Burgess and Repatriation Commission - [2002] AATA 702

DECISION AND REASONS FOR DECISION [2002] AATA 702

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/506

VETERANS' APPEALS DIVISION       )
           Re      TERRENCE EDWARD BURGESS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date19 August 2002
PlaceSydney

Decision The Tribunal affirms the decision under review of the Veterans' Review Board of 29 February 2000 which affirmed the decision of the Repatriation Commission of 10 August 1998 to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

[SGD] Ms G Ettinger
Senior Member
catchwords
Veteran - operational service – whether PTSD – history of alcohol abuse pre-service - exploding of scare charges aboard HMAS Sydney – whether Veteran suffers from PTSD - whether stressor met – tests for PTSD and stressor not met – decision affirmed

legislation
Veterans' Entitlements Act 1986 ss 9, 13(1), 120A, 120(1), 120(3)
Repatriation Medical Authority Statement of Principle Instrument No.15 of 1994 Concerning Post Traumatic Stress Disorder (as amended by Instrument No. 225 of 1995)
Repatriation Medical Authority Statement of Principle Instrument No.5 of 1994 Concerning Psychoactive Substance Abuse or Dependence
American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Washington DC
case law
Repatriation Commission v Budworth (2001) 66 ALD 285
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270
ReBenjamin and Repatriation Commission [2000] AATA 680; (2000) 61 ALD 565
Repatriation Commission v Binding [1999] FCA 974
Binding v Repatriation Commission (AAT 12886, 15 May 1998)
Re Cranage and Repatriation Commission (2000) 63 ALD 312
Re Mulvany and Repatriation Commission [2000] AATA 535; (2000) 59 ALD 602
Powell v Repatriation Commission [2000] AATA 385
Davenport v Repatriation Commission (Federal Court, 5 August 1997, 918/97)
Repatriation Commission v Cooke (1998) 90 FCR 307
Jehn v Repatriation Commission [2000] AATA 484
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

19 August 2002 Ms G Ettinger - Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Veterans' Review Board of 29 February 2000 (T22) which affirmed the decision of the Repatriation Commission of 10 August 1998 (T18) to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").
The Applicant was represented by Mr N Dawson of counsel and the Respondent Repatriation Commission by its advocate Mr S Modder. The hearing in 2001 was adjourned at the request of the parties and my agreement, to await the decision of the Full Court of the Federal Court in Repatriation Commission v Budworth (2001) 66 ALD 285. The matter was resumed, and oral closing submissions were made in July 2002.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the following Exhibits.
ITEM DATE EXHIBIT NUMBER
Report of Captain H Stevenson (Rtd) 6 October 2000         Exhibit A1
Commodore P Mulcare Research Report (par 13)    11 November 2000     Exhibit A2
T-Documents            Exhibit R1
Medical Report of Dr Y Lucire          1 August 2000 Exhibit R2
Medical Report of Dr Y Lucire         1 December 2000      Exhibit R3
Report of Captain H Stevenson (Rtd) 31 July 2000    Exhibit R4
Report of Captain H Stevenson (Rtd) 11 September 2000    Exhibit R5
Report of Captain H Stevenson (Rtd) 8 November 2000      Exhibit R6
Report of Commodore P Mulcare (Rtd) and attachments     31 October 2000        Exhibit R7

ISSUE BEFORE THE TRIBUNAL

The issue before the Tribunal was whether Mr Burgess' condition of PTSD with alcohol dependence as claimed, was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. In considering this, the Tribunal had first to determine whether the Veteran suffered PTSD pursuant to the tests of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") (4th edition).
There was no disagreement that should Mr Burgess be successful in his claim, the date of effect would be 6 May 1998.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Veterans' Entitlements Act 1986, in particular sections 9, 13(1), 120(1), 120(3) and 120A. Section 9 provides that:
"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;
…"
Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. As relevant, section 13(1) of the Act follows.
"13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act."
As Mr Burgess had performed operational service, as defined in section 6 of the Act, from 1 November 1972 to 30 November 1972 on HMAS Sydney, the standard of proof applicable to assess whether his condition of PTSD was war-caused, was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act:
"Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
…"
Section 120A of the Act also applied because Mr Burgess' application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)     the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)     the hazardous service rendered by a member of the Forces.
(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."
There was no disagreement between the parties, and I accepted that Instrument No.15 of 1994 as amended by Instrument No.225 of 1995 was the appropriate SoP to be applied in Mr Burgess' case with regard to his claimed condition of Post Traumatic Stress Disorder.
The relevant clauses of Instrument No. 15 of 1994 follow:
"For the purposes of this Statement of Principles:

"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i) 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
(ii) the person's response involved intense fear, helplessness, or horror; and

(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and

(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

EVIDENCE OF MR TERRENCE EDWARD BURGESS - THE APPLICANT

Mr Burgess whose date of birth is 29 July 1946, gave oral evidence at the hearing. He told me that he left school aged 15, and joined the Royal Australian Navy ("the Navy") in 1964 as an apprentice. He had initially been rejected due to hayfever, although the Applicant said he had never suffered that condition (T3).
Mr Burgess said that aged 18 he had a major drinking problem, and was hospitalised for a week. He said that by 1967 he was drinking heavily. This lasted until approximately August 1971, he said. Mr Burgess gave evidence that he was then promoted to Petty Officer, and after first being told that he would have to serve at Penguin, he was reassessed after 10 weeks, and promoted to serve at sea. He said that he started drinking again at sea in November or December 1972 on HMAS Sydney.
The Applicant gave evidence regarding his duties; being Petty Officer in charge of the boiler room, he worked 30 foot under water and seven to eight decks down on HMAS Sydney. He said that in November 1972 the ship was in Vung Tau Harbour, in particular on 23 and 24 November 1972. The duty hours were long he said.
When asked what he remembered about Vung Tau Harbour, Mr Burgess said that as the ship sailed in, there were explosions and warnings over the public address system telling the occupants to stand-by because grenades were being dropped. When asked:
"Mr Dawson: How did you react to those first lot of explosions, do you remember?
Mr Burgess: Mainly scared because I didn't know whether there had been a mine or we'd hit a mine or whether part of the machinery in the boiler room had blown out. All in all I was rather scared.
Mr Dawson: How scared?
Mr Burgess: I was on tenterhooks for the rest, remainder of my watch because they would drop charges at intermittent times throughout the whole time we were in the harbour and when I came off watch with these explosions it was impossible to try and get sleep …"
Mr Burgess said that he was in "sudden shock" and fear, awaiting the explosions constantly on his second day there. Mr Burgess was unable to recall how many scare charges had gone off, but said it could have been every 10 - 20 minutes or 6 -12 per hour. The Veteran said that there were to have been warnings each time a scare charge went off but that sometimes they did not come in advance of the explosion. He said that the fear was of the unknown, and the anticipation that the explosion may have been caused by an enemy diver planting a device on the ship. He said that the noise differed depending on where one was located in the ship, and that it was worse down below, but that he never got used to it.
Mr Burgess agreed in cross-examination when questioned by Mr Modder, that he attributed all his psychological problems to the two days of operational service in Vung Tau Harbour in 1972. He agreed that there had been no Viet Cong in play, and that he had not been involved in actual combat. In answer to a question from Mr Modder as to whether he had ever been directly confronted by death or injury, Mr Burgess said that the charges were a perceived threat.
When Mr Modder asked Mr Burgess whether he felt helpless at any stage, the Veteran explained that he was closed up in the machinery deck many floors down. He explained that his father had been in a machinery room which had been blown up, and survived. In reply to a question from the Tribunal, Mr Burgess said:
"During WW II my father was on an ammunition ship and basically like we were, doing stores, and his ship was bombed up the Arafura Sea and he was one of the lucky ones. He was out of the machinery space before the ship went down."
Mr Burgess said that after Vung Tau he went ashore and drank heavily, and that the pattern of drinking continued. In port he would leave the ship at 4 p.m. and drink until midnight; he said that he also continued drinking at home. He said that even now he drank on the way home from work, and continued at home. Mr Burgess agreed in cross-examination that heavy drinking was part of the Navy culture as there was little else to do, and it was a part of life in Australia in the 1960s.
Mr Burgess said that he currently suffered hypertension for which he received treatment, and diabetes which was controlled by diet. He said that he tried to reduce his drinking. He said that he had heart problems, and in 1989 suffered minor strokes. In cross-examination, Mr Burgess agreed that although he did not remember the two latter dates, he knew he had had seizures or blackouts and been hospitalised in 1964, 1967 and 1970.
Mr Modder also asked Mr Burgess about previous events and injuries, some of which he remembered as follows:

1961 - football
February 1964 – a fall off a ladder in which Mr Burgess suffered concussion
May 1967 – a fall off a ship; "blackout" number one
1972 – Penguin, hospitalised for "intoxication"

Mr Burgess said he sought help for his PTSD only as recently as March 1996 because he felt he needed help and his wife had threatened that she would otherwise leave him. He agreed he had been approved by the Repatriation Commission for treatment, and had been seeing Dr Pusic every 6-8 weeks for the last "couple of years". Mr Burgess said that Dr Pusic had suggested he have further treatment. Mr Burgess said that he could hear the scare charges going off if vehicles backfired, and that sleeping pills had proved ineffective to assist with his sleep.
Mr Burgess gave evidence about his work as a maintenance clerk at P&O Cold Storage and as a fitter at the Shell Oil Refinery between 1974 and 1987. He said that he managed at work, but was argumentative. Mr Burgess said that he had outbursts of anger, sometimes daily, and sometimes weekly. He said that he could not concentrate well at work and was not motivated to finish jobs.
Mr Burgess said that he got on well with his wife some of the time, and saw one of his children (aged 25) for a short time every week or fortnight. He said that he did not see his daughter (aged 27), often. The Veteran's other social activities consisted only of outings to his club, or to a hotel or restaurant he said. Mr Burgess said that he did not go to other people's houses. He told me that he drove his car, but not on Fridays because he drank more on that day.
Mr Burgess told me that his hobbies consisted of mounting medals, and he said that he used to go to football games fortnightly, but lost interest because he found himself getting upset when his team did "silly things".

Mr Modder referred Mr Burgess to T10, a letter in which he had recounted the sighting of a corpse floating by the ship, and the advice he had been given not to touch the body because of the apprehension that it was booby trapped. Mr Burgess explained that he now realised this had not occurred on his particular trip, but that he had been advised in preparation of his claim to report any threats to which the ship itself had been subject.
MEDICAL EVIDENCE
The only medical reports before the Tribunal were those of psychiatrists Dr Pusic and Dr Lucire. A report of an examination by Dr A Dinnen, also a psychiatrist, prepared in 2000, was not tendered to the Tribunal and was not relied on by the Applicant.
medical reports of dr y lucire - psychiatrist
The reports of Dr Lucire dated 1 August 2000 and a supplementary report date stamped 1 December 2000 by the Respondent, were before the Tribunal as Exhibits R2 and R3. Dr Lucire's diagnosis and opinion in Exhibit R2 was as follows:
"Mr Burgess is an alcoholic and has been since 1967. His memory for a lot of things is impaired so we have to rely on the records of others. Anxiety is at its worst immediately after the event that caused it.
This seems to be retrospective attribution of symptoms of alcohol abuse to an event in 1970 when he, momentarily, believed his ship might be at risk. I doubt it was at risk and I think Mr Burgess knows that as well as he can, given his memory."
In her report at Exhibit R3, she added:
"I do not accept that events were as he said they were. I do not accept that he has an anxiety disorder consequent on any aspect of war service.
His anxiety-like symptoms are those of alcohol abuse and its aftermath."

medical reports of dr a pusic – psychiatrist

Dr Pusic's reports of 16 December 1996 (T8) and 9 February 1998 (T15) were before the Tribunal. Dr Pusic was the treating psychiatrist and opined as follows at T8:
"I thought that Mr Burgess did display symptoms of Post Traumatic Stress Disorder as a result of his experiences in Vietnam. He does also qualify for a diagnosis of Alcohol Dependence. It appears that Mr Burgess pattern of Alcohol Abuse was established prior to his service in Vietnam but his PTSD symptoms would have significantly contributed in the maintenance of his Alcohol Abuse. Mr Burgess continues to suffer from significant symptoms of PTSD and he does display restricted social functioning. Mr Burgess would benefit from ongoing psychotherapeutic counselling. I have not prescribed him any psychotropic medication. Mr Burgess would benefit from inpatient treatment for his Alcohol Dependence and PTSD symptoms."
In his later report dated 9 February 1998, Dr Pusic, who had examined the Applicant on 2 May 1997, wrote:
"He continues to suffer from Post Traumatic Stress Disorder as a result of his experiences in Vietnam. He does also suffer from Alcohol Dependence."

RESEARCHERS' REPORTS

There were a number of researchers' reports before the Tribunal. At the resumed hearing on 2 July 2002, Mr Dawson drew to my attention a comparison of two reports of Commodore Mulcare (RAN Rtd), prepared for Writeway Research Services. The first dated 31 October 2000 had been tendered at the previous Tribunal hearing, and was before the Tribunal as Exhibit R7. Both contained some reproduced notes which had been written by Captain D Dalton (RAN Rtd). The most recent report, dated 11 November 2000, had been prepared for another matter, and only paragraph 13 of that report which reproduced a larger section of Captain Dalton's notes was tendered at this hearing. It is recorded as Exhibit A2, and is a fuller account of HMAS Sydney at the time when Captain Dalton was the ship's Engineering Officer between March 1968 and September 1970.
Reports of Captain Stevenson (RAN Rtd) were before the Tribunal as follows: 6 October 2000 as Exhibit A1; 31 July 2000 as Exhibit R4; 11 September 2000 as Exhibit R5; 8 November 2000 as Exhibit R6.
reports of commodore p mulcare (ran rtd) for writeway research services
The first report of Commodore Mulcare dated 31 October 2000 was before the Tribunal as Exhibit R7. When the Tribunal resumed hearing in July 2002, Mr Dawson drew to my attention a report of Commodore Mulcare, dated 11 November 2000, which had been prepared for another matter, and where notes of a Captain Dalton reproduced in more detail appeared. Paragraph 13 of that later report which reproduced a larger section of Captain Dalton's notes was tendered at this hearing and marked as Exhibit A2. It was a fuller account of HMAS Sydney at the time when Captain Dalton was the ship's Engineering Officer between March 1968 and September 1970.
In summary, and as relevant, Commodore Mulcare (at Exhibit R7) commented on Mr Burgess joining the Navy, and being in Vung Tau Harbour on 23/24 November 1972. He reported that there was a threat of attack from enemy divers, and although there were no known attacks, the threat was taken seriously. Accordingly, amongst other precautionary measures, HMAS Sydney "would have", he wrote:
"… deployed scare charges at irregular intervals, particularly from ship's boats, when divers were not in the water. (The ship's log shows that divers were in the water on 23/24 November 1972 for just over one and three quarter hours in aggregate)."
At paragraph 7 (Exhibit R7), Commodore Mulcare reported on the sound of scare charges as reported by Captain Dalton, the ship's Marine Engineering Officer in 1968/9. He also quoted Commander Fitzgerald, the ship's Diving Officer in 1971, Commodore Mitchell, and Commodore Helyer, both watchkeeping Marine Engineering Officers in 1972. Statements by the abovementioned persons were attached at Exhibit R7.
As to the broadcast of the dropping of scare charges; he wrote at paragraph 12 of Exhibit R7 as follows:
"Speakers for HMAS SYDNEY's Main Broadcast (the PA system) were located in all living and recreation spaces and in most working areas of the ship. There were Main Broadcast speakers in all machinery spaces where there were watchkeepers. Mr Burgess ahas (sic) acknowledged that he heard an announcement about scare charges – see contention (i) in the reference – although it came after the event."
The issue of whether a body floated past the ship was not pressed at the Hearing, because Mr Burgess admitted he had heard about the event but had not been present on HMAS Sydney when it occurred. However, I noted that Commodore Mulcare stated as follows at paragraph 15 of Exhibit R7:
"Whether the story of the body was still current when Mr Burgess joined SYDNEY in October 1972 is a moot point. However there were no incidents involving bodies floating in the sea near SYDNEY during the visit to Vung Tau in November 1972."
Mr Dawson referred me also to the short extract quoted from a report of Captain Dalton in Exhibit R7, and a much longer one which is at Exhibit A2. Clearly the account in Exhibit A2 was more comprehensive, and explained more fully the conditions on the ship, and the heat in which the men worked. It also discussed the noise factors involved in dropping of scare charges. For the sake of completeness, the whole of paragraph 13 of Exhibit A2 is reproduced here.
"13. Operation Awkward measures were put in place in HMAS SYDNEY on each occasion the ship anchored in Vung Tau. This operation evolved over time and by 1971 most scare charges were deployed from SYDNEY's boats upstream of the ship rather than from the ship itself. However it appears that, in 1967, a very considerable proportion was still thrown from the ship. Captain D Dalton RAN Rtd, the ship's Engineering Officer from March 1968 to September 1970 has supplied me with some notes reflecting his experience in the ship. The following extracts are considered to be relevant to 1967 when the Veteran was serving in SYDNEY:
'1. Sydney was 'slab-sided' in the mid-section of the hull between the forward watertight bulkhead of the Forward Machinery Space and the after WT bulkhead of the After Machinery Space, above and below the waterline. Any underwater explosion at about 3-4 m would therefore have a full sound wave effect on the ship's hull plating in the immediate vicinity.
2. Fuel tanks and void (empty) spaces outboard of each Main Machinery Space were large, approximately 7m deep, 3m wide and 5m long. It is most likely that these tanks, being relatively high in the ship compared with the other tanks which were in the bilge areas, would be emptied first and probably empty when Sydney reached Vung Tau to disembark soldiers and discharge army equipment.
Each Main Machinery Space layout was such that there were two boilers in the lower part, taking up 50% of the space but centrally located. Each boiler was controlled from a central platform on the lower level by a Leading or Petty Officer Engineering Mechanic. One Engineering Mechanic operated the boiler furnace sprayers on each boiler. Whilst at anchor and at instant readiness to get underway, noise levels in the boiler area would be the same as steaming at economical speed, in the 90db range. This level of sound would primarily be due to the boiler air supply fans, supported by adjacent steam turbine driven fuel and boiler feed pumps. Temperatures in these machinery spaces in the tropics was high, particularly at anchor and turning main engines, whilst at instant readiness to proceed to sea, which was the machinery state for Sydney whilst at Vung Tau. Temperatures would be in the range 135 to 140 degrees F, under the ventilation fans, but higher elsewhere in the space.
The use of earmuffs or ear plugs to protect the ears in these machinery spaces, with the temperatures prevalent, was not encouraged by management because of the possibility of serious ear infections and tropical ulcers which could have permanent effects on the person.
Scare charges were always dropped during my time on board whilst Sydney was at anchor at Vung Tau. Two methods were used:
·From the ship's 32ft. motor cutters patrolling the waters near the ship about 70-80m out. Each cutter carried charges that were dropped by the crew in a pattern at random times;
·Use of the ship's lookout sentries patrolling the port and starboard sides of the ship at hangar deck level. Each sentry had a small number of charges, which each was instructed to throw into the water clear of the ship, if or when instructed to do so, probably by the OOW through the ship's broadcast or by phone. This objective being to have a controlled random pattern of charges going off close to the ship. Instructions may have included a specific distance the charge was to be thrown, but I was not aware of what this distance might be.
I do remember, however, that on a number of occasions I contacted the XO (Executive Officer), or possibly the OOW (Officer of the Watch), after receiving representations from my staff on watch in the machinery spaces that it appeared the charges were being dropped over the side and not thrown as directed. There are two machinery space noises that are similar to a scare charge exploding; these are a boiler water level gauge glass blowing out and the other, a boiler tube bursting. The former is a random occurrence which can be quickly rectified by an alert watchkeeper because there is a roar of steam after the bang, there is also a roar of steam after the bursting of a boiler tube but rectification is prolonged. No engineroom watchkeeper wants to hear either noise and can thus be quite frightened when hearing a scare charge explode for the first time. Neither of the engineroom incidents mentioned above happened whilst I was on board.
Dropping the charges from the motor cutters caused only muffled explosions which although quite significant when heard in the machinery spaces, was an acceptable noise in the circumstances. Charges dropped over the side by sentries sounded similar to a rawhide whip crack through the ship's hull, which I would estimate at about 110db, above the noise level that could do permanent damage to hearing senses. It could be quite frightening if there was no warning, particularly if one was concentrating on listening for sound charges in running machinery which the Leading Hand or Petty Officer in charge of the boilers would be doing whilst on watch.'
…"

reports of captain h stevenson (ran rtd)

Reports of Captain Stevenson were before the Tribunal as follows: 6 October 2000 as Exhibit A1; 31 July 2000 as Exhibit R4; 11 September 2000 as Exhibit R5; 8 November 2000 as Exhibit R6.
The reports confirmed that Mr Burgess would have been exposed to explosions such as those he reported hearing at Vung Tau Harbour. Captain Stevenson wrote as follows (Exhibit R5):
"…
During the claimant's time of posting to HMAS QUEENBOROUGH the ship carried out live mortar firings on numerous occasions. (These mortars fire depth charges from the ship, which explode underwater).Hand grenade throwing exercises were also carried out during the period."
I have also reproduced paragraphs (e), (g), and (i) of his report of 31 July 2000 (Exhibit R4), which are particularly relevant to this claim.
"(e) Scare charges: Charges would have been exploded near the ship below the water-line. The machinery spaces of the ship were also below the water line.
(g) Scare charges: The machinery spaces were separated from the sea by fuel and water tanks which would have provided a dampening effect to the sound of the scare charges heard within the machinery spaces. If the claimant had little experience of these sounds it is possible that he could have taken them to be some other event.
(i) Announcement: It would be almost impossible to refute this claim. There could well have been some delay in the communication chain involved in making the announcement to the machinery spaces."
Captain Stevenson also included in his report at Exhibit A1, a description of the scare charges at paragraph 7 as follows:
"Scare charges were 1.25 Lbs. Made up of 1 Lb of TNT and 0.25 Lb of CE, a detonator, 10 inches of safety fuse and a striker. These were generally dropped from patrolling ship's boats.
(a) At a range of between 50 to 200 meters
(b) At a depth of 15 to 25 feet
(c) The veteran's watch-keeping station would have been approximately 25 feet from the ship's side and approximately 14 feet below the water-line and surrounded by fuel or water tanks."

Captain Stevenson also attached to Exhibit R4, a page of 'Proceedings for HMAS Sydney' which confirmed that the ship was at anchor in Vung Tau Harbour on 23 and 24 November 1972. The two relevant paragraphs 18 and 19, described the activities on 23 November 1972 as off-loading defence aid cargo and the Captain entertaining the Australian Ambassador to Saigon and the Commander Australian Army Group Vietnam to luncheon on board ship. The activities on 24 November 1972 described further off-loading of cargo and praise of the "willing and continuous efforts of everyone on board" after which the ship set sail for Hong Kong.
SUBMISSIONS AND CONCLUSIONS
In determining whether Mr Burgess' PTSD was war-caused pursuant to section 9 of the Act, I had to take into account the evidence, submissions, case law, and relevant SoPs to make the correct and preferable decision. I also considered his alcohol dependence as this had been commented on by Drs Lucire and Pusic and the Veterans' Review Board, and had also arisen before this Tribunal. I noted however that no submissions were made about the issue of alcohol dependence at the final hearing in this matter.
I was mindful that Mr Burgess had served his country in the Royal Australian Navy from 2 May 1964 to 1 May 1973 (T22/105). His eligible war service (which was also operational service), was from 1 November 1972 to 30 November 1972 in Vietnam. He also rendered defence service as defined in Part IV of the Act from 7 December 1972 to 1 May 1973. Mr Burgess served on HMAS Sydney and was in Vung Tau Harbour on 23 and 24 November 1972.
As Mr Burgess had served on operational service it was appropriate in considering whether his claimed conditions of PTSD and alcohol dependence were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. I had to first determine, applying the tests in DSM-IV, whether Mr Burgess suffered PTSD, and further whether he met the requirements as set out in the relevant Repatriation Medical Authority SoPs, and whether the conditions were war-caused pursuant to the legislation.
I moved then to consider whether Mr Burgess suffers from PTSD, and if so, whether it was war-caused.
whether mr burgess suffers from ptsd
In considering whether the Applicant suffers PTSD which is war-caused, I found that the only medical evidence before the Tribunal was that of Drs Lucire and Pusic, both psychiatrists. Both medical practitioners recognised Mr Burgess' alcohol dependence, Dr Lucire stating that it dated back to 1967 (Exhibit R2), with Dr Pusic opining it appeared that Mr Burgess' pattern of alcohol abuse was established prior to his service in Vietnam (T8). Dr Pusic also considered that Mr Burgess suffered PTSD, and that his PTSD symptoms would have significantly contributed in the maintenance of his alcohol abuse.
As to PTSD; I was aware from the evidence before me that the stressful event as claimed, occurred in 1972, and noted that Dr Lucire had incorrectly recorded 1970 as the date when Mr Burgess believed his "ship might be at risk". Dr Lucire did refer to Mr Burgess having an impaired memory which he also told me at the Tribunal, so it is possible that Mr Burgess gave her the wrong reference year. I have not accorded that error any weight.
I noted that Dr Lucire did not consider Mr Burgess had PTSD, and in Exhibit R3, she opined:
"I do not accept that events were as he said they were. I do not accept that he has an anxiety disorder consequent on any aspect of war service.
His anxiety-like symptoms are those of alcohol abuse and its aftermath."
Dr Pusic on the other hand, opined in 1996, that he thought Mr Burgess displayed symptoms of Post Traumatic Stress Disorder as a result of his experiences in Vietnam. He opined that Mr Burgess continued to suffer from significant symptoms of PTSD and displayed restricted social functioning. In his later report dated 9 February 1998, Dr Pusic, who had examined the Applicant on 2 May 1997, wrote:
"He continues to suffer from Post Traumatic Stress Disorder as a result of his experiences in Vietnam. He does also suffer from Alcohol Dependence."
Mr Dawson submitted that the reports of Dr Lucire did not assist the Tribunal to decide whether Mr Burgess suffered PTSD. He referred me to the two reports of Dr Pusic to which I have referred in the paragraphs above, and which he submitted contained diagnoses of Mr Burgess as suffering PTSD. Dr Pusic's reports remained unchallenged and the Tribunal was able to accept the diagnosis, he submitted.
I noted from the report of the submissions of Mr Dixon at the Veterans' Review Board (T22/106), that Mr Burgess had been "diagnosed as suffering from chronic PTSD with alcohol abuse in 1996 and was in fact accepted by the Department for treatment for the condition." He also submitted that:
"The acceptance of PTSD would also lead to the acceptance of alcohol abuse attributable to his service from Statement of Principles No 5 of 1994, paragraphs 1(a)."

Although the Veterans' Review Board did not make reference to the acceptance of Mr Burgess for treatment for PTSD in its decision, I noted that this was verified in the listing given in the first two pages of the T-documents, where the Veteran's conditions, accepted and rejected as war-caused were shown.
In order to come to a decision, I was required to consider the tests which appear in the SoP Instrument No.15 of 1994, and are derived from DSM-IV. I was mindful that Post Traumatic Stress Disorder is defined in Instrument No.15 of 1994 as follows:
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i) 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
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

Mr Dawson submitted that both limbs of the definition of a person being exposed to a traumatic event had a subjective element, whereas Mr Modder submitted that the first limb of the definition was the reality of an objective event, whilst the second was a reaction to that event.
In order to establish whether Mr Burgess suffered PTSD pursuant to the DSM-IV definition, I needed first to establish to my satisfaction whether the dropping of scare charges from HMAS Sydney on 23 and 24 November 1972 could be classified a traumatic event such that Mr Burgess experienced, witnessed or was confronted with actual or threatened death or serious injury, or that they were a threat to Mr Burgess or other people's physical integrity. I was satisfied that Mr Burgess was exposed to being in the boiler room of HMAS Sydney while scare charges went off intermittently on 23 and 24 November 1972.
There was no dispute, and I accepted that Mr Burgess had not been in combat with the Vietnamese, neither that the ship nor Mr Burgess had been fired at.
Mr Dawson submitted that being in Vung Tau Harbour on HMAS Sydney for two days in November 1972 was "not a holiday". He referred me to the reports of Captain Dalton as reported by Commodore Mulcare (Exhibits A2 and R7). Captain Dalton had reported on the extreme heat in the engine room, he submitted, which was in the range of 135-140 degrees Fahrenheit. He had stated in his report that it was for this reason the use of earmuffs or earplugs had not been encouraged due to the possibility of serious ear infections and tropical ulcers. Captain Dalton had confirmed the "controlled random pattern of charges going off close to the ship", he submitted. Mr Dawson drew my attention also to Captain Dalton's account of charges being dropped over the side and not thrown as directed. I noted that Captain Dalton had stated at page 5 of his report:
"Sydney was 'slab-sided' in the mid-section of the hull between the forward watertight bulkhead of the Forward Machinery Space and the after WT bulkhead of the After Machinery Space, above and below the waterline for approximately 10m, 5m of which would be below the waterline. Any underwater explosion about 3-4m would therefore have a full sound wave effect on the ship's hull plating in the immediate vicinity.
…
There are two machinery space noises that are similar to a scare charge exploding; these are a boiler water level gauge glass blowing out and the other, a boiler tube bursting. The former is a random occurrence which can be quickly rectified by an alert watchkeeper because there is a roar of steam after the bang, there is also a roar of steam after the bursting of a boiler tube but rectification is prolonged. No engineroom watchkeeper wants to hear either noise and can thus be quite frightened when hearing a scare charge explode for the first time."

I was mindful also of Mr Modder's submissions regarding Captain Stevenson's opinion on scare charges. In his report at Exhibit R4, Captain Stevenson described scare charges as follows:
"(g) Scare charges: The machinery spaces were separated from the sea by fuel and water tanks which would have provided a dampening effect to the sound of the scare charges heard within the machinery spaces. If the claimant had little experience of these sounds it is possible that he could have taken them to be some other event."
Mr Modder submitted that Mr Burgess did not meet the first limb of the diagnosis as the scare charges to which he had been exposed were only a perceived threat. He submitted that Mr Burgess had not been in conflict with the enemy, and that at age 26 on HMAS Sydney, he had been in the Navy since the age of 18 years, and was experienced. Mr Modder submitted that warnings were given most of the time before scare charges were dropped, and emphasised that Mr Burgess was only in Vung Tau Harbour for two days. Mr Modder referred me to Dr Pusic's report in which he had opined that the Veteran's alcoholism dated back to before his service, and also drew my attention to Dr Pusic's report (T8) indicating Dr Pusic had written with regard to a perceived rather than an actual threat in relation to the scare charges. He had stated as follows:
"Dr Pusic: He told me that whilst in Vietnamese waters he was always apprehensive that the ship may be attacked. He told me that he would hear the scare charges exploding and he could not be sure whether or not the ship was being attacked."
Mr Modder also referred me to T10/66, a handwritten letter of Mr Burgess in connection with his claim in which he had written as follows:
"Another incident that occurred (sic) was when the corpse of a dead Vietnamese floated past the ship. A helicopter gun ship advised one of our boat crews not to touch the body as there was a possibility that it could be booby trapped. The gun ship disposed of the body after it had drifted far enough past the ship."
I noted that Mr Burgess subsequently admitted that such an incident had not occurred when he was present on HMAS Sydney.
Mr Modder's submissions on behalf of the Respondent regarding the boiler room on HMAS Sydney in Vung Tau Harbour were that it would have been an unpleasant experience for Mr Burgess, but that the threat he experienced was only a perceived threat.
He also emphasised that Mr Burgess had been able to perform all the duties of a person of his rank at the time, and that the perceived threat was insufficient to invoke causal factors in satisfaction of section 9 of the Act.
In that regard, Mr Modder drew to my attention a number of cases where the Federal Court and the Tribunal had dealt with the issue of a veteran experiencing a stressor, and some cases which dealt specifically with scare charges.
Mr Modder referred to quite a number of cases and I have noted the most relevant below, in particular those by which I am bound, viz, cases decided by the Federal Court.

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270 is a decision of the Full Court of the Federal Court. However the case before the Tribunal which preceded the appeal, (Re Benjamin and Repatriation Commission [2000] AATA 680; (2000) 61 ALD 565), was a case where the Veteran was held by the Tribunal not to have experienced a traumatic event when an alert was issued that divers were attempting to attach mines to MV Jeparit. Mr Benjamin had been moved on to the wharf while the ship was checked. He had been drinking and said that he felt very confused and afraid. A later incident in which the Mr Benjamin was involved was also held not to have been a traumatic event when during the Tet Offensive, bombardments and rifle fire occurred in proximity of MV Jeparit, although a couple of kilometres away. Mr Benjamin did not therefore, meet the first limb of the test for the stressor in the relevant SoP, and also failed on the subjective count, his reaction to it. I was mindful that in addition, Mr Benjamin was much younger than Mr Burgess when he experienced the events described above.
Repatriation Commission v Budworth (2001) 66 ALD 285 a decision of the Full Court of the Federal Court binds this Tribunal and was decided in particular in clarification of the standard of proof in Repatriation matters. However, the factual situation concerned Mr Budworth being subjected to scare charges. He too served on HMAS Sydney, (at a different time from Mr Burgess). In Mr Budworth's case, the dropping of scare charges was not held to meet the tests in regard to the first limb of the stressor. Neither did he meet the tests in the second limb, which were his subjective reactions to the scare charges. Like Mr Burgess, he too had reported a body floating by the ship which was later shown not to have occurred in his time.
Repatriation Commission v Binding [1999] FCA 974, was a decision of a single Judge of the Federal Court, in which the appeal of the Repatriation Commission against the decision of the Tribunal was dismissed. In Binding v Repatriation Commission (AAT 12886, 15 May 1998), the Tribunal held that Mr Binding who also served in HMAS Sydney's boiler room and for a period of only three days on operational service in 1965, was subjected to scare charges and met the tests. The Tribunal had decided that his PTSD was war-caused, and on appeal by the Repatriation Commission, the Federal Court did not find an error of law. I was mindful that in 1972 when Mr Burgess served in Vung Tau Harbour, the situation was much calmer than it had been in Mr Binding's time in 1965, and that the ship's records indicated that the Captain entertained the Australian Ambassador to Vietnam to lunch on one of the two days of Mr Burgess' time in Vung Tau Harbour, something I believe would not have occurred if there had been acute danger at hand.
Re Cranage and Repatriation Commission (2000) 63 ALD 312 was a Tribunal case in which the decision of the Respondent was affirmed. Senior Member Handley recorded that Mr Cranage's ship was:
"…
continually engaged in sweeping/zig zag manoeuvres to avoid the risks of having mines fixed to its hull by Vietnamese divers. Additionally he said there was a risk of his vessel striking floating mines." (paragraph 94)
However Senior Member Handley held that at paragraph 98:

"In so far as paragraph (b) of "experiencing a stressor" is concerned I am satisfied that it should be entirely interpreted subjectively. Little however turns on this issue for the purposes of the present application unless it can be established that objectively Mr Cranage satisfies paragraph (a)."

Re Mulvany and Repatriation Commission (2000) 59 ALD 602 was another case mentioned by both parties. I noted that the Tribunal affirmed the decision of the Respondent in that case. The Tribunal in Mulvany [2000] AATA 535 held as follows at paras 21- 24:
"…
Adopting an objective interpretation of para (a) of the definition of the phrase "experiencing a stressor" in cl 4 of the SoP concerning PTSD, the Tribunal finds that the rats incident was an event that did not in fact involve "threatened death or serious injury" within the meaning of that definition, because there is no evidence to suggest that the probable or impending death of, or serious injury to, the applicant was indicated by that event.
Alternatively, did the rats incident in fact involve a threat to the applicant's "physical integrity"? The phrase "physical integrity" is one of potentially wide connotation, its ordinary meaning being: bodily wholeness or soundness. In the Tribunal's opinion, however, the connotation of that phrase, as appearing in the definition of "experiencing a stressor" in cl 4 of the SoP concerning PTSD, is limited by the context in which it appears. That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely, death or serious injury. Accordingly, the Tribunal is of the opinion that the phrase "threat to … physical integrity" in the abovementioned definition should be understood as referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only. Adopting that interpretation, the Tribunal finds that the rats incident was an event that did not in fact involve a "threat to the [applicant's] … physical integrity", within the meaning of the definition of "experiencing a stressor" in the abovementioned SoP, because there is no evidence to suggest that that event involved impending or probable harm of an extreme kind to the applicant's bodily wholeness or soundness. The only kinds of relevant bodily harm referred to by Mr Clarke in his submissions were the biting, scratching and spreading disease by rats but there was no evidence to suggest that any of those kinds of harm could be regarded as extreme. Nor was there any evidence regarding the likelihood or probability of any such kind of harm being inflicted on the applicant in the rats incident.
The Tribunal finds, therefore, that the factor referred to in para (a) of cl 1 of the SoP concerning PTSD does not exist, or is not satisfied, in the present case because the rats incident did not involve the applicant's "experiencing a stressor" within the meaning of the definition of that phrase in cl 4 of that SoP.
None of the other minimum factors referred to in cl 1 of the abovementioned SoP being relevant in this case, it follows that the raised hypothesis connecting the applicant's diagnosed condition of PTSD with the circumstances of his operational service – specifically, the rats incident – is not a reasonable one, and the Tribunal so finds.
…"
Powell v Repatriation Commission [2000] AATA 385, by way of contrast, was a case where, the Tribunal held that of the events recounted by the Veteran, the incident in which he led a patrol for the first and last time, and faced, over a cache of ammunition, six Viet Cong who pointed their guns at him and his patrol, to be a threat to Mr Powell's physical integrity. The Tribunal found that it did not matter that Mr Powell and his patrol were able subsequently to withdraw from the situation unharmed, and that viewed objectively, the event could be classed to be a threat to Mr Powell's physical integrity.

I considered all the evidence, case law and submissions with regard to Mr Burgess being exposed to a traumatic event in terms of the PTSD diagnosis. In view of the case law as referred to in the paragraphs above, I preferred the submissions of the Respondent that the test in paragraph (a)(i) of the DSM-IV definition was an objective one.
I have accepted the Veteran's evidence that scare charges were dropped in the two days during which he was on HMAS Sydney in Vung Tau Harbour in November 1972. I was mindful of the statement of Heerey J in Davenport v Repatriation Commission (Federal Court, 5 August 1997, 918/97) where he affirmed the Tribunal could take into account the very short period of operational service. In Mr Davenport's case, his Honour referred to memory loss and its impact on the reliability of the evidence, adding:
"Also, the Tribunal was entitled to look at the inherent probability or otherwise of the applicant's case and take into account the fact that his case involved isolating a very short period of his naval service as the period at which the temporal connection between his smoking and war service was established."
I accepted Mr Burgess' evidence regarding his experiences with scare charges, namely that they were frightening, and that they went off at irregular intervals. Mr Burgess said that warnings came either contemporaneously with the explosion or indeed afterwards, and the scare charges caused him fear and "sudden shock". His evidence was that notwithstanding some eight years in the Navy, he had not previously experienced scare charges, and that from his situation eight floors below deck in the enclosed and very hot boiler room, the noise was loud and frightening. I noted also from the report of Commodore Mulcare that the men were often without ear muffs. Mr Burgess told me that this fear and anticipation of injury or death led him to drink alcohol further when he was not on duty on the ship, and that the drinking continued after he left the Navy. I noted also the unchallenged proposition that drinking to excess was the culture of the Services and the times.
Having considered the case law as discussed above, I preferred the submissions of the Respondent that the first limb of diagnosis in PTSD, considering whether the person has been exposed to a traumatic event, is an objective test.
I was mindful that Mr Burgess served in the boiler room some eight decks below the bridge where it was very hot and he could not see what was going on. I was mindful that warnings for the dropping of scare charges did not always come in advance of the explosion. I accepted that the explosions would have been loud, even though Captain Stevenson described the sound as being dampened because the machinery spaces were separated from the sea by fuel and water tanks. (Exhibit R4).
I noted that Mr Burgess did not press his earlier account of a body which may have been booby trapped floating by the ship; he admitted this had occurred at some time, but not on his voyage.
I was entitled to take into account that Mr Burgess served on HMAS Sydney in Vung Tau Harbour for less than two days in 1972 (Davenport v Repatriation Commission (supra)),and that the atmosphere in 1972 was much calmer than in 1965 when Mr Binding's PTSD was found to have been caused by the dropping of scare charges.
Having reviewed the case law, I could not be reasonably satisfied applying the standard of proof as in Repatriation Commission v Cooke (1998) 90 FCR 307 and Repatriation Commission v Budworth (2001) 66 ALD 285, that Mr Burgess experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury or a threat to him or other people's physical integrity.
Notwithstanding, and in case I am wrong, I moved then to consider the second limb of the DSM-IV definition of PTSD, that is what reaction Mr Burgess suffered to the dropping of scare charges, and what this meant in terms of the diagnosis. To satisfy the definition, Mr Burgess must have responded to the scare charges in a way which indicated he suffered "intense fear, helplessness or horror". This was of course a consideration of how he subjectively reacted to the scare charges.
I was mindful and took into account that Mr Burgess had given evidence that his father has been in a boiler room on board ship in similar circumstances where the boiler had blown up, and that his father had survived. I accepted the evidence before me that Mr Burgess, if he did not know what scare charges involved, and in situations where warnings came after the explosion, might have thought that the boilers had been damaged, and that this would have frightened him.
In making a decision I was also entitled to take into account Mr Burgess was 26 years old and that he had served in the Navy for some eight years before the Vung Tau Harbour incident even though I noted his evidence that he had never been subject to the dropping of scare charges.
Mr Burgess' evidence was that he was frightened and that he felt "sudden shock". Neither in examination in chief nor in cross-examination did he indicate or convey that he suffered intense fear, helplessness or horror.
I noted from ReBenjamin and Repatriation Commission [2000] AATA 680; (2000) 61 ALD 565 the statements of Senior Member Kiosoglous which were referred to by the Full Court of the Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270. Senior Member Kiosoglous stated as follows at paragraphs 42 and 43 of Re Benjamin and Repatriation Commission [2000] AATA 680:
"42. To generate a response of "intense fear, helplessness or horror" the "traumatic event" needs to be significant. It cannot just be a general apprehension or foreboding. The applicant gave evidence to the Tribunal about the mine incident and that in which he saw gunfire and bombing, most likely during the Tet Offensive. The Tribunal has also considered the manner in which he has described these events over the years to the various doctors. It also takes into account his drinking history, as that effects his abilities as a historian. Nevertheless, the Tribunal must be mindful of the reports of the historians, Professor Grey and Mr O'Keefe, as to the objective risks, and consider the relative severity of the applicant's experiences as against other veterans it sees, and common sense approaches as to what is considered to be "traumatic". The Macquarie Dictionary 3rd Edition defines trauma as being:
"...
1. Pathology a. a bodily injury produced by violence, or any thermal, chemical, etc., extrinsic agent. b. the condition produced by this; traumatism. C. the injurious agent or mechanism itself. 2. Psychology a startling experience which has a lasting effect on mental life; a shock. ..."
43. The traumatic event must be of sufficient magnitude so as to result in the experience of the factors listed in sub-paragraphs (b) through to (f) of SoP No. 15 of 1994. The Tribunal considers that to generate reactions of the magnitude prescribed in the said sub-paragraphs, the traumatic event must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of a war zone."

By way of contrast in Jehn v Repatriation Commission [2000] AATA 484, for example, the Tribunal held that an event Mr Jehn experienced where a spotter was "calling fire on his own position and I was told he was killed", was an event which involved actual death, and that Mr Jehn had responded with a feeling of helplessness which satisfied the experiencing of a stressor in the relevant SoP.
I was not satisfied on the basis of the Applicant's evidence that his experiences with scare charges on HMAS Sydney fell within the definitions of either limb of the DSM-IV diagnosis of PTSD. In paragraph (b) of the DSM-IV definition of PTSD, there are a number of symptoms listed, one or more of which a person qualifying for the diagnosis must demonstrate. As Mr Burgess did not meet either of the tests in paragraph (a) of the definition, I did not persist with analysing whether he demonstrated any of the "re-experiences" listed. Indeed even if I had needed to, there was scant evidence only of how Mr Burgess reacted. He did give evidence of sleep disturbance, and being argumentative, but he had held down several jobs, and I accepted his evidence that he had not been particularly motivated to finish particular pieces of work. Mr Burgess explained that his social life was restricted, and that he tended to be short tempered and did not engage well with his children, but there was no evidence of any recurrent and intrusive distressing recollections of the scare charges event, or others of the symptoms described in the other features in other parts of the definition of PTSD.
Accordingly I was satisfied to the requisite standard (reasonable satisfaction of the Tribunal; Repatriation Commission v Cooke (supra), Repatriation Commission v Budworth (2001) 66 ALD 285 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690) that Mr Burgess did not satisfy either test in paragraph (a) of the SoP. As I found that Mr Burgess' response did not involve intense fear, helplessness or horror, I did not move to consider further the clauses (b) to (f) of the definition of PTSD. I was satisfied to the requisite standard that Mr Burgess did not suffer PTSD as defined in DSM-IV or caused by the dropping of scare charges when he served on HMAS Sydney in November 1972. I did not have evidence before me, nor were there submissions made to be able to consider whether Mr Burgess suffered any other psychological or psychiatric illness apart from alcohol dependence.
I moved then to consider whether Mr Burgess could satisfy the tests in SoP Instrument No.15 of 1994 concerning Post Traumatic Stress Disorder, and because I was satisfied from his evidence and that of his doctors that Mr Burgess suffered alcohol dependence, I also considered whether he could meet the tests in Instrument No.5 of 1994.
I moved then to consider whether a reasonable hypothesis existed linking Mr Burgess' claimed conditions to his war service.
application of principles in repatriation commission v deledio(1998) 83 FCR 82
I was bound to apply the law as enunciated by the Full Federal Court in Repatriation Commission v Deledio ("Deledio")(supra) which held that:
"… the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

With respect to determining when a hypothesis is reasonable, I noted Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
"…
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt."

I turned then to decide whether, applying the principles set out in Deledio (supra), the material before me raised an hypothesis connecting Mr Burgess' condition of claimed PTSD and alcohol dependencewith his war service. It was their onset, conformity with the relevant SoPs, and the decision whether they were war-caused pursuant to the legislation which were in issue.
There was no disagreement between the parties, and I accepted that Instrument No.15 of 1994 as amended by Instrument No.225 of 1995 was the correct SoP to be applied in Mr Burgess' case with regard to his claimed condition of Post Traumatic Stress Disorder. Because alcoholism was also an issue in this case, I considered the SoPs Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence and Alcohol Dependence or Alcohol Abuse, mindful that alcohol abuse had been present since Mr Burgess was aged 18, and some eight years before the events in Vung Tau Harbour in 1972.
whether mr burgess' ptsd and alcohol dependence were war-caused pursuant to the legislation
In applying Deledio (supra), and considering whether a hypothesis could be raised linking Mr Burgess' claimed condition of PTSD and alcohol dependence with his war service, I considered all the material before me. I was mindful that Mr Burgess suffered alcohol dependence, and I noted his evidence that at age 18, he already had a major drinking problem and had been hospitalised for a week. Other evidence before me was that Mr Burgess had suffered seizures or blackouts which were alcohol related and for which he had been hospitalised in 1964, 1967, 1970 and 1972.
I noted also Mr Burgess' evidence regarding his experiences with scare charges on HMAS Sydney in Vung Tau Harbour. His evidence was that notwithstanding some eight years in the Navy, he had not previously experienced these, and that from his situation eight floors below deck in the enclosed boiler room the noise was loud and frightening. Mr Burgess said that warnings came either contemporaneously with the explosion or indeed afterwards, and the scare charges caused him fear and "sudden shock". He said that this fear and anticipation of injury or death led him to drink alcohol further when he was not on duty on the ship, and that this continued after he left the Navy. I noted also the unchallenged proposition that drinking to excess was the culture of the Services and the times.
The medical reports of Dr Lucire and Dr Pusic with regard to Mr Burgess' PTSD were also before me. Dr Pusic had diagnosed PTSD. I have found above, however, that Mr Burgess did not satisfy the tests for PTSD according to the DSM-IV tests.
However because the Repatriation Commission accepted Mr Burgess' claim for treatment (only) for PTSD, and in case I am wrong with regard to the DSM-IV tests, I have embarked on Stage I of the tests in Deledio v Repatriation Commission (supra) as approved by the Full Federal Court in Repatriation Commission v Deledio (supra). In doing so, I have taken into account all the material before me including the oral evidence and medical reports as detailed above, and the reports of the researchers, (as noted above), and find that connecting all the material, a hypothesis could be raised linking Mr Burgess' claimed PTSD with his experience with scare charges. I was mindful that no fact finding arises at this stage.
I moved then to consider the appropriate SoP, Instrument No.15 of 1994, to decide whether Mr Burgess could meet the relevant Factor to consider in this case which was whether the Applicant was:
"…
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder;
…"
A stressor was defined in Instrument No.15 of 1994 as follows:
"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event
that involved actual or threatened death or serious injury, or a threat
to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear,
helplessness or horror;"
If Mr Burgess can be found to meet the tests in Instrument No.15 of 1994, then a reasonable hypothesis could be raised linking his claimed conditions of PTSD and alcohol dependence to his war service. In that connection, I considered all the evidence, case law and submissions with regard to Mr Burgess "experiencing a stressor" within the terms of the SoP.
I was mindful that to succeed in having a reasonable hypothesis established linking the claimed condition of alcohol abuse and PTSD to war service, I would need to be satisfied that Mr Burgess had suffered a stressor as described above. The Factors raised in the SoPs are of course those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised linking the Veteran's conditions with the circumstances of his service. Thus I needed first to establish to my satisfaction whether the dropping of scare charges from HMAS Sydney on 23 and 24 November 1972 were such that Mr Burgess experienced, witnessed or was confronted with actual or threatened death or serious injury, or that they were a threat to Mr Burgess or other people's physical integrity.
As I have already found that Mr Burgess did not meet the threshold tests in either limb of the definition, I have not repeated the arguments in full here, noting however that the standard of proof in the diagnosis is to the reasonable satisfaction of the Tribunal, or on the balance of probabilities, (Repatriation Commission v Cooke (1998) 90 FCR 307 and Repatriation Commission v Budworth (2001) 66 ALD 285).
When considering whether the hypothesis is reasonable, a completely different test is entailed, applying the "reasonableness" test approved in Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra). I considered the definition of "stressor" and whether Mr Burgess experienced, witnessed or was confronted with actual or threatened death or serious injury, or that they were a threat to Mr Burgess or other people's physical integrity. I also considered the evidence and submissions about Mr Burgess' reaction to the scare charges (as noted above), and whilst there is no fact finding at this stage, I found his claims to not be tenable. I decided he did not meet the tests in the relevant SoP, and that therefore a hypothesis connecting his PTSD and alcohol dependence with his war service was not reasonable.
I then took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before me, I was of the opinion the material did not raise a reasonable hypothesis connecting Mr Burgess' condition with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that the Applicant's condition cannot be said to have been war-caused. Therefore, as a result, the application must fail and the reviewable decision be affirmed.
However, I was mindful of the submissions made that if Mr Burgess satisfied the SoP for PTSD, he would also satisfy the SoP for alcohol dependence. Because he could not satisfy the tests in the SoP for PTSD, I decided to consider his alcohol dependence separately, noting that alcohol dependence had been diagnosed by both Drs Lucire and Pusic The applicable SoP in relation to Mr Burgess' alcohol dependence was, pursuant to Repatriation Commission v Keeley (2000) 98 FCR 108 Instrument No. 5 of 1994 entitled "Psychoactive Substance Abuse or Dependence".
sop instrument no.5 of 1994 concerning "psychoactive substance abuse or dependence"
Instrument No.5 of 1994 records five Factors. Those Factors are:
"(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or
(c)experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(d)having a psychiatric condition prior to the clinical worsening of psychoactive substance abuse or dependence; or
(e)inability to obtain appropriate clinical management for psychoactive substance abuse or dependence."
The Instrument's Factor 1(c) would be the appropriate one in Mr Burgess' case, and applies where pursuant to Clause 3(a) of the SoP, the alcohol dependence was "contracted prior to a period or part of a period of service to which the factor is related" as in this Veteran's case, where evidence was given that he had suffered alcohol dependence at the age of 18.
In so far as Factor 1(c) is concerned, the words "stressful event" are defined as "means an incident in which there were external stimuli (such as combat) that would result in psychological stress and where there were subjective symptoms of increased stress".
I was satisfied that the words "an incident in which there were external stimuli" should be interpreted objectively. The language contemplates an event (an incident) which actually occurred from which there was "external stimuli". The nature of the "incident" is suggested by the definition as being "combat". As I have already remarked above, Mr Burgess did not see any combat, and was not engaged in any confrontation with the Vietnamese. From the evidence before me with regard to the scare charges in particular, I have decided that an event satisfying the definition of "stressful event" in Instrument No.5 of 1994 did not occur during Mr Burgess' operational service.
Notwithstanding that Mr Burgess maintained a pattern of alcohol abuse or dependence post-service, and based on the findings above with regard to PTSD, I was not satisfied to the requisite standard that he experienced a "stressful event" prior to the clinical worsening of his alcohol dependence. I was therefore satisfied to the requisite standard that Mr Burgess was unable to satisfy the tests in Factor 1(c).
In making the decision to apply Instrument No.5 of 1994, I considered the tests therein more favourable to Mr Burgess than those in Instrument No.76 of 1998, noting that in the later SoP he would be required to satisfy the test of "experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence …" [my emphasis]. For the sake of completion the definition follows as relevant, but I did not consider it due to the fact the test was at a higher threshold level than the earlier SoP.
"experiencing a severe stressor" means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person's or other
people's physical integrity, which event or events might evoke intense
fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the
Veterans' Entitlements Act applies, events that qualify as severe stressors
include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;"
Taking into account the indicia in section 120(3) of the Act I found that on the basis of consideration of the whole of the material before me, I was of the opinion the material did not raise a reasonable hypothesis connecting Mr Burgess' alcohol dependence with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that the Applicant's condition cannot be said to have been war-caused.
whether mr burgess suffers from a separate condition which may have been war-caused
I was mindful that their Honours in Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270 stated as follows with regard to the Tribunal being an inquisitorial and administrative decision-maker and the steps it might take in reaching the correct and preferable decision:
"47 … In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant – Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17] – [18]. 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
48 The facts that the claim originally lodged by the Veteran referred only to "PTSD" and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of "post traumatic stress disorder" do not preclude the relevant decision-maker be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. …"
I considered whether there was another diagnosis which could be made in Mr Burgess' case, and would assist in assessing whether any condition he suffered was war-caused. I was not satisfied that there was material available to enable that to be done. I have affirmed the decision under review.
DECISION
The Tribunal affirms the decision under review of the Veterans' Review Board of 29 February 2000 which affirmed the decision of the Repatriation Commission of 10 August 1998 to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

I certify that the preceding 114 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  15 February 2001; 2 July 2002
Date of Decision  19 August 2002
Applicant's Counsel                  Mr N Dawson
Respondent's Advocate           Mr S Modder