Burnet and Repatriation Commission
[2005] AATA 290
•1 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/476
VETERANS' APPEALS DIVISION ) Re BRUCE JOHN BURNET Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date1 April 2005
PlaceAdelaide
Decision 1 The Tribunal sets aside the decision under review and in place of that decision decides that:
(a) the applicant’s conditions of PTSD and alcohol dependence are war-caused; and
(b) the applicant’s conditions of hypertension and transient cerebral ischaemia are not war-caused.
2. The Tribunal remits the matter to the respondent with a direction that the respondent asses the applicant’s entitlements in accordance with the attached reasons for decision.
3. The Tribunal reserves liberty to the parties to apply in relation to the determination of the date of effect from which the pension payable as a result of this decision should take effect.
D G Jarvis
(Signed)
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2002/476
VETERANS’ APPEALS DIVISION )Re: BRUCE JOHN BURNET
Applicant
And:REPATRIATION COMMISSION
Respondent
AMENDMENT TO DECISION [2005] AATA 290
TribunalDeputy President D G Jarvis
Date5 August 2005
PlaceAdelaide
THE TRIBUNAL amends its decision and reasons for decision published on 1 April 2005 in the manner appearing from the amended decision and supplementary reasons for decision delivered on 5 August 2005.
D G Jarvis
(Signed)
Deputy President
DECISION AND REASONS FOR DECISION [2005] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/476
VETERANS' APPEALS DIVISION ) Re BRUCE JOHN BURNET Applicant
And
REPATRIATION COMMISSION
Respondent
AMENDED DECISION
Tribunal Deputy President D G Jarvis Date5 August 2005
PlaceAdelaide
Decision 1. The Tribunal decides that the applicant’s conditions of hypertension and transient cerebral ischaemia (as well as the conditions of PTSD and alcohol dependence referred to in its previous reasons) are war-caused.
2. The Tribunal remits the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the above reasons for decision, in conjunction with its earlier reasons.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS -
PRACTICE AND PROCEDURE - further consideration of claim that conditions of hypertension and transient cerebral ischaemia are war-caused - failure by Tribunal to address further hypothesis not articulated by applicant at the hearing - Tribunal not functus officio as regards that unarticulated hypothesis - conditions found to be war-caused by reference to factor not previously relied upon by applicant.
Administrative Appeals Tribunal Act 1975 (Cth) s25(4)
Veterans’ Entitlements Act 1986 (Cth) s175
Benjamin v Repatriation Commission (2001) 70 ALD 622
Hill v Repatriation Commission [2005] FCAFC 23
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Plaintiff S157 of 2002 v The Commonwealth [2003] 211 CLR 476
SUPPLEMENTARY REASONS FOR DECISION
5 August 2005 Deputy President D G Jarvis 1. On 1 April 2005 I delivered my decision in this matter on the claims which had been formulated by the applicant on the hearing of his application for review. I decided that the applicant’s conditions of post-traumatic stress disorder (“PTSD”) and alcohol dependence are war-caused, but that his conditions of hypertension and transient cerebral ischaemia (“TCI”) are not war-caused. I reserved liberty to the parties to apply in relation to the determination of the date of effect from which the pension payable as a result of my decision should take effect. The proceedings were listed for further hearing on this issue on 18 July 2005.
2. On the resumed hearing, counsel for the applicant, Mr Ower, drew my attention to an hypothesis connecting Mr Burnet’s hypertension and TCI with his operational service, which had not been articulated at the hearing. The hypothesis is based on factor 5(n) of the Statement of Principles in respect of hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 (the “Hypertension SoP”), exhibit R4). This factor provides as follows:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension … with the circumstances of a person’s relevant service are:
…
(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension; or … .”
3. The expression “clinically significant anxiety disorder” is defined in clause 8 of the Hypertension SoP as follows:
“‘Clinically significant anxiety disorder’ means any anxiety disorder attracting a diagnosis under DSM-IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner.”
The expression “DSM-IV” is defined in the Hypertension SoP to mean the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. PTSD is included in this manual as an anxiety disorder (see the revised text edition of the manual at pages 429 and 463).
4. In Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47] the Full Federal Court referred to the inquisitorial role of the Tribunal in conducting reviews, and said that the Tribunal was 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. The responsibility of the Tribunal in this regard was further explained in Hill v Repatriation Commission [2005] FCAFC 23. The Court said in effect that an unarticulated claim must clearly arise from the material before the AAT in order for that material to point to or raise an hypothesis for the purposes of the Deledio steps (see at [99] and [107]).
5. In my reasons for decision in this matter of 1 April 2005 I recorded (at [55], [56] and [62]) that the events there described as the Gannet event and the RFA event each satisfied the requirements of the definition of “experiencing a severe stressor” in the Statement of Principles in respect of PTSD. There is material before me that the applicant’s condition of PTSD has subsisted for many years, ever since the Gannet event (see my earlier reasons at [62], paragraph 38 of Mr Burnet’s witness statement (exhibit A2) and the records referred to in paragraph 39 of this witness statement). As I mentioned in my earlier reasons, there is no clear evidence of the date of the clinical onset of the applicant’s hypertension. However, there is material before me to indicate that it post-dated the onset of PTSD, since there is no suggestion that he was suffering from hypertension in the record of the medical examination on 9 October 1970, or in subsequent records of various medical assessments made prior to his discharge from the Navy. These records are included in the T-Documents (exhibit A1).
6. I therefore find that there was clear material before me that satisfied an hypothesis not raised at the hearing on behalf of Mr Burnet, namely he was suffering from a clinically significant anxiety disorder (PTSD) for the six months immediately before the clinical onset of hypertension, and that that material was consistent with factor 5(n) of the Hypertension SoP.
7. Section 175 of the Veterans’ Entitlements Act 1986 (Cth) in combination with s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) confers jurisdiction on this Tribunal to review the decisions of the respondent which are in issue in this matter. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 the Full Federal Court indicated (at [63]) that the inadvertent failure of the Refugee Review Tribunal to deal with a claim “clearly raised” by the evidence before it could constitute a failure to conduct the review required by the relevant provision of the Migration Act and thereby constitute a jurisdictional error. In Hill (supra) at [105]) the Full Court referred to NABE and said that a failure to make a finding on a substantial, clearly articulated argument relying upon established facts could amount to a constructive failure to exercise jurisdiction. Similar views were expressed by Full Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45].
8. The authorities to which I have referred involved considerations relevant to the application of a privative clause, namely s 474 of the Migration Act 1958 (Cth). Nevertheless, I consider that they are relevant to the issue of whether I have jurisdiction in the present matter to deal with the previously unarticulated claim by the applicant. On the basis of the above authorities, it seems to me that my own omission to deal with the hypothesis based on factor 5(n) of the Hypertension SoP constituted a failure on my part to exercise my jurisdiction as to that issue, and amounted to a jurisdictional error. This means that I am not functus officio as regards that previously unarticulated hypothesis. I refer in this regard to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51], [53], [63], [152] and [155] and to Plaintiff S157 of 2002 v The Commonwealth [2003] 211 CLR 476 at [76]. I am mindful that in Bhardwaj, the Immigration Review Tribunal completed its hearing of the application for review in the absence of the applicant (in ignorance of earlier advice from him that he could not attend on the day fixed for the hearing) and later reheard the application as a result of representations from the applicant’s agent. However, other authorities to which I have referred make it clear that a failure to consider a particular aspect for the applicant’s claim which clearly arose on the material before it constitutes a jurisdictional error, and a failure to exercise jurisdiction. I accordingly conclude that in such circumstances, the doctrine of functus officio should not apply to the extent of the jurisdiction not exercised.
9. Under s 33 of the AAT Act, I have a wide discretion as to the conduct of the proceedings before me. As the parties have raised the above issues at the resumed hearing (and even though the hearing was resumed only to enable me to determine the specific issues in respect of which I had reserved liberty to apply), and because in my view I am not functus officio for the reasons I have explained, I think it appropriate that I should now deal with the further previously unarticulated hypothesis. I think that this course is preferable to putting the parties to the expense and delay of appealing to the Federal Court in order to deal with the further issue which I did not dispose of. Mr Crowe for the respondent very properly acknowledged that the respondent would not oppose this course in the particular circumstances of this case.
10. For the reasons referred to in paragraphs 8 and 9 above I find that there is material before me which raises a reasonable hypothesis connecting the applicant’s condition of hypertension with his operational service, and I am not satisfied beyond reasonable doubt that there is no sufficient ground for determining that this condition is not war-caused.
11. Because I had not considered factor 5(n) of the Hypertension SoP in my earlier (incomplete) consideration of the reviewable decision in relation to hypertension, I concluded that there was no material before me that was consistent with any of the factors in the Statement of Principles in respect of TCI, and so Mr Burnet’s TCI was not war-caused. However, my revised finding as set out in the preceding paragraph means that Mr Burnet’s hypertension was war-caused. I referred in my previous reasons to evidence before me to the effect that his hypertension pre-dated the onset of his TCI (see [48]). This means that there is material before me that is consistent with factor 5(a) of the SoP in respect of TCI, and accordingly the hypothesis connecting Mr Burnet’s condition of TCI with his operational service is reasonable. I further find that I am not satisfied beyond reasonable doubt that there is no sufficient ground for determining that his condition of TCI is not war-caused.
12. I have also taken into account the parties’ submissions as to the effective date of pension entitlement. I find that Mr Burnet developed PTSD as a result of and following the Gannet event, and that his pension entitlement insofar as it is based on PTSD should take effect from 4 January 2000. I further find that his pension entitlements based on his further claimed conditions of alcohol dependence, hypertension and TCI should also take effect from 4 January 2000.
Decision
13. For the above reasons, I decide that the applicant’s conditions of hypertension and transient cerebral ischaemia (as well as the conditions of PTSD and alcohol dependence referred to in my previous reasons) are war-caused. I remit the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the above reasons for decision, in conjunction with my earlier reasons.
I certify that the 13 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
J. MacIntyre AssociateDate/s of Hearing 18 July 2005
Date of Decision 5 August 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2002/476
VETERANS’ APPEALS DIVISION )Re: BRUCE JOHN BURNET
Applicant
And:REPATRIATION COMMISSION
Respondent
CORRIGENDUM TO DECISION
TribunalDeputy President D G Jarvis
Date5 April 2005
PlaceAdelaide
Corrigendum:
In the decision of the Tribunal handed down on 1 April 2005, the last two words of paragraph 62, “this event.” are deleted and the words “the Gannet event.” are inserted in lieu.
D G Jarvis
(Signed)
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2002/476
VETERANS’ APPEALS DIVISION )
Re: BRUCE JOHN BURNET
Applicant
And: REPATRIATION COMMISSION
Respondent
DIRECTION [2005] AATA 290
TribunalDeputy President Jarvis
Date1 June 2005
PlaceAdelaide
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the TRIBUNAL DIRECTS the District Registrar to alter the text of the decision and statement of reasons for the decision dated 1 April 2005:
1.by deleting in paragraph 34(a) the letters quoted in brackets “PSTD” and replacing them with “PTSD”; and
2.in paragraph 40, third line from the top on page 16, delete the words “alcohol dependence or alcohol abuse” and replacing them with the word “hypertension”.
.......................................................
D G JARVIS
(Deputy President)
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that post-traumatic stress disorder with alcohol abuse, hypertension and transient cerebral ischaemia were war-caused – consideration of Statement of Principles – applicant alleges two severe stressors – applicant was a duty medic - attended fatal boiler room fire aboard Royal Fleet Auxiliary vessel – witnessed a Gannet aeroplane crash while on HMAS Melbourne – decision under review varied.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Gorton (2001) 65 ALD 609
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Byrnes v Repatriation Commission (1993) 177 CLR 564
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
REASONS FOR DECISION
1 April 2005 Deputy President D G Jarvis 14. Bruce John Burnet was engaged in operational service in Malaya aboard HMAS Melbourne from 24 February 1965 to 7 April 1965 and from 21 April 1965 to 7 May 1965. He was also engaged in operational service in Vietnam aboard HMAS Melbourne from 31 May 1965 to 22 June 1965 and in HMAS Vampire from 14 May 1969 to 25 May 1969.
15. On 4 April 2000, Mr Burnett lodged a claim for pension in respect of hypertension, cerebral vascular accident, obstructed airways, and emotional and behavioural disorder. In response to his claim the Repatriation Commission recorded diagnoses of chronic bronchitis, post-traumatic stress disorder (“PTSD”) with alcohol abuse, hypertension and transient cerebral ischaemia (“TCI”), but subsequently rejected his claim for these conditions in a decision dated 15 February 2001. Mr Burnet currently suffers from the accepted conditions of sensorineural hearing loss, chronic bronchitis and malignant neoplasm of the larynx.
16. Mr Burnet subsequently lodged an application for a review by the Veterans’ Review Board (“VRB”). The VRB set aside the decision under review in relation to chronic bronchitis and decided that that condition was war-caused, but affirmed the rejection of his claim in relation to hypertension, transient ischaemia and PTSD with alcohol abuse. He has applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB.
17. Counsel for Mr Burnet, Mr Ower, claimed in his opening that Mr Burnet was suffering from alcohol abuse. However, Dr M Ewer, the consultant psychiatrist who gave evidence in support of the claim, diagnosed Mr Burnet as suffering from alcohol dependence. In his final address, Mr Ower submitted that Mr Burnet is suffering from that condition, and not alcohol abuse. The Commission accepted at the outset of the proceedings that diagnosis was not in issue in relation to any of the asserted conditions. Its position did not change as a result of the change in the asserted diagnosis as regards the effects of alcohol. In view of Dr Ewer’s evidence I am satisfied that alcohol dependence is the appropriate diagnosis, and I will determine this matter on that basis.
Issues before the Tribunal
18. As with many matters which come before this Tribunal under the VE Act, the present proceedings involve a number of complex issues. The primary issue before me is whether the above conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). This in turn involves the following issues.
(a)Did the two events relied upon by Mr Burnet constitute experiencing a severe stressor?
(b) Did the second of those events occur during operational service?
(c)In respect of alcohol dependence, did Mr Burnet experience a severe stressor within two years of the clinical onset of this condition, and did he suffer from a war caused psychiatric disorder at the time of the clinical onset of alcohol dependence?
(d)In respect of hypertension, did Mr Burnet consume not less than an average of at least 200 grams of alcohol per week for a continuous period of at least six months before the clinical onset of that condition?
(e)In respect of TCI, was hypertension present in Mr Burnet before the clinical onset of TCI?
(f)In the event that Mr Burnet succeeds on the above issues, I must also determine the earliest date from which Mr Burnet can be paid.
19. As to issue (f) above, it is common ground that if Mr Burnet is successful in his claim as a result of his service in Vietnam, the date of effect would be 4 January 2000. However, if Mr Burnet succeeds as a result of an event alleged to have occurred during his service in the Far East Strategic Reserve, then the earliest date of effect is 1 January 2001. This is the commencing date of an instrument dated 28 December 2000 made under s 5B(2) of the VE Act, whereby persons serving in HMAS Vampire during various periods, including the period referred to in paragraph 1 above, were allotted for duty in the operational area of the territories of Malaysia, Brunei and Singapore and the waters adjacent to those countries (exhibit A1, T4, pages 14 – 17).
Background
20. Mr Burnet was born on 14 October 1937. He joined the Royal Australian Navy when he was 21, and served in the Navy from 29 June 1959 until 28 June 1979.
21. For the purposes of consideration under the VE Act Mr Burnet’s eligible service (which is also operational service) is as set out in paragraph 1 above. He was posted to HMAS Melbourne from 24 February 1965 to 22 June 1965, and to HMAS Vampire from 2 December 1968 to 20 October 1969 (exhibit A1, T4, page 13). The periods of his operational service are derived from the above instrument, dated 28 December 2000, and from a further instrument relating to allotment for duty in Vietnam dated 23 December 1997 (exhibit A1, T4, pages 18 – 21). Mr Burnet’s defence service is not relevant to the issues before me in this application.
22. Mr Burnet asserts, in essence, that two stressful events occurred during his operational service, and caused the conditions on which his claim is based. I will refer to the two events as the Gannet event and the RFA event. I will now narrate a summary of the evidence before me, but without making any findings at this stage on matters relevant to the issue of whether Mr Burnet’s claimed conditions were war-caused.
The Gannet Event
23. In his witness statement, exhibit A2, Mr Burnet says that after he had been posted to HMAS Melbourne in February 1965, the Melbourne sailed to Vietnam, escorting HMAS Sydney which was carrying Australian troops. HMAS Melbourne then participated in the Malaysian confrontation and was flying armed sorties. He said that one night at about 2.00 am he was the duty medic on deck, and was observing aircraft landing on the Melbourne. He saw an incoming aircraft approaching too high. It hit the flight deck very hard and late, bounced, and then picked up a wire with its landing hook. However, the hook broke and the aircraft skidded for a distance later measured at 197 feet and slewed over the side of the ship. Mr Burnet said that he raced across the flight deck and looked over the side, but all he saw was part of the starboard wing above sea level, and then the aircraft sank. He thought that the three people who would have been on board had no hope.
24. He was asked how he felt and he said that he was feeling “terrible, hopeless but helpless, more to the point”. In his witness statement, he said that at the time of the incident he felt traumatised, and he was frustrated because of his inability to assist. He said they then landed the rest of the aircraft on the Melbourne and as soon as that had happened, the Melbourne turned around. He said he fulfilled his duties while the other aircraft were landing but he felt shocked. He later learned that two of the three persons on the Gannet were rescued by an accompanying destroyer, but the pilot was missing, presumed dead.
The RFA Event
25. A later event occurred which Mr Burnet asserts was a further stressful event. In his witness statement (exhibit A2) Mr Burnet says he served in HMAS Vampire from December 1968 until June 1970. After such a long period it was difficult to pin-point the exact dates on which incidents happened. However, he said that during “either a forward or return journey from Vietnam” they received notification that there had been an accident aboard one of the Royal Fleet Auxiliary vessels and that medical assistance was required urgently. A ship’s boat was despatched from the Vampire with a party of others, including his medical officer, Surgeon Lieutenant Bain. Mr Burnet said in evidence that it took about 20 minutes to get to the other vessel, and during that time he did not know what to expect when he got there. They boarded the RFA vessel by way of scramble nets. He said that this was difficult at any time, but more so when the ship was rocking and he was weighed down by his medical and rescue pack. His witness statement continues:
“Entry into the engine room/boiler room, which had been evacuated because of the accident, was in itself terrifying, as no-one knew what was going to happen in the machinery space. We found one Lascar Seaman deceased and another slumped down in a seated position against the bulk head.” (exhibit A2, par 7)
He added that the dead seaman was virtually naked as his overalls and flesh had been burnt from his body. He said a second seaman had burns to over 50 per cent of his body and was given morphine and his wounds dressed with occlusive dressings.
26. Mr Burnet said in his witness statement that initially his feelings were of “fear, helplessness and horror”, and afterwards those feelings turned into “numbness”. In his evidence, he said that initially when he entered the space he was totally switched off and had to get on with the job, but he felt horror to see one man dead and the other man in absolute agony. He added that he certainly felt fear because he was in a space that was extremely hot and claustrophobic and he did not know if there would be another explosion.
27. Mr Burnet said that later the smell of the event came back to him, and within a day or so of the event he reflected on what happened and asked himself if he did the right thing. In his witness statement he said that “being in such a space with the smell of burning flesh, smoke and oppressive heat was an episode of my life I have never been able to rid myself of.” (exhibit A2, par 9).
28. Mr Burnet was asked a number of questions in cross-examination that were directed to establishing the date when the RFA event occurred. This was relevant to the issue of whether the event occurred during operational service. Under s 6C(3) of the VE Act, the duration of Mr Burnet’s operational service commenced when he was allotted for duty, namely 14 May 1969, and ended on 25 May 1969 (exhibit A1, T4, pages 18 – 21). I will refer in some detail later in these reasons to Mr Burnet’s responses to the cross-examination on this issue.
29. A report was prepared by an historian, Captain Stevenson, and was tendered by the Commission. This report enclosed a copy of the report of proceedings of HMAS Vampire for the months of April and May 1969. From the report for these two months, it appears that on 14 May 1969 the Vampire left Singapore and on 16 May 1969 rendezvoused with HMAS Sydney. The Vampire anchored at Vung Tau Harbour on 19 May 1969, and left later that day. The Vampire then escorted the Sydney from Vung Tau Harbour, and detached from Sydney on 21 May 1969. It then proceeded to Manila and anchored there on 25 May 1969. That was the last day of the relevant period of operational service. The Vampire left Manila on 26 May 1969 to take part in certain exercises, and according to Mr Burnet’s evidence, the Vampire later went to Singapore. I invited the Commission to investigate whether Captain Stevenson could obtain information from the United Kingdom which would establish the date of the RFA event. Mr Doube advised that he had been told by Captain Stevenson that this was likely to be a long a tortuous process, with no certainty that the information would be available. As a result, he had asked Dr Stevenson not to undertake any more research into the matter.
30. When these matters became apparent during the course of the proceedings before me, I thought it appropriate that Mr Burnet should be asked whether the RFA event happened before or after the Vampire reached Manila, and I gave permission for Mr Burnet to be recalled on this point. He then gave evidence that he remembered very well that the Vampire had gone to Manila, and he was “pretty sure” that the event happened before the ship went to Manila.
The Effect of the Events on the Applicant
31. Mr Burnet gave evidence that before the Gannet incident he drank, but not very much at all. He said that after the incident, he started drinking a lot more while he was still on the Melbourne. He said he was promoted to Petty Officer when the Melbourne got to Hong Kong within a couple of months of the Gannet event. That meant that instead of getting one beer ration a day, he had access to the mess fridge, and his alcohol consumption went up a lot. He said he continued to drink for a bit over a month until they returned to Sydney, and then drank every lunch time and every afternoon when the mess opened at 4.00 pm, and he would then drink for two hours or so. He said he would drink eight to ten middies on average between 4.00 pm and 6.00 pm five days a week, after he had returned to Sydney.
32. Mr Burnet also gave evidence that later when he was aboard the Vampire, he had access to an open fridge; he was not drinking as much because he was the only medic on board, but he was certainly drinking a lot more when he went ashore. After the Vampire he was posted to HMAS Penguin, a shore base, and he became a bar manager with ready access to alcohol. He said he was drinking very heavily by that stage, but this did not interfere with his medical duties. He said he often had a hangover while he was at the Penguin.
33. Mr Burnet also that after the Gannet incident, on the return voyage to Sydney, and after he had returned there, he noticed a change in his behaviour. He said he became very aggressive and short-tempered, and became involved in quite a few fights on shore and was very nervous. He said he was having dreams about the crash of an aircraft and still has those dreams to this day. He said he started having the dreams within 12 months of the Gannet incident.
34. He said that the increase in his temper which he experienced while on the Melbourne had not changed when he was posted to HMAS Penguin. As to the RFA event, he gave evidence that he has never forgotten it and still thinks and dreams about it, and has a terrible dream involving running away from a fire and being unable to find his equipment or uniform. He said he first started having these dreams pretty well after the event, and was still having dreams about the Gannet event.
Evidence of Dr M Ewer
35. A psychiatrist, Dr M Ewer, was called in support of Mr Burnet’s case. He prepared two reports, first a report dated 23 June 2000 (exhibit A1, T9, pages 109 – 117) and secondly a report dated 16 July 2004 (exhibit A3).
36. In the first of the above reports, Dr Ewer refers to four traumatic events which caused Mr Burnet significant distress. Only the fourth of these events is now relied upon by Mr Burnet in support of his claim, and the other three events did not occur during his operational service. The fourth event referred to was the RFA event (and as mentioned above, the Commission also asserts that this event did not occur during operational service). In his report, Dr Ewer recounts the history provided by Mr Burnet, including a history of distressing nightmares and flashbacks and other symptoms, and a history of substantially increased alcohol intake. Dr Ewer made a diagnosis in that report that Mr Burnet was suffering from PTSD and alcohol abuse and dependence, and that these conditions were directly related to his war service in Vietnam.
37. In his second report, Dr Ewer says that Mr Burnet fulfils the diagnostic criteria for alcohol dependence. Dr Ewer said in evidence that with the benefit of his current understanding, this was the correct diagnosis, rather than alcohol abuse and dependence as he had said in his report of 23 June 2000. In his later report, Dr Ewer also refers to the two events now relied upon by Mr Burnet in the present proceedings before me. In particular, he refers to the Gannet event on the HMAS Melbourne in 1965, and says that Mr Burnet did not mention that incident when he first saw him, and that Mr Burnet told him that this was an “oversight”. Dr Ewer considered this to be a significant oversight and requested that he view further historical records and other information before commenting on the time of onset of Mr Burnet’s alcohol dependence. However, Dr Ewer confirmed his diagnosis of PTSD, and that the two asserted incidents constituted the experiencing of a severe stressor.
Legislative Background
38. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
39. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
40. Section 13(1) of the VE Act provides, in effect, 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.
41. As Mr Burnet has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
42. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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 section.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
43. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
44. The claimed conditions of PTSD with alcohol dependence, hypertension and transient cerebral ischaemia are the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82, in the following way.
“1 The 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.
2 If 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.
3 If 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.
4 The 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.”
45. The reverse onus of proof provided for in s 120(1) of the VE Act applies to the issue of whether the injury or disease asserted by the veteran was caused by the veteran’s operational service (Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54]; Repatriation Commission v Cooke (1998) 52 ALD 1 at 4.5). Under s 9(1)(a), an injury or disease is taken to be war-caused if the injury or disease in question resulted from an occurrence that happened while the veteran was rendering operational service. Accordingly, I must determine the question of whether the RFA incident happened in the course of Mr Burnet’s operational service by reference to ss 120(1) and (3) of the VE Act. The civil standard of proof which applies to other issues which precede the four steps explained in Deledio (for example, whether the veteran concerned sustained the asserted injury or is suffering from the asserted disease or saw operational service) is not applicable.
46. I have considered all of the material before me, and I am satisfied that the material points to an hypothesis connecting the claimed condition with Mr Burnet’s operational service. That hypothesis is that Mr Burnet experienced two stressful events during his operational service, that one or both of those events caused him to develop PTSD and alcohol dependence, that his alcohol dependence in turn caused hypertension and TCI. I deal in further detail in paragraph 43 below with the material relevant to the issue of whether the RFA event occurred during operational service. I am satisfied that the material before me constitutes a reasonable hypothesis that that event did occur in operational service, and the material amounts to more than a possibility that that was the case.
47. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question. The SoPs are as follows.
(a)In respect of PTSD, the SoP is Instrument No. 3 of 1999 as amended by Instrument No 54 of 1999 the PTSD SoP (the “PSTD SoP”, being exhibit A1, T30, page 181).
(b)In respect of alcohol dependence, the SoP is Instrument No. 76 of 1998 (the “Alcohol SoP”) (exhibit R2).
(c)In respect of hypertension, the SoP is Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 (the “Hypertension SoP”, being exhibit R4). This SoP replaced Instrument No. 31 of 2001.
(d)In respect of TCI the SoP is Instrument No. 52 of 1999 as amended by Instrument No. 30 of 2002 and Instrument No. 57 of 2003 (the “Cerebrovascular Accident SoP”, being exhibit R3). This SoP replaced Instrument No. 52 of 1999.
48. The above SoPs are the SoPs currently in force. I must apply the Hypertension SoP and the Cerebrovascular Accident SoP notwithstanding that they were not in force at the time when the claim for pension was lodged: Repatriation Commission v Gorton (2001) 65 ALD 609. The earlier Hypertension SoP in force at the time of the claim was not in my view more beneficial to Mr Burnet, and that SoP (being Instrument No. 31 of 12001) is therefore not relevant. There is no material difference between the current Cerebrovascular Accident SoP and the earlier SoP for present purposes, and this earlier SoP (being Instrument No. 52 of 1999) is also therefore not relevant.
49. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. In doing so, I must consider all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
50. Under clause 4 of the PTSD SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran. Clause 5 then provides relevantly as follows:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or … .”
51. The Alcohol SoP contains corresponding provisions. Under clause 4, at least one of the factors set out in clause 5 must be related to the relevant service by Mr Burnet. Clause 5 of the Alcohol SoP relevantly provides:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service 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 the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or …”
52. The expression “experiencing a severe stressor” is defined in the Alcohol SoP in the following terms:
““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’ Entitlement 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.” (emphasis added)
The same expression is defined in the PTSD SoP in the same terms, except that the words “which event or events might evoke intense fear, helplessness or horror” are not included in the PTSD SoP.
53. Under clause 4 of the Hypertension SoP, at least one of the factors set out in clause 5 of that SoP must be related to the relevant service by Mr Burnet. Clause 5 then sets out various factors that must exist before it can be said that, on the balance of probabilities, hypertension is connected with the circumstances of Mr Burnet’s service. Factor 5(b) as currently in force is as follows:
“(b)consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or … .”
The corresponding paragraph in the earlier SoP required that the veteran was suffering from alcohol dependence or alcohol abuse at the time of the clinical onset of alcohol dependence or alcohol abuse. The earlier SoP included the following paragraph:
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension … .”
54. Corresponding provisions are contained in clauses 4 and 5 of the Cerebrovascular Accident SoP, and the relevant factor in the case of that SoP is 5(a), namely:
“(a)the presence of hypertension before the clinical onset of cerebrovascular accident;.”
55. The Hypertension SoP and the Cerebrovascular Accident SoP each provide in effect in clause 7 that if a relevant factor applies and that factor includes an injury or disease in respect of which there is a SoP, then the factors in that SoP apply in accordance with the terms of that SoP. Because the amended wording of the current Hypertension SoP no longer requires the veteran to be suffering from alcohol dependence or alcohol abuse it is not necessary, in order for there to be a reasonable hypothesis connecting Mr Burnet’s hypertension with his operational service, for one of the factors in the Alcohol SoP to apply. However, in order to connect Mr Burnet’s TCI with his operational service, one of the factors in the Hypertension SoP must apply. The relevant factor in the Hypertension SoP is identified in paragraph 40 above.
56. I have referred above to certain of the evidence relating to the Gannet event and also the RFA event. The Gannet event involved Mr Burnet witnessing an event that involved the death of the pilot. The RFA event also involved the death a person, and the serious injury of another person. I have recounted above the feelings which Mr Burnet said he experienced at the time of the two events, and Dr Ewer, in his report of 16 July 2004 (exhibit A3), also referred to Mr Burnet’s subjective response of horror, shock and helplessness, and considered that Mr Burnet fulfilled the relevant diagnostic criteria for PTSD. In his earlier report of 23 June 2000 (exhibit A1, T9, pages 109 – 117), Dr Ewer says that the traumas referred to in that report (which included the RFA event, but not the Gannet event) evoked “intense feelings of fear, helplessness and of horror” and fulfilled the DSM-IV criteria for chronic PTSD. The evidence of Mr Burnet that the RFA event happened after the Vampire had left Vung Tau Harbour and before it reached Manila constituted material pointing to this event having occurred during operational service.
57. In my opinion, the evidence referred to in the preceding paragraph is consistent with the requirements of factor 5(a) of the PTSD SoP, including the requirements of the definition in that SoP of “experiencing a severe stressor”.
58. As regards the Alcohol SoP, it is necessary to consider the evidence relating to the date of the clinical onset of alcohol dependence. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
59. The material to which I have already referred is consistent with Mr Burnet having experienced a severe stressor within the meaning of the Alcohol SoP. I referred in paragraphs 18 and 19 above to Mr Burnet’s evidence as to his drinking, the significant increase in his drinking after the Gannet incident, and his heavy drinking after he was posted to HMAS Penguin. Further, Dr Ewer gave evidence of the history he had obtained as to the symptoms of alcohol dependence. He referred to a dramatic increase in Mr Burnet’s alcohol intake, that he became intoxicated and reported various problems from drinking, that he drank more than he set out to, and became tolerant and used to alcohol. Dr Ewer further said that the symptoms came on soon after he returned from Vietnam, but was unable to say whether the symptoms came on in 1965 or 1969. In his later report, Dr Ewer said that Mr Burnet’s PTSD commenced within six months of the Gannet event (exhibit A3, page 4).
60. I consider that the above evidence is consistent with the clinical onset of alcohol dependence having occurred within two years of either the Gannet event or the RFA event, and accordingly there is evidence before me which satisfies the requirements of factor 5(b) of the Alcohol SoP.
61. As regards the Hypertension SoP, there is no clear evidence as to the date of the clinical onset of Mr Burnet’s hypertension. There is a passing reference to “long-standing hypertension” in a report dated 21 October 1996 from Dr Walker, a consultant cardiologist (exhibit A1, T5, page 76), and a further reference to risk factors, which included “mild hypertension”, in a report from Dr Herkes dated 1 November 1996 (exhibit A1, T5, page 77). These references suggest that Mr Burnet had had hypertension for some time prior to the onset of his TCI in October 1996. I note from Dr Ewer’s report of 23 June 2000 that Mr Burnet gave a history of having continued to abuse alcohol on returning to Australia from Vietnam, and had done so for “over 20 years”. Mr Burnet said in cross-examination that since 1979 he had continued to drink 8 to 10 cans of beer of an evening. This evidence was given with reference to the Alcohol Questionnaire (exhibit A1, T5, page 74), and that document is also evidence of the level of consumption. Mr Burnet clearly attributes his drinking to his operational service. Factor 5(b) of the Hypertension SoP entails the consumption of an average of at least 200 grams per week of alcohol in the period of six months before the clinical onset of hypertension, and the definition in the SoP of “alcohol”, alcohol is measured utilising the Australian standard of 10 grams of alcohol per standard alcoholic drink. I find that the above evidence is consistent with factor 5(b) of the Hypertension SoP.
62. I have referred in the preceding paragraph to the references in the reports from Doctors Walker and Herkes to Mr Burnet having had hypertension before the clinical onset of TCI. His hypertension is war-caused by reference to the relevant factor of the Hypertension SoP. There is therefore evidence before me which is consistent with factor 5(a) of the Cerebrovascular SoP.
Application of s 120(1) of the VE Act
63. I conclude from the analyses in paragraphs 43 to 49 above that the hypotheses relating the asserted conditions to war service are reasonable. I therefore now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at [13], Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.”
64. Mr Doube contended on behalf of the Commission that I should not accept the assertion that the RFA event happened during operational service. Before he was recalled to give evidence on this point, Mr Burnet said in cross-examination that he believed that the event happened after the Vampire left Vietnam and before it arrived at Singapore. He also referred to the collision between HMAS Melbourne and a US Naval vessel, the Frank E Evans. It was accepted that this collision took place on 3 June 1969, which was of course after the period of operational service. Mr Doube also referred to an email from Dr Bain to the effect that he and a sick bay attendant (and this was apparently a reference to Mr Burnet) joined an RFA vessel to visit a sailor who has sustained extensive burns, and this was said to have occurred in “mid May, 1969” (exhibit A1, T29, page 170). Mr Doube also pointed out that there was only one reference in the Vampire’s records to the use of the ship’s boat, and that was in the log for 8 May 1969. This records that at 1008 the Vampire’s engines were both stopped for transfer of equipment from Gold Ranger, at 1010 the sea boat was lowered, and at 1036 the sea boat was hoisted and the Vampire proceeded half ahead with both engines. Mr Doube also referred to evidence by Mr Burnet that at the time of the event, HMAS Stuart was in the vicinity, and according to the Vampire’s records, the Vampire was only in company with the Stuart on one occasion during the relevant period, namely on 21 May 1969.
65. I agree that Mr Burnet’s evidence as to the time of the event is most unsatisfactory. Further, it was unfortunate that until he was recalled, Mr Burnet was not asked by either his counsel or the Commission’s advocate to endeavour to relate the time of the event to the time when the Vampire reached Manila. It is of concern that Mr Burnet himself had not referred to the Vampire going to Manila after leaving Vietnam. In all of the circumstances, I attach little weight to Mr Burnet’s evidence that the event happened before the Vampire went to Manila. That evidence was given after the significance of this issue had been explained following the conclusion of all of the other evidence, and during Mr Doube’s final address; by the time Mr Burnet was recalled on that specific point, its significance must have been very apparent to him.
66. Nevertheless, the email from Dr Bain is not necessarily inconsistent with Mr Burnet’s assertion that the event happened in the period of operational service. The reference in the ship’s log does not refer to the sea boat being dispatched to an RFA in order to provide medical assistance, but refers to the transfer of equipment from another vessel. The sea boat was in use for a total of only 28 minutes, which is inconsistent with Mr Burnet’s evidence as to the time taken to reach the RFA. The reference in the log does not therefore prove that the event did not happen during the relevant period. I also consider that having regard to s 119(1)(h) of the VE Act, the absence of a record of the use of the sea boat in connection with the RFA event during the relevant period should not be regarded as proof beyond reasonable doubt that this event did not happen during that period. On the evidence before me, I am not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the event did not happen during operational service.
67. Mr Doube contended that I should not accept Mr Burnet’s evidence that he had been affected by the Gannet event. He pointed out that Mr Burnet had not expressly referred to this event at the time of his original consultation with Dr Ewer. Further, he did not refer to it in a document apparently sent to the Commission following the initial rejection of his claim for PTSD (exhibit A1, T21, page 149). In his claim form in respect of “emotional & behavioural disorder” Mr Burnet simply asserts that his disability was caused by his “experience on operational service” and he first became aware of his disability or an aggravation of it in 1970 (exhibit A1, T5, page 64). Finally, Mr Doube drew attention to the Alcohol Questionnaire, where Mr Burnet, whilst attributing his alcohol consumption to operational service in the Melbourne and the Vampire, his period of bar management and the availability of alcohol at service messes, he did not relate his increased alcohol consumption to any particular stressful events, and the dates of changes in consumption did not tie in with the dates of the asserted stressors. He drew attending to the fact that the first reference to the Gannet event in the documents was not until after Mr Burnet’s claim had been rejected by the Commission, and after he had sought assistance from the Vietnam Veterans’ Association of Australia.
68. As against these contentions, the above extract from T21, after referring to certain anomalies not relevant for present purposes, includes the following paragraph:
“These anomalies and other expansion/explanation of stressors was (sic) submitted in writing to both Luisa Lac and Mr R Coxon – of which Luisa Lac never made any mention.”
The Commission has not provided a copy of any further communication from Mr Burnet to Luisa Lac, but it is possible that this communication made reference to the RFA event. As regards the claim form for emotional and behavioural disorder, the reference to “experience on operational service” is wide enough to embrace the asserted stressors, and in the case of PTSD, there is no requirement that the onset should occur within two years of the stressors. It is also relevant that Mrs Burnet gave evidence that while she could not remember Mr Burnet mentioning the Gannet incident to Dr Ewer on his first visit, her husband likes to talk to her about the events which have caused his problems, as this eases them, and his experience with the Gannet would be a regular discussion. In his later report, Dr Ewer evaluated the Gannet event by reference to the diagnostic criteria for PTSD, and was satisfied that it had caused a reaction of intense fear, helplessness or horror. Dr Ewer was not asked to explain the basis on which he assessed that Mr Burnet had had that reaction. In this state of the evidence, I am not satisfied beyond reasonable doubt that the Gannet event did not cause that subjective reaction. This finding makes it unnecessary to consider an alternative argument put by Mr Ower on behalf of Mr Burnet that such a reaction is not, in any event, required under the PTSD SoP on the proper interpretation of that SoP.
69. It was not contended that Mr Burnet’s reaction to the RFA event did not produce a subjective reaction of intense fear, helplessness or horror. I note that Mr Burnet said that that event was the “most dramatic one”, and he referred to a death being involved, and said “to me it was very traumatic”, and “the most frightening one” (transcript 27.9.04, page 43, lines 31 – 35). Once again, Dr Ewer’s clinical assessment was that Mr Burnet’s response to the event was one of intense fear, helplessness or horror. I am not satisfied beyond reasonable doubt that this was not the case.
70. Mr Burnet was cross-examined in detail as to his evidence of drinking. The Alcohol Questionnaire refers to dates of change in the amount of alcohol consumed in 1965, 1968, 1970, 1974 and 1979. The change in 1974 is attributed to “marriage breakdown/stress of job” (exhibit A1, T5, page 74). The diagnostic criteria for alcohol dependence in DSM-IV are repeated in clause 2 of the Alcohol SoP. While Dr Ewer provided some evidence in his first report sufficient to meet the third step in Deledio, he expressly qualified his opinion in his later report, and said that he wished to view further records and other information before commenting on the time of onset of Mr Burnet’s alcohol dependence. In cross-examination, Dr Ewer accepted that Mr Burnet’s reference to the increase in his drinking after stressful events referred to the position following his return from Vietnam in 1969, and not 1965. Dr Ewer further commented that as the history had evolved in subsequent visits and written material, he found that it was contradictory, and some of the contradictions were quite significant. Dr Ewer did not express a concluded view as to the time of onset of Mr Burnet’s alcohol dependence.
71. On my review of Mr Burnet’s evidence, he does not describe symptoms occurring within two years of either of the asserted stressors which would satisfy three or more of the relevant diagnostic criteria. In any event, I find Mr Burnet’s evidence as to the date of the onset of the symptoms of alcohol dependence quite unsatisfactory, and I do not accept it. It is contradicted by the Alcohol Questionnaire. This questionnaire shows a substantial increase in alcohol consumption in 1974, and Mr Burnet attributes this to the break-up of his marriage. In the absence of any credible evidence on this issue, I find beyond reasonable doubt that the onset of alcohol dependence did not occur within two years of either of the stressors.
72. Following Dr Ewer’s cross-examination, he concluded that the date of onset of Mr Burnet’s PTSD was after he returned from Vietnam for the second time in 1969, and not following his return in 1965. As mentioned in the previous paragraph, there is no credible evidence before me that the date of the clinical onset of alcohol dependence was within two years of a stressor. However, it appears likely that the onset occurred subsequent to the onset of PTSD, perhaps at the time of the marriage break up, or later. I am not satisfied beyond reasonable doubt that alcohol dependence did not occur after the onset of PTSD.
73. The material before me which is consistent with factor 5(b) of the Hypertension SoP includes Mr Burnet’s evidence that he attributes his drinking to the two asserted stressors. As mentioned above, I find Mr Burnet’s evidence as to his drinking most unsatisfactory and I do not accept it. Whilst in his evidence he attributed his drinking to the two stressors, the Alcohol Questionnaire refers to increases in drinking which were unrelated to the stressors. I am satisfied beyond reasonable doubt that Mr Burnet’s consumption of alcohol at the level required to satisfy factor 5(b) of the Hypertension SoP was not caused by his operational service.
74. It follows from the finding in the preceding paragraph that Mr Burnet’s TCI is not war-caused, having regard to the requirements of clause 7 of the Cerebrovascular Accident SoP that one of the factors in the Hypertension SoP must be satisfied in order for the TCI to be connected with Mr Burnet’s operational service.
75. I have decided to reserve liberty to the parties to apply to enable them if they so wish to make further submissions on the date of effect of the entitlement to pension in consequence of this decision. My provisional views are as follows. I have determined that Mr Burnet’s claim for PTSD has succeeded both as regards the Gannet event and the RFA event. As the VE Act is beneficial legislation, I think that his pension entitlement, insofar as it is based on his PTSD, should take effect from the earlier of the dates referred to in paragraph 6 above, namely 4 January 2000. Insofar as his claim is based on alcohol dependence, it is necessary to determine when he developed PTSD, because of my finding that factor 5(a) of the Alcohol SoP has been satisfied. Having regard to the evidence of Mr Burnet as to the effect on him of the Gannet event, I find that he developed PTSD as a result of this event, and not the RFA event. Mr Burnet has given evidence that he experiences dreams which he relates to the RFA event. In his report of 16 July 2004, Dr Ewer refers also to recurrent and intrusive distressing recollections of both stressful events. This evidence suggests that the RFA event constituted an aggravation of his PTSD in the sense that it made this condition worse (see Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593 – 594). However, an aggravation of a disease is not in itself a disease (see the definition of “disease” in s 5D(1) of the VE Act). I find that Mr Burnet’s alcohol dependence (which I have found was war-caused by reference to factor 5(a) of the Alcohol SoP) should also be attributed to the Gannet event.
Decision
76. My formal decision is as follows.
(a)I set aside the decision under review, and in place of that decision I decide that:
·the applicant’s conditions of PTSD and alcohol dependence are war-caused; and
·the applicant’s conditions of hypertension and transient cerebral ischaemia are not war-caused.
(b)I remit the matter to the respondent with a direction that the respondent asses the applicant’s entitlements in accordance with these reasons for decision.
(c)I reserve liberty to the parties to apply in relation to the determination of the date of effect from which the pension payable as a result of this decision should take effect.
I certify that the 63 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 27 and 28 September 2004
Date of Decision 1 April 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr G Doube
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