Cooke and Repatriation Commission
[2005] AATA 116
•8 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 116
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/485
VETERANS' APPEALS DIVISION ) Re RICHARD PHILIP COOKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date8 February 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – war-caused conditions of anxiety disorder and panic disorder – did applicant experience a severe stressor or a severe psychosocial stressor during operational service – if so, did he meet the diagnostic criteria for anxiety disorder or panic disorder within two years of experiencing such a stressor – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986 ss120, 120A
Statement of Principles Instrument No 9 of 1999
Statement of Principles Instrument No 58 of 1999
Statement of Principles Instrument No 1 of 2000REASONS FOR DECISION
8 February 2005 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 19 February 2001 which refused a claim for payment of Disability Pension in relation to the applicant’s conditions of anxiety disorder and panic disorder. The Veterans’ Review Board (VRB) affirmed the decision on 17 October 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties. Mr Burnett of counsel represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Doube represented the Commission, which called Commodore P Mulcare, Historian, as a witness.
3. The applicant, who is 54 years of age, served in the Royal Australian Navy (the Navy) from 29 June 1968 until his discharge on 21 June 1972, as “personally unfit for Naval duties”. He rendered operational service aboard HMAS Derwent (the Derwent) for five days in Vietnam, from 4 November 1971 to 8 November 1971. The Derwent was in Vung Tau Harbour for 16 hours on 6 November 1971.
4. The applicant maintains that the conditions arose in the course of his operational service; and the test is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard 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.
(2) …
(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.
…”
5. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that his conditions relate to his operational service, in that on the whole of the material, the “severe stressor” or “severe psychosocial stressor” (the scare charge incident) which he experienced during his operational service, and within the two years immediately before the clinical onset of the conditions, connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the factors set out in clause 5, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
7. The relevant Statement of Principles for the condition of generalised anxiety disorder is Instrument No 1 of 2000 (the Anxiety Disorder SoP). The applicant contends that factor 5(a)(ii) is satisfied:
“(a)(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;”
A “severe psychosocial stressor” is defined in the Statement of Principles as:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
8. The relevant Statement of Principles for the condition of panic disorder is Instrument No 9 of 1999, as amended by Instrument No 58 of 1999, (the Panic Disorder SoP). The applicant contends that factor 5(a) is satisfied:
“(a)experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; “
“Experiencing a severe stressor” is defined in the Statement of Principles as:
“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
9. The applicant submits that during his operational service aboard the Derwent, in Vung Tau Harbour, on 6 November 1971, he experienced a severe stressor, “the scare charge incident”.
the scare charge incident
10. The applicant said in evidence that he had completed his technical tests, and had been promoted to Leading Hand Electrician, responsible for the maintenance of batteries aboard the Derwent. His normal place of duty was in the main switchboard, next to the Divisional Officer’s cabin, which is on the waterline. While en route to Vietnam, as an escort to HMAS Sydney, they were informed by memos and piped messages of the dangers of Vung Tau Harbour, such as the ship being in range of shore fire, under-water swimmers, boats of all descriptions, and even from rubbish floating in the Harbour, but he does not recall any mention of scare charges. Once in Vung Tau Harbour, and inside the hull of the Derwent, the applicant says he continued to be anxious and restless. He had made a request of his superior officer, Lieutenant Gibbs, that he be given duties on the upper deck, where he could see any potential danger, and be in control. His request was denied. He says that he became more anxious and panicky, feeling dizzy and sweating heavily.
11. The applicant gave evidence that he had been in the switchboard room for about one hour, and the Derwent had been in Vung Tau Harbour for about 30 minutes, when he heard a loud explosion. He became hysterical. The switchboard room rattled and shook. He ran out of the switchboard room, screaming, and tried to climb up a ladder to an upper deck. Some other sailors restrained him, and took him back to his mess deck, which was on the same deck as the switchboard. This was his first panic attack. His heart was pounding, he felt dizzy, he was trembling and sweating, and had feelings of unreality. He found it hard to breathe. He was convinced they were under attack, and that he was going to die trapped inside the hull with no means of escape or of defending himself. Other shipmates told him it was a scare charge, but he did not believe them. He had no control and vomited. He says that he felt as though he was outside the situation, and could just see people’s mouths moving. He thought he was going mad, and did not know what he was doing. He felt scared of dying, both from his feelings of being totally out of control, and from the fear of being trapped as well.
12. The applicant said in evidence the he was forcibly taken from near the escape hatch, where he had positioned himself, to his bunk on the mess deck where he was held down by at least two sailors who were laughing at him. He gave up struggling. He cried and stayed in the bunk for the remaining 14 hours the Derwent was in Vung Tau Harbour. This event he says, was witnessed by several people, some of whom were laughing, others were swearing at him. Lieutenant Gibbs came to his bunk, when things had calmed down, and the Derwent was under way, but he does not recall what Lieutenant Gibbs said to him. He returned to his normal duties next day, but when he went to the mess, crew members made a joke of him, mocking him. He continued to be degraded, tormented and called a coward by his shipmates.
13. The Commission maintains that at no time during his operational service did the applicant experience a “severe psychosocial stressor” as defined in the Anxiety Disorder SoP; and that even if he did experience such a stressor, he did not meet the diagnostic criteria for anxiety disorder, within the two years immediately after experiencing the stressor. The Commission contends therefore, that factor 5(a)(ii) of the Anxiety Disorder SoP is not met.
14. The Commission argues also, that at no time during his operational service did the applicant experience a “severe stressor” as defined in the Panic Disorder SoP; and that even if he did, there is no evidence that within the two years immediately after experiencing such a stressor, he met the diagnostic criteria for panic disorder. The Commission contends therefore, that factor 5(a) of the Panic Disorder SoP is not met.
15. The applicant gave lengthy oral evidence. He was cross-examined fairly and at length. He was an unsatisfactory witness. Much of his evidence was contradictory, and he impressed me as a person prepared to change the tenor of his testimony according to the benefit he was attempting to obtain. This does not mean that I disregard the whole of his testimony, but look to other more acceptable evidence to corroborate the applicant’s evidence and to support my findings of fact in important areas.
16. Dr Ewer proceeded on the assumption that the applicant’s version of events was reliable. I take that into account when deciding upon the weight to be given to his evidence and opinions. I consider Commodore Mulcare to be a witness of truth, and prefer his evidence to that of the applicant in any area of conflict in the evidence.
17. The applicant was born in Liverpool, UK, and came to Australia when he was eight months old. His family settled initially in Tailem Bend, but moved to Murray Bridge in 1963 when the applicant was 12 years of age. He was a member of the Salvation Army Band, the Town Band, the Salvation Army Youth Group, Senior Scouts and the local rowing club. He says that he had lots of friends with whom he attended Saturday night football cabarets, and was a keen water skier and speedway fan. He said in evidence that “it was a good life”. He left school at the age of 15 and his first job was as an apprentice electrician. This lasted only two weeks as his employer packed up and left his business overnight, without notice. The applicant then worked on a poultry farm, but his ambition was to join the Navy. He was accepted into the Navy two years later.
18. The applicant said in evidence that he was aboard the HMAS Melbourne (the Melbourne) when it collided with the USS Evans (the Evans) on 3 June 1969. He said that he was lying on his bunk when the collision occurred at 3.00 am. He heard a piped message “all hands to collision stations”, but he did not know what it meant. He asked his friend what it meant and he did not know either. Then he felt a bump, and went out onto the deck of the Melbourne to see what had happened. It was moonlight, and he could see the Evans half submerged, the front half of the ship bearing the number “754” was sticking out of the water. He thought they had run aground. There were people jumping off the Evans, and he wanted to help. He jumped into the water from the deck he was on, which was the equivalent of jumping from a two storey building. He had five life jackets with him, but he was not wearing a life jacket when he jumped. The water was very oily. The five life jackets were swept away. He was pulled out of the water by a sailor in a boat, and the boat picked up more people and went back to the Melbourne. He could see people trapped when the Evans went down. He said in evidence, that at the time, he was busy and did not have time to think. Later, when there was a memorial service on the flight deck of the Melbourne, he got emotional. The applicant said that after the collision he started to smoke and drink. He claimed workers’ compensation subsequently, and has an accepted compensable condition of post-traumatic stress disorder (PTSD).
19. Turning to the conditions that are the subject of this review. On 8 November 2000 the applicant lodged a claim for pension in respect of, inter alia, emotional disorder. He was assisted by Mr Coxon, a Vietnam Veterans’ Association advocate. He stated that he first became aware of the symptoms in 1972, and he attributed his condition to his experiences aboard the Derwent. He requested to see Dr Ewer, who examined him on 27 November 2000, and diagnosed PTSD, which Dr Ewer considered was related to the applicant’s experiences whilst he was on the Melbourne, when it collided with the Evans. Dr Ewer diagnosed also, generalised anxiety disorder, and panic disorder, which he considered related to the applicant’s experiences in Vietnam, in the course of his five days’ operational service. Dr Ewer reported, in part, as follows:
“…
By way of background, it is important to note that Mr. Cooke was on the HMAS Melbourne when it collided with the USS Evans. He suffered a Post-Traumatic Stress Disorder as a result of this collision. This incident is the subject of another claim.
Mr. Cooke was exposed to a number of experiences in Vietnam which were very stressful for him. These experiences affected him both at the time and subsequently. Mr. Cooke told me that he was informed that only certain sailors could be above deck as the Derwent approached Vietnam. He was told this was because there was a significant chance of the enemy shooting sailors on the deck. This worsened Mr. Cooke’s anxiety. Mr. Cooke told me that his anxiety escalated to such a degree that he did not feel safe working in the hull of the Derwent. In particular, he feared that he would be trapped and killed just like the men on the Evans. Mr. Cooke recognized the anxiety caused by working in the hull and consequently he explained this to a superior. He requested to work above deck to lessen the anxiety he was experiencing in the hull. This request was denied and Mr. Cooke was ordered to work on the switchboard below deck. Mr. Cooke told me that he felt trapped in the hull and he feared drowning should the Derwent be attacked. Mr. Cooke’s anxiety in Vietnam was exacerbated with the explosions caused by the stun grenades.
Mr. Cooke told me that his fellow sailors became aware of his reluctance to work in the hull of the ship. He said “they bastardized me”.
PSYCHOLOGICAL EFFECTS OF SERVICE
Mr. Cooke said “working the hull was the scariest thing”. Mr. Cooke noticed that he was troubled by significant anxiety when he was in the hull of the Derwent. His anxiety caused him to perspire excessively and it was associated with a marked tremor. He started to develop panic attacks during his time in Vietnam. Both of these symptoms were new. Mr. Cooke told me that he did not sleep at all in Vietnam because of the acute anxiety he experienced below deck. Mr. Cooke told me that he felt embarrassed and guilty about his emotional response to being below deck. He lost confidence and his self esteem became low. He said “I felt so ashamed”. Mr. Cooke told me that he was often ruminating and worrying about what would happen if the Derwent was mined by the enemy. He also started to worry excessively about a range of other issues. He was convinced that he was going to die in Vietnam. Mr. Cooke was also troubled by intrusive recollections related to the collision with the Evans.
The above symptoms started to interfere with Mr. Cooke’s ability to function.
…” [T7/42]
20. The delegate considered that the applicant’s clinically significant psychiatric condition, PTSD, had contributed to his anxiety disorder. The delegate stated also, that there was no history of the applicant experiencing a “severe psychosocial stressor”; and in relation to the Panic Disorder SoP, the delegate stated that although there was a history of having experienced a “severe stressor”, this did not occur during operational service.
21. The applicant applied for review to the VRB, and in the course of the VRB Hearing, on 17 October 2002, the applicant said that he knew that scare charges would “happen” in Vung Tau Harbour. The Transcript of Proceedings reads, in part, as follows:
“…
MR COOKE: We were told before we got in there about there was dangers from – there was dangers from floating things and they would be on guard and from shore fire there was a danger but that was – everyone was told that. It was only me who was below decks that I started to have panic attacks and then when the scare charges started going off it just made it worse.
MS COWDROY: What did you think about the scare charges? You had been told about them.
MR COOKE: Inside I knew they were scare charges but I had visions that the ship was going to sink, that I was going to be trapped below deck. I had no control. I was – I had no – I was sort of out of control of the situation being stuck inside the hull and I asked to go on the upper deck because I’m pretty sure if I’d have gone on the upper deck I’d have been okay no matter what was happening.
MR CHAPMAN: You had actually volunteered to submarine duty at one stage, I think.
MR COOKE: Yes. I had gone through the psychological tests and the air compression chamber tests and everything for that.
MR COXON: That was before.
MR HOURN: Yes, before 1970 and did those tests determine you were suitable for the job?
MR COOKE: Yes.
MR COXON: It was the after the Melbourne Evans.
MR HOURN: Yes, that was 12 months after that, yes.
…” [Exhibit R3/12-13]
22. On 17 October 2002 the VRB affirmed the delegate’s decision; and in the course of its Reasons for Decision stated:
“…
The advocate submitted that as the veteran was suffering from post traumatic stress disorder when he went to Vietnam, he was pre-disposed to further psychiatric problems. At folio 14 of the Section 137 report Dr M Ewer has identified a number of experiences when on operational service that were stressful to the veteran. The veteran’s main problem was when he was working in the ship, and he asked to go onto the deck. This request was not granted and he felt trapped inside. Although he knew that stun grenades would be used he still got a fright when they exploded and he panicked. His shipmates noted his condition and gave him a hard time. This caused him embarrassment and loss of self-esteem.
…
BOARD’S DETERMINATION
As shown above, the Board has consented to the withdrawal of the claim for post traumatic stress disorder. That condition has been accepted under the MCS as being due to an incident during the veteran’s non-eligible service. The evidence from Dr M Ewer on which that decision was based goes on to discuss the direct relationship between the veteran’s post traumatic stress disorder and the psychiatric problems that developed from Vietnam.
The SOP dealing with anxiety disorder has as a causal factor “having a clinically significant psychiatric condition within the two years immediately before the clinical onset of the anxiety disorder”. Whether or not the veteran’s post Evans condition was clinically significant was a matter that the Board did not need to address. The veteran’s post traumatic stress disorder was not related to eligible service under this Act and can not be relied upon to be the cause of other conditions.
Another causal factor in the anxiety disorder SOP (the same factor appears in the SOP for Panic disorder (is “experiencing a severe psychosocial stressor within … [sic] that evokes feelings of substantial distress, for example being shot at, death or serious injury, assault …. The Board accepts that the veteran felt substantial distress when on the Derwent in Vietnam waters. But the cause of that distress was in our view not an identifiable occurrence during the 24 hours in Vung Tau harbour, but rather the recollection of the Evans accident when many sailors were trapped below decks and drowned.
No “severe psysocial [sic] stressor” sufficient to come within the ambit of the SOP was proposed during the hearing, and Dr M Ewer does not identify a specific stressor in his report but rather he reports of the veteran’s experiences.
In regard to the conditions of Anxiety disorder and Panic disorder the Board therefore concludes that the evidence is inadequate for it to find that the material raises a reasonable hypothesis. …” [T2/5-7]
23. Dr Ewer said in evidence that the applicant outlined details of the Melbourne accident during the first interview on 27 November 2000. He said that he saw people trying to escape from the Evans. They were screaming and shouting, and later he saw bodies brought aboard the Melbourne. He did not mention however, that he had jumped from the flight deck, carrying five life jackets, in an attempt to save the sailors. In relation to the Derwent, the applicant’s main stressor, “the scariest thing”, related to working in the hull. He felt tapped below deck, as there was no escape if the ship was attacked, and he was very scared and apprehensive before he arrived in Vietnam, and embarrassed and guilty about his response to being below deck. In his oral evidence the applicant denied that he was anxious before he arrived in Vietnam; and said that he did not recall telling Dr Ewer that, because “it was not the situation”. In this first report Dr Ewer makes no mention of any hysterical reaction to a scare charge.
24. On 16 December 2002 the applicant’s solicitors lodged an application for review with the Tribunal, and on 23 May 2003 requested a further report from Dr Ewer. Dr Ewer said in evidence that he had seen the applicant on two occasions for treatment during the year 2000, when the applicant’s treating psychiatrist was not available. He interviewed the applicant on 11 August 2003, for the purpose of the report of the same date, and reported, in part, as follows:
“…
7.FURTHER HISTORY OBTAINED
Mr. Cooke told me that he went to Vietnam aboard the HMAS Derwent in 1971. I have referred to this trip on page 2 of my report dated 8th December 2000. Mr. Cooke told me that his experiences aboard the HMAS Melbourne were still fresh in his mind. He was concerned about the danger in Vietnam and he did not feel safe working in the hull of the HMAS Derwent. He feared that he would be trapped and killed. Mr. Cooke therefore asked if he could work above deck. This request was declined.
Mr. Cooke told me that he was below deck (and most of his body was below the waterline) when he heard a loud explosion. The explosion was so loud and intense that objects near him vibrated. Mr. Cooke thought the HMAS Derwent had been attacked by the enemy. Mr. Cooke told me that he was intensely frightened and “terrified”. Mr. Cooke told me that he started screaming to be let onto the upper deck. He told me that he ran to an escape hatch in an attempt to get to the upper deck. He was restrained by fellow sailors and dragged to his bunk. His recollection is that he was restrained by sailors on his bunk for approximately twenty minutes. He recalls feeling panicky, frightened and he started crying. He felt exhausted.
Mr. Cooke told me the HMAS Derwent left Vung Tau Harbor soon after this incident. Mr. Cooke told me that he was informed the explosion was caused by a scare charge. I asked Mr. Cooke whether he had been informed scare charges would be used in Vietnam and he told me that he could not recall whether he had or hadn’t been advised of this fact.
The next day Mr. Cooke performed his normal duties. He recalls being teased and harassed by fellow sailors.
Mr. Cooke’s anxiety escalated when he got back to Australia because he was told that he would have to work below deck in the hull. He felt so anxious and panicky that he went absent without leave. Mr. Cooke told me that he subsequently thought of jumping off a building to commit suicide. He reported ongoing harassment.
…” [Exhibit A2]
25. Dr Ewer said in evidence that in relation to his second report, of 11 August 2003, the applicant’s concern about danger in the hull, was linked to the deaths of the sailors in the Evans disaster. The applicant described a significant change in his mental state in Vietnam, characterised by anxiety and panic attacks, rather than just an exacerbation of his PTSD. Dr Ewer thought it was reasonable to hypothesise that the applicant had developed a generalised anxiety disorder, and panic disorder, in addition to the PTSD. He considered that the scare charge incident was a “severe psychosocial stressor” in accordance with the Anxiety Disorder SoP, but believed that it might not meet the definition of a “severe stressor” in accordance with the Panic Disorder SoP. He said that the applicant claims that he has not been the same since the incident.
26. Dr Ewer said in evidence that it was suspicious that the description of the “scare charge incident” was a lot more severe when outlined by the applicant in the second interview, nearly three years after the first interview. Although he did not ask the applicant why this was so, he thought it suspicious that the applicant would be embellishing a story now. His claim had been rejected, and his story contained new vivid descriptions of being restrained by shipmates, and held down in his bunk. Dr Ewer said that if a person was as emotionally disturbed as was the applicant, one would expect a doctor to be called; and he would not expect the applicant to return to duty for his next scheduled watch. Dr Ewer did not know that there was a medical officer, Dr Garvan, aboard the Derwent.
27. Commodore Mulcare reported on 28 March 2004, in part, as follows:
“…
·A record of conversation with Mr David McLean, an[d] Electrical Mechanic in DERWENT in 1971. He said he could not say that the hysteria incident described by Mr Cooke did not happen, but he did not recall it. He also wondered why some one, hysterical following a scare charge explosion, would be forcibly taken below (to a messdeck on the waterline) when they could have been taken to the Sick Bay (on 01 deck high up in the ship).
·A record of conversation with Commodore R W Burnett RAN Rtd, DERWENT’s Commanding Officer in 1971. He did not recall hearing of the hysteria incident but said it was sufficiently unusual for him to think he might remember it, if it had occurred. He also said that if some one had exhibited the hysteria described by the veteran, because of the noise of a scare charge explosion, it would probably have been necessary to arrange his early medical evacuation from the ship.
3. I have also discussed the veteran’s contentions with Lieutenant Commander S D Brown RAN Rtd, who was a Lieutenant and the ship’s diving officer in 1971. He commented that an incident as described by the veteran would have become widely known in the ship and he thought he would have heard about it. However he has no recollection of any such incident.
Scare Charges
4. As far as Commodore Burnett can recollect, most if not all scare charges were deployed from the ship’s boat in Vung Tau because of concern about damage to the ship’s hull. Lieutenant Commander Brown advised me that he has no recollection of scare charges being deployed from the ship and that he thinks they were all thrown from the patrolling motor cutter. On the other hand Mr McLean and Mr Malcolm Monson, a Leading Seaman Underwater Weapons in DERWENT in 1971, both believe some scare charges were thrown from the ship. However all the persons mentioned in this report, apart from Commander Gibbs who does not specifically recall the visit, believe that the ship’s company were fully briefed on the procedures that would be put in place in Vung Tau, including the fact that scare charges would be used.
Threat of sniper fire
5. DERWENT anchored in Berth B13 on 6 November 1971, some 2400 yards from the nearest point of and on the Vung Tau peninsula. SYDNEY anchored to the east of DERWENT, 2000 yards from the Pt Ghan Rai light. Their anchorages are shown on the chart attached. At this range there was no threat of sniper fire from ashore on either ship, but both ships would have kept a sharp lookout for suspicious boat movements anywhere near them. However none of the persons mentioned in this report recall a prohibition on personnel accessing DERWENT’s upper deck because of the possibility of sniper fire.” [Exhibit R2]
28. Commodore Mulcare expanded on these views in his evidence, and said that if the applicant had run amok, and it was serious enough to take him down to his bunk, that he would have been taken just as easily to the sick bay for medical treatment. He said that if the incident was so well known to the applicant’s shipmates, that they continued to ridicule him, the Commanding Officer would have known, as would Commander Gibbs, and the diving officer, Lieutenant Commander Brown. The officers would have known of the incident.
29. In my view, the applicant’s hysterical reaction outlined in Dr Ewer’s second report is in obvious contrast to the symptoms of anxiety, described to Dr Ewer in his first interview, as “perspiring excessively and an associated marked tremor”. I consider that, if the applicant had run amok in terror, and suffered a panic attack, it is a startling omission not to mention this to Dr Ewer, who was assessing him in November 2000 in relation to his claim for emotional disorder, which he had lodged earlier that month. I consider that the applicant, having failed in his claim before the Commission and the VRB, exaggerated and embellished the details of his experience aboard the Derwent in his outline to Dr Ewer on 11 August 2003, and in his evidence to this Tribunal, in an attempt to obtain a benefit.
30. I am satisfied on the evidence that this incident did not occur in the manner in which the applicant has described it in recent statements, and in his evidence to this Tribunal. I am satisfied on the evidence, and find as a fact, that the applicant did not experience a “severe psychosocial stressor” during his operational service, and that factor 5(a)(ii) of the Anxiety Disorder SoP is not satisfied. I am satisfied on the evidence, and find as a fact, that the applicant did not experience a “severe stressor” during his operational service; and that factor 5(a) of the Panic Disorder SoP is not satisfied. In my opinion the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of anxiety disorder, and panic disorder, were war-caused.
31. For these reasons the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 29 March 2004 & 26 May 2004
Date of Decision 8 February 2005
Counsel for the Applicant Mr A Burnett
Solicitor for the Applicant Lempriere Abbott McLeod
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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