess on 16 November 1969.  He was very apprehensive going to Vietnam and into a war zone. Mr Blanch told the Tribunal that he was worried, as was his family. Mr Blanch thought that HMAS Duchess met up with HMAS Sydney, the troop carrier, off Brisbane.  On route to Vietnam, Mr Blanch recalled briefings on the possibility of enemy action and attack.  He learned of the possibility of enemy swimmers attaching limpet mines to the hull or of suicide craft floating near to the vessels.  These suicide craft were, as Mr Blanch understood it, packed with explosives, which would then drift into or ram a ship, causing great damage on impact or indeed the sinking of the vessel.

19.     Mr Blanch described his first trip to Vietnam in HMAS Duchess lasting approximately two weeks.  He described an incident which occurred on the way to Vietnam involving a "Replenishment at Sea" ("RAS") between HMAS Duchess and HMAS Sydney.  On this particular occasion, there was a "jack stay transfer", which was a way of rigging the vessels so that personnel and/or stores could be transferred between two vessels, and in this case between HMAS Duchess and HMAS Sydney.  Mr Blanch described the situation of having a long coil of rope with the end of the rope having what he called a "monkey's fist", which was then fired from one vessel to the other. The rope was then secured onto the receiving vessel. Another rope would then be pulled across.  In the case Mr Blanch was describing, a steel cable was fixed between both vessels over which a pulley was run, which was used to transfer the cargo, material or personnel.  Mr Blanch was taking part in this particular transfer and was on the upper deck.  The process required a large number of sailors to man the lines and Mr Blanch estimated that there were between six and 12 other people involved in this process.  Mr Blanch described a situation where one of the steel cables snapped and then hit one of the sailors on the leg.  That sailor was in front of Mr Blanch. Mr Blanch described the injured sailor as having a large gash on his leg and there was blood everywhere.  He stated that the hawser or line was whipping around over the deck because of the tension that is generated between the two vessels.  Mr Blanch described feeling petrified that this whipping line was going to hit him and he thought that he was next in the firing line (Transcript, p18).  If it had hit him, Mr Blanch opined it could quite possibly have killed him. He was fearful for his life.  Mr Blanch was unable to run away and was helpless standing there.  Mr Blanch stated that he was very shaken-up before he got into Vung Tau Harbour.

20.     When referred to his statement to the Board that the injured sailor man was a friend of his, Mr Blanch stated that he was not a personal friend, but rather he was referring to him in the sense of being a fellow sailor (T11, p48).  Mr Blanch was clear that this event occurred during his period of eligible service and stated that he did not believe that his memory was mistaken and that this incident may have occurred outside of eligible service (Transcript, p51).  Even so, there was no record of that incident in the service records nor any recollection by: Commodore H J P Adams AM RAN Rtd, Commanding Officer of HMAS Duchess in 1969; Commodore P D McKay RAN Rtd, Executive Officer of HMAS Duchess in 1969; Rear Admiral P R Sinclair AC RAN Rtd, Commanding Officer of HMAS Duchess in 1971; Commander G L Ramsay RAN Rtd, Executive Officer of HMAS Duchess in 1971; and Commander C W Fitzgerald RAN Rtd TAS officer of HMAS Duchess in 1971.  Despite no record or recollections by others aboard HMAS Duchess, Mr Blanch insisted that this event occurred.. 

21.     When sailing into Vung Tau Harbour on that first trip, Mr Blanch stated that HMAS Duchess was closed up into Action Stations.  He was in the Operations Room, which is below the bridge and occupies the entire width of the ship.  The Operations Room contained all the radar screens, which are manned. There are voice circuits utilised in that room and the Principal Warfare Officer is also located in this room along with the Sonar Officer and the Air Combat Officer.  Mr Blanch presumed that the Principal Warfare Officer was in the Operations Room when HMAS Duchess entered Vung Tau Harbour.  On entering the harbour, Mr Blanch stated he could see other vessels on the radar screens, so he knew there was activity.  He did not know if the vessels were friend or foe or neutral, such as fishing vessels.  Mr Blanch told the Tribunal that he had access to the voice circuit with all the different voices. He could definitely hear action on land via those voice circuits because he could hear aircraft reporting in from bombing runs. There were also reports from the Electronic Warfare Officer of radar locking onto the vessel.  Mr Blanch said that this occurred on the three trips he undertook to Vietnam.  The Principal Warfare Officer would be aware of what was happening around the vessel and the overall threat to the vessel including differentiating between when the enemy radar was in search mode and when it was actually locked onto his vessel.  

22.     Mr Blanch described feeling petrified on this first trip.  He was about 18 years old at the time when most of his friends in Australia were leaving school.  He was in a war zone, very apprehensive, very nervous and churned up (Transcript, p15). He was frightened of the unknown and whether he was going to make it.

23.     Mr Blanch presumed that he had arrived in Vung Tau Harbour in the morning, as the reason for being there was so that HMAS Sydney could off-load troops and stores and therefore would want to make use of daylight hours. While Mr Blanch thought that the ship would have been at Action Stations entering Vung Tau Harbour, the ship may then have gone to Defence Stations, which was still a very high state of alert but not so high as Action Stations.  He noted that being a radar plotter, he was also a member of the Seaman's Branch, which required not only that he undertake watches in the Operations Room, but he was also required to undertake general shifts for example in ship husbandry, such as ship painting and cleaning the upper decks. He believed that he was an Able Seaman at the time.. However, when on deck in Vung Tau Harbour, he saw a great deal of military movement, military vehicles on the shoreline and in the distance he could see air to ground strafing by aircraft and helicopters and particularly remembered the American Skyhawk helicopters.

24.     The air to ground activity was in the distance in the hills.  He could see the aircraft diving in and could see rockets or missiles firing into the hills.  He could also hear the explosions and see the smoke.  This action occurred during the day and again he thought that the ship at that time was at Defence Stations.  For him, being at Defence Stations meant that there was still the same threat around HMAS Duchess.  There were fishing vessels, sampans, and Chinese junks moving around - it was a "hive of activity all the time", Mr Blanch stated (Transcript, p20). There were cutters circumnavigating HMAS Duchess and HMAS Sydney, which were dropping scare charges at random intervals to deter enemy divers. The scare charges made a very loud noise, Mr Blanch stated. There were dead fish floating past from the scare charges. 

25.     Mr Blanch stated that part of the intelligence briefing before arriving in Vietnam was that there would be dropping of scare charges during the time they were in Vung Tau Harbour..  He noted that at Defence Stations, there were a number of machine gun posts set up on either side of the vessel and that these were constantly manned.  There were also armed sentries patrolling the decks.  Mr Blanch knew of "Operation Awkward" from the briefings before entering Vung Tau Harbour. Thus, Mr Blanch knew about scare charges, there being sentries on guard and of the ship’s launch patrolling the ship.  Dr Altman had noted in his report dated 23 June 1998 (T6, p27), that Mr Blanch had had no training for a war zone and that other ships had been hit before. Mr Blanch stated that he believed that Dr Altman may have been referring to American ships, which were hit by shore bombardment, before Mr Blanch had arrived in Vietnam. Mr Blanch agreed however, that he had no knowledge of any Australian ships being hit in Vung Tau.

26.     Mr Blanch was of the opinion that he stayed over night in Vung Tau Harbour and departed the following day. Mr Blanch was referred to the ship’s log which indicated that HMAS Duchess did not stay overnight in Vung Tau on any of the trips that he participated in.  In this regard, it is noted that the ship stayed only for six and a half hours.  Mr Blanch stated that his recollection was that he stayed overnight on that first trip, but would defer to the official history.  In Commodore Mulcare's report of 22 June 2002 (Exhibit R3, p2), it is noted that HMAS Duchess closed up at Defence Stations on 27 November 1969 at 1600 hours and anchored at 05.35 hours in Vung Tau Harbour, assuming Operation Awkward.  At 11.47 hours, HMAS Duchess weighed anchor, thus having a total of six hours, 12 minutes, in port with no overnight stay.

27.      Mr Blanch described his second trip to Vietnam in HMAS Duchess, which occurred between 3 April 1971 and 8 April 1971. Mr Blanch stated that he did not want to return to Vietnam and was still scared. He presumed that when HMAS Duchess met HMAS Sydney that that was somewhere off Vietnam waters and that they then escorted HMAS Sydney into Vung Tau Harbour. Mr Blanch was again in the radar room under the bridge. He believed he was closed up to Action Stations at this point.  Being in the Operations Room, he had access to what was happening all around the ship for about 100 miles and was aware of any threat to the ship.  He found his duties very hard because he was aware of the situation around him and therefore of the threat at the time.  On that second occasion, Mr Blanch observed the same type of activity as on his first trip, that is, air to ground activity in the distance of aircraft strafing and firing rockets.  Helicopters were undertaking low level strafing. He could see the flashes when the ordinance was dropped and the resultant smoke. He presumed that the ship was at Defence Stations in a higher degree of readiness including the steamers being kept up so if the need occurred, the ship could quickly leave the area.

28.     On that second trip, it was Mr Blanch's recollection that he stayed overnight in Vung Tau Harbour. Again, when referred to the official records of that trip, it was noted that on 5 April 1971 at 03.50 hours, the defence watch was closed up and HMAS Duchess anchored in Vung Tau at 06.35 hours.  The ship sailed at 15.30 hours and there was no overnight stay.  Mr Blanch stated that scare charges were going off every five minutes or so, although sometimes every ten minutes. He noted that they could not be let off at predictable intervals as the enemy would soon be aware and be able to slip in when they knew that scare charges were not going to be exploded.  Mr Blanch later agreed that scare charges were intermittent and not continuous.  When referred to Dr Altman's report dated 9 September 1999 (T16, p65), which quoted Mr Blanch stating that scare charges were going off all the time, Mr Blanch agreed that this was not correct, reiterating that the scare charges were intermittent. 

29.     Mr Blanch did not know that scare charges were not dropped when the tide was running but only in slack water.  However, Mr Blanch provided evidence that a scare charge went off at night and that it made it very hard to sleep because of the noise and his anxiety.  Mr Blanch stated that he slept below deck, four decks down. He did not know whether this was below the waterline. Mr Blanch further recalled that on either the first or second trip, the ship had been closed up at Action Stations or Defence Stations for 24 hours or maybe longer. He was finally able to go below and have some sleep, he thought probably around midnight. Mr Blanch stated that he was completely "dog-tired" after 20 or more hours on watch.  In cross-examination, Mr Blanch stated that he thought when in Vung Tau Harbour, they were at Action Stations most of the time, certainly when in Vung Tau Harbour on the third trip he recalled being at Action Stations.  Mr Blanch did not accept that he may have been confusing Action Stations and Defence Stations (Transcript, p50). 

30.     On this particular occasion, Mr Blanch had fallen into a deep sleep in his bunk and then he heard a "huge, massive, loud explosion which woke me up" (Transcript, p28).  Mr Blanch stated that he thought the vessel was under attack and his first thought was perhaps an underwater swimmer had attached a mine to the outside of the vessel.  Alternatively, he thought it might have been a junk filled with explosives. Mr Blanch was feeling petrified and thought he was going to die.  He jumped out of his bunk in his underpants, recalling that there might have been a very low red light on in the area.  By force of habit, Mr Blanch knew where to go, his heart was pounding and he remembers racing up the ladder. At the top of the ladder, he realised that there was no one else racing up as well.  It then dawned on Mr Blanch, that it might have been one of the scare charges going off from the cutters circling around the vessel.  Mr Blanch then considered that being below the waterline, the sound of a scare charge had reverberated through the water increasing the sound heard on the inside of the vessel.  He had images of the vessel sinking and of him drowning in the mess deck..  All of this occurred over a short period of time and even though he had heard scare charges before, Mr Blanch was scared, possibly because he had been so physically and mentally tired.  Mr Blanch went back to his bunk but did not return to sleep.  He was an emotional wreck and just lay on his bunk. Mr Blanch was referred to the report by Commodore Mulcare, which noted from the official records that on 5 April 1971 at 03.50 hours, defence watch was closed up and then HMAS Duchess arrived in Vung Tau Harbour at 06.35 hours. HMAS Duchess sailed later that day at 15.30 hours and there was no overnight stay.  When made aware of the official record, Mr Blanch commented, "…well that's the way I looked at it"  (Transcript, p69).

31.     Having escorted HMAS Sydney out of Vung Tau Harbour, Mr Blanch believed that HMAS Duchess would have recommenced her SEATO obligation and possibly would have gone back to either Singapore or Hongkong.  He stated that either on the first or second trip HMAS Duchess would have gone back to an Asian port, later saying he believed that this occurred for both trips.  When in a port, Mr Blanch stated that he would go ashore and certainly then would have a few drinks. He felt like he needed a drink more than he had before and drank considerably more.  He stated that he would have consumed beer.  When questioned that in fact he could not recollect going into an Asian port, Mr Blanch stated that he knew that the ship was based in the Asia area for six months at a time and HMAS Duchess visited many different Asian ports during the six month period including the Philippines, Singapore, Japan, Hongkong and Malaysia. For him to keep track of each one was difficult and he stated that he would have gone probably to Singapore or Hongkong as that was where they were based. 

32.     Considering the third trip, which was from 17 May 1971 until 1 June 1971, HMAS Duchess again met HMAS Sydney and escorted her into Vung Tau Harbour. Mr Blanch was again stationed in the Operations Room having access to the voice circuits and listening to the action around. It was essentially the same as on the other two trips, but Mr Blanch was much more apprehensive than he was on the previous two trips to Vung Tau Harbour.  On that third trip, Mr Blanch observed that there seemed to be more air to ground activity than he had previously experienced. There were more aircraft, and more bombing from the United States planes and helicopters. Mr Blanch stated that there seemed to be more smoke and he could see more explosions in the distance.  He stated there seemed to be more enemy activity within the general area.

33.     On the third trip, HMAS Duchess weighed anchor at about 5pm, and did not stay in Vung Tau Harbour but proceeded with HMAS Sydney out to sea where they stayed overnight.  The ships re-entered Vung Tau Harbour at first light the next morning.  It was possible that HMAS Duchess stayed at Action Stations, Mr Blanch stated. That would have been during the day in the harbour.  When the ship departed the harbour and remained off shore they would have reverted to Defence Stations, Mr Blanch stated, going back to Action Stations when HMAS Duchess re-entered Vung Tau the next day.  Before HMAS Duchess departed Vung Tau on the second day, Mr Blanch left the ship and was transferred to HMAS Sydney.. He explained that his initial engagement in SEATO obligations required that HMAS Duchess would be in the Far East for six months. After that six months, when he returned to Sydney, Mr Blanch was to marry two or three weeks or a month later. His fiancee had arranged the wedding to occur not long after Mr Blanch was to return. However, about four or five months into the deployment, Mr Blanch found out that  instead of having a six month deployment, it would be extended by another three months to a nine months period in the Far East.  His fiance was furious, having made wedding plans, and she approached the Navy office in an attempt to arrange for Mr Blanch to return home early in time for the wedding. This initial request was refused and she then approached her local Member of Parliament who was successful in arranging or overturning the decision. It was determined when HMAS Duchess re-entered Vung Tau Harbour in May 1971, Mr Blanch would transfer to HMAS Sydney and then be returned to Sydney with the returning soldiers already on HMAS Sydney.

34.     Mr Blanch explained that the transfer occurred using a "Jacob’s ladder".  This ladder was described as a rope ladder, which is flexible and can move around. The sides of the ladder are made up of rope sisal and the rungs of the ladder are made of a material which is flexible and can be rolled out until the bottom hits the water.  The motor launch would then wait while the person being transferred climbed down the ladder.  Mr Blanch's pack was transferred earlier during the day and it was only himself who was transferred.  Mr Blanch did not agree that the ladder used was an "accommodation ladder", which is similar to stairs and is attached to the side of the ship. While a statement from Commander Fitzgerald indicated that he left the ship probably on the same cutter as Mr Blanch, and used an accommodation ladder to depart HMAS Duchess, Mr Blanch insisted he transferred to the cutter on a Jacob’s ladder.  Mr Blanch maintained this view despite other recollections of Rear Admiral Sinclair, Commander Ramsay, in addition to the recollection of Commander Fitzgerald that transfer was by way of an accommodation ladder.  Mr Blanch denied poor memory, despite these events happening some 30 years ago.

35.     When halfway down the ladder, Mr Blanch saw a sampan junk-type vessel coming around the corner of the ship and heading directly towards the ship.  Mr Blanch could hear commotion up on the deck of HMAS Duchess and observed sailors running around yelling.  They were pointing over the side to the sampan, which continued to head directly towards HMAS Duchess.  While Mr Blanch had given early evidence that Vung Tau Harbour was a hive of activity, this sampan was different because of the commotion coming from the upper deck of HMAS Duchess.  Furthermore, there were guns trained on the sampan from HMAS Duchess.  Mr Blanch could hear and see the commotion on the deck above him and he formed the view that the sampan was hostile because of this level of commotion and activity.  Mr Blanch did not observe any weapons on the sampan.  In hindsight, Mr Blanch thought that the vessel was an innocent sampan but at the time it was occurring, he did not know that.  He did not know how long this scene continued.  It happened quickly and Mr Blanch also did not recall whether the ship went to Action Stations or whether there were sirens.  He thought that the sampan may have been about 200 yards away (Transcript, p62). 

36.     Mr Blanch stated that he froze and could not go up or down the ladder. He was petrified and was totally exposed at the time.  He thought that the sampan may have been full of explosives and it was going to ram HMAS Duchess.  If this had occurred, he would have died or if there had been gunfire from the sampan, he also thought he would have been killed..  The cutter continued to wait for him at the bottom of the ladder. The threat passed but when he reached the cutter, he was absolutely drained and a physical and emotional wreck, he stated. It was a feeling of being so helpless with nowhere to go, nowhere to hide and knowing that your life might have been finished and that you just had to cop whatever happened, Mr Blanch told the Tribunal (Transcript, p37).  He was assisted off the ladder when he reached HMAS Sydney and stated that he was still shaking.

37.     Mr Blanch was asked why in his statement of 16 March 1998 (T4, p11), he did not mention the sampan incident in connection with his transfer by the cutter. Mr Blanch told the Tribunal that he did not like mentioning these matters and it was only after seeing Dr Altman that he felt more able to discuss greater details about his experiences.  Mr Blanch denied that he had not mentioned this incident to Dr Altman. He could not recall when it was that he first raised it with Dr Altman. It was furthermore noted that the initial Board hearing and Dr Dent, Consultant Psychiatrist, made no mention of the sampan incident.  It was first introduced to the Board on 26 July 2001 (T24, p98).  Mr Blanch denied that he made up the claim in relation to the sampan issue for the purpose of his wish to have his Disability Pension reinstated for the condition of post traumatic stress disorder.

38.     In each of the three trips to Vietnam, Mr Blanch stated that he saw aircraft firing in the distance including helicopters but more so on the last trip. Mr Blanch was able to observe this activity because in addition to his Operations Room duties, he worked on the upper deck in the afternoons. He had not invented this evidence and maintained his view despite there being no record of such activity.

39.     All of the incidents over the three trips put fear into him, Mr Blanch stated.  He noted that if one’s life is threatened, then it does not matter which incident it was that was going “to knock you over”.  All of the incidents scared him and he feared for his life.  The incidents would to him seem to have been of the same intensity.  Mr Blanch then described another incident that he had detailed to the Board in which he discussed USS Cole, which had a hole blown into its side. Mr Blanch stated that this could have been him in HMAS Duchess.

40.     Mr Blanch described his alcohol consumption having left Vietnam.  He thought that his first port after Vung Tau may have been Darwin and then onto Sydney. When he arrived in Darwin, he stated that he went straight to the nearest hotel.  He probably got drunk, he stated, and came back on board under the influence of alcohol.  He was drinking heavily when he returned to Sydney and was feeling depressed and anxious. Mr Blanch estimated that on each of the trips to Vietnam, there would have been two days on each trip with the extra time off the coast in Vietnamese waters (Transcript, p45).  He stated that he was trying to be as accurate as possible with his memory hence his frequent use of the terms "if memory serves me correct".  Mr Blanch stated that he did not want to provide inaccurate evidence to the Tribunal.  Mr Marsh pointed out that the ship’s log indicated that there was a total over the three trips to Vietnam of 40 hours and approximately 30 minutes in Vung Tau Harbour (Transcript, p46).

41.     When asked further about his alcohol consumption, he stated that "we went ashore and had a few beers I would imagine"  (Transcript, p73).  The culture in those days was that every spare night you had was always spent ashore.  You would have a "night on the town" (Transcript, p72), staying out until 2am.  He could not remember anything specific about his trip ashore after the first trip.  Mr Blanch also could not recall anything memorable ashore after the second trip. He was drinking more than he was drinking before he went to Vietnam and his wife noticed that it was hard for him to communicate with her.  He also suffered more headaches and felt depressed and but not know why.

42.     When Mr Blanch returned to Australia to get married, he believed that he had changed.  He was more anxious and drinking more.  He had knots in his stomach, was nervy and sweating and could not concentrate (Transcript, p72). Mr Blanch married about one week or one month after his return from Vietnam.  He could not recall the day he first married.  He also could not exactly recall the date of his second marriage, but thought it was approximately eight years ago on 21 or 22 November.

43.     Mr Blanch described having difficulty going to sleep and then, after he had fallen asleep, he would wake up in the middle of the night with a nightmare and find it very difficult to return to sleep.  He often dreamed about his time in the Navy when he was in Vietnam.  He often dreamed of dangling off a rope from a skyscraper.  On occasions, Mr Blanch would wake up screaming and his wife would ask him what was the matter but he would not tell her.  He would keep everything to himself, as he was probably ashamed.  Mr Blanch lost feelings for his wife and found it emotionally difficult to communicate.  He did not want to speak to her about his experiences despite Mrs Blanch asking him a number of times about these. 

44.     Mr Blanch was only married to his first wife for two years.  He believed that he was drinking too much and this caused him to experience mood swings.  One minute he would be all right and then in the next moment, he would be snarly, cranky and grumpy for no reason.  He had arguments with his wife when she wanted to go out and do things and Mr Blanch did not want to do anything other than stay at home. His alcohol consumption got too much for his wife. He believed at that time he would have been drinking seven or eight schooners per day.  Occasionally, he would have spirits or wine but it was always at least seven or eight schooners per day.  He is continuing to drink at this level at the time of Hearing.  Mr Blanch stated that he may even be consuming more now but it was hard to say.  Later in evidence, Mr Blanch stated when he came back from Vietnam he was possibly drinking six schooners of beer per day but that has increased.  Mr Blanch had not consumed alcohol on the day of hearing, although he did feel like having a drink.  Mr Blanch explained to the Tribunal that the consumption of alcohol calms his nerves.

45.     Concerning Mr Blanch's work, he is employed as a Customs Officer.  He finds it very hard to concentrate in his job.  Sometimes he would have alcohol at lunchtime or slip out from work in the afternoon and after work. This is a regular pattern, Mr Blanch stated. He feels a need for alcohol and it takes the pressure off things for him.  Mr Blanch stated that he still becomes depressed and experiences mood swings for no reason.  He argues with his current wife.  Mr Blanch stated that he does not feel secure about his marriage or his work.  He feels that everything could fall apart.  However, Mr Blanch consults Dr Altman, Psychiatrist, having been referred to him by his general practitioner at the time, Dr Steele. Mr Blanch consults Dr Altman every month and takes the medication "Lovan". The dose has been increased from one tablet to three tablets per day, 20 milligrams.  He thinks that the medication sometimes helps him but on occasion he will wake up in the morning depressed.  Dr Altman has advised Mr Blanch to cease drinking on many occasions. He noted that he does not drink and drive and drinks at home on the weekends and occasionally, as he has mentioned, will drink at work but certainly each day after work.

46.     Dr Altman in his urging Mr Blanch to cease drinking has seen some success in that Mr Blanch has cut down his alcohol consumption for a short period, but he then continued drinking subsequently. Dr Altman has recommended in-patient treatment but Mr Blanch has a seven year old son whom he does not wish to leave. Mrs Blanch has also urged her husband to give up drinking and/or "shape up or ship out".  At work, Mr Blanch has performance reviews. He has been told at work not to drink so much.  He is known to be an ex-serviceman and he stated that this allows him to be left alone.

47.     Mr Blanch was questioned about his memory and he later admitted to the Tribunal that people may have difficulty remembering events 30 years ago.  Despite the official history of HMAS Duchess having no overnight stays in Vung Tau Harbour, Mr Blanch stated that his best recollection was that there was an overnight stay. However, he noted that the official records would override his memory also in relation to HMAS Duchess not being at Action Stations, as he claimed.  Mr Blanch did not think he had convinced himself of a particular situation. Mr Blanch also did not believe that he filled in the gaps of his memory to fit in with things that he did remember.  He stated that he remembered some matters well and others he did not. He may have had difficulties remembering some things but this is understandable in the context of the pressure upon him from the Tribunal.

evidence of commodore pm mulcare ran rtd., writeway research services

48.     Commodore Mulcare provided a report dated 22 June 2002 (Exhibit R3). At Hearing, Commodore Mulcare noted that he had joined the Navy in 1954 as Cadet Shipman, trained in Australia and in the United Kingdom and then served in Australia in HMAS Swan, the aircraft carrier HMAS Melbourne and a number of other ships. Commodore Mulcare served in the Far East in HMAS Yarra and HMAS Parramatta and was in Vietnam in 1970 through to 1972.  He had senior appointments in Canberra and retired approximately 11 years ago. In preparing his report, Commodore Mulcare went through the Report of Proceedings and the ship’s log for HMAS Duchess.  He also contacted a number of officers who had served in HMAS Duchess during the relevant period.  In this regard, he had discussed Mr Blanch's contentions with the following:

·     Commodore H J P Adams AM RAN Rtd, Commanding Officer of HMAS Duchess in 1969;

·     Commodore P D McKay RAN Rtd, Executive Officer 1969;

·     Rear Admiral P R Sinclair AC RAN Rtd, Commanding Officer 1971;

·     Commander G L Ramsay RAN Rtd, Executive Officer 1971; and

·     Commander C W Fitzgerald, RAN Rtd, TAS Officer 1971.

49.     Commodore Mulcare did not consider that between 1969 and 1971, the war was intensifying around Vung Tau.  He noted that in general, ships would have gone to sea overnight from Vung Tau, irrespective of intelligence that there had been activity in the area.  Dealing with each of Mr Blanch's contentions, Commodore Mulcare noted Mr Blanch's discussion of undertaking a replenishment at sea where a cable had broken in the process, whipped back and hit a sailor on the leg injuring him and causing a great deal of blood to fall on the deck.  Commodore Mulcare noted that a light jackstay is used for transferring personnel and stores to a maximum weight of 500 pounds.  The process involved fixing a line between the two ships, which would require a jackstay party of some 20 to 30 men whose job it was to haul on the jackstay to tension it.  As the jackstay was only tensioned by manpower, it only could part under tension in the very unlikely event that it was somehow snagged on the supplying ship's structure, as the two ships moved apart. Parting the jackstay at any stage of a transfer would rate as a significant event, Commodore Mulcare noted, particularly if there were injuries.  Such an event would have been recorded in the log and mentioned in the Report of Proceedings, according to the recollections of the officers, Commodore Mulcare contacted.  None of the officers contacted by Commodore Mulcare recalled any incident as described by Mr Blanch nor are there any reports in the ship’s log or the Report of Proceedings.  As a seaman, Mr Blanch could have been involved in jackstay transfer, Commodore Mulcare stated.

50.     In relation to the threats in Vung Tau Harbour, Commodore Mulcare noted that the principal threat to ships that anchored off Vung Tau was that of attack by enemy divers or floating mines.  Other possible threats included attacks by small craft filled with explosives or mortar, or rocket attacks from boats or positions ashore if the Viet Cong could get within range.  The tidal stream in Vung Tau Harbour rated four to six knots and the outflow of the local river system contained a great deal of debris, including vegetation, particularly in the wet season from April to November. When the tide is on the turn, its slows down, stops and then reverses. This is the period of highest danger. The threat did not materialise over the years the Navy had ships in Vung Tau, but the threat was always taken very seriously and defensive measures collectively known as "Operation Awkward" were put in place. These measures typically involved the ship remaining closed up at Defence Stations and a number of other measures notably:

·     sensors and weapons systems manned;

·     armed sentries being posted on the upper deck to watch for the signs of any suspicious activities such as air bubbles or suspicious debris;

·     ship's boats patrolling in the vicinity of the ship towing anti-swimmer devices constructed from razor wire or grappling hooks;

·     ship's divers searching the anchor cable and the hull from time to time;

·     scare charges being thrown in the vicinity of the ship;

·     the ship remaining at short notice to get underway and the main engines turned from time to time to increase the wash under the hull;

·     the anchor cable would be broken and the outboard end secured to a slip so that it could be released immediately if the ship needed to get away;

·     the ships sonar was manned in "listening" mode to detect any suspicious underwater noises;

·     the ship remained in "Damage Control State 3 Condition Y", a high state of watertight integrity.

51.     Commodore Mulcare noted that on board a ship, the sound of a scare charge explosion is typically a loud thud but this would vary with a number of factors including distance of scare charge from the ship, the depth of water, the depth of the explosion and the characteristics of the seabed. The sound is much sharper and louder in the ship’s compartments below the waterline and could be frighteningly loud if the charge was exploded alongside the ship. Some Commanding Officers preferred to throw scare charges from boats while others might have had them thrown from the upper deck of an escort ship.  Commodore Mulcare noted Mr Blanch's evidence to the Board that he was asleep at 2am when the charge was dropped. He stated that HMAS Duchess was only in the harbour during daylight hours and the scare charges would have been dropped sometime after the ship anchored that is after 05.35 in 1969 and at 06.35 later on the three days Duchess anchored in 1971.  There was also some debate as to whether or not HMAS Duchess was at Action Stations or Defence Stations in 1969.  Commodore Mulcare noted that if the ship was at Action Stations, Mr Blanch would not have been in his bunk when the first scare charges exploded.  If the ship was at Defence Stations, which was more likely as there is no record of Action Stations in the log, he may still have been in his bunk and not heard the main broadcast including warning pipes about the scare charges. He is likely to have been up and about by the time the scare charges were first used during the 1971 visit.

52.     In relation to the Jacob's ladder event, Commodore Mulcare noted that a Jacob's ladder was used to access a ship's boat secured to a boom and a Jumping ladder was used to embark persons from a boat at sea, or when underway in harbour.  He noted that some personnel might have referred to a Jumping ladder as a Jacob's ladder, but whatever description, it was not suitable for constant use in harbour particularly when boats had to be loaded with scare charges, divers, personnel, luggage and the like thoughout the day.  Commodore Fitzgerald had also transferred to HMAS Sydney by boat to return to Australia and was probably in the same boat as Mr Blanch.  Commodore Fitzgerald recalled that HMAS Duchess had an accommodation ladder rigged and the personnel boarded the boat via that accommodation ladder.  Both Rear Admiral Sinclair and Commander Ramsay believe that an accommodation ladder was rigged, and neither of them could conceive why one would not have been rigged and used, given the large number of boat movements that day.  Accommodation ladders are quick to rig and easier to walk up and down and are convenient in harbour, Commodore Mulcare noted. Jacob's ladders are effective getting into a boat but are labour intensive to set up. Commodore Mulcare stated that it is possible that the accommodation ladder would be used for multiple transfers but did not think it likely that Mr Blanch would have to leave the ship by the Jacob's ladder because he was a seaman and not an officer.

53.     Neither Rear Admiral Sinclair, Commodore Ramsay or Commodore Fitzgerald recall HMAS Duchess being threatened by any vessel while she was in Vung Tau Harbour nor did they recall the ship reacting to a perceived threat in the manner Mr Blanch described. Rear Admiral Sinclair stated that he spent a good deal of time in Vung Tau Harbour on the bridge and he believed he would recall any threatening situation.  He also observed that one of the roles of HMAS Duchess' boats on patrol around the ship was to intercept any boats heading towards the ship before they came close. He did not believe that the incident as described by Mr Blanch had occurred.  There was no evidence of a sampan threatening the boat on 23 May 1971 and if there had been, Action Stations would have been taken and this would have been recorded in the log or Reports of Proceedings.  Such an incident as described by Mr Blanch would certainly be recorded by the Commanding Officer and anyone else around at the time as a significant threat.  The fact that it was not recalled by senior officers present who were charged with the safety of the ship is a point against the event occurring, Commodore Mulcare opined. The ship’s boat would have been directed against the sampan and somebody would have opened fire on it if there was a danger.

54.     Turning to Mr Blanch's contentions that he witnessed bombs being dropped and he could see United States planes overhead and helicopters firing in the distance, Commodore Mulcare noted that there was a busy airfield in Vung Tau and helicopters were used in the loading and unloading of HMAS Sydney.  Commodore McKay recalled that on one occasion when HMAS Duchess was entering the harbour, helicopter gunships could be seen firing rockets in the distance in the vicinity of the Long Hai Hills, which would have been approximately ten nautical miles away from HMAS Duchess. The rockets firing and their exhaust could be seen many seconds before their associated noises were heard on board HMAS Duchess. Any action less than one and half miles from HMAS Duchess would have been recorded in the ship's log, Commodore Mulcare noted.  In Attachment 9 to Exhibit R3, the Commanding Officer, P R Sinclair noted on 22 May 1971 (paragraph 16) that there was a report of enemy activity in the hills around Vung Tau. Commodore Mulcare believed this may have been around Long Som Island and the exchange was within rocket range.  Mr Blanch could have heard explosions and strafing taking place but a long way off.  He certainly would have seen aircraft on a radar screen.

55.     In relation to an enemy radar locking on to HMAS Duchess as Mr Blanch asserted occurred when HMAS Duchess entered into Vung Tau Harbour, Commodore Mulcare stated, that there was no enemy radar in Vung Tau. That would have happened to United States service fleets up near the middle zone or northern part of South Vietnam.

evidence of dr g altman, consultant psychiatrist

56.     Dr Altman provided reports dated: 23 June 1998 (T6); 14 April 1999 (T10); 9 September 1999 (T16).  Dr Altman noted in his first report that Mr Blanch told him he served in Vietnam for approximately three to five days. He had stated that being in the war zone was of itself stressful and there were scare charges going off to repel enemy divers.  Mr Blanch had also told Dr Altman that there was danger of collision with other vessels and that he did not really have training for a war zone. Mr Blanch told Dr Altman that other ships had been hit before HMAS Duchess had arrived and that played on his mind. He noted for Dr Altman that he was at Action Stations just about all the time and there were background explosions.  He had also told Dr Altman about a cable breaking when undertaking replenishment at sea and that the cable had whipped back fairly close to him.  He told Dr Altman that he had stayed in Vietnam an extra three months and his wedding was postponed.  There was a danger of collisions at sea at night.  Mr Blanch told Dr Altman that the experiences made him drink a lot more.  He suffered nightmares perhaps once a fortnight sometimes two or three times a night and he had recurrent intrusive distressing thoughts that popped into his head. He suffered from flashbacks, thinking that he was on the ship again.  Dr Altman reported that Mr Blanch stated that he avoids talking about his war experiences, watching war movies and generally avoids attending Anzac Day marches and reunions.  When talking about his experiences he became clammy and sweaty and that he was generally much more of a loner.

57.     In relation to his alcohol intake, Mr Blanch had reported to Dr Altman that he was drinking approximately eight schooners of beer per day and approximately ten schooners of beer per day on the weekends.  Prior to going to Vietnam, he only drank alcohol socially and during his Vietnam service he drank minimal amounts of alcohol. In relation to his first marriage, Mr Blanch reported to Dr Altman that he started drinking heavily and was irritable with his wife, hard to live with and did not want to communicate. He married the second time in 1993.

58.     Dr Altman concluded that as a result of his war experiences Mr Blanch suffers from a severe chronic post traumatic stress disorder with associated major depression and alcohol dependence.  He assessed him as having an impairment rating of 45 points from the “Guide to the Assessment of the Rates of Veterans' Pensions” ("the Guide").  Dr Altman noted that Mr Blanch might become totally and permanently unfit to work.

59.     In his second report (T10), Dr Altman reaffirmed his diagnosis of post traumatic stress disorder with associated major depression and alcohol dependence.

60.     In his third report (T16) Dr Altman noted that the stressors Mr Blanch was subjected to during his operational service were severe enough to cause post traumatic stress disorder. The stressors, he believed, which caused this condition were:

·     The incident with the snapped cable, which hit a sailor close to Mr Blanch and wounded him.  Mr Blanch thought that he was going to be hit and that he would be killed. This incident took place on the way to Vietnam about half or three quarters of the way there.

·     The explosion of scare charges going off all the time and particularly on one occasion when Mr Blanch was asleep in his bunk. He awoke with a startle, thought that the ship had been hit and ran to his Action Stations. He was petrified the ship was being attacked.

·     The air to ground activity and not knowing what is going to happen.

·     Helicopters flying over and the sight of them firing in the distance.

·     On one of the trips Mr Blanch was transferred from HMAS Duchess to HMAS Sydney and scare charges where going off in Vung Tau Harbour, he never knew they were being attacked and he had no training of what to do if they were attacked.

evidence of dr m dent, consultant psychiatrist

61.     Dr Dent provided a report dated 28 September 2000 (T21).  Dr Dent found Mr Blanch to be a credible man and diagnosed a significantly severe chronic post traumatic stress disorder and substance dependence in the form of alcohol.  These conditions were related to his operational service.  Dr Dent noted that:

"…the information generated by Mr Blanch and in light of all information provided and particularly if one refers again to that which is stated on pages 73 and 74 of his Application for Review at T19, what he told me certainly makes quite clear sense in that context, notwithstanding what other historical information is provided upon which the Department will rely."  (T21, p81).

evidence of dr r d lewin, adult general and forensic psychiatrist

62.     Dr Lewin provided a report dated 2 August 2002 (Exhibit R2).  Dr Lewin recorded three particular stressors, which Mr Blanch related to him. These were that he was doing a replenishment at sea and a cable linking the two ships broke which then whipped back and hurt a sailor who then was bleeding and there was blood on the deck.  Mr Blanch thought the cable was going to hit him and described the incident as "traumatic".  On another trip to Vietnam, Mr Blanch was expecting to return to Sydney, having planned to marry within days of the expected date of return and he was told that the tour was going to be further extended by three months. He gained permission to be transferred from HMAS Duchess to HMAS Sydney to then return to Sydney and in the process while going down a Jacob's ladder, he was confronted when halfway down the ladder by a wooden sampan travelling towards the ship.  He recalled a "fuss on deck" and he believed the machine guns were being pointed at the sampan.  No fire was exchanged but he thought that the ship may well have been under attack and he felt extremely helpless.  On a further trip into Vung Tau Harbour, Mr Blanch described experiencing the scare charges and repeatedly had heard them during the daytime. On one occasion he awoke from his sleep and thought the vessel might have been under attack because of an explosion.  He latter realised that this was a scare charge. 

63.     Dr Lewin concluded that the experiences described by Mr Blanch would not fall outside the range of ordinary human experience and Dr Lewin noted that Mr Blanch was never in combat or faced with immediate threat. Thus, Dr Lewin concluded that the reported experiences would not satisfy the first diagnostic criterion regarding a "severe stressor" as defined in the Statement of Principles. There are two diagnoses, however, which Dr Lewin thought appropriate.  It was evident to Dr Lewin that Mr Blanch has a drinking problem and demonstrates early features of alcohol dependence syndrome.  There is also a long history of anxiety and Dr Lewin diagnosed generalised anxiety disorder.  Dr Lewin noted that it is unclear on the basis of the history whether the drinking problem is the primary problem or whether the generalised anxiety disorder is the primary problem. 

64.     In relation to his alcohol consumption, Dr Lewin further concluded that Mr Blanch demonstrated a maladaptive pattern of abuse of alcohol leading to clinically significant impairment manifest by tolerance, alcohol being taken in larger amounts or over a longer period than intended despite a persistent desire and repeated unsuccessful effort to cut down. There also appeared to be impairment in occupational functioning, Dr Lewin opined. Thus, Mr Blanch fulfils the definition of alcohol dependence contained within the relevant Statement of Principles.

submissions

65.     Mr Winship, for the Applicant, referred the Tribunal to the relevant Statement of Principles, which he considered to be Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder.  Also relevant is Instrument number 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.  Mr Winship noted that in both Statements of Principles, the factor related to “experiencing a severe stressor” is defined similarly.  Mr Winship noted the definition of "experiencing a severe stressor" means that:

"…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 Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as stressors include:

i.threat of serious injury or death; or

ii.engagement with the enemy; or

iii.witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…"

66.     Mr Winship noted Commodore Mulcare's report at page 4 (Exhibit R3), where he highlighted the threat at Vung Tau.  At paragraph 11, Commodore Mulcare notes the principal threat to ships at anchor off Vung Tau was that of attack by enemy divers or floating mines while other possible threats included attack by small craft filled with explosives or mortar or rocket attacks from boats or positions ashore if the Viet Cong came within range.  It was noted by Commodore Mulcare that HMAS Duchess was at Operation Awkward Stage 2 of readiness, which indicates that there was real threat. Mr Winship submitted that HMAS Duchess was under threat of attack and relied upon the Commanding Officer at the time, P D Sinclair, that there was recent enemy activity in the hills surrounding Vung Tau and HMAS Duchess' anchorage was reported to be within rocket range of enemy locations. The ship was not left at anchorage during the night time but taken out to sea because of very real threat, Mr Winship contended.

67.     Mr Winship accepted that on the first two occasions the transfer of personnel to HMAS Sydney might have taken place in one day and that HMAS Duchess may not have stayed over night.  Mr Blanch’s recollection that he did stay overnight on the second occasion is not that clear, Mr Winship submitted, but that occasion is not the thrust of the Applicant's case, Mr Winship stated.  The issue in the Applicant's submission, related to the third occasion Mr Blanch was in Vung Tau Harbour.  Mr Winship submitted that at the time of that third visit, the war was escalating and the Applicant's evidence of increased activity is credible. As a radar plotter, Mr Blanch had particular knowledge of increase activity.  He perceived this and this instilled in Mr Blanch's mind a real threat.

68.     In relation to Mr Blanch's transfer to HMAS Sydney, Mr Winship submitted that it is not unheard of as a type of punishment that Mr Blanch would have left HMAS Duchess by way a Jacob's ladder, because the ship's officers are far more important and their transfer was by a different ladder system. Mr Blanch may have also been punished because of his preferential treatment in being able to transfer from HMAS Duchess to arrive early back in Sydney. Specifically, considering the appearance of the sampan, it is not just Mr Blanch's perception that there was threat from this event, but he also saw and heard the commotion on deck from other sailors who saw the sampan. In this regard, Mr Winship submitted, Mr Blanch saw men running to the side of the ship and pointing their SLR guns at the vessel in addition to seeing machine guns aimed the vessel.  If a machine gun is pointed in the context of Operation Awkward Stage 2, this indicates risk and real threat, Mr Winship contended.  Mr Blanch objectively would have been in a state of feeling real threat of death or at least serious injury on that occasion, Mr Winship further contended.  That event alone satisfies two of the examples provided in the definition of the experiencing a severe stressor contained in the relevant Statements of Principles. Mr Winship submitted that there did not have to be the actual firing of any guns to ensure the definition is met.

69.     Considering the jackstay transfer, Mr Winship submitted that transfer at sea did occur and Commodore Mulcare supported this.  Furthermore, as a seaman, Mr Blanch would have been involved in jackstay transfers when he was not on watch in the Operations Room.  Mr Blanch saw the cable splinter and noted it made snake-like movements all over the deck, injuring a sailor.  There had been no death so it is conceivable, Mr Winship submitted, that the injury was not recorded in the ship’s log or Report of Proceedings and noted that everything is put into those Reports of Proceedings.  What is included in the ship’s log or Report of Proceedings is essential information for the ship’s movement for historical purposes. Mr Winship submitted that Mr Blanch witnessed a casualty and this also met the stressor definition of experiencing a severe stressor.  If the Tribunal did not accept the occurrence of these events, Mr Winship submitted that the Applicant would have to be found to be  lying. 

70.     In Mr Winship's submission, he conceded that Mr Blanch may have been misunderstood and he himself may have “misunderstood thinking” back 30 years ago about the scare charge at night.  Mr Blanch stated he is clear in his memory. It is not fatal in his proceedings however, that he does have a lack of memory back that far.  What is more significant, Mr Winship submitted, is that he told the Board that the most significant stressor for him was that with the sampan.  Furthermore, Mr Winship asked the Tribunal to consider that Mr Blanch does not handle the pressure of questioning very well as is evidenced in these proceedings before the Tribunal. Thus, Mr Winship concluded the pressure of the hearing process and of being questioned adversely impacts on him and he does not quite understand what he is taking about. Mr Blanch was however very definite about the jackstay transfer incident and that is supported by the record to the point that a jackstay transfer took place.

71.     Mr Winship discussed the diagnostic criteria for post traumatic stress disorder contained within DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association) and relied on Mr Blanch's evidence that he suffered intensively, he felt helplessness, horror and also has had recurring and distressing dreams of the sampan event. Mr Blanch frequently argues with his wife and he had feelings of detachment or estrangement from his wife. He has been married twice. He is having similar difficulties with his second wife and he is again concerned that this marriage may also break up. Mr Blanch constantly has thoughts of matters related to the war.  Mr Blanch has also avoided talking about particular incidents and forgot to even tell his treating doctor initially about events that had taken place.  This can be explained by the fact that until Mr Blanch trusts a person, he does not tell very much about himself, Mr Winship submitted. Mr Winship noted that Mr Blanch had an inability to recall particular aspects of some of the incidents he had experienced. Furthermore, Mr Blanch has difficulty falling and staying asleep, Mr Winship submitted.  He is irritable and has outbursts of anger, particularly with his wife. These are not symptoms of anxiety or a generalised anxiety disorder but rather symptoms of post traumatic stress disorder.  Mr Winship relied on Dr Altman's diagnosis in this regard. Dr Altman is the treating psychiatrist and there is support for his opinion from Dr Dent who arrived at a similar diagnosis.  Dr Lewin has concluded that Mr Blanch has a generalised anxiety disorder. There are however two doctors who are in agreement that the correct diagnosis of Mr Blanch's psychiatric condition is post traumatic stress disorder, Mr Winship submitted.

72.     Mr Winship contended that when this matter was considered objectively, Mr Blanch has suffered or experienced a severe stressor on entering Vietnam on the first occasion and on the third trip, when the ship was within rocket range of the enemy according to the Commanding Officer.  The ship behaved differently on the third occasion in that that it spent the night out at sea. There is adequate objective evidence, Mr Winship submitted, of the threat of serious injury or death, engagement with the enemy and witnessing casualties in relation to the jackstay transfer.

73.     Turning to Mr Blanch's alcohol dependence, there is evidence from Dr Lewin that Mr Blanch does have alcohol dependence, as is supported by Dr Altman the treating psychiatrist, Mr Winship submitted. The levels of alcohol consumed by Mr Blanch fulfil the criteria for alcohol dependency. Mr Winship noted that the evidence is that on practically every visit to Dr Altman, Mr Blanch was advised to reduce his alcohol consumption. There is evidence that Dr Altman asked Mr Blanch to attend a clinic for treatment of alcohol dependence, but Mr Blanch has felt unable to do that because of the obligation he has to look after his six year old son. Mr Winship relies on Factor 5(a) of the relevant Statement of Principles concerning Alcohol Dependence and Alcohol Abuse, which requires that a person is suffering from a psychiatric disorder.  That psychiatric disorder is post traumatic stress disorder, which had its clinical onset on Mr Blanch's return to Australia from his third trip to Vietnam, Mr Winship contended. The previous incidents in Vietnam added to Mr Blanch's premorbid condition, Mr Winship submitted. The incident relied upon by the Applicant is that of the sampan coming into view as Mr Blanch was going down the ladder preparing to transfer to HMAS Sydney.  Mr Winship submitted that as soon as Mr Blanch arrived back in Sydney after the third visit, he consumed alcohol to a high level and that was the clinical onset of alcohol dependence because he never stopped consuming alcohol from then on and has never decreased his alcohol intake. Mr Winship submitted that Mr Blanch has maintained his alcohol consumption over many years and if he keeps this up, he will not be able to carry out his job.

74.     Mr Winship concluded that Mr Blanch has war-caused post traumatic stress disorder and alcohol dependence and the date of effect for Disability Pension for these conditions is 16 December 1997.

75.     Mr Marsh, for the Respondent, submitted that the first question to be determined is the issue of diagnosis of Mr Blanch's psychiatric conditions. The alternatives are post traumatic stress disorder and psychoactive substance abuse in the form of alcohol dependence.

76.     In terms of post traumatic stress disorder, that diagnosis is made by Dr Altman in his report dated 23 June 1998 (T6, p27).  The diagnosis of alcohol dependence is also made by Dr Altman and also by Dr Lewin in his report dated 2 August 2002 (Exhibit R2). Mr Marsh submitted that the determination about the diagnosis is to be made on the balance of probabilities or the civil standard, as established in the Full Federal Court decision in Benjamin v Repatriation Commission (2001) 70 ALD 622.

77.     Mr Marsh submitted that the diagnostic criteria for post traumatic stress disorder are not met. The Respondent is not inviting the Tribunal to make a medical judgment or to overturn Dr Altman's diagnosis, Mr Marsh submitted, but it is simply a requirement of the Statement of Principles that the diagnosis in this case is being determined in an administrative context.  Dr Altman does not face the same criteria as is imposed or constrained by the Statement of Principles.  Mr Marsh submitted it is at the point of determining whether Mr Blanch experienced a stressor that the diagnosis fails. 

78. Another issue is deciding which Statement of Principle is relevant. Mr Marsh noted that on one view, the primary decision is the section 31 of the Act revocation on 23 February 2000, which would mean that the latest Statement of Principles is applicable. However, on another view, it might be that since the decision revoked an earlier decision, then one would go the earlier Statement of Principles. In either case, the Respondent submits, the diagnostic criteria are not satisfied for either Statement of Principles.

79.     In terms of psychoactive substance abuse or dependence, Instrument Number 5 of 1994, which was the earlier Statement of Principles, or in the Statement of Principles Instrument Number 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse, the same issue arises. Mr Marsh addressed the earlier Statement of Principles Instrument Number 5 of 1994.  It is the Respondent's submission that while the diagnostic criteria for alcohol dependence are satisfied for either Statement of Principles, the stressful event or experiencing a severe stressor, as it has been described in the more recent Statement of Principles, does not exist in terms of the case law or of the evidence in this particular case.  Mr Marsh noted that in terms of alcohol, the Applicant is relying on Factors 5(a) and 5(b).  One factor requires experiencing a severe stressor within the two years immediately before onset and the other the Factor requires suffering a psychiatric disorder.  Experiencing a severe stressor is defined in the latest Statement of Principles in almost identical terms as experiencing a severe stressor in the Statement of Principles for post traumatic stress disorder.

80.     Mr Marsh submitted that the Respondent does not press the alternate diagnosis of generalised anxiety disorder, as Dr Lewin does not address the Statement of Principles nor has he addressed clinical onset. Dr Lewin has not looked at the appropriate diagnostic criteria. The Respondent does however rely on Dr Lewin in relation to his opinion concerning alcohol dependence or abuse, which is consistent with Dr Altman's opinion.

81.     Mr Marsh further submitted that on the best possible view, Mr Blanch's evidence is unreliable on the basis of a defective memory. The alternate view would be that the events have been fabricated but Mr Marsh preferred to submit that there were difficulties with memory and this was evident in both Mr Blanch’s examination in chief and cross-examination.  Mr Marsh referred the Tribunal to the way Mr Blanch couched his responses in terms of qualifying terms such as "I might have done" or "I would have done" rather than "I clearly recall I did do".  Mr Marsh submitted that Mr Blanch provided his evidence in a very matter of fact and detached manner and there was no sign of any distress at all.

82.     In terms of the particular events relied upon by Mr Blanch, Mr Marsh submitted that the difficulty is obviously with the historical aspects. The opinion expressed by Commodore Mulcare and in the objective source material such as  the Reports of Proceedings, the ship’s log and historical record does not bear out much of Mr Blanch's contentions.  In this regard, Mr Marsh referred to Mr Blanch repeatedly stating that he was at Action Stations, when clearly the record shows it was Defence Watch and there is difference between Action Stations and Defence Stations.  Mr Blanch was again adamant that there was an overnight stay in Vung Tau Harbour on the first and second trips.  The records clearly show that that did not happen and that Mr Blanch is mistaken in his belief.  For the same reason, Mr Blanch is mistaken in the belief that he was woken up by a scare charge in the middle of the night while he was asleep..  It could not have happened, as HMAS Duchess was not in port during an overnight stay. Significantly, none of the incidents on which Mr Blanch relies is supported by any corroborative material in any of the historical source documents.

83.     Referring to the three incidents, that is, the jackstay transfer and breaking of the cable, the sampan incident and the aircraft attack, Mr Marsh noted that none of the events are corroborated at all.  There would seem to be, Mr Marsh submitted, a degree of embellishment in some aspects of Mr Blanch's account, particularly in relation to matters such as Dr Altman's record of how Mr Blanch was essentially untrained and no one knew what to do given the poor level of training. It is clear that there was adequate training, Mr Marsh submitted and the Applicant had spent three years in the Navy before he was first posted to Vung Tau. Mr Blanch described his training including war game exercises and being involved in Action Stations and the general procedures concerning scare charges. It was clear that those on the ship did know what to do and had undertaken in their training what they needed to do, the precautions they should take and the routines to be adopted.  Exhibit R3 highlights some aspects of the various trips.  The first day in Vung Tau for Mr Blanch was for six hours and 12 minutes.  The second trip involved being in Vung Tau Harbour for 14 hours and 54 minutes and the third for 12 hours and 55 minutes on the first day and 6 hours 30 minutes on the second day.  In total this was 40 hours and 30 minutes, Mr Marsh submitted.  All of those visits were uneventful in terms of the official record. There was no suggestion of any threat, real or imagined, during any of those visits, Mr Marsh further contended.

84.     In terms of the jackstay transfer and breaking of the cable, Mr Marsh submitted that this appears to be an "emerging story"..  Mr Marsh invited the Tribunal to consider the account given by Mr Blanch to the Board Hearing in 1999.  At that point Mr Blanch's memory of the incident was vague, he thought it occurred in the South China Sea and was not sure which ships were involved and could not recall the name of the seaman.  The account has emerged to the point were Mr Blanch in evidence to the Tribunal was adamant that the incident occurred on his way to Vietnam during the first trip, which was in November 1969 and that the transfer involved HMAS Duchess and HMAS Sydney during a replenishment at sea.  If an incident had occurred as described by Mr Blanch, then Commodore Mulcare opined such an event as one of significance, which would, in the ordinary course of events, be reported in the Report of Proceedings. At least some senior officer on the ship would have a recollection of it.  None of that has occurred however in this case. There are two possible explanations for that, one being that the incident did not happen at all or secondly, that it was of such a minor consequence it was not warranted in terms of being recorded anywhere.  In either case, there is no satisfaction of the definition of severe stressor by virtue of the incident, Mr Marsh submitted. The Respondent's position is that the incident did not happen. Even if the incident did occur, Mr Marsh submitted, it does not meet the definition of a severe stressor, which requires something of the magnitude of engaging with the enemy or combat depending on which Statement of Principles is considered.

85.     In terms of the second stressor, which involved the explosion of the scare charge during an overnight stay, there was no point during Mr Blanch's service in HMAS Duchess that he stayed overnight in Vung Tau Harbour. The Tribunal was further referred to the transcript of the Board Hearing on 26 July 2001 (Exhibit R4), when the Applicant is reported to have said that he distinctly remembered one night on either his first or second trip that he was asleep in the middle of night and was woken up by the sound of a scare charge.  This simply could not have happened as he described it, Mr Marsh submitted.

86.     In relation to the sampan incident, again Mr Marsh submitted that there is no corroboration of it. There is nothing in the Reports of Proceedings. Furthermore, referring to Exhibit R3, Attachment 6, Commodore Mulcare's opinion and the Respondent's submission, is that the form of ladder in question is one of the larger diagrams described as a standard accommodation ladder.  There was no need to have such an uncomfortable device as a Jacob's ladder, given the need for the transfer of men and material, supplies, stores and people coming and going from the cutters.  In any event, the Respondent's position is the threat was no more than a perception in terms of the Applicant's viewing of it. There is no mention of it in the official records or recollection of any of the officers concerned. The incident relies entirely on Mr Blanch's perception not on any objective reality and it is a perception that according to the case law and definition of stressor, is not sufficient to meet the objective test of experiencing a stressor, Mr Marsh contended. The Reports of Proceedings are significant in that they do not touch on the events the Applicant relies on.  In Exhibit 3, Attachment 7, there is reference at paragraph 18 to a jackstay transfer on 24 November. This would, on Mr Blanch's evidence to the Tribunal, be the occasion he says that led to a sailor being injured after a cable broke. Mr Blanch told the Tribunal he now remembered it being on the way to Vung Tau and there is a description of the transfer at paragraph 18, but significantly no mention of anyone being injured or a cable breaking.  At paragraph 23 of Attachment 7, Exhibit R3, that relates to the period in port and the Report of Proceedings mentions that the period at anchor passed without incident.  While it is true that the Report of Proceedings were not meant to record every single incident that occurred, they are intended to record those incidents of significance particularly were the integrity of the ship was concerned or something else significant happened where safety was an issue.  Mr Marsh referred to the minutia contained within those Reports of Proceedings and their attachments to support his view. There is a report for example of training exercises, exercise programs, the sports results and small arms firing.  There is a whole range of activities, which a recorded faithfully in the Reports of Proceedings.  It is inconceivable, Mr Marsh contended, that a significant or serious incident such as a breaking cable or a sampan potentially threatening the ship would go unreported. 

87.     In terms of aircraft activity, the evidence from Commodore Mulcare is that there was no such activity and this comes from his personal experience in addition to the historical records.  The historical records show no hint or suggestion of undue aircraft activity or attacks on the enemy going on in the distance.  Even if there was such activity witnessed from the ship, it was activity which by definition must have been several kilometres away, as Commodore Mulcare described. At the closest range it was some five kilometres away. This is not an illustration of a stressful event in terms of someone witnessing or experiencing combat. By definition, Mr Marsh submitted that all of the aircraft seen or heard were allied aircraft.

88.     Considering the third visit in June 1971 and the Report of Proceedings for May (Exhibit R3, Attachment 9, paragraph 16) there is reference to recent enemy activity reported in the hills around Vung Tau. This refers to activity that proceeded the arrival of HMAS Duchess and HMAS Sydney into Vung Tau. It therefore has no bearing on what happened when they were there.  It simply refers to activities that did take place and quite sensibly there was precaution taken as the Commodore explained of sailing from the port overnight and returning to complete the unloading and loading procedures the following day.  The Report of Proceedings says nothing about activity at all during that period in port. Mr Marsh submitted that the whole focus of Mr Blanch's claim seems to be on potential rather than actual danger. It was therefore all a question of what could have happened rather than what did happen. There was no attack and there was no hostile sampan, Mr Marsh submitted. At paragraph 23 of Attachment 9, Exhibit R3, there is reference to exercises involving aircraft very soon after the visit to Vung Tau. There may have been confusion on Mr Blanch's part, particular given his obvious problems with memory in relation to the overnight stay and other issues.

89.     Mr Marsh submitted that the Respondent relies on Dr Lewin who offers the opinion that there is not a stressful experience either as defined in the early Statement of Principles, Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence, or a severe stressor in the more recent Statement of Principles, Instrument Number 76 of 1998 concerning Alcohol Dependence. Furthermore, neither is there a stressor as defined in the Statements of Principles Instrument Numbers 3 of 1999 or 15 of 1994 for post traumatic stress disorder. 

90.     In terms of the case law, the Federal Court in Freeman v Repatriation Commission [2002] FCA 576 considered events in Vung Tau Harbour. The Tribunal in that case took the approach that the diagnostic criteria in terms of experiencing a stressor were not satisfied and therefore post traumatic stress disorder was not present. It was found that there was not a stressor within the meaning of the definition for psychoactive substance abuse. It was noted by the Tribunal in relation to substance abuse, that the example such as combat provided in the definition of the stressful event is intended to convey the severity of the event comprehended by the definition given the event described by, in that case by Mr Freeman, and taking an objective view. Thus, the Tribunal was not satisfied objectively that there was a stressor either for alcohol abuse or post traumatic stress disorder. That view was endorsed by North J in the Federal Court who found no error of law disclosed by the Tribunal.

91.     In support of his contentions, Mr Marsh further referred the Tribunal to: Re Weyling and Repatriation Commission [2000] AATA 248, which involved a sailor in Vung Tau Harbour; Re Powell and Repatriation Commission [2000] AATA 385, which dealt with post traumatic stress disorder and psychoactive substance abuse, using the earlier Statement of Principles; Re Mackay and Repatriation Commission [2000] AATA 483 which involved post-traumatic stress disorder using the earlier Statement of Principles and also involved HMAS Duchess; Re Boyd and Repatriation Commission [2000] AATA 615 concerning HMAS Parramatta and the conditions of post traumatic stress disorder and psychoactive substance abuse; Re Symons and Repatriation Commission (2000) 63 ALD 93; Re Shooter and Repatriation Commission [2000] AATA 1076; Re Cranage and Repatriation Commission (2000) 63 ALD 312; Re Jackson and Repatriation Commission [2001] AATA 63; ReMeakin-Jones and Repatriation Commission [2001] AATA 662; Re Stevenson and Repatriation Commission [2002] AATA 130; Re Meehan and Repatriation Commission [2002] AATA 273; Re Burgess and Repatriation Commission [2002] AATA 702; and, Re Atkinson and Repatriation Commission [2002] AATA 491. Mr Marsh concluded that in relation to post traumatic stress disorder and in the interest of consistency in decision making, the Tribunal should reach similar conclusions given the facts in this case.

92.     Mr Marsh submitted that the Tribunal is not confined simply to saying that there is no disease present in terms of post traumatic stress disorder, although logically that is the first step because on balance, the diagnostic criteria are not met given the requirement that there be a severe stressor.  Alternatively, the Tribunal may find that the factor requiring experiencing a severe stressor, under the reasonable hypothesis test, is not met.  Mr Marsh submitted the result is the same as the Court said in Freeman v Repatriation Commission (supra), whether one finds in terms of the diagnosis issue, on the existence of the stressor or a causative issue in terms of the factor. Logically, one must address the issues in that sequence.  In conclusion, Mr Marsh submitted that the Tribunal is not being required to make a medical decision or re-diagnose the issue, it simply has to face the administrative task of addressing the Statement of Principles and their diagnostic criteria, Factors and definitions that bind the Tribunal.

findings

93.     The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, legislation and case law.

94.     The Tribunal will deal firstly with the claimed condition of post traumatic stress disorder. As outlined in Benjamin v Repatriation Commission (supra), the Tribunal must in determining the correct diagnosis of the condition do so to its reasonable satisfaction as provided in subsection 120(4) of the Act.

95. The diagnostic criteria for post traumatic stress disorder are contained in DSM-IV and are outlined in essentially the same form in the Statements of Principles. The Statement of Principles in force at the time of the determination pursuant to subsection 31(6) of the Act is Instrument Number 3 of 1999 as amended and this is relied upon by the Applicant. There are earlier Statements of Principles concerning post traumatic stress disorder. Instrument Number 15 of 1994 as amended, was in force of the time of the primary decision. In terms of the diagnostic criteria, they are the same in both Statements of Principles. From DSM-IV, the first criteria are A(1) and (2), which require that a person has been exposed to a traumatic event in which the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and also that the person’s response involved intense fear, helplessness or horror. The events relied upon by Mr Blanch are: the jackstay transfer where the cable broke and injured a sailor standing near Mr Blanch; Mr Blanch being woken by a scare charge and his fear that the ship had been subjected to an explosion; and on the third trip, the transfer by way of a Jacob's ladder and being confronted by a sampan which appeared to be threatening HMAS Duchess.

96. It is important to note that in determining whether on the balance of probabilities Mr Blanch has the diagnosable condition of post traumatic stress disorder, necessarily some findings of fact about that diagnosis are made. This is a quite separate process to that which takes place in determining the causation of a particular condition. Causation, when dealing with a period of operational service, requires the application of subsection 120(3) and then subsection 120(1) of the Act.

97.     In relation to the claimed traumatic event of being woken up at night by the sound of an exploding scare charge, it is clear from the material that Mr Blanch was never in Vung Tau Harbour overnight.  It is also clear from the material that while it seems that Dr Altman's understanding of Mr Blanch's circumstances is that he had never had training in such matters, he received training about scare charges and had explained this to the Tribunal. This is not to minimise the impact of the reality of being in an operational zone, but reflects a different history being given to Dr Altman by Mr Blanch as compared to that provided to the Tribunal. Dr Altman's understanding of Mr Blanch’s circumstances does not reflect the objective evidence of HMAS Duchess' movements nor of Mr Blanch's training.

98.     In relation to the event of the jackstay breaking and wounding a man, there is no record of this occurring and the material provided from the historical report including the recollections of the then Commanding Officer Sinclair, Commodore Fitzgerald and others.  It is the Tribunal’s understanding that such an occurrence would have been recorded in the ship’s log or the Report of Proceedings.  It would have been a significant event. The Tribunal cannot on all of the material be satisfied that this event occurred as described by Mr Blanch and hence could not be described as a traumatic event in the terms of the diagnostic criteria.

99.     In relation to the sampan incident, this was not recorded by Dr Altman and seems only to have emerged since the revocation of Disability Pension for post traumatic stress disorder.  This would have been a significant event, particularly if, as Mr Blanch stated, it was not just him being involved but those on deck who were very animated at the sampan’s approach and had weapons trained on the sampan.  There are discrepancies in the type of ladder used for the transfer and there is the lack of detail in the official records about such an incident.  The absence of any knowledge of this incident by senior officers is surprising given the level of threat and reported reaction of not just Mr Blanch but those of the ship’s crew.

100. The Tribunal is well used to dealing with circumstances where there is no official record available of serious incidents during the war. The lack of official records is not in itself fatal in terms of establishing the occurrence of a particular event. However, in this particular matter, there is an absence of corroborative evidence in circumstances were it is highly likely that there would have been the involvement of others, for example, in the crew’s reaction to an oncoming threat. It is highly unlikely that this threat would not have been relayed to the Commanding Officer, particularly as it involved the safety of the ship. The events relied upon by Mr Blanch occurred some 30 years ago, thus there is the issue of fading memory and loss of records. However, section 119 of the Act cannot be used to invent evidence or fill in evidentiary gaps as noted in Mason v Repatriation Commission [2000] FCA 1409.

101.   In relation to all of the traumatic events relied upon by Mr Blanch, the Tribunal is not satisfied on the balance of probabilities that these events, as described by Mr Blanch either occurred or if they did, were to the level of a traumatic event as required by the diagnostic criteria.  The Tribunal finds that when all of the evidence is considered, Mr Blanch fails to meet the DSM-IV criteria A (1) and (2), as he does not reach the level required by the definition of experiencing, witnessing or being confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.  Hence, the Tribunal cannot be reasonably satisfied on the balance of probabilities that Mr Blanch suffers from post traumatic stress disorder. While Dr Altman and Dr Dent have diagnosed post traumatic stress disorder, the Tribunal finds that this diagnosis was made on the basis of a history which was given by Mr Blanch to those doctors and yet, which on all of the evidence, is not corroborated. For example, the scare charges were not constantly exploding. Mr Blanch did have training for the sorts of events he might experience and he never stayed over night in Vung Tau Harbour. Furthermore, it is only after the elapse of some time that the sampan incident is recorded and the Tribunal considers that this cannot be accounted for simply in terms of Mr Blanch feeling unable to discuss such a matter with his doctor, when he was able to discuss other events.

102. The Tribunal considers that there is an alternate diagnosable condition, which must be examined and that is alcohol dependence. DSM-IV contains the diagnostic criteria. The Statements of Principles in force at the time of the Repatriation Commission determination made under subsection 31(6) is Instrument Number 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. The diagnostic criteria in that Statement of Principles are derived from DSM-1V’s “Criteria for Substance Dependence”.. The earlier Statement of Principles, Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence do not specify the diagnostic criteria from DSM-IV, but rather refer to the maladaptive pattern of use of substances attracting ICD code 303 or 304. It is the Tribunals view, based on all of the evidence, that Mr Blanch's circumstances meet all the DSM-IV diagnostic criteria for alcohol dependence. In this regard, Mr Blanch continues to use alcohol despite knowledge of having a persistent or recurrent physical or psychological problem likely to have been caused or exacerbated by alcohol (diagnostic criterion 7); alcohol is often taken in larger amounts or over a longer period than was intended (3); there is tolerance (1). The diagnosis is supported not only from Mr Blanch's own evidence but also the medical opinions of Dr Altman, Dr Dent and Dr Lewin. Hence, the Tribunal is reasonably satisfied on the balance of probabilities that Mr Blanch suffers from alcohol dependence. In such circumstances, the Tribunal must then consider whether or not there is a reasonable hypothesis raised pursuant to subsection 120(3) of the Act and whether, if a reasonable hypothesis is raised, it is supported by the facts as required by subsection 120(1) of the Act.

103.   The Tribunal notes the Full Federal Court decision in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 200 ALR 332 at paragraph 89, which states that it is the intent of the legislation “to ensure that all future claims involving matters of medical-scientific opinion, as to which an SoP was in force, would have to meet the requirements of that SoP” and at paragraph 100, “Once an SoP is determined in relation to a particular condition, it covers the field in relation to that condition….”.. Thus, turning to the Statement of Principles considered relevant in this matter, Factor 5(a) of Instrument Number 76 of 1998 requires the suffering of a psychiatric disorder at the time of clinical onset of alcohol dependence or alcohol abuse. The Tribunal has found that there is no diagnosis of post traumatic stress disorder.  The Tribunal is also reasonably satisfied that a diagnosis of generalised anxiety disorder is not applicable as diagnosed by Dr Lewin and notes that this was not pressed by the Applicant nor the Respondent. In any event, on the Tribunal’s consideration of the diagnostic criteria contained within DSM-IV and as replicated in Instrument Number 1 of 2000 concerning Anxiety Disorder and the earlier Statement of Principles concerning Generalised Anxiety Disorder, Instrument Number 48 of 1994, the diagnostic criteria are essentially the same. The last criterion refers to the anxiety not being related to the physiological effects of, as relevant in this case, alcohol [diagnostic criteria “F” in DSM-IV and Instrument Number 1 of 2000; diagnostic criteria 4(b), Instrument Number 48 of 1994]. 

104.   As the Tribunal has found that there is no other psychiatric condition present such as post traumatic stress disorder or generalised anxiety disorder, then Factor 5(a) is not relevant.

105.   The other factor, which may be relevant, is Factor 5(b) of Instrument Number 76 of 1998, which requires the experiencing of a severe stressor. “Experiencing a severe stressor” is defined as:

"…the person experienced, witnessed or was confronted with, an event or events that involve 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 Defence Forces, or other service were the Veterans' Entitlements Act applies, events that qualify 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;

…" 

106. The severe stressors relied upon by Mr Blanch are the exploding scare charge overnight, the jackstay transfer and the threat of the sampan either exploding or ramming HMAS Duchess. These events have previously been found in terms of establishing a diagnosis, not to have occurred or if they did, not to satisfy to the Tribunal’s reasonable satisfaction, the definition in the diagnostic criteria of a traumatic event. In the context of causation however, it could be said that on Mr Blanch's recollection of the events relied upon, particularly that of his perception of a sampan, that he would have been scared, anxious or nervous and that accordingly, on the material, he could have experienced a threat of serious injury, which evoked feelings of intense fear, helplessness and horror. Thus, in terms of subsection 120(3) of the Act, Factor 5(b) on the material could be met and a reasonable hypothesis raised.

107. Turning to subsection 120(1) of the Act, the Tribunal must be satisfied beyond reasonable doubt that there are sufficient facts present to support the raised reasonable hypothesis. On all of the evidence, the Tribunal cannot find that the events as described by Mr Blanch occurred or if they did, they could not have occurred to the level described by Mr Blanch. For such events as described by Mr Blanch to have occurred, there would have been official records or at the very least, the senior and Commanding Officers would have recalled such events of significance. In this regard, the Tribunal notes that scare charges were not being constantly detonated as asserted by Mr Blanch. Furthermore, while Mr Blanch asserts that he was in Vung Tau Harbour overnight when awoken by a scare charge, this simply is not possible given that HMAS Duchess was not in Vung Tau overnight on any of the occasions when Mr Blanch was serving in her in Vietnam. The instance of a sampan coming threateningly close to HMAS Duchess, on Mr Blanch's evidence, involved more than just himself but the reaction of crew on deck with machine guns being pointed at the sampan. Such an occurrence would have been recorded in the Report of Proceedings or the ship’s log, given the nature of such a threat to the safety of the ship The Tribunal accepts the opinions of Commodore Mulcare and those of the Commanding Officer and other senior officers that if such a threat had occurred, they would have known about it and certainly recalled it.

108.   In relation to the issue of the jackstay transfer, the Tribunal does accept that the transfer occurred, but it can find no support for Mr Blanch's contentions that someone was seriously injured.  The Tribunal can accept that there are occasions where there is an absence of records. In relation to this particular event, the absence of recall of officers of the event, which on Mr Blanch’s description would have been a significant event, indicates that if it did occur, it was not significant and did not cause serious injury or threat.

109.   Concerning the further contention about the increased activity in Vung Tau Harbour on Mr Blanch's first trip, while there is a record that there was some activity, the Tribunal finds that it was remote to Mr Blanch in terms of the definitional requirements of experiencing a severe stressor.

110. Accordingly, the Tribunal is not satisfied beyond reasonable doubt that there is sufficient factual support for the reasonable hypothesis that Mr Blanch experienced a severe stressor as defined which caused his alcohol dependence. Pursuant to subsection 120(1) of the Act, the Tribunal is satisfied beyond reasonable doubt that there is not sufficient ground for determining that Mr Blanch's alcohol dependence was war-caused. In such circumstances, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act1975 that the decision under review is affirmed.

I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member, Dr J D Campbell, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  18 December 2002
Date of Decision  26 September 2003 
Advocate for the Applicant       Mr B Winship, Solicitor, Rockliffs Solicitors      
Advocate for the Respondent   Mr J Marsh, Departmental Advocate