Boyes and Repatriation Commission
[2004] AATA 17
•13 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 17
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/369
VETERANS' APPEALS DIVISION ) Re JOHN JOSEPH BOYES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date13 January 2004
PlacePerth
Decision The Tribunal varies the decision under review by deleting Claustrophobia as an additional separately diagnosed condition and otherwise affirms the Veterans’ Review Board decision that Anxiety Disorder and Alcohol Dependence or Alcohol Abuse are not war or defence-caused.
..............(sgd R D F Lloyd)................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – applicant ex RAN with operational service FESR and Vietnam waters and eligible defence service – claim for anxiety disorder, alcohol dependence/abuse and VRB included added condition of claustrophobia – diagnosis of claustrophobia as a separate condition found not valid – material points to hypotheses connecting two conditions with eligible service – hypotheses fit template of Statements of Principle – facts do not support extent or severity of stressor relied upon – claimed conditions not war (or defence) caused
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A
Statement of Principle Concerning Anxiety Disorder (Instrument No 1 of 2000)
Statement of Principle Concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998)
Re Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Gosewinckel [1999] FCA 1273
Lees v Repatriation Commission [2002] FCAFC 398
Robertson and Repatriation Commission – AAT V96/178 of 2 March 1998
REASONS FOR DECISION
13 January 2004 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by John Joseph Boyes (“the applicant”) for a review of a decision by the Veterans’ Review Board (“the VRB”) dated 5 September 2002 which:
(a)varied that part of the decision of the Repatriation Commission (“the respondent”) of 15 March 2001 which refused acceptance of anxiety disorder and alcohol dependence or alcohol abuse as being war or defence caused by including claustrophobia as a third claimed condition;
(b)and which then affirmed that part of the respondent’s decision as varied, i.e. it refused acceptance of all three conditions as being war or defence-caused.
2. The applicant attended the hearing and was assisted by his advocate, Mr C Hammal. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) and in addition the following documents were taken into evidence at the request of the respondent:
· Exhibit R1: Transcript of proceedings of the VRB on 5 September 2002 re JJ Boyes.
· Exhibit R2: Report by Dr A J Mander dated 1 July 2003 re Joseph Boyes.
· Exhibit R3: Writeway Research Service report dated 18 September 2003 re: Ex CPOMTPD3 John Joseph Boyes RAN AS 4332: by Captain HA Josephs RAN (Rtd) – with attachments numbered 1 to 8.
3. No additional documentary evidence was handed up by the applicant. However he gave oral evidence at the hearing, was questioned by the Tribunal and cross-examined by the respondent’s representative. As a result the Tribunal was left in some doubt about the reliability of his evidence and the accuracy of his recollections. However, in the circumstances of his health and the fact that the events being described were nearly 40 years ago, the Tribunal is satisfied that Mr Boyes did his best in this regard – albeit with prompting by his advocate, for which considerable leniency was permitted by the Tribunal. The respondent called two witnesses – Dr A J Mander (Consultant Psychiatrist) and Captain H A Josephs RAN (Rtd) of Writeway Research Service (by conference telephone).
Applicant’s Service and Related Matters of Law
4. Mr Boyes served in the Royal Australian Navy (“RAN”) from 1958 to 1980. His eligible service under the Veterans’ Entitlements Act 1986 (“the Act”) is however limited to the following:
(a) Operational service:
· Allotted for service in an area of operations in HMAS Voyager: 28 February to 16 March 1962. (This period was omitted from the respondent’s Reasons for Decision of 15 March 2001 and also that of the VRB of 5 September 2002. Its validity was verified by the respondent during the Tribunal’s hearing and agreed to by the applicant, who however confirmed that it was not a period of eligible service being referred to or relied upon by him for his claim.)
· Far East Strategic Reserve (“FESR”) in HMAS Snipe: 2 June to 26 November 1964 and 22 December 1964 to 29 January 1965.
· Vietnam Waters in HMAS Sydney: 24 April to 18 May 1966 and 25 May to 11 June 1966.
(b) Eligible Defence Service: 7 December 1972 to 26 March1980 (date of discharge).
5. In regard to the applicant’s operational service periods, the matter before the Tribunal is to be determined in accordance with s 120(1) and s 120(3) of the Act. Under these provisions the Tribunal is required to decide whether, on the material before it, there is raised a reasonable hypothesis to connect the claimed conditions with this service. If so, it must determine, based on the facts before it, that the conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
6. For the applicant’s eligible defence service, as defined in the Act, the matter is to be determined in accordance with s 120(4) of the Act. Under this provision, the Tribunal is required to decide the matter to its reasonable satisfaction – that is, on the balance of probabilities. The applicant’s advocate however advised that the contentions raised by the applicant related specifically to the FESR operational service and that the initiating factor did not occur during, nor were the claimed conditions causally related to his eligible defence service.
7. Additionally, as the claim was lodged after 1 June 1994, by virtue of s 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statements of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”).
Diagnosis of Claimed Conditions
8. As the initial step in its review process, the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the claimed conditions. The standard of proof in this regard is that of reasonable satisfaction, i.e. the Tribunal must be satisfied on the balance of probabilities concerning the diagnosis and description of the conditions involved in the applicant’s current claim. The Tribunal referred to the criteria for each condition in the relevant SoPs, as well as to the Federal Court decision in Repatriation Commission v Gosewinckel [1999] FCA 1273 in relation to this process.
9. Anxiety Disorder: The medical opinion evidence available to the Tribunal clearly establishes that the applicant suffers from anxiety disorder symptoms. Dr J Fellows-Smith (Psychiatrist) describes it as “Generalised Anxiety Disorder” (T12 page 65 to 67 and T16 page 72 and 73). The respondent, based on its advice, refers to the condition as “Anxiety Disorder” (T2 and T18). The more recent medical report of Dr A J Mander (Consultant Psychiatrist) at Exhibit R2 and confirmed in his oral evidence, describes the condition as “Substance-Induced Anxiety Disorder”.. From the evidence before it the Tribunal is reasonably satisfied that the applicant suffers from “Anxiety Disorder” and that this is the most appropriate diagnosis and description for that condition – whether it be primary or secondary.
10. Alcohol Dependence or Alcohol Abuse: The evidence before the Tribunal clearly establishes that the applicant suffers from an excessive intake of alcohol and that this has been a long standing problem which, although recently somewhat lessened, is still current. Dr Fellows-Smith in his reports at T12 and at T16 opines that the applicant has a “Secondary Alcohol Dependence Syndrome”.. Dr Mander at Exhibit R2 and in his oral evidence is of the opinion that Mr Boyes “…has abused alcohol, certainly up until the last two years and was, and probably still is, alcohol dependent”.. The respondent, based on its advice, refers to the condition as “Alcohol Dependence or Alcohol Abuse”. From the evidence before it the Tribunal is reasonably satisfied that this latter terminology best describes the applicant’s claimed condition relating to alcohol.
11. Claustrophobia
(a)The VRB in its review added Claustrophobia as an additional condition to those already claimed by the applicant – of Anxiety Disorder and Alcohol Dependence/Abuse. This was apparently based on the opinion of Dr Fellows-Smith (T12 and T16), who considered that this phobia should be given the status of a condition, separate from and additional to the other two conditions of Anxiety Disorder and Alcohol Dependence/Abuse.
(b)A contrary opinion is provided by Dr Mander in his report at Exhibit R2 and expanded upon in his oral evidence. Dr Mander states that the applicant is apparently “…having difficulty in certain situations such as enclosed spaces.” However he opines that Mr Boyes “…does not have an isolated fear of enclosed spaces, rather he describes a series of other difficulties” (emphasis added). Dr Mander is of the opinion that any claustrophobic-type symptoms Mr Boyes may suffer should not be separated out under his circumstances as an additionally diagnosed condition, but rather be seen as a part of his Anxiety Disorder. That disorder, in Dr Mander’s opinion, provides a valid explanation as to why Mr Boyes may be having difficulty in certain situations. In these circumstances, in term of the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV), his strongly held medical opinion is that a diagnosis of Claustrophobia should not be entertained. This conclusion, in the Tribunal’s opinion, is supported by the diagnostic guidelines in DSM-IV (300.23 and 300.29).
(c)Based on the overall evidence available to it, with appropriate weight being given to that provided by Dr Mander in his oral evidence (transcript pages 57 and 77), together with that of the applicant himself, the Tribunal is reasonably satisfied that any claustrophobic-type symptoms Mr Boyes may have are most likely to be part of his acknowledged Anxiety Disorder. It therefore determines that, contrary to the VRB’s finding in this respect, the applicant does not suffer from a separate condition of Claustrophobia.
Applicant’s Contentions Regarding Claimed Conditions of Anxiety Disorder and Alcohol Dependence/Abuse
12. The applicant’s principal contention is that he experienced a severely stressful incident in 1964 or 1965 during his operational service in HMAS Snipe. This, he maintains, resulted in his developing immediate and on-going symptoms of excessive nervousness and fear. This anxiety-type state, with periodic panic attacks, he says continued. Subsequently there has been a diagnosis of this as Anxiety Disorder. Hence, he considers the condition is war-caused.
13. The incident the applicant contends caused this anxiety condition involved the ship striking a log when on patrol off the coast of Borneo – the “Snipe Log Incident”. It is described in some detail by the applicant in his oral evidence before the Tribunal (transcript pages 20 to 28), in the evidence given to the VRB (Exhibit R1 and T19 pages 81 to 86), in his written statement dated 20 September 2000 (T11 page 63 and 64), and is also referred to in reports by Dr Fellows-Smith (T12 page 65) and by Dr Mander (Exhibit R2).
14. As far as his alcohol dependence/abuse condition is concerned, the applicant’s primary contention is that his heavy consumption of alcohol commenced soon after the “Snipe Log Incident” and has continued – it being a direct result, he contends, of the ongoing anxiety that was caused by that incident. Hence it is the applicant’s claim that the alcohol condition is also war-caused – being secondary to, or a sequela of, the war-caused Anxiety Disorder.
15. An alternative contention was posed by the applicant’s advocate during the hearing in regard to this alcohol condition, if it were determined by the Tribunal that in fact the Anxiety Disorder was caused by alcohol dependence or abuse (as opined by Dr Mander) – rather than the other way round (as stated in paragraph 14 above). It would then be contended that the alcohol dependence/abuse condition resulted directly from the applicant experiencing a severe stressor in the form of the “Snipe Log Incident”, i.e. it was itself directly war-caused. His psychiatric (anxiety) disorder then followed secondary to, or as a sequela of, the alcohol condition and hence should also be accepted as war-caused.
16. Earlier documented evidence before the Tribunal (e.g. T11, page 64) referred to the applicant’s concern regarding another incident whilst he was in HMAS Snipe involving the handling of a dead Malay police officer. However the related contention was not pursued by the applicant at the Tribunal hearing and on advice from his advocate it was confirmed that the alleged incident is no longer put forward by the applicant as a relevant causal factor.
Hypothesis Raised (?) and Relevant Statements of Principle
17. Following the process set out in Repatriation Commission v Deledio 83 FCR 82, the Tribunal first considered the material before it in relation to the applicant’s contentions, as summarised above. As a consequence and without making findings of fact in this regard, the Tribunal is satisfied that the material adequately points to relevant hypotheses connecting the two claimed conditions of Anxiety Disorder and Alcohol Dependence or Abuse with the applicant’s operational FESR service.
18. Further, the Tribunal notes that there are SoPs in force concerning these two conditions. For operational service these are as follows:
(a)Anxiety Disorder – Instrument No 1 of 2000
(b)Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998.
Both these SoPs were current at the time of the respondent’s March 2001 decision and remain so at the time of this Tribunal decision. As already indicated, the applicant’s eligible defence service is not put forward by him as being causally involved and therefore the SoP instruments applicable for defence service for the two claimed conditions are not relevant in this review.
Applicant’s Evidence
19. In summary, the applicant’s relevant evidence is as follows:
(a)Mr Boyes was a Leading Stoker on board HMAS Snipe which, at the time of the “Snipe Log Incident”, was patrolling waters off the Borneo coast. He was primarily involved in duties below deck, in the engine room of the ship.
(b)The incident in question occurred in darkness – late at night at what he recalls as being around 2330 hours (11.30pm), although after acknowledging the content of the Research Report at Exhibit R3 he subsequently stated during the hearing that it could have been later.
(c)At the time the incident occurred he states he was on duty but out of the engine room itself doing “…machinery space rounds” and was on the “diesel room ladder”. Mr Boyes heard a loud “bang”, which he says he thought then may have been an explosion, and the vessel which was underway appeared to lift. His initial thought, he maintains, was that they had hit a mine. With the impact he was “…thrown off the ladder…”.
(d)On returning to the engine room, which he did hurriedly because the warning lights were flashing, he saw that the port engine was bouncing and vibrating quite violently. This worried him he says because he had never experienced an engine behave in this manner before. Mr Boyes indicates that he felt it was in a dangerous state. All of this concern, he claims, was exacerbated by the partial blackout that had occurred through loss of power.
(e)Although not in charge of the engine room he says he assisted, under direction of the Petty Officer and Leading Hand, in stopping and in several attempts to restart the port engine, but each time the vibration was the same. It was shut down and the starboard engine started up. Full power to the ship was regained. During this time he maintains he was unaware of the cause of the “bang” noise he had heard or the extent of damage to the ship. Consequently he says he felt added fear and some panic.
(f)Mr Boyes maintains there was a delay of some 10 to 15 minutes from the time of the “bang” noise when he fell off the ladder, until he was informed with others in the engine room that the vessel had only hit a floating log. It was subsequently established the next day by inspection that the log collision had damaged the blades of the port propeller and that that appeared to be the only damage sustained in the incident.
(g)His recollection is that the whole incident period lasted for some 25 to 40 minutes. He was subsequently relieved from his watch (at the normal time) and went off duty. Mr Boyes recalls a “beer issue” that then followed, in which he says he was involved for 1 to 2 hours.
(h)Mr Boyes’ evidence is that during the log incident he was in fear of his life and from that time onwards he has been having recurring dreams about it. He says that, in order to cope, he increased his alcohol intake whenever and by whatever means he could. He, in the company of others from HMAS Snipe, indulged in “binge drinking” when on shore leave. Mr Boyes states that, after the log incident, he tried to spend as little time as possible below decks – although he acknowledges that he remained a stoker throughout the remainder of his navy service – seeking promotion in this mustering rather than transfer to other seaman duties.
20. The contended change in attitude and behaviour by the applicant, said to be as a consequence of his service in HMAS Snipe in 1964-65, is supported to an extent by his wife’s evidence in a statement at T17 pages 76 to 78.
21. Dr Fellows-Smith whilst opining that, in terms of DSM-IV, the “Snipe Log Incident” as described to him by Mr Boyes does not fulfil the criteria for a diagnosis of PTSD, he concludes that “Mr Boyes presents with Generalised Anxiety Disorder, Claustrophobia and Secondary Alcohol Dependence Syndrome directly due to his wartime service with the Royal Australian Navy…”.
Requirements of Relevant SoPs
22. Anxiety Disorder (SoP Instrument No 1 of 2000):
(a) The only factors relevant to the hypothesis raised are factors 5(a)(ii) and (iii) which state as follows:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised…are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)…
(ii) experiencing a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within two years immediately before the clinical onset of anxiety disorder; or…”
(b) the term “severe psychosocial stressor” (factor 5(a)(ii) refers) is defined in the same SoP in paragraph 8 as follows:
· “severe psychosocial stressor means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
(c) the term “clinically significant psychiatric condition” (factor 5(a)(iii) refers) is defined in the SoP in paragraph 8 as follows:
· “clinically significant means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;”
· “psychiatric condition means any Axis 1 disorder of mental health that attracts a diagnosis under DSM – IV;”
23. Alcohol Dependence or Alcohol Abuse (SoP Instrument No 76 of 1998):
(a) The only factors relevant to the hypotheses raised are factors 5(a) and 5 (b), which state as follows:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised…are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or…”
(b) The term “experiencing a severe stressor” is defined in the SoP in paragraph 8 as follows:
§“experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke fear, helplessness or horror.
In the setting of service in the Defence Forces, or other Service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
Respondent’s Evidence
24. In addition to the Transcript of Proceedings of the VRB review (Exhibit R1) and the report by Dr Mander (Exhibit R2), the respondent also provided the comprehensive report by Captain Josephs (RAN Retired) of Writeway Research Service (Exhibit R3). Captain Josephs in addition gave oral evidence, was questioned by the Tribunal and cross-examined by the applicant’s advocate.
25. The relevant evidence stemming from this latter material, particularly concerning the “Snipe Log Incident”, in summary, is as follows:
(a) There are two only reported “log strike” incidents involving HMAS Snipe in the relevant period – based on the report by Captain Josephs and its attachments of the ship’s monthly Report of Proceedings (“ROP”).
(b) The first “log strike” incident was on 20 July 1964 during the ship’s first North Borneo patrol period and is described in the ROP at Attachment 2 of Exhibit R3 at paragraph 20. The ship had departed Kuching for Biawak and the ROP entry states:
“After slipping and proceeding down river at 0935 on Monday 20th July considerable vibrations were noticed in the starboard screw or shaft. Due to …. so I continued down stream to Biawak… During berthing at Biawak at 1040 it was necessary to go astern on the starboard engine, and on doing so a log was thrown out from the starboard shaft and the vibrations ceased … an immediate examination by divers was carried out … and no damage found.”
(c) The second “log strike” for Snipe occurred on 1 November 1964 and is described in the ROP at Attachment 6 of Exhibit R3 at paragraphs 2 and 3. The ship was patrolling the eastern edge of Sarawak Bay and the ROP entry states:
“2. On the 1st November [1964] … the ship struck a submerged log at 0448 [12 minutes to 5am]. The starboard engine was trailed in to check for possible damage. It was found that the port screw was setting up undue vibration, and the engine was shut down pending investigation by ship’s divers in daylight. At 0825 [25 minutes past 8 am] a ship’s diver inspected both screws and found the starboard had been touched but seemed undamaged, and the port without the tips of two of the blades. It was decided to continue the patrol on the starboard engine, using the port only for berthing …
3. HMS Manxman anchored … on 2nd November and Snipe secured alongside. It was intended to attempt to remove the tip of the undamaged port propeller blade, with assistance from Manxman, as a means of balancing out some of the vibration for the remainder of the patrol. However, the swell prevailing rendered conditions alongside Manxman most uncomfortable and too dangerous to permit diving. After Manxman’s Engineer Officer came on board for a short engine trial and considered it was safe to use the port shaft for short periods at slow speed, Snipe returned to patrol.”
26. It would seem to Captain Josephs that the “log strike” described by the applicant would more likely be the second one referred to above, ie. that occurring on 1 November 1964. Captain Josephs’ further evidence in this regard is that it is clear from Snipe’s ROPs that large and small floating logs were a known and regular hazard to patrol vessels operating in North Borneo waters. He is of the opinion that the possibility of log strikes would have been well known to the crew of Snipe, including Mr Boyes. Futhermore, Captain Josephs opines that the applicant would have been aware of the earlier minor log incident in July 1964 – albeit Mr Boyes denied this at the hearing.
27. Dr Mander’s opinion evidence is not supportive of the “Snipe Log Incident” being a causal factor for either of the applicant’s claimed conditions. His assessment, in part, from his report at Exhibit R2 states:
“By his own admissions the Veteran [Mr Boyes] began to drink heavily while in Borneo. His drinking has continued over many years … it is reasonable to conclude that he is alcohol dependent … A diagnosis of anxiety state was made in 1975 [T3 page 21] although no reference at that time was made to the Veteran’s drinking and indeed it may well have been concealed from the interviewer. This is a critical omission since alcohol can be a significant causative factor in the generation of anxiety symptoms … alcohol is known to cause anxiety symptoms both as a direct psychological effect of intake and during the withdrawal phase … whilst it is possible that he suffered a separate diagnosable condition at that point, it is more plausible his anxiety symptoms were the direct result of his alcohol intake and therefore secondary to it … [Dr Fellows-Smith] believes the drinking was the result of trying to control anxiety symptoms whereas I would see them as being the result of his alcohol intake. I base this view on the Veteran’s own comments that the increased drinking occurred first and the objective evidence that no frank anxiety symptoms were noticeable until he sought help in 1975.”
Dr Mander goes on to state in his report:
“… the Veteran has not experienced a severe psycho-social stressor and I can see no connection between his difficulties and his period of Service …
Conclusion: Substance – induced anxiety disorder secondary to excessive intake of alcohol over many years …”
Clinical Onset of Claimed Conditions
28. General.. This is a key aspect in this matter and will be dealt with in some detail. In so doing, the Tribunal referred to and notes the relevant content of the following:
(a) Robertson v Repatriation Commission – AAT V96/178 of 2 March 1998
(b) Repatriation Commission v Gosewinckel [1999] FCA 1273
(c) Lees v Repatriation Commission [2002] FCAFC 398
The evidence as to clinical onset made available to the Tribunal is far from definitive for either of the claimed conditions. Furthermore, the circumstances dictate that the Tribunal deviate somewhat from the process set out in Deledio, to the extent that findings of fact are made in relation to the question of clinical onset at this point. This enables the process of its review and the logic of its reasoning better able to be followed.
29. Alcohol Abuse/Alcohol Dependence
(a) The applicant’s contention and his consistently stated evidence is that whilst he had indulged in drinking (alcohol) prior to the “Snipe Log Incident” on his 1964/65 Borneo service, it had markedly increased after, and in his opinion because of, that incident and that service. This increase occurred on board ship, but more particularly when on shore leave in this period. At those times on shore leave he states that he, together with some shipmates, would indulge in “binge drinking” and return to ship in a very drunken state. No disciplinary action was apparently taken on these occasions.
(b) Other than the statement by Mrs Boyes, the applicant’s wife, which is at T17 pages 74 to 78, there is no further documented or other evidence to support this 1964/65 time frame for a commencement of the applicant’s alcohol abuse. His Service records make no mention of his stated drinking problem, either from a medical point of view or in terms of behaviour or discipline. The oral evidence by Dr Mander (who saw service in the Navy) confirms the Tribunal’s own view of what he describes as “the culture of drinking” in the Navy. However, this “culture”, as such, is not specifically or necessarily related in any way to the experiencing of stressful incidents.
(c) The evidence provides the picture, in the Tribunal’s opinion, which is not contested by either party, nor by the evidence provided by Dr Fellows-Smith and Dr Mander, that had appropriate tests been undertaken by the Navy and had his superiors been more observant, this could most likely have resulted in Mr Boyes being recognised as suffering from Alcohol Abuse (as defined in the relevant SoP) in approximately 1965 or soon thereafter. However, clearly this does not amount to “an inability (by the applicant) to obtain appropriate clinical management” of his then undisclosed alcohol problem.
(d) That alcohol abuse situation, according to the evidence provided, has continued-albeit with some moderation over the last two years (Exhibit R2). The medical opinion evidence is that in the process Mr Boyes has become Alcohol Dependent (also as defined in the SoP), but when that dependency started is not able to be pinpointed. However, the Tribunal concludes that logically it would be after Mr Boyes is said to have started to abuse (in about 1965) and before he was seen by Dr Fellows-Smith in October 2000.
(e) Despite this conclusion, I consider it somewhat remarkable that this alcohol abuse/dependence situation could have occurred at the time the applicant contends and that it continued without any comment or blemish on the Navy records of Mr Boyes during his service. Furthermore, in the period since 1965, despite this alcohol problem, that he was promoted several times and eventually to the rank of Chief Petty Officer seems even more remarkable on the Navy’s part. One can only conclude, I assume, that Mr Boyes was successfully concealing his alcohol problem from his superiors for a full 15 years of his Navy Service.
(f) Remarkable or not, there is nevertheless no positive evidence present to refute the contention put forward by the applicant regarding the time of onset of his condition of alcohol abuse. There is some outside support for it and taking all aspects into account the Tribunal is relevantly satisfied that the clinical onset of that condition is approximately 1965 and it finds accordingly. It also finds that Mr Boyes has become alcohol dependent, but that the onset of dependence can not be determined – other than it was between 1966 and 2000.
30. Anxiety Disorder
(a) The applicant maintains that his anxiety condition also commenced in 1964/65, subsequent to the same “Snipe Log Incident”.. There is an element of support for this time frame by virtue of the evidence of his wife, as expressed in her statement (T17). Dr Fellows-Smith also rather supports this as the onset period (T12 and T16). However, his conclusion appears to be based largely on the 2000/01 evidence by Mrs Boyes (on interview and in her statements), as well as the information provided to him also at that time by the applicant.
(b) The opinion evidence of Dr Mander in his report (Exhibit R2) and given orally at the Tribunal hearing does not support the above contention. He is of the opinion (as addressed earlier in these Reasons) that the applicant’s anxiety symptoms/condition followed and is secondary to his alcohol abuse (and subsequent dependence). Dr Mander emphasises that the first objective evidence of an anxiety condition was when Mr Boyes sought help in 1975. In his report Dr Mander comments “… no frank anxiety symptoms were noticeable [until then] ….” The Tribunal is of course alert to the fact that neither doctor had any contact with Mr Boyes until the year 2000 – some 35 years after his Borneo service in the Navy. Their opinion evidence in relation to ascertaining clinical onset as a consequence is weighted accordingly by the Tribunal.
(c) Of particular note is the documented diagnosis of “Acute Anxiety State” made by an RAN medical officer concerning Mr Boyes in August 1975 (T3 page 21) – as referred to by Dr Mander. Two months later, in October, there is a further medical report by the same medical officer in the applicant’s Service documents which records a diagnosis of “Inadequate Personality” (T3 page 19). By then, as I have indicated earlier, Mr Boyes had had several promotions over the 10 years from 1965, with evidently no indication of any mental health or behavioural problems having been apparent to the Navy promoting authorities in that process. Again, this seems somewhat remarkable.
(d) All the periodic Navy medical examination reports concerning Mr Boyes up to 1975 in the T documents show “Emotional Stability” and “Mental Capacity” marked as “N” (normal). The 1976 report (the year following the 1975 report which included a diagnosis of “Acute Anxiety State”) indicates, surprisingly, these two categories as “N/E” (not examined). Reports subsequent to 1976 again show both aspects as being normal. A medical Examination Record report in 1984 (T3 page 31), apparently related to the applicant’s re-engagement in the Navy Reserve (RANR), also shows these aspects as normal.
(e) The Tribunal further notes that in the Medical History Questionnaire document, apparently completed by Mr Boyes in February 1981 (T3 page 29), there are responses by him indicating “No” to the following relevant questions: “Frequent Nightmares?”; “Nervous Trouble?”; and “Mental Illness?”.. However, in regard to this particular document, the Tribunal recognises that the applicant was neither questioned nor cross-examined concerning its contents during the hearing, and hence weights the validity of the content of the document accordingly.
(f) In summary, the applicant’s Service documents, apart from the two 1975 entries, fail to show any sign of him having an anxiety disorder condition between 1964/65 and 1975, and then again from 1976 through to 1984. There is no explanation for this. If the condition existed, why was it not noted other than in 1975? Is it inefficiency on the part of the Navy, or was the applicant cleverly concealing this ailment in order to stay on in the Navy, and also be promoted? The latter behaviour would be quite understandable for a serviceman, based on the Tribunal’s experience.
(g) Despite this, from the overall evidence in this regard, the Tribunal is however not relevantly satisfied that there is sufficient support for the proposition that Mr Boyes commenced suffering diagnosable anxiety symptoms in 1964/65, let alone sufficient enough symptoms to provided a diagnosis of “Anxiety Disorder” (as defined in the relevant SoP) and it finds accordingly.
(h) On the other hand the 5 August 1975 documented medical evidence states that Mr Boyes had a clinically diagnosed anxiety condition at that date. There is no indication in that documented evidence that the condition had any prior history, but it would seem reasonable to conclude that the process may have started a little before this 1975 diagnosis. That conclusion is supported by the opinion evidence of Dr Mander, but who opines that the clinical onset of the anxiety disorder condition as such could not objectively be set much earlier than 1974/75. A suggested causal connection with the condition of psoriasis, which the applicant suffers, is not supported by medical opinion evidence before the Tribunal.
(i) Based on the overall evidence in this regard, and despite the lack of post 1975 on-going mention of the anxiety condition in the applicant’s Service records, the Tribunal is satisfied, albeit with some reservation, that the clinical onset of his Anxiety Disorder is 1974/75 at the earliest, and that it has continued.
Are the Raised Hypotheses Reasonable?
31. Following the process in this respect as set out in Deledio, for the hypotheses to be “reasonable” in the opinion of the Tribunal, they must be consistent with the template of the relevant SoPs. To do so the hypothesis involved must contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the applicant’s service. If it does not, it will be deemed not to be “reasonable” and the claim for that condition will fail.
32. Anxiety Disorder As set out in paragraph 22 above the only relevant factors in SoP Instrument No 1 of 2000 are: 5(a)(ii) – experiencing a relevant severe stressor within two years immediately before the clinical onset of Anxiety Disorder; or 5(a)(iii) having a clinically significant psychiatric condition within two years immediately before the clinical onset of Anxiety Disorder. In this respect:
(a) The Tribunal has made the finding that the Anxiety Disorder clinical onset is 1974/75 (paragraph 30(i) above).
(b) The contended severe stressor relevant to the hypothesis for Anxiety Disorder is the “Snipe Log Incident” which occurred in 1964 (or according to the applicant, perhaps 1965). Whether or not that stressor meets the requirements of the SoP, the fact is that the gap between it and the onset of the Anxiety Disorder condition is more than the two years stipulated in the SoP, and hence does not fit the required template of factor 5(a)(ii). This hypothesis is therefore deemed not to be reasonable in relation to that factor.
(c) As to the second factor, the Tribunal is satisfied that the applicant’s condition of Alcohol Abuse fits the description of “a clinically significant psychiatric condition” referred to in factor 5(a)(iii) of the SoP. Furthermore, its onset the Tribunal has determined to be 1965. It therefore existed at the time of the clinical onset of the Anxiety Disorder – thus meeting the SoPs time requirement. However, although a reasonable hypothesis in relation to this factor, for the claim to be successful for this anxiety condition, it must first be accepted that the Alcohol Abuse condition was in fact war-caused.
33. Alcohol Abuse. It should be noted that the Navy’s so-called “culture of drinking”, referred to earlier in these Reasons, has not been raised as a hypothesis, nor in the Tribunal’s opinion does this avenue provide the basis for a relevant causal factor. As set out in paragraph 23 above, the only relevant factors contained in SoP Instrument No 76 of 1998 are 5(a) – suffering from a psychiatric (anxiety) disorder at the time of clinical onset of Alcohol Abuse; or 5(b) – experiencing a severe stressor within two years immediately before the clinical onset of Alcohol Abuse.
(a) The Tribunal’s findings regarding the clinical onsets of the applicant’s Alcohol Abuse and his Anxiety condition are 1965 and 1974/75 respectively. The Alcohol Abuse condition clearly pre-dates the Anxiety Disorder and therefore cannot be secondary to it. That hypothesis thus does not meet the requirements of the SoP’s factor 5(a) template and is deemed not to be reasonable in relation to that factor.
(b) However, as to the second factor 5(b), clearly the contended causal stressor in 1964 (the “Snipe Log Incident”) occurred within the SoP’s required two year period before the clinical onset of the applicant’s Alcohol Abuse condition in 1965. In that sense it fits the template in relation to the SoP’s factor 5(b). However, although reasonable, for this hypothesis to succeed the Tribunal must be satisfied that the stressor involved meets fully the requirements of the SoP, in relation to the applicant’s particular circumstances at the time.
34. In summary, the two hypotheses deemed “reasonable” by the Tribunal, but yet to be assessed against its findings of fact, are:
(a) That the Anxiety Disorder should be accepted as secondary to the applicant’s Alcohol Abuse (provided this itself is war-caused – by virtue of a severe stressor) – vide paragraph 32(c) above.
(b) That the Alcohol Abuse condition is the consequence of the applicant experiencing the “Snipe Log Incident”, and that that incident is a “severe stressor” as defined in SoP Instrument No 76 of 1998 - vide paragraph 33(b) above.
The key issue therefore is for the Tribunal to make findings of fact, based on the evidence, with regard to this “severe stressor” aspect. Then to be satisfied beyond reasonable doubt as a result, in accordance with s 120(1) of the Act, whether or not the condition of Alcohol Abuse is war-caused by the applicant’s 1964/65 FESR Borneo service. If so, the acceptance also of the Anxiety Disorder would follow.
“The Snipe Log Incident” – Fact? – Severe Stressor?
35. The validity of the applicant’s claim relies on the Tribunal’s findings, from the evidence before it, as to whether Mr Boyes in fact appropriately experienced a “severe stressor” in the form of the “Snipe Log Incident”.. And, although providing a reasonable hypothesis connecting his operational service with the claimed condition of Alcohol Abuse, does it meet the end requirement of the SoP in respect to this (war) service? In this regard, the respondent’s representative cited Stoddart v Repatiation Commission [2003] FCA 334 and the Tribunal duly referred to it.
36. The applicant’s relevant evidence is summarised at paragraphs 19 to 21 of these Reasons and the respondent’s is at paragraphs 24 to 27. The ROPs contained in Exhibit R3 are the official record of ships’ daily activities. It is widely acknowledged, as well as it being the Tribunal’s experience, that ROPs normally provide information in considerable detail and with an accepted degree of accuracy. In this case, the Tribunal finds no justification or reason to regard the relevant ROP in Exhibit R3, and in particular the entries concerning log strikes involving HMAS Snipe in the 1964/65 period, as other than accurate descriptions of the events and the actions taken at the time.
37. It is clear that there were several log strike/collision incidents involving Snipe worthy of reporting and from the overall evidence the Tribunal is relevantly satisfied that the applicant whilst on board Snipe did in fact experience one of these “strikes”. It finds, despite differences in his evidence to that of the ROP – as to the date and time of day, that the only relevant incident as described by Mr Boyes which could possibly fit those contained in the Snipe ROP at Exhibit R3 is that occurring off the coast of Borneo on 1 November 1964. The applicant does not contest this conclusion.
38. The Snipe ROP description of the incident on that day is set out in paragraph 25(c) above. Even taking into account any tendency for the ROP report writer to use language that may be rather understating, it provides a picture of the 1 November log strike and its aftermath of it being no traumatic or major event. The evidence clearly indicates that logs were frequently to be expected and that they were a recognised navigation hazard – particularly for ships’ such as Snipe, and that ships’ crews were made aware of this. Mr Boyes denies this latter aspect. However the Tribunal, based on the overall evidence in this regard finds such failure to brief all crewmembers as being highly improbable – particularly on a small vessel such as Snipe.
39. Notwithstanding this, the Tribunal accepts that the log strike on 1 November 1964, occurring as it did in the hours of darkness, could have initially startled Mr Boyes, albeit he was not at that stage an inexperienced seaman. He contends at the time he equated the strike and associated noise to the ship having struck a mine. This, in the circumstances, the Tribunal finds hard to believe – even being over generous on the applicant’s behalf in weighing the issues, including taking into account Mr Boyes apparently being below deck at the time of the strike, it causing him to fall off a ladder, and there being a short partial blackout.
40. Mr Boyes was not alone in the engine room after the strike when problems were occurring with the port engine and screw. He was by no means in charge there or the one responsible. He observed an engine that was vibrating more than he had seen one do before and that concerned him. But to contend that he was in actual fear of his life at the time of the strike and subsequently, in the Tribunal’s opinion – based on the overall evidence and with particular reference to the factual as well as opinion evidence in Exhibit R3 – is stretching the point. There is no report of panic or undue reaction among the crew of Snipe at this time. The applicant’s evidence confirms this. The official evidence is that the problem, including the assessment of the damaged propeller, was overcome by the early daylight hours of 1 November and the ship proceeded under its own power.
41. As a consequence the Tribunal finds that, although a log strike did occur whilst Mr Boyes was on board Snipe and that at the time he was temporarily shaken and concerned, the concern could not legitimately be regarded as being at a level of fear for his life, the lives of others or of serious injury. Even viewed subjectively, rather than with objectivity – which is the more normal course, the Tribunal is unable to accept that the incident actually evoked intense fear, helplessness and horror in the applicant. He quite quickly, under the circumstances, had it confirmed that it wasn’t a mine, that it did not otherwise involve the enemy, that there were no injuries of any seriousness and the ship was not badly damaged.
42. The applicant describes that after the incident the crew were permitted their normal “drink session” and despite the ordeal he states that he took part in this, and for some time. He maintains that his alcohol consumption went up as a result of the incident, but in his shore “binges” he was not alone in getting drunk, plenty of others did also. Were they all concealing their fears or trying to cope with the log strike by abusing alcohol? The Tribunal is not convinced of this, based on the evidence, including that of Dr Mander at the hearing. (Transcript page 76).
43. The Tribunal, as result of its findings, is not satisfied in this case, relying as it does on the “Snipe Log Incident”, that this event fulfils the defined requirements of being (for Mr Boyes) a “severe stressor”.
Conclusion
44. Even if it were to be accepted that the applicant’s drinking habit was in some way influenced by the “Snipe Log Incident”, in as much that he believes this is so (his alternative contention refers), the Tribunal is relevantly satisfied for the reasons summarised above that in this case the incident is not a valid “severe stressor” as defined. Hence, this contention and hypothesis, although reasonable, in the end result fails – based on the facts as found.
45. The Tribunal is satisfied beyond reasonable doubt, taking account of all the material before it, that there is sufficient ground for concluding that the applicant’s claimed condition of Alcohol Dependence or Alcohol Abuse was not contributed to, in a material degree, by his Borneo operational service. As this is the only element of his eligible service contended to be relevant, the Tribunal is in the same degree satisfied that the condition is not war or defence-caused. This, as earlier clarified in these Reasons, results in the claim for Anxiety Disorder also failing, as its acceptance is reliant on the applicant’s alcohol condition being found to be war-caused. Therefore, in accordance with the provisions of the Act, the Tribunal is relevantly satisfied that neither claimed condition is war or defence-caused.
Decision
46. For the above reasons and pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 , the Tribunal decides:
(a) to vary the VRB decision under review by deleting Claustrophobia as an additional separately diagnosed condition;
(b) to otherwise affirm the decision under review that Anxiety Disorder and Alcohol Dependence or Alcohol Abuse are not war or defence-caused.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member
Signed: ...............(sgd V Wong).....................................
AssociateDate/s of Hearing 4 December 2003
Date of Decision 13 January 2004
Counsel for the Applicant Mr C Hammal
Counsel for the Respondent Mr C Ponnuthurai
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