Cannon and Repatriation Commission
[2005] AATA 428
•12 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 428
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/478
VETERANS' APPEALS DIVISION ) Re RONALD JOHN CANNON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member) Date12 May 2005
PlaceAdelaide
Decision The Tribunal varies the diagnosis of the claimed condition to one of alcohol dependence, and affirms the decision as varied.
(Signed)
JG SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that alcohol dependence is war-caused – consideration of statements of principles – 5 inch shell dropped to the floor of a ship’s magazine – dropping an empty cordite canister – scare charge heard from below deck – decision affirmed
Veterans’ Entitlements Act 1986 ss 5, 6, 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668Repatriation Commission v Cornelius [2002] FCA 750
Statement of Principles Instrument No 76 of 1998
REASONS FOR DECISION
12 May 2005 Mr JG Short (Member) 1. Mr Ronald Cannon was engaged in operational service in Vietnam on board HMAS Hobart (the Hobart) from 16 March 1970 until 9 October 1970. On 26 November 2001, he lodged a claim for pension in respect of “emotional disorder”. The respondent (the Commission) recorded a diagnosis of alcohol abuse in response to this claim, but rejected the claim.
2. Mr Cannon subsequently sought review by the Veterans’ Review Board (VRB). The VRB affirmed the decision on 10 October 2002. Mr Cannon has applied to this Tribunal to review the decision of the Commission, as affirmed by the VRB.
issues before the tribunal
3. The issue before me is whether Mr Cannon’s condition is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the Act). Both parties suggest that the diagnosis of Mr Cannon’s condition should be varied to read “alcohol dependence”. It is common ground that the clinical onset of the condition of alcohol dependence occurred within two years of Mr Cannon’s relevant service.
background
4. Mr Cannon was born on 18 April 1951. He joined the Royal Australian Navy (the Navy) on 23 August 1969, and served until his discharge on 12 July 1972. He underwent recruit training at HMAS Cerberus, over a period of approximately three months, and was then posted to the Hobart until 9 October 1970.
5. Mr Cannon asserts that certain stressful events occurred during his operational service which caused his alcohol dependence. I will refer in detail to his assertions later in these reasons.
evidence before the tribunal
6. I will now narrate a summary of much of the evidence before me. I will not at this stage make any findings on whether Mr Cannon’s claimed condition was war-caused.
evidence of mr cannon
7. Mr Cannon told me that he had joined the Navy at age 18 years, at a time when the legal drinking age was 21 years. He said that he had never had a drink before he joined the Navy, or indeed for the first 6 weeks of intensive training. He said that after this period of training he would on some occasions travel into the city of Melbourne with other recruits, sometimes to attend a football match. He said that on one or two occasions they would call at a hotel for a couple of drinks.
8. Mr Cannon said that at the time he was posted to the Hobart, he was aware that the Hobart would sail to South Vietnam in early 1970.
9. The first incident suggested by Mr Cannon to be a relevant stressor concerned the dropping of an empty cordite canister (the canister incident). Mr Cannon said that nearly all of the ship’s company at this time were engaged in unloading empty cordite canisters. He said that this was achieved by passing the canisters, one man to the next, up three decks from the ship’s magazine room. Mr Cannon said that there were three ladders, structured vertically one above the other, connecting the three decks. Mr Cannon said that he was working at the manhole entrance on the ship’s upper deck. He said that below him was another man straddling the ladder, and a second at the base of the ladder. The third man would collect a canister from a seaman on a lower deck and pass it to the person straddling the ladder, who would in turn pass the canister to Mr Cannon. Mr Cannon said that the three decks totalled about 30 feet in height. Mr Cannon said that he dropped a canister, and heard it “clanging” against the stairwell as it fell. He said that it missed the two people working on each of the two decks immediately below him, but he then saw a man who had been on the lowest deck, emerge from the ladder with what appeared to be a graze to his head. Mr Cannon said that he had been fearful that he might have killed someone and he was relieved to see that a serious injury had not occurred.
10. Mr Cannon said that he cannot recall inquiring as to the wellbeing of the sailor, either immediately or at a later time. Mr Cannon said that he had returned to finish the job. He said that he thought about the incident sometimes, but at the time was so busy that there was not much time to think about it.
11. Mr Cannon said that he had not related this incident to either the first medical officer to whom he was referred in reference to his first claim for acceptance of a war-caused condition, Dr S Ryan, or indeed on either of the first two occasions he spoke with his now treating psychiatrist, Dr M Ewer, because he felt too ashamed to do so. Dr S Ryan’s report, dated 27 July 1999, records that Mr Cannon was unable to recall “any events that he found outstandingly distressing or life threatening”.
12. The second incident referred to by Mr Cannon involved a 5 inch shell (the 5 inch shell incident). Mr Cannon said that he could “vaguely remember” this incident. He said that he did not really remember it. He said that he used to have dreams about an explosion and did not understand why. He said that it was not until a reunion of former seaman from the Hobart, and particularly speaking with a Mr W Roestenburg that he had any recollection of this incident. He said that he was working in the ship’s magazine, when he heard a bang and looked behind him and saw that a shell was on the floor. He said that a fellow crew member, Able Seaman Jackson, had picked the 75 kilogram shell up in his arms and somehow managed to carry it up the internal ladder to the deck. Mr Cannon said that he recalled seeing a hairline crack in the base of the shell. He said that when he saw the shell on the ground he was stunned, and worried, and thought that it could go off. He said that he and others continued their work duties in the ship’s magazine. He recalls Able Seaman Jackson returning to the magazine. He said that he did not speak with Able Seaman Jackson, he just kept working. Mr Cannon said that it was not until much later that he was told that shells could not explode unless primed, or that he appreciated the role a cordite canister played in safely propelling the projectile without exploding it. Mr Cannon said that the next time he was handling shells he still considered that an unprimed shell may explode. He said he made no inquiry of anyone concerning any potential danger in handling shells.
13. Mr Cannon’s evidence in respect of this 5 inch shell incident, and in particular, whether he had an independent recollection of the event, which had been revived following his discussion with Mr Roestenburg, or whether he did not have an independent memory of the event and was simply relaying to me what he had been told by Mr Roestenburg, varied throughout the course of Mr Cannon’s evidence. Mr Cannon’s evidence in relation to this issue can be summarised by saying that he could not be sure whether he had an independent recollection of the event or not.
14. The third incident suggested by Mr Ower to comprise a severe stressor involved a scare charge (the scare charge incident). Mr Cannon said that he had been in his bunk below deck and dozing, when he heard an explosion or a loud bang. He said that he was scared and jumped up. He said that initially he did not know what the sound was because he had not heard a scare charge detonate from below deck. In cross-examination he said that he had stood by and watched scare charges being dropped, so that he was aware of the existence, nature and purpose of scare charges. He said that he later realised that it must have been a scare charge because nothing was happening. He said that others in his vicinity had not reacted, and they told him not to be an idiot, and that it was only a scare charge. He said that he was unsure how much time had elapsed before he realised that the loud sound was only a scare charge. He referred to periods of 30 seconds and to a minute.
15. Mr Cannon explained that he had not mentioned the scare charge incident in any of the documentation he had lodged with the Repatriation Commission, or to any of the psychiatrists he had seen, at any time prior to his ship’s reunion, particularly prior to speaking with Mr Roestenburg. He explained to me however, that Mr Roestenburg had not reminded him of the scare charge incident, but that such a recollection had come to him independently, shortly after the reunion.
16. In reference to his drinking pattern, Mr Cannon said that he had not consumed alcohol prior to joining the Navy. He said that his alcohol consumption had increased significantly at or about the time of his operational service, and has continued unabated thereafter. As mentioned, counsel for both the Commission and for Mr Cannon have agreed that the appropriate diagnosis in this case is one of alcohol dependence (as supported by expert medical opinion evidence from Dr M Ewer). Counsel have also agreed that the clinical onset of alcohol dependence occurred within 2 years of the relevant stressors.
evidence of captain hugh stevenson
17. Captain Stevenson described his occupation as a Research Agent, and he adopted as accurate the contents of his report found in Exhibit R2. The report primarily related to an event where the Hobart had traversed over a fishing boat. The report, amongst other things, confirmed the absence of any record in the ship’s log of a shell having been dropped, causing a crack.
evidence as to mr cannon’s medical condition
18. As mentioned, both Mr Cannon and the Commission have agreed that Mr Cannon has suffered alcohol dependence, and that the clinical onset of this condition occurred within 2 years of the first of the stressors suggested by counsel for Mr Cannon to be relevant stressors. I note Dr M Ewer’s evidence to this effect, and am satisfied that the material before me does raise these two relevant factors.
mr cannon’s submissions
19. It is Mr Cannon’s case that any or all of the three incidents described above are capable of satisfying factor 5(b) of Statement of Principles contained in Instrument No 76 of 1998 dealing with, amongst other things, alcohol dependence or alcohol abuse. Factor 5(b) reads as follows:
“(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
This Statement of Principles defines “experiencing a severe stressor” as meaning:
“… 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.
…”
20. Mr Ower suggested that even if none of the events evoked intense fear, helplessness or horror in Mr Cannon nevertheless the events could satisfy the requirement of Mr Cannon having experienced a severe stressor if such an event, even though not causing the required feelings in Mr Cannon, “might evoke” such feelings in others. That is, Mr Ower suggested that all that is required to satisfy the definition was Mr Cannon experiencing events which objectively might evoke the feelings described.
legislative background
21. Section 9 of the Act describes 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; …”
22. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C of the Act, 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 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.
23. Section 13(1) of the 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.
24. As Mr Cannon has performed operational service, as defined in s 6 of the 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 Act. Those sections relevantly provide 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.”
25. Under s 120A of the 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.”
26. Section 120A(4) of the Act excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
27. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the 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) of the Act. 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
28. The claimed condition of alcohol dependence is the subject of a Statement of Principles (SoP). I will set out the relevant provisions of the SoP below. I note that where a SoP exists, I must apply the test prescribed by s 120(3) of the 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.”
29. I have considered all of the material before me, and I am satisfied that the material points to an hypothesis connecting the condition of alcohol dependence with Mr Cannon’s operational service. That hypothesis is that any or all of the three relevant events referred to by Mr Cannon in his evidence comprise severe stressors within the definition contained in Statement of Principles Instrument No 76 of 1998. Mr Crowe, for the Commission, suggested that although there was some evidence in respect of the canister incident and the scare charge incident, there was no evidence in the material pointing to a hypothesis arising out of the 5 inch shell incident. I remind myself that at the stage of considering the first element of the Deledio test, no findings of fact are to be made. I am to consider all of the material, not just the material which points in a certain direction. I consider that sufficient evidence to satisfy the first test in Deledio exists in relation to all three of the incidents, suggested to comprise relevant stressors.
30. A SoP has been determined by the RMA pursuant to s 196(2) of the Act in respect of the condition in question. The second test in Deledio is satisfied.
31. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with or fits one or more of the factors referred to in the relevant SoP. This step involves considering 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.
32. Under clause 4 of the 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 relevantly provides 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 alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
33. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). In that case 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.
34. As mentioned, the Commission does not dispute Mr Cannon’s assertion that the clinical onset of alcohol dependence occurred within 2 years of at least the first of the incidents alleged to comprise severe stressors. I have also had regard to Dr M Ewer’s evidence and am satisfied that the material before me points to the clinical onset of alcohol dependence by no later than 15 March 1972.
35. I have had regard to all of the material before me, and in respect of the material relating to the canister incident, I have noted that Mr Cannon was clearly concerned, having dropped the canister, that it might hit someone, but was not aware that it did hit another sailor until that sailor emerged from below deck. Mr Cannon said that at that time he immediately felt “relieved” that no one had been seriously injured. Even if, as suggested by Mr Ower, that all that is required is the experience of an event which might evoke intense fear, helplessness or horror in others, I am of the view that the material does not raise such an event.
36. In respect of the 5 inch shell incident, the material before me includes Mr Cannon’s evidence that he is unsure whether or not he had completely forgotten this incident, and that he was relating to me the incident as described to him by Mr Roestenburg. I have also noted Dr M Ewer’s evidence, which in part was to the effect that if a person was unaware, as claimed by Mr Cannon, that such shells needed to be primed before they could explode, seeing such a shell which had fallen and was laying on a deck, could in his view satisfy the definition of “experiencing a severe stressor”. However, he said that such a definition would be far more clearly established if a person had seen the shell fall. I have also noted Mr Cannon’s evidence that he simply continued working and chose never to ask anyone whether dropping an unprimed shell was dangerous. As mentioned, Mr Ower argued that all that was required to match or meet the relevant Statement of Principles was satisfaction of an objective test. I consider that even if this is the case, the event, as described in the material before me would not, objectively, hold the potential to evoke intense fear, helplessness, or horror. The material before me relating to the 5 inch shell incident therefore does not raise circumstances which match the relevant SoP.
37. In relation to the scare charge incident, I have noted that the material before me includes Mr Cannon’s evidence that he had, prior to this incident, watched seamen throwing scare charges over the side of a ship and was aware that scare charges were meant to protect him. I also note Mr Cannon’s evidence that he was dozing in his bunk below deck when he heard a loud noise, and initially felt scared and panicked. He also said that he then realised that it must have been a scare charge because nothing was happening. He recalls others looking at him as if he were an idiot. It would not be unusual to be startled or scared on hearing any loud noise which occurred while one was dozing.
38. I have also noted that the material before me includes Mr Cannon’s evidence to the effect that it was not until after the Hobart reunion that he recalled this scare charge incident at all. I have considered all the material before me and have reached the view that the material relating to the scare charge incident is not such as would satisfy even an objective test for a severe stressor. In my view, the material does not raise an event or events which might or did evoke intense fear, helplessness or horror.
39. For the above reasons, I consider that the hypothesis raised by the material before me is inconsistent with the factors in Statement of Principles Instrument No 76 of 1998. As a result the hypothesis is not reasonable, and by virtue of s 120(3) of the Act, I find beyond reasonable doubt that there is no sufficient ground for determining that the claimed condition was war-caused. I have found however that the diagnosis should be varied to one of alcohol dependence.
decision
40. For the above reasons, I vary the diagnosis of the claimed condition to one of alcohol dependence, and I affirm the decision as varied.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)
Signed: .....................................................................................
AssociateDates of Hearing 3/4 February 2005
Date of Decision 12 May 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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