Crabbe and Repatriation Commission - [2002] AATA 826

DECISION AND REASONS FOR DECISION [2002] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N2001/135

VETERANS' APPEALS DIVISION       )
           Re      Keith Hale Crabbe
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

Date20 September 2002
PlaceSydney

Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mr Crabbe has a war-caused post traumatic stress disorder, with symptoms of alcohol abuse as part of that condition, with effect from 21 September 1999. 2. The assessment of the correct rate of Disability Pension is remitted to the Repatriation Commission.

..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS –Entitlement – Operational Service – Reasonable Hypothesis – Post Traumatic Stress Disorder - Diagnosis – Reasonable Satisfaction – Assessment
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Cooke (1998) 52 ALD 1; (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Dixon v Repatriation Commission (1999) 59 ALD 315
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gorton (2001) 65 ALD 609
Re Cranage and Repatriation Commission (2000) 63 ALD 312; [2000] AATA 1119
Re Repatriation Commission and Freeman (2000) 61 ALD 259
Re Howe and Repatriation Commission (1999) 59 ALD 309
Re Hughes and Repatriation Commission [2000] AATA 571
Re Jehn and Repatriation Commission [2000] AATA 484

REASONS FOR DECISION

20 September 2002 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Keith Hale Crabbe, the Applicant, of a decision by the Respondent, the Repatriation Commission ("the Commission"), made on 1 June 2000 (T2), which on review by the Veterans' Review Board ("the Board") on 30 November 2000 (T19), was varied by amending the diagnoses of the conditions "post traumatic stress disorder, alcohol dependence or alcohol abuse (in remission) and adjustment disorder" to diagnoses of "post traumatic stress disorder and alcohol abuse". The decision, as varied, was affirmed by the Board. In relation to the assessment of the rate of pension, the Commission's decision was set aside and in substitution, the Board decided that pension should be assessed at 30 per cent of the General Rate, with effect from and including 21 September 1999.
A hearing was held in Sydney before the Tribunal on 10 December 2001. Mr Crabbe provided oral evidence to the Tribunal as did Dr A Dinnen, Psychiatrist. Mr Crabbe was represented by Mr N Dawson of Counsel and the Commission was represented by Mr P Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T24) and the following Exhibits:
Exhibit No.   Description Date
A1      Applicant's Statement        28 May 2001
A2      Report of Dr A Dinnen, Consultant Psychiatrist and attachment, "Emotional and Behavioural Medical Impairment Worksheet"    20 June 2001 31 May 2001
R1      Report and Supplementary Report of the same date, by Dr J W Shand, Psychiatrist       30 June 2001
R2      Further Report of Dr J W Shand, Psychiatrist    8 November 2001
R3      Research Report by Commodore P M Mulcare, Writeway Research Service         30 August 2001
R4      Clinical Notes of Dr C Macdonald, pp 3-9           Various
R5      Repatriation Commission Determination concerning Osteoarthritis   7 September 1990
R6      Service Document – "Confidential Daily Medical Record" of the Applicant   10 March 1965

ISSUES

The issues in this matter are:
(i) Is the correct diagnosis of Mr Crabbe's psychiatric condition post traumatic stress disorder, or another condition, differently diagnosed?

Is the psychiatric condition suffered by Mr Crabbe war-caused?

In the event that Mr Crabbe is found to have a war-caused psychiatric condition, it was agreed by the parties and accepted by the Tribunal, that the assessment of the condition should be remitted to the Commission.
SERVICE
Mr Crabbe served in the Royal Australian Navy, joining on 24 April 1959 and being discharged on 24 April 1968. Mr Crabbe has operational service, serving in HMAS Duchess from:

27 May 1965 to 26 June 1965 in Vietnam
11 August 1965 to 25 September 1965 in Malaysia, Singapore and Brunei
20 September 1965 to 3 October 1965 in Vietnam
26 October 1965 to 24 December 1965 in Malaysia, Singapore and Brunei
4 January 1966 to 2 March 1966 in Malaysia, Singapore and Brunei

LEGISLATION

A determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Section 5D of the Act deals with the definition of injury and disease.
Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:
"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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…."
Section 13 of the Act deals with eligibility for pensions.
Section 119 of the Act deals with decision-makers not being bound by technicalities and acknowledges that decision-making under the Act is of an administrative rather than judicial nature. Section 119 of the Act allows decision-makers to take into account matters such as the effects of the passage of time, the absence or deficiency in records and the diminished memory of veterans.
The standard of proof to be used in relation to Mr Crabbe's operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:
"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.
…"
In relation to the Tribunal's decision about the correct diagnosis of Mr Crabbe's psychiatric condition, the standard of proof to be applied is contained within subsection 120(4) of the Act which provides:
"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
Section 120A of the Act deals with Statements of Principles and requires that the assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority ("RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
"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)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
…"

STATEMENTS OF PRINCIPLES

The Statement of Principles considered relevant by the Tribunal and agreed to by the parties is Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder. The Tribunal notes that in the Full Court decision in Repatriation Commission v Gorton (2001) 65 ALD 609, the current Statement of Principles is applied and if the Applicant cannot succeed under the current Statement of Principles, then the Statement of Principles in force at the time of the original decision is to be utilised.
EVIDENCE OF MR KEITH HALE CRABBE
Mr Crabbe told the Tribunal that prior to his naval service, he was a normal 18 year old who enjoyed life and played a great deal of sport. He did not drink or smoke, he stated, prior to joining the Navy. Mr Crabbe noted that he had many friends and had no difficulties in making friends. Things changed for him, he believed, after having served in HMAS Duchess.
Mr Crabbe told the Tribunal of his non-eligible service in HMAS Tobruk in 1960 or 1961 and of a particular incident involving HMAS Anzac. HMAS Tobruk, in which Mr Crabbe was serving at the time, was participating in training exercises. HMAS Anzac was approximately 12 kilometres away from HMAS Tobruk and her guns were trained on Mr Crabbe's ship. Mr Crabbe explained that usually, just before firing, the guns would be pointed in a different direction away from HMAS Tobruk. However, on this occasion, something happened which then resulted in HMAS Tobruk receiving a "salvo". One shell hit the boiler room, another took out the radio mast and the rest fell around the ship. Mr Crabbe described the shells as dummy shells or "blanks", but they were nevertheless high speed steel projectiles. At the time, Mr Crabbe was in the radio office and felt the ship shudder in addition to the entire ship losing power. Mr Crabbe was alone in the radio office as the rest of the men were having a morning tea break. It took four or five minutes to find out what had happened, when someone came and told him that the ship had been hit on the port side. He was told that the ship was taking water. The Chief Radio Officer then told Mr Crabbe to report to his mess deck where he was to retrieve his hammock, which was to be used with other hammocks, to fill the hole in the side of the ship. Within the next 15 to 20 minutes, Mr Crabbe found out that the ship was not going to sink. Action was taken to pump all the ship's fuel and water from the port side into the other side. This action caused the ship to tilt and raised the hole in the port side some four or six feet above the water line. Later, HMAS Anzac towed HMAS Tobruk to Sydney Harbour.
Mr Crabbe told the Tribunal that when the shell hit the boiler room, two stokers were burnt, one across the chest and shoulders. The men were taken to the upper deck. While Mr Crabbe acknowledged that the ship's Record of Proceedings did not record any such injuries, he stated that the men were burnt and were attended to by the doctor and sick bay attendant.
Mr Crabbe described feeling very frightened at that time. The incident between HMAS Tobruk and HMAS Anzac had occurred during Mr Crabbe's fourth or fifth month at sea when he was 18 years old. He stated that this event has stayed with him and he did not receive any counselling or medical help at the time. Furthermore, Mr Crabbe told the Tribunal that the memories come up from time to time in other situations.
Mr Crabbe described a number of further incidents that occurred during his operational service. Firstly, when in Vietnam in Vung Tau harbour, Mr Crabbe remembers there being 20 or 30 ships training their guns on the mainland and described seeing a great deal of gun fire and many aircraft flying overhead. There was continual bombing onto the shore, between three or six kilometres away, he told the Tribunal (Transcript, p33). The bombing came from both aircraft and ships. Mr Crabbe described seeing American bombers dropping Napalm, especially at night when the bombing lit up the skies. The shelling of the shore occurred on both trips Mr Crabbe took to Vietnam. The Writeway Research paper indicated that shelling took place on the second trip. There was however an incident referred to in the "Navy News" for July 23 which refers to several displays of bombing, rocketing and general mayhem but did not refer to Napalm or fighter bombers. This bombing occurred more or less the same day as Mr Crabbe went ashore on one occasion, when he was on duty as the ship's postal officer. Mr Crabbe stated that he was only in Vietnam for four or five days.
The second incident occurred when he was undertaking duties as the ship's postman. He was working in the Communications Branch at that time. Mr Crabbe had gone to the Army depot ashore at Cape St. Jacques at Vung Tao. It was his duty to pick up the mail. He initially had been accompanied by another servicemen but they became separated. Mr Crabbe stated that he entered a shed which he believed was the mail depot. He had gone approximately three feet into this establishment when he was approached by an American serviceman who told him that this was not a mailroom but contained body bags. Mr Crabbe was advised to leave immediately. The American serviceman told Mr Crabbe that the bags, of which Mr Crabbe estimated there were 20 or 30, contained deceased American servicemen. Mr Crabbe stated that he did not actually see any bodies, having only been told that the bags contained bodies. Mr Crabbe further stated that he was not affected by the experience at the time. He does remember the sickly smell of the bodies. Later in evidence, Mr Crabbe stated that he considered this experience of coming upon the body bags was the worst he experienced during his operational service. It bought home to him the reality and horror of people being killed.
Mr Crabbe acknowledged that while Commodore Burnside had reported that Leading Radio Officers would not be sent out from the ship as a postman, Mr Crabbe stated that it was always the situation that the Leading Radio Operator acted as the postman and certainly, the Leading Radio Operator before him was also in that position. Thus, when Mr Crabbe became Leading Radio Operator, he became the postman, as did the Leading Radio Officer after him. Mr Crabbe specifically remembered that Leading Radio Operator Rogers, acting as the postman, forgot to mail the captain's cigarettes back to Australia and was in fact prosecuted for this. Mr Crabbe further stated that everyone in the ship knew that the Leading Radio Operator was the postman. He did not undertake shift work in his substantive position and therefore was able to undertake postman duties.
Another incident on operational service occurred when Mr Crabbe was serving in HMAS Duchess. He described patrolling every night around Borneo and the Malacca Straits during the Indonesian confrontation. The ship was looking for Indonesian regular soldiers or terrorists coming across into Malaysia or Singapore. Mr Crabbe told the Tribunal that the ship would stop between 20 or 30 suspect boats each night. Sometimes the occupants would be brought aboard HMAS Duchess or the boats were sunk. Mr Crabbe believed that HMAS Duchess sank about ten or 12 small boats. Commodore Burnside's report noted that there was an unsuccessful attempt to sink one small boat and two people were taken on board. This always happened, Mr Crabbe stated. There were Malaysian police or military officers on board HMAS Duchess as interpreters and they would assess whether or not the people were fishermen or Indonesians trying to enter the country with weapons. If there was any such suspicion, their boats were sunk.

On one particular occasion, HMAS Duchess was sent up a large river, whose name Mr Crabbe did not recall. The names referred to by Commodore Burnside in the report by Commodore Mulcare, namely Cowrie Bay and Wallis Bay meant nothing to Mr Crabbe. From the ship, the mainland was then bombarded for approximately 30 minutes, in an effort to destroy a suspected Indonesian guerilla camp. At that time, there were approximately ten British "Commandoes" on board because they were under British command in the Far East. The British Radio Operator had sprained his ankle and Mr Crabbe took his place in a landing patrol. Mr Crabbe was asked to go with the British Commandoes to check whether or not the suspected guerilla camp had been destroyed. Mr Crabbe explained that while Commodore Burnside had not recalled that sailors went on patrols with army units, Mr Crabbe was adamant that the British Radio Operator had sprained his ankle and the patrol needed a Radio Operator and Mr Crabbe was selected.
On land, the group walked for approximately three or four kilometres into the jungle. There was nothing in the camp, Mr Crabbe reported, except for a dead Gibbon which was hanging from a tree. The group then returned to the ship. Mr Crabbe described feeling "quite frightened" as he had never done anything like this before. He was also carrying a .38 revolver in addition to his radio.
Mr Crabbe did not agree with the recollection of Commodore Burnside, the Captain of HMAS Duchess, that no one landed looking for a suspected guerilla camp. Mr Crabbe stated that Commodore Burnside must have forgotten. Mr Crabbe was adamant that he was there and would attest to his actions. Furthermore, Mr Crabbe had actually radioed a report about the landing and had telexed it to the Far East Command. Mr Crabbe reiterated that in the Communications Branch, he saw communications going in and out. He knew why HMAS Duchess was sent up the river, it was being asked to destroy a suspected guerilla camp. By the time the landing party had arrived, there was no one to be seen. Mr Crabbe did not agree that HMAS Duchess was only bombing the river basin, as reported by Commodore Burnside. Mr Crabbe stated that to simply bomb the mainland would have been a waste of ammunition if there was not a concern of the presence of a guerilla camp.
Mr Crabbe recalls speaking to Commodore Burnside at a funeral, two and a half years ago. When speaking to Commodore Burnside, the Commodore had not recalled many of the events that happened during their service in HMAS Duchess, Mr Crabbe stated. Mr Crabbe did not however specifically discuss the landing with Commodore Burnside.
Later in evidence, Mr Crabbe stated that he was in the radio office when the bombing of the suspected guerilla camp was taking place. Mr Crabbe stated that he did not recall firing from the ship on more than one occasion, but there was small arms fire.
Prior to his first experiences in Vietnam, Mr Crabbe stated that he would consume the alcohol ration of one can of beer per day. He stated that it was always possible to obtain extra beer if he wanted it. Mr Crabbe did not agree that he was a heavy drinker before he went to Vietnam. In relation to the report of Psychiatrist, Dr I Hayes, who noted on 29 February 2000 (T10) that Mr Crabbe began drinking at age 18 after joining the Navy, Mr Crabbe later acknowledged that he did consume alcohol prior to Vietnam service. Dr Hayes had further stated that Mr Crabbe did not become a heavy drinker until he was in Singapore.
After the experiences in Vietnam with the bombing and the exposure to the body bags, HMAS Duchess left for Hong Kong. Mr Crabbe stated that he was very relieved to leave Vietnam waters but he became very inebriated in Hong Kong. His drinking pattern then was such that he would consume alcohol whenever he went ashore which was once every two weeks. Mr Crabbe stated that at those times, he was never sober and would drink solidly for up to two or three days (Transcript, p25).
When Mr Crabbe left the Navy, he continued heavy alcohol consumption and told the Tribunal that he could not do without a drink. He believed that he was drunk just about every day and would consume a few beers during the day and three, four or five scotches at night. He continued this drinking pattern for many years but ceased such heavy alcohol consumption about three or four years ago. Mr Crabbe stated that he now goes on drinking binges once every few months. Mr Crabbe stated that he cut down his alcohol consumption because of his ulcers. He described himself as a happy drunk, although when he consumed Scotch whisky after having six beers, he was more easily provoked.
Mr Crabbe stated that he did not know why his General Practitioner, Dr C Macdonald, in his referral letter to Dr Hayes dated 27 January 2000, stated that Mr Crabbe has had no alcohol for several years (Exhibit R4, p5). Mr Crabbe stated that Dr Macdonald does know about his drinking binges. Furthermore, Mr Crabbe offered the opinion that Dr Hayes may have reported that Mr Crabbe rarely drank because that was what the situation was at the time Dr Hayes examined Mr Crabbe. Since that visit, Mr Crabbe stated that he has continued to binge drink.
After leaving the Navy, Mr Crabbe stated that he worked in the Real Estate field in Canberra for approximately six years. Mr Crabbe then travelled to Queensland and subsequently worked in real estate. He later became a salesman selling motor vehicles over a period of approximately two years. After this occupation, Mr Crabbe undertook odd jobs including labouring and other sales work. Mr Crabbe stated that he did not keep these positions long. He did not know why this was so, but noted that he moved around a great deal. Mr Crabbe stated that he was not very confident in himself at that time. Mr Crabbe next worked for approximately two years in Lismore driving buses. He worked for the company, "Coach Trains" and some other bus companies.
Mr Crabbe told the Tribunal that as a bus driver, he could not stand the whingeing and whining of the passengers. He would explode and swear at those on the bus. These types of incidents occurred not only when he worked for Coach Trains but also when he worked for three months for a company called "Astra".
Mr Crabbe denied that his irritability during this period related to pain from his back and knees. He was referred to his 1990 claim for Disability Pension for his back and knees in which he had recorded that these conditions made him irritable. Mr Crabbe stated that he takes painkillers for the pain. In a "Lifestyle Report" dated 8 August 1990 (Exhibit R5, p13), Mr Crabbe noted that he was irritable because of back pain and did not go out very much. Mr Crabbe told the Tribunal that it was back pain and depression that made him irritable. He had ticked in the form that his social life was affected by his knees. Mr Crabbe also noted that he had been a car salesman and sold other products and agreed that these occupations required him to be social with clients. He was able to manage this for a while, he told the Tribunal. Mr Crabbe, when considering his employment history, stated that he did not spend more than two or three and a half years in any one particular job during the period 1974 until 1997.
Mr Crabbe stated that he last worked in 1997. He was "put off" by Coach Trains and then could not find further employment. Mr Crabbe was put off work with eight others. He believed that Coach Trains wanted to "get rid" of troublemakers. From Mr Crabbe's observations, the company seemed to dismiss people on a whim and then occasionally re-employ them. Mr Crabbe tried to obtain further employment and to this end, registered with the then Commonwealth Employment Service (CES).
Mr Crabbe currently lives in Byron Bay in a flat attached to the home of his son and daughter-in-law. During the day, he stays in the flat or walks down to the beach. Mr Crabbe stated that he has no friends in Byron Bay, and in fact, stays away from people. He used to play golf but has not played for approximately three years because he cannot bear to be around people. Mr Crabbe shops in a small local store where there are not many people. Dr Hayes had noted that Mr Crabbe copes with crowds in supermarkets and did not describe panic attacks (T10, p34). Mr Crabbe stated that he did not tell Dr Hayes this. In holiday peak periods, Mr Crabbe stays away from Byron Bay, heading for less crowded places such as Mount Warning National Park. Mr Crabbe stated that he stays away from people to avoid becoming angry "over nothing".
Mr Crabbe was first married in 1964. The marriage broke down, he stated, in about 1976 because of his alcohol consumption and continuing arguments. There are two children from the marriage, his son, he currently lives with and his daughter who lives on the Gold Coast. Mr Crabbe sees his son and daughter-in-law twice per week and would see his daughter once every two or three months and talks to her by phone twice per month.
In relation to his health, Mr Crabbe stated that he first saw Dr Macdonald about emotional difficulties in approximately 1999. Dr Macdonald referred him to Dr Hayes for a psychiatric consultation in 2000. Mr Crabbe's family had prior to this continually talked to him about their concerns that there was something wrong with his psychological health, but he stated that he was stubborn and would do nothing.
Mr Crabbe has consulted Dr Hayes on two occasions. He is not currently receiving any regular treatment. While Dr Hayes has told him that treatment is available, Mr Crabbe stated that no one has specifically told him that he should undergo treatment. From Mr Crabbe's perspective, he believes he is depressed and anxious when he is around people. Mr Crabbe consults his General Practitioner, Dr Macdonald, once every two months in order to have his prescriptions for ulcer medication filled. Dr Macdonald does not speak to Mr Crabbe about his psychiatric condition.
Mr Crabbe told the Tribunal that for years he would only ever sleep two or three hours per night. He had nightmares and still experiences them. Mr Crabbe had told Dr Hayes that he had not slept well for 20 years. He just tosses and turns. Mr Crabbe stated that if he goes to sleep at 8pm he would wake at 11pm. If he goes to sleep at 2am, he is awake at 5am. He can wake up in a lather of perspiration or be crying. Mr Crabbe also occasionally walks in his sleep, believing that this characteristic started when he was serving in HMAS Duchess, when in Vietnam for the first time. In Vietnam, he was told that he wandered into a ladder and another sailer guided him back to bed. He had no memory of this when he later woke up. Mr Crabbe was then asked to see a naval doctor. In Mr Crabbe's view, his sleep walking commenced in 1965 or 1966. He was treated while serving in HMAS Duchess with tablets for his sleep walking. There is a "Confidential Daily Medical Record" dated 10 March 1965 which indicates that Mr Crabbe was having difficulty sleeping for the past ten days. It noted that there was sleep walking and medication was subsequently prescribed (Exhibit R6). In 1978, Mr Crabbe tried hypnotherapy in an attempt to assist with his dreams and his anxiety. The treatment did not work, he told the Tribunal.
EVIDENCE OF DR A DINNEN, CONSULTANT PSYCHIATRIST
Dr Dinnen provided a report dated 20 June 2001 (Exhibit A2). Dr Dinnen opined that there was sufficient information to justify a diagnosis of post traumatic stress disorder and he agreed with the opinions of Dr Hayes and Dr Macdonald, who also had concluded that Mr Crabbe suffers from post traumatic stress disorder.
Dr Dinnen noted that many patients with post traumatic stress disorder can only be identified after extensive evaluation, because they exhibit a common psychological defensive strategy and coping mechanism of denial and suppression of painful experiences. In relation to the incident which occurred during non-operational service when HMAS Anzac shelled HMAS Tobruk, Dr Dinnen opined that that accident caused the onset of Mr Crabbe's post traumatic stress disorder. The stressor was Mr Crabbe being alone in the wireless room when HMAS Anzac accidentally shelled HMAS Tobruk. The ship lost all power and there was a period of uncertainty and confusion before it was clear what was happening. Dr Dinnen opined that there was sufficient concern that the hole created in the ship's side could lead to the ship sinking, that hammocks, including Mr Crabbe's, were used to assist in plugging the hole. Furthermore, when Mr Crabbe left the radio room and went on deck, he saw two sailors who had been burnt. The stressor therefore was the period of time from the impact of the shells until HMAS Tobruk was taken in tow. Mr Crabbe had described his reaction to Dr Dinnen of being quite terrified. Dr Dinnen noted that the report of Commodore Mulcare did not refer to the burnt sailors. Dr Dinnen stated that he took such reports with "a grain of salt". Dr Dinnen stated while such reports are reasonable to give an overview as to whether a veteran was where he or she said they were, as an eye witness account of what happened, such historical reviews are often not all that reliable. Dr Dinnen gave the example of a veteran who is in action and others who are part of this same action, yet hold quite different views to each other and to that of the official documentation as to what happened and their individual experience of the shared event. Dr Dinnen did acknowledge that if Mr Crabbe said men were injured and yet there was no report of such injuries in the official records, then that was a rather "peculiar event". He gave Mr Crabbe the benefit of the doubt postulating that the sailors' injuries may not have been as severe as Mr Crabbe thought at the time.
Dr Dinnen opined that when a person is exposed to a severe stressor then the reaction may be delayed. This is so particularly if the person has duties in a responsible position, then he or she will keep functioning sometimes in a type of dissociated state with the reaction inevitably postponed until they get time to take in what they have been through and to react to it. The onset can vary dramatically from days to years. In Dr Dinnen's opinion, Mr Crabbe's first trip to Vietnam aggravated or worsened his symptoms of post traumatic stress disorder. It was a reasonable hypothesis, Dr Dinnen opined, that the event in HMAS Tobruk in 1960 caused post traumatic stress disorder and then being in Vietnam caused the non specific symptoms to become overt. In this regard, Dr Dinnen noted that Mr Crabbe was sleep walking on HMAS Tobruk after the incident. In Dr Dinnen's opinion, the post traumatic stress disorder was evidenced by symptoms of sleep walking, dreams and the need for medical attention. The increase in alcohol consumption and Mr Crabbe's anxiety occurred when he served in HMAS Duchess. It is also a reasonable view, Dr Dinnen opined, that the fact that Mr Crabbe had post traumatic stress disorder made him more vulnerable to the level of stressors around him.
In relation to the other incident in Vietnam, when Mr Crabbe came accidentally upon the body bags, having been told of Mr Crabbe's evidence to the Tribunal that he did not see the dead bodies but only body bags, Dr Dinnen noted that Mr Crabbe had told him that he had actually seen dead bodies. Dr Dinnen noted that perhaps Mr Crabbe was "using a bit of poetic licence when he told me he saw dead bodies". Dr Dinnen's concurrent notes at the time of the examination indicated that Mr Crabbe had told him that he saw body bags and dead bodies. When assessing such matters, Dr Dinnen noted that there is a difference between a legally accurate account and a psychological account. Whether he saw the body bags or realised after sometime there were body bags, made little difference, in Dr Dinnen's view, as the emotional impact is of the same order.
Mr Godwin put to Dr Dinnen that people see body bags in hospitals and at road accidents, yet the community is not full of people with post traumatic stress disorder as a result. Dr Dinnen opined that one has to take into account the individual inexperience or experience of a particular person and the context of the event. In the context of Mr Crabbe's circumstances, his evidence was that the body bags event affected him and he did not want to be there. The context for Mr Crabbe was that he walked into a building and was told there were dead bodies in the bags. That it effected him more than logic might suggest it would, should not, on all of the information, prevent him from having a diagnosis of post traumatic stress disorder. Dr Dinnen opined that objectively, seeing body bags is emotionally a powerful experience and while Mr Crabbe's response may be disproportionate, it was explainable in the context of that particular man. It would be for Mr Crabbe, more than just a routine experience. Mr Godwin further noted that Mr Crabbe had told Dr Shand that he vomited when he saw the body bags. His evidence to the Tribunal had been however, that he did not seem to be affected at the time. Dr Dinnen concluded that it was a reasonable proposition that the experience of the body bags did constitute an experience that was for Mr Crabbe, emotionally distressing.
Dealing with the incident of the shelling and bombing of the mainland by American ships offshore, Dr Dinnen noted that the trip to Vietnam, on operational service and at times at action stations, while watching bombing in the distance and also seeing body bags, has an overall impact which was conveyed by Mr Crabbe to Dr Dinnen as being distressing. This opinion is based not just on objective criteria but according to Mr Crabbe's subjective response to the circumstances in which he found himself. There may well have been bombing in the distance but Dr Dinnen acknowledged that Mr Crabbe did not see any individuals being injured or killed.
Finally, referring to Mr Crabbe's experience in Malaysia and Borneo, Mr Godwin put to Dr Dinnen that Mr Crabbe's account was not supported by the historical material. Dr Dinnen opined that if there was no one available who was involved in the activity of the landing party searching for the guerilla camp, who could corroborate Mr Crabbe's story, then what was left was relying on Mr Crabbe's account. From his clinical experience over many years, Dr Dinnen opined that where a veterans' account has been questioned on the basis of historical documentation, the vast majority of those cases have turned out to support the veteran's view of events. The historical documents had not been detailed enough and were not reliable in those particular instances. At the end of the day, Dr Dinnen concluded, unless there was something to contradict the veterans' account and if he is to be given the benefit of the doubt in relation to his account, then from Mr Crabbe's point of view, his story has a "ring of truth about it". Dr Dinnen stated that there was no embellishment in his discussions with Mr Crabbe about what happened. It was simply that some soldiers went ashore and he was sent along as the radio operator and he found it rather emotionally significant.
Dr Dinnen's concluding opinion is that Mr Crabbe had the onset of post traumatic stress disorder when serving in HMAS Tobruk. The condition was aggravated in Vietnam and Borneo, but clinically it was diagnosed years later. Dr Dinnen opined that if he had examined Mr Crabbe in the 1960s after HMAS Tobruk, he believed that he would have been able to diagnose post traumatic stress disorder and that after the trips to the Vietnam and Borneo this condition would have been evidenced to have worsened. That examination would have to take place with Dr Dinnen knowing what he knows now about the various events. However, if he examined him in the 1960s with what was known at that time, then the diagnosis may have been an anxiety state with alcohol abuse.

In relation to the diagnosis of adjustment disorder, that was a diagnosis that gained currency in the past few years, Dr Dinnen commented. Dr Dinnen opined that if such a diagnosis was subjected to the same sort of rigour that is now applied to the diagnosis of post traumatic stress disorder, then psychiatrists would have to think hard about it. Dr Dinnen further opined that adjustment disorder is a "loose sort of diagnosis" and is being used a great deal by psychiatrists as a "catch-all diagnosis". Dr Dinnen had many problems with the diagnosis of adjustment disorder. Similarly, in relation to the diagnosis of personality disorder, there needs again to be the same type of rigour attached to such a diagnosis. Personality disorder is a diagnosis, Dr Dinnen opined, where the patient does not profess any symptoms by definition. Once a person commenced talking about suffering or feeling uncomfortable, feeling anxious or depressed, then the psychiatrist should go past the diagnosis of personality disorder, unless there is a suggestion the person was malingering or hysterical or untruthful.
Dr Dinnen stated that the correct diagnosis of Mr Crabbe's condition is post traumatic stress disorder with psychoactive substance abuse in the form of alcohol, as part of that disorder. Mr Crabbe's alcohol abuse is not a separate condition, Dr Dinnen stated.
Dr Dinnen noted that Mr Crabbe did not tell him that the most stressful event for him was the experience of the body bags. Mr Crabbe also did not tell Dr Dinnen that he had remembered the sickly smell of the dead bodies. Dr Dinnen stated that if Mr Crabbe experienced the smell and it had a marked impact upon him, then that was a very important element of his reaction and would strengthen the argument that this was a significant stressor which aggravated Mr Crabbe's post traumatic stress disorder.
Dr Dinnen saw that there was a combination of stressors in Mr Crabbe's experience. He experienced the severe stressor of HMAS Anzac shelling HMAS Tobruk, and then superimposed on this was the knowledge that he was going into an operational theatre of war, which was distressing in itself. In Dr Dinnen's opinion, that experience was probably the significant trigger to Mr Crabbe's sleep walking at the time and he saw this as a manifestation of the post traumatic stress disorder consequent on the experience he had in HMAS Tobruk. He then experienced the severe stressors in Vietnam and Borneo/Malaysia.
Dr Dinnen opined that if the Tribunal was of the opinion that there was no severe stressor, then the account Mr Crabbe had given to Dr Dinnen and other doctors including symptoms of irritability, sleep disturbance, heavy drinking, social withdrawal and avoidance of society would indicate an anxiety disorder. Thus if the significance of the stressors was discounted, and taking account of Dr Shand's opinion which reflected the thinking current in psychiatric theory some 30 years ago, this would result in a diagnosis of anxiety neurosis. In today's terms, this would be a generalised anxiety disorder.
In relation to the application of the definition of a stressor, from the relevant Statement of Principles and the diagnostic criteria contained within DSM IV, Dr Dinnen noted that what one is relying on in psychiatry, as opposed to a court of law, is the patient's account of what a person believed has affected him or her. Dr Dinnen used the example of childhood sexual abuse where there has to be a reliance completely in the vast majority of cases on the individual's recollections of their subjective response to something which often cannot be historically proven. In relation to the experiences in Vietnam, Dr Dinnen opined that the situation is no better off clinically than when dealing with the case of child abuse. People who are adults who are talking about child sexual abuse are still relying on the individual's account of what he or she states caused him or her to be traumatised and the effect that it had upon the person.
EVIDENCE OF COMMODORE P M MULCARE (Rtd.)
Commodore Mulcare provided a report dated 30 August 2001 (Exhibit R3).
In relation to the shelling by HMAS Anzac of HMAS Tobruk, Commodore Mulcare noted that on Wednesday, 14 September 1960, HMAS Anzac was conducting "a throw off firing with HMAS Tobruk as target". A projectile hit HMAS Tobruk's portside in the engine room on the water line. This caused a hole four feet six inches long and three feet deep and flooded the engine room to a depth of 14 feet. There were no injuries reported in the ship's Report of Proceedings. Rear Admiral Crawford AM RAN Rtd, who was the ship's second diving officer and on the scene almost immediately, was reported by Commodore Mulcare to not recall any injuries to personnel. Mr Crabbe served in HMAS Tobruk from 1 July 1960 until 21 October 1960 (Exhibit R3, p6).
Commodore Mulcare noted that HMAS Duchess escorted HMAS Sydney to Vietnam and anchored in Vung Tau Harbour in June 1965 and also in September 1965. Commodore Mulcare noted that none of the ship's Reports of Proceedings for June 1965 contained any particular comments about that first visit. In the September Report of Proceedings, there was an extract from HMAS Vendetta which noted that:
"The activity of the American Forces in Vietnam was very much brought home during the short stay at anchor, with a great deal of air activity and a bombardment carried out by USS Preston one mile away from our anchorage." (Exhibit R3, p2)
Commodore Mulcare noted that there was an air of activity noted from the busy airfield at Vung Tau. HMAS Sydney's ship's log for Wednesday, 29 September 1965, recorded that the USS Preston entered the Mekong Delta and then later departed at 17:45. USS Preston was the ship which carried out the bombardment which other reports suggest was directed towards Long Son Island. It is not known where USS Preston anchored in relation to HMAS Duchess. Commodore Mulcare opined that the sound of gunfire should not have been particularly loud and the impact area was at least three to six miles away.
Commodore Mulcare noted that Mr Crabbe was a Leading Radio Operator in 1965 and almost certainly would have been employed as a watch keeper in charge of the watch in the Main Wireless Office and was probably in four watches. This watch keeping routine, Commodore Mulcare commented, is not compatible with the duties of a ship's postman, and it would be unusual to find a Leading Radio Operator undertaking duties as a postman. Commodore Burnside, the Commanding Officer of HMAS Duchess in 1965, advised Commodore Mulcare that he did not believe that a Radio Operator could have been spared from his specialist duties to act as a postman. Lieutenant Commander Franklin, (then an Ordinary Seaman in HMAS Tobruk), stated that he believed the postman was "LRO(S) Norm (NF) Avent". Commodore Mulcare noted that RO(S) sailors had different duties to RO sailors and were not permanent watch keepers, and would have been better able to carry out the duties of postman. Commodore Mulcare was unable to locate Mr Avent. Assuming that Mr Crabbe was the ship's postman, Commodore Mulcare could find no evidence relating to Mr Crabbe's contention that he saw body bags in a shed ashore. There is no record of any fighting on the Vung Tau peninsular at the time of either of Mr Crabbe's visits to Vietnam and there were medical facilities in the town. Commodore Mulcare opined that it was improbable that there would be a shed in the city area, readily accessible to passers by such as Australian soldiers, which contained bodies in body bags.
In relation to the evidence of Mr Crabbe participating in a landing party to check out a guerilla camp, Commodore Mulcare noted that there was no evidence found that Mr Crabbe went on a ten to 14 kilometre patrol to inspect an Indonesian guerrilla camp. Commodore Mulcare reported that HMAS Duchess served in the Commonwealth Strategic Reserve, under the command of the Commander-In-Chief Far East Station from August 1965 until the end of February 1966. Together with HMAS Vendetta, she was detached to escort HMAS Sydney from Manus Island to Vung Tau in September 1965. There are various reports in HMAS Duchess' Report of Proceedings involving interception of barter traders, inspection of boats and attempted sinking of suspected vessels. Commodore Burnside believes that on 12 January 1966, there was an exercise firing from Cowie Bay, north of Sebatik Island. That was about ten nautical miles from the ship's probable anchorage. Commodore Burnside did not recall any reports of guerilla activity there. There were firings also from Wallace Bay on 19 and 31 January 1966. Commodore Burnside thought that there would have been firing into a riverine complex to the west into specific areas, but not as specific targets as far as the ship was aware. These areas were up to eight or nine miles away on the Malaysian side, but near to the border. Commodore Burnside commented that the terrain there was quite inhospitable and was emphatic in his discussions with Commodore Mulcare that no one landed from the ship to visit any of these target areas. The log does not record any person's landing for that purpose. Commodore Mulcare commented that ships did sometimes exchange personnel with the Army in Borneo, but believed these were essentially social visits. He reported that sailors did not go on operational patrols with Army units. Such exchanges were furthermore usually mentioned in the ship's Reports of Proceedings. There was no such mention in HMAS Duchess' Report of Proceedings for January and February 1966. There was no evidence to support Mr Crabbe's contention that he went on the patrol to inspect the Indonesian guerilla camp that the ship had allegedly been firing at.
Commodore Mulcare concluded that Commodore Burnside had read his report and provided a statement that he agreed with the findings and opinions of Commodore Mulcare (Exhibit R3, Attachment 12).
EVIDENCE OF DR J W SHAND, PSYCHIATRIST
Dr Shand provided three reports, namely two reports dated 30 June 2001 (Exhibit R1) and a final report dated 8 November 2001 (Exhibit R2). In his initial report, Dr Shand opined from the available information, that Mr Crabbe was suffering from a personality disorder and alcohol dependence / abuse which interfered with his last job and family life, contributing to the break up of his marriage. Dr Shand opined that Mr Crabbe's circumstances satisfied the Statements of Principles concerning Psychoactive Substance Abuse and perhaps Dependence. There was no evidence, however, of a stressor to cause this. Dr Shand opined that Mr Crabbe did not suffer from post traumatic stress disorder as he did not satisfy the relevant Statement of Principles. Dr Shand did note however that there was a traumatic experience when Mr Crabbe served in HMAS Tobruk. There was no evidence however of a traumatic experience to satisfy the Statement of Principles arising out of his operational service. Dr Shand noted that there was a history of heavy alcohol consumption commencing in Singapore prior to operational service and which escalated progressively thereafter until the present day in the form binge drinking, despite the serious medical risks.
In his supplementary report of 30 June 2001, Dr Shand opined that the alleged stressors upon which Dr Hayes' initial diagnoses of adjustment disorder and later of post traumatic stress disorder, depended, did not satisfy the relevant Statements of Principles for severe stressors either towards the end of Mr Crabbe's period in Canberra or when he moved to Surfers Paradise when his marriage broke up. Dr Shand opined that the progressive downhill course of Mr Crabbe's life since that time was due to personality disorder and alcohol abuse and not to the alleged stressors during naval service.
In his final report of 8 November 2001, Dr Shand confirmed his opinion that Mr Crabbe's circumstances satisfy the relevant Statement of Principles to allow a diagnosis of personality disorder not otherwise specified. Dr Shand expressed reservations however that the history has not been traced back to Mr Crabbe's adolescence and early adult life and that alcohol abuse aggravated his behaviour disorder arising from his personality disorder. Dr Shand noted that the Writeway Research Service report raised doubts about certain important parts of Mr Crabbe's history, concerning the major stressors.
SUBMISSIONS
Mr Dawson submitted that either Mr Crabbe has a post traumatic stress disorder caused by the incident when he served in HMAS Tobruk or he has some other psychiatric condition which possibly is an anxiety disorder. The incident is documented and there could be no doubt that Mr Crabbe was confronted with possible serious injury or death when HMAS Anzac shelled his ship. Mr Crabbe did not know for some time whether or not the ship was sinking and he had given evidence to Dr Dinnen that he was terrified. He was 18 years old at that time. There is an alternate possibility that that event caused a generalised anxiety disorder, Mr Dawson submitted. In any event, Mr Dawson submitted that Mr Crabbe had at the time either a post traumatic stress disorder or another psychiatric condition however labelled, and possibly being anxiety disorder.
When Mr Crabbe was about to go to Vietnam, Mr Dawson submitted that his symptoms became evident and like many veterans who cope with post traumatic stress disorder, once they experience some crisis in their life, such as a marriage breakdown or a trip into an operational area, their lives fall apart. This was Mr Crabbe's first voyage to Vietnam. Mr Dawson submitted that the stressors outlined by Mr Crabbe occurring during his operational service, both separately and together, aggravated Mr Crabbe's post traumatic stress disorder. If the Tribunal found some other diagnosis for Mr Crabbe's psychiatric condition, which made him vulnerable, then the stressors caused this other condition to worsen.
Mr Dawson referred the Tribunal to the decision Re Howe and Repatriation Commission (1999) 59 ALD 309. Mr Howe had four trips to Vietnam and the Tribunal in that matter found that because of vulnerability created by an event which the veteran suffered prior to going to Vietnam, the incidents experienced during operational service themselves were then enough to aggravate a pre-existing post traumatic stress disorder. That decision was not appealed. Mr Dawson referred the Tribunal to Re Hughes and Repatriation Commission [2000] AATA 571. In that case, prior to going to Vietnam, the veteran was involved in a training exercise working on the banks of the Georges River when the river caved in and two of the work party were buried alive. The veteran was involved in an attempt to dig the soldiers out in time. The veteran was in fact a friend of one of the men who had been buried. In that matter, the Tribunal found that the veteran had post traumatic stress disorder that was then aggravated by service in Vietnam. Mr Dawson submitted that Mr Crabbe's circumstances are such as to suggest that just because the shelling of HMAS Tobruk occurred in friendly waters out of operational service, this could not take away from the stress and fear reaction experienced by an 18 year old, finding that there was a large hole having been blown in the side of the ship.
Turning to the events in Vietnam, Mr Dawson noted that there were comments in HMAS Vendetta's Report of Proceedings which noted the activity of the American forces ships in Vietnam. Exhibit R3, Attachment 10, provides evidence of the night sky being lit by displays of "bombing, rocketing and general mayhem". There was obviously, Mr Dawson submitted, a great deal of activity, with graphic descriptions provided in the material. This experience in conjunction with Mr Crabbe's pre-existing psychiatric condition, made it very likely that such activity in itself and alone would be a severe stressor.
Furthermore, in relation to service in the Far East and his participation in the landing patrol, there was evidence of the presence of subversive barter traders. Mr Dawson submitted that Mr Crabbe provided a very plausible account as to why he went ashore. He did not suggest that it was normal and appropriate for him to have been on that patrol but he provides an explanation which is not contradicted by the material.
Mr Dawson further contended that in relation to questions of what causes Mr Crabbe's irritability, if it is that Mr Crabbe is found to have a war-caused post traumatic stress disorder and in addition his back pain also makes him irritable, that should not deny him a Disability Pension for post traumatic stress disorder if the other legislative and diagnostic criteria are met.
The Tribunal was referred to the decision in Re Cranage and Repatriation Commission (2000) 63 ALD 312; [2000] AATA 1119. In relation to that case, Mr Dawson submitted that the findings did not adversely impact on Mr Crabbe's application for review. At paragraphs 61 to 68 in Re Cranage and Repatriation Commission (supra), there is a discussion in relation to evidence provided by Professor McFarlane, a psychiatrist who was also involved in the DSM-1V Sub-Committee involved in developing the diagnostic criteria for post traumatic stress disorder. Professor McFarlane was also part of the workshop where the Statement of Principles concerning Post Traumatic Stress Disorder was discussed. Professor McFarlane is noted to have said that the essence of the definition of the stressor relevant to military service was to:
"…remove the idea of the stressor solely from the issue of perception …. [the] aim of the objectivity clause was not to place an obligation on the individual veteran to define the adverse nature of the environment or to provide validated evidence of the observable nature of the stressor to which they had been exposed."

Professor McFarlane relied on the research findings of the historian Marshall, who was the Chief Historian with the American Armed Forces during World War II, and who found that it was very difficult to objectively define the nature of combat experience without a prolonged and detailed interview with all the combatants in the particular situation. In his report of 31 July 2000 prepared for Re Cranage and Repatriation Commission (supra), Professor McFarlane had stated that the:
"…objectivity principles outlined in the SOP of the RMA were…. an attempt to deal with issues that primarily arose out of the exaggeration of threat in an individual's mind when in fact there was no realistic basis for that perception. This is necessary because of the definition of the stressor criterion DSM-1V."

Professor McFarlane later reported that the:
"...intention of the SOP was not to exclude servicemen who may have been on patrol for a year in the jungle in Vietnam but had never seen a Viet Cong or never fired a shot. Clearly such an individual, although there was no objective engagement with the enemy, did realistically perceive a threat to their physical integrity and that of their comrades. This is particularly the case when on patrol in regions where the enemy was known to be active."

Mr Dawson submitted that what Mr Crabbe experienced and felt was not fanciful nor imaginary. He realistically perceived a threat in the circumstances in which he found himself in Vietnam, and this, in Mr Dawson's submission, met the objective test contained within the definition of experiencing a severe stressor in the Statement of Principles concerning Post Traumatic Stress Disorder. There was no requirement that a shot has to be fired or that Mr Crabbe was involved in active combat. The threat has to be realistic. The approach adopted in Re Cranage and Repatriation Commission (supra) has been followed by a number of cases and Mr Dawson specifically referred the Tribunal to Re Jehn and Repatriation Commission [2000] AATA 484.

Mr Godwin, for the Respondent, dealt with the line of causation in terms of the contention that post traumatic stress disorder arose out of the HMAS Tobruk incident and then was aggravated by operational service. Mr Godwin noted that the finding that there was post traumatic stress disorder arising out of the incident in HMAS Tobruk is something which would need to be made on the reasonable satisfaction standard of proof, as this incident occurred in a period neither of operational service or eligible service under the Act. Furthermore, Mr Godwin submitted that Mr Crabbe has credit problems in the evidence and part of this relates to the discrepancy between his accounts and the accounts provided in the report by Commodore Mulcare.
The confidential medical record dated 10 March 1965 (Exhibit R6) which related to sleep walking, recorded that Mr Crabbe was having trouble sleeping for the past ten days. The record further notes that Mr Crabbe did not admit to being worried about his forthcoming trip which was the trip by HMAS Duchess. Mr Godwin did not see this as evidence of post traumatic stress disorder.
Dr Dinnen has entertained the idea that Mr Crabbe's sleep walking was a post traumatic stress disorder symptom as a consequence of the events on HMAS Tobruk. The date of the sleep walking is 10 March 1965, some four years after the November 1960 incident when HMAS Tobruk was shelled. From Mr Crabbe's evidence, his sleep walking is something that began when he joined HMAS Duchess in 1964. In any event it does not seem that the sleep walking continued for very long.
Mr Godwin noted that in relation to the HMAS Tobruk incident, Mr Crabbe provided evidence of seeing two sailors with reddened skin being treated after being burnt. This evidence contrasted with the evidence provided to Dr Dinnen of two men being burnt all over, one all over his right side. There is a question, Mr Godwin put, of whether anyone was injured at all. The Report of Proceedings for the relevant time would have been expected to record if someone was injured, Mr Godwin contended.
Considering the activity concerning the bombing of mainland Vietnam from American ships and the dropping of bombs and/or Napalm, Mr Godwin submitted that this brings into question the interpretation of what is meant by experiencing a severe stressor. Any injury or death associated with the shelling in Vietnam or the flights of the bombers is something which on the evidence, was distant from Mr Crabbe. He was not witnessing casualties or seeing violence. He could be said to be seeing a threat of serious injury or death but that could be similar to observing traffic on Sydney's roads, Mr Godwin contended.
In relation to Mr Crabbe's observation of the body bags, again, the research report throws some doubt as to whether there would have been body bags with bodies in them at that time in Vung Tau and whether Mr Crabbe would, in fact, have been a postman going ashore.
Dealing with the incidents in relation to Mr Crabbe's experiences in Malaysian – Borneo waters, the research report indicates that there were no boats sunk by HMAS Duchess and certainly not the ten or 12 reported by Mr Crabbe. Mr Godwin submitted that the Report of Proceedings from the ship at the time deals with a number of occasions when there were exercises or training shootings. The type of shooting reported by Mr Crabbe did not seem to be borne out and there were no particular targets under attack from HMAS Duchess. Mr Godwin submitted that furthermore, there is no report of the patrol ashore and it would be unusual for someone in Mr Crabbe's position to have been accompanying British Army personnel on such a patrol, even if there was one.
Mr Godwin submitted that a further dent on Mr Crabbe's creditability arises out of discrepancies in his accounts of smoking and drinking. On 7 March 2000, Dr Hayes reports that Mr Crabbe was drinking heavily in Singapore (T10, p35). Thus there is a history of heavy drinking prior to Mr Crabbe going to Vietnam and his heavy drinking had not been interpreted as a response to his Vietnam experiences, Mr Godwin submitted. Similarly, in relation to smoking, Mr Crabbe told Dr Hayes that while in Vietnam he began smoking for the first time. This is contradicted by the medical report at page 5 of Exhibit R5, which reports that Mr Crabbe started smoking when he was aged 36 and divorced. At that time he was smoking ten cigarettes per day. That account could only have come from Mr Crabbe, Mr Godwin submitted. Mr Godwin contended that these differing accounts indicate that Mr Crabbe is making an effort to tailor his history to suit the requirements of his claim. Further discrepancies have become apparent when Dr Dinnen reported that Mr Crabbe had seen dead bodies, yet Mr Crabbe's evidence to the Tribunal was that he only saw the body bags. Furthermore, Mr Crabbe told Dr Shand that he vomited when he saw the body bags, but told the Tribunal that the body bags did not affect him much at the time. Dr Hayes initially and Dr Shand did not think that the stressors Mr Crabbe experienced were significant enough to qualify as a severe stressor for post traumatic stress disorder. Dr McDonald at T11, p40, noted that Mr Crabbe did not experience a severe stressor.
The Tribunal was referred to Re Repatriation Commission and Freeman (2000) 61 ALD 259. This case deals with the requirement that the diagnosis of the condition must be made upon the balance of probabilities. A further case relied upon by the Respondent is Re Cranage and Repatriation Commission (supra) which deals with the objective stressor and subjective response, the key elements in the Statement of Principles diagnostic criteria for post traumatic stress disorder and the definition of experiencing a severe stressor. Mr Godwin submitted that the perception of a person of experiencing a severe stressor is not enough, there has to be an objective event that meets the Statement of Principles' definition of experiencing a severe stressor. Mr Godwin used the example of walking through a cemetery possibly being seen as an encounter with death or attending a funeral, but there has to be some immediacy and link to the person involved for post traumatic stress disorder to be causally linked to such an event. While Dr Dinnen noted that a person may have a delayed reaction to a severe stressor, Mr Godwin submitted that there must be an event the magnitude of which produces a response in the relatively short term, as well as the full range of post traumatic stress disorder symptoms further down the track.
Finally, in relation to the symptoms reported by Dr Dinnen as evidence of Mr Crabbe's post traumatic stress disorder, when Mr Godwin considered them, apart from his heavy drinking, Mr Godwin submitted that they were very much the same type of symptoms as Mr Crabbe reported for his back and knees. Furthermore, Mr Godwin noted Dr Hayes' first report in which Dr Hayes noted that Mr Crabbe did not describe any particular intrusive memories, which would be required as part of the essence of post traumatic stress disorder.
In conclusion, Mr Godwin submitted that Mr Crabbe is not a reliable historian and the account which he gives has been discredited to some extent by the report of Commodore Mulcare. The account that Mr Crabbe gives is one which the Tribunal should find does not satisfy the requirements of the definition for experiencing a severe stressor. This submission relates to all the events that Mr Crabbe has described as severe stressors, because there is the lack of immediacy that experiencing a severe stressor requires.
FINDINGS
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
This is a matter which requires a determination of whether or not Mr Crabbe is entitled to Disability Pension for a psychiatric condition which has been diagnosed variously as: adjustment disorder; personality disorder with alcohol abuse / dependence; personality disorder not otherwise specified; generalised anxiety disorder; and, post traumatic stress disorder with alcohol abuse. The Board had found that applying the Full Court decision in Repatriation Commission v Cooke (1998) 52 ALD 1; (1998) 160 ALR 17, that it was reasonably satisfied that the diagnosis which best fitted the claimed conditions of post traumatic stress disorder, anxiety state, depression, alcohol abuse and smoking, described by the delegate of the Commission as post traumatic stress disorder, alcohol dependence or alcohol abuse (in remission) and adjustment disorder (T2), was "post traumatic stress disorder and alcohol abuse" (T19).
In his report of 29 February 2000 (T10), Dr Hayes had originally diagnosed Mr Crabbe as having an adjustment disorder, having not been able to identify a clear stressor to allow a diagnosis of post traumatic stress disorder. In a subsequent report of 4 July 2000 (T17), Dr Hayes opined that Mr Crabbe had service-related post traumatic stress disorder as his circumstances satisfied the stressor definition in the Statement of Principles. The stressors that Dr Hayes took into account were the experiences in Vietnam waters between May and June of 1965, including the American planes and ships bombing and dropping Napalm on the mainland. There was a heightened anxiety, Dr Hayes opined, in 1960 and 1961 when HMAS Anzac accidentally shelled HMAS Tobruk, causing a hole in the port side of HMAS Tobruk. Further experiences detailed as stressors included entering the wrong building when attempting to collect mail and finding himself confronted by body bags. Dr Hayes noted that Mr Crabbe was horrified. In Borneo, Dr Hayes noted a further stressor involving Mr Crabbe going on a walking patrol as a radio operator for a ten kilometre walk into potentially hostile territory. Dr Hayes found that the stressors in combination supported, to his satisfaction, the opinion that Mr Crabbe met the diagnostic criteria and Statement of Principles requirements for post traumatic stress disorder.
In evidence to the Tribunal, Dr Dinnen opined that the incident in 1960, when HMAS Anzac accidentally shelled HMAS Tobruk, was in fact a traumatic event as described in the diagnostic criteria of Statement of Principles Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder. Mr Crabbe experienced an event in the shelling by HMAS Anzac when there was the threat of actual serious injury to himself and or others. He was very afraid and horrified. Thus Mr Crabbe's circumstances met the objective criteria contained within the diagnostic criteria 2(b)(A)(i) and the subjective criteria contained within 2(b)(A)(ii) of the relevant Statement of Principles. Dr Dinnen was satisfied that Mr Crabbe met the further remaining diagnostic criteria contained within paragraph 2(b)(B),(C),(D),(E), and (F). Dr Dinnen had opined that the onset of the condition was some time after this event, possibly when Mr Crabbe was on his way to Vietnam in HMAS Duchess and that the symptoms later became more observable such as his sleep walking, disturbed sleep, alcohol consumption and avoidant behaviour.
Applying the principles outlined in Repatriation Commission v Budworth (2001) 66 ALD 285, the Tribunal is reasonably satisfied that the psychiatric condition suffered by Mr Crabbe is post traumatic stress disorder including symptoms of alcohol abuse. Applying the diagnostic criteria contained within the Statement of Principles, the Tribunal is reasonably satisfied that Mr Crabbe experienced a traumatic event when the HMAS Anzac accidentally shelled HMAS Tobruk. Mr Crabbe was threatened with actual or serious injury to himself and/or others [2(b)(A)(i)]. His response involved intense fear and horror [2(b)(A)(ii)]. The evidence from Dr Hayes and Dr Dinnen, as supported by Mr Crabbe's evidence, is that Mr Crabbe experienced distressing recollections of this event and on occasion, dreams. The Tribunal is satisfied that Mr Crabbe meets the diagnostic criteria 2(b)(B) contained within the Statement of Principles. His reaction was delayed, as is suggested in the name of post traumatic stress disorder. In relation to paragraph 2(b)(C) of the Statement of Principles, Mr Crabbe became avoidant of social situations and had diminished interest in participating in significant activities and he had feelings of detachment or estrangements from others. In relation to the diagnostic criteria contained within paragraph 2(b)(D), Mr Crabbe experienced difficulty falling or staying asleep and irritability. The duration of the disturbance was more than one month as indicated by paragraph 2(b)(E) and as has been noted by Dr Dinnen and Dr Hayes, the disturbance caused clinically significant distress and impairment in social and occupational areas of Mr Crabbe's functioning as is required by paragraph 2(b)(F). The Tribunal therefore finds that it is reasonably satisfied that Mr Crabbe suffered from post traumatic stress disorder and symptoms of alcohol abuse as a consequence of HMAS Anzac accidentally shelling HMAS Tobruk in 1960. Thus Mr Crabbe had the onset of post traumatic stress disorder and symptoms of alcohol abuse, as part of the post traumatic stress disorder, prior to his operational service.
During Mr Crabbe's operational service, a number of severe stressors have been postulated as causing the clinical worsening or aggravation of post traumatic stress disorder. Dr Dinnen's opinion as asserted during the hearing, is that Mr Crabbe, as a result of his first trip to Vietnam and various incidents in combination, such as: the observation of shelling and bombing of mainland Vietnam; accidentally walking into a building containing body bags; the bombing of a suspected guerilla camp and then participating in a landing party; were stressors which aggravated Mr Crabbe's post traumatic stress disorder. Mr Dawson submitted that any one of the incidents outlined above could alone be considered as meeting the definition of a severe stressor and hence meeting Factor 5(b) of Instrument Number 3 of 1999 as amended. In terms of the Deledio steps, as contained within Repatriation Commission v Deledio (1998) 49 ALD 193, a hypothesis has been put that Mr Crabbe's post traumatic stress disorder which had its onset during the period of non-eligible service, was worsened by operational service in Vietnam and in the Straits of Malacca and Borneo. This general hypothesis is not fanciful or out of the realms of possibility. Applying subsection 120(3) of the Act, the Tribunal must consider whether or not the hypothesis is reasonable and must apply the relevant of Statement of Principles. Factor 5(b) of the relevant Statement of Principles concerning Post Traumatic Stress Disorder states:
"(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder;
…
"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 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 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;"
At this stage, the Tribunal is not engaged in a process of fact finding, as is discussed in Dixon v Repatriation Commission (1999) 59 ALD 315. The Tribunal has examined each of the incidents put forward by Mr Crabbe as a severe stressor. Mr Crabbe stated that the worst incident involved him happening upon the body bags when he thought he was walking into a post office. Mr Crabbe did not see any bodies within the bags but was told by an American serviceman that the bags did contain bodies. He remembers the sickly smell and was horrified. Mr Crabbe was not directly threatened with injury or death, but in terms of part (iii) of the definition of experiencing a severe stressor, he did observe the casualties of war in the form of the bodies contained within the body bags. While Mr Crabbe reported that he did not see the actual bodies, this does not, in the Tribunal's view, lessen the impact of seeing a number of body bags containing bodies and associated with which was the sickly smell of the dead. Mr Crabbe was a young man at that time and it is not beyond the realms of reality to consider that the material points to him objectively experiencing a stressor in the form of body bags which was a very real reminder of the results of war. Furthermore, the Tribunal notes Mr Crabbe's evidence that he felt horrified and associated with it was the sickly sensory smell associated with death. With reference to Factor 5(b) of the relevant Statement of Principles, the material points to Mr Crabbe experiencing a severe stressor prior to the worsening of post traumatic stress disorder. As the requirements of Factor 5(b) are met on consideration of the material, then a reasonable hypothesis is raised as required by subsection 120(3) of the Act. The Tribunal finds some support for this finding having considered Re Cranage and Repatriation Commission (supra) and the expert evidence of Professor McFarlane.
Following the approach outlined in Repatriation Commission v Deledio (supra), the Tribunal turns then to consider the application of subsection 120(1) of the Act as to whether or not the facts support the raised reasonable hypothesis. This is an important part of the process and particularly in this case as there are challenges to Mr Crabbe's credibility. In relation to the body bags incidents, it has been disputed that as a Leading Radio Operator, he could not also be in the position of being a ship's postman. Mr Crabbe was adamant that he undertook his duties as did his predecessor and his successor. He furthermore recalled one of the Leading Radio Operators who had acted as postman being punished for forgetting to post the Captain's cigarette allocation back to Australia. While Commodore Burnside in his discussions with Commodore Mulcare did not recall that Leading Radio Operators took on postman duties, and noting Commodore Mulcare's scepticism that Mr Crabbe would have taken on such duties, Mr Crabbe has been consistent in his explanation as to how he came upon the body bags. There is nothing in Commodore Mulcare's report, that the Tribunal considers disproves the event as outlined by Mr Crabbe beyond reasonable doubt. While there is also a discrepancy in what Mr Crabbe told Dr Dinnen in terms of actually seeing the bodies, the Tribunal finds that whether or not Mr Crabbe saw the bodies, he could still be horrified and smell the scent of death and this falls within what the Tribunal understands is the definition of experiencing a severe stressor. Furthermore, in Mr Crabbe's early evidence to the Tribunal, he stated that he initially was not that affected by his encounter with the body bags. Later in evidence he described this event as the worst he experienced on service and spoke of the horror he felt at being exposed to the reality and consequences of war. The Tribunal did not consider that the later evidence of his feelings arising out of this incident was a deliberate attempt to embellish or manipulate evidence to fit the statutory and diagnostic criteria.
In making decisions in veterans' matters, the Tribunal must, as all decision-makers should, take into account difficulties with memory and also the impact of a veterans' particular conditions on his or her ability to recall and recount details of their service. This is not to say that there should not be a rigorous examination of the evidence put before the decision-maker nor a thorough questioning in order to establish, in this veterans' case, whether sufficient of the facts can be accepted beyond reasonable doubt to prove or disprove the raised reasonable hypothesis. It is rare in these matters that there are not discrepancies. This occurs because of people's different memories and perceptions of events and also because we are dealing with events which happened many years ago. While there are discrepancies and inconsistencies in Mr Crabbe's evidence as compared with other contemporaneous reports or recollections, this is beneficial legislation. The Tribunal therefore determines that Mr Crabbe's circumstances, although challenged in terms of their credibility, do not allow the Tribunal to conclude from the whole of the evidence before it that it is not satisfied beyond reasonable doubt under the provision of subsection 120(1) of the Act, that there is no sufficient ground for finding that Mr Crabbe's post traumatic stress disorder was aggravated by war service.

For completeness, in relation to the other severe stressors proposed by the Applicant, the Tribunal does not consider the shelling by the American ships and fighter planes of the mainland with bombs and/or Napalm is of sufficient severity to meet the definition of severe stressor. The Tribunal finds that this event while concerning to Mr Crabbe, is remote and not in keeping with the severity that the Tribunal understands is required to meet that definition. The Tribunal is confirmed in this view also when referring to Professor McFarlane's evidence as provided in Re Cranage and Repatriation Commission (supra). In relation to the stressor of Mr Crabbe participating in a landing party during his service in the Straits of Malacca and Borneo, the Tribunal does consider that Mr Crabbe's circumstances satisfy Factor 5(b) of the relevant Statement of Principles concerning experiencing a severe stressor as defined and thus subsection 120(3) of the Act is met and a reasonable hypothesis raised. Furthermore, considering the facts to support the raised reasonable hypothesis of this particular event being a severe stressor leading to the worsening of his post traumatic stress disorder, again, while there is some challenge to Mr Crabbe's creditability, particularly that raised in Commodore Mulcare's report, there is nothing to disprove beyond reasonable doubt that Mr Crabbe did participate in a landing party. Commodore Mulcare indicated that servicemen were exchanged, although he noted this usually occurred in the social context. Again, the Tribunal agrees with Dr Dinnen's assessment that there was no embellishment of the event described by Mr Crabbe and that in fact, it had a ring of truth about it. While there may be some doubts in the Tribunal's mind in relation to this and other matters, the doubts are not sufficient to disprove the reasonable hypothesis beyond reasonable doubt. Thus, the event of Mr Crabbe participating in a landing party cannot be disproved beyond reasonable doubt. Thus, the requirements of subsection 120(1) of the Act are met in relation to the event of the landing party.
Accordingly, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for finding that Mr Crabbe's post traumatic stress disorder was worsened by not only the event of seeing the body bags, but in participating in the landing party and thus the worsening of his post traumatic stress disorder is considered to be war-caused.
In all of the circumstances and for the reasons expressed above, the Tribunal finds that Mr Crabbe is qualified for Disability Pension for the condition of post traumatic stress disorder with alcohol abuse as part of the post traumatic stress disorder with effect from 21 September 1999.
In relation to the issue of assessment, the material is quite dated and there was agreement between the parties that the matter should be remitted. The Tribunal agrees with this approach and therefore decides that consideration of the correct assessment of all of Mr Crabbe's war-caused conditions be remitted to the Repatriation Commission.
The decision under review is set aside pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that:
1.Mr Crabbe has a war-caused post traumatic stress disorder, with symptoms of alcohol abuse as part of that condition, with effect from 21 September 1999.
2. The assessment of the correct rate of Disability Pension is remitted to the Repatriation Commission.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member.
Signed:.........................................................................
Associate

Date of Hearing  10 December 2001
Date of Decision  20 September 2002
Counsel for the Applicant  Mr N Dawson
Solicitor for the Applicant  R L Whyburn & Associates
Representative for the Respondent        Mr P Godwin, Departmental Advocate