Croxford and Repatriation Commission
[2003] AATA 393
•30 April 2003
DECISION AND REASONS FOR DECISION [2003] AATA 393
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1647
VETERANS' APPEALS DIVISION ) Re Rodney David Croxford Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr J D Campbell, MemberDate30 April 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that:
(i) The diagnosis of post traumatic stress disorder with secondary major depression and alcohol dependence is varied to the diagnosis of alcohol dependence.
(ii) Alcohol dependence is found to be a defence-caused condition with Disability Pension being payable with effect from and including 26 January 2001.
(iii) The assessment of the correct rate of Disability Pension for alcohol dependence is remitted to the Commission.
……………………
Ms SM Bullock
Presiding MemberCATCHWORDS
VETERANS’ AFFAIRS – Entitlement – Disability Pension – Operational Service – Defence Service – Diagnosis – Reasonable Satisfaction – Appropriate Clinical Management.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) - ss 70, 119, 120, 120B.
AUTHORITIES
Repatriation Commission v Wellington (1999) 57 ALD 507
Brew v Repatriation Commission (1999) 94 FCR 80
Re Millen and Repatriation Commission [2000] AATA 508
Johnston v The Commonwealth (1982) 150 CLR 331
Repatriation Commission v Wedekind [2000] FCA 649
Re Crowe and Repatriation Commission (1999) 28 AAR 548
Re Woodger and Repatriation Commission [2003] AATA 39
Re Robertson and Repatriation Commission (1998) 50 ALD 668REASONS FOR DECISION
30 April 2003 Ms SM Bullock, Senior Member
Dr JD Campbell, Member1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mr Rodney David Croxford, of a decision by the Repatriation Commission (“the Commission”) dated 19 May 2001 (T2) as varied by the Veterans’ Review Board (“the Board”) on 31 August 2001 (T22) amending the diagnosis to post traumatic stress disorder with secondary major depression and alcohol dependence.
2. A Hearing was conducted in Sydney on 14 November 2002 with final written submissions being received on 4 December 2002. The Applicant was represented by Mr R Sherlock, Advocate with the Legal Aid Commission of New South Wales and the Respondent, the Commission, was represented by Mr J Marsh, Departmental Advocate. Mr Croxford provided evidence to the Tribunal as did Mr N Gage, an Advocate with the Defence Force Welfare Association. Dr A Dinnen, Consultant Psychiatrist and Dr Haik, Consultant Psychiatrist provided concurrent evidence to the Tribunal. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1 – T27) and the following Exhibits:
EXHIBIT NO
DESCRIPTION
DATE
A1
Report by Dr A Dinnen, Consultant Psychiatrist
18 June 2002
A2
Statement from Wing Commander V J Fogarty (Rtd)
12 October 1998
A3
Defence Personnel Executive – Records for Mr Croxford
Various
A4
Applicant’s Final Written Submissions in reply
4 December 2002
R1
Report from Captain H A Josephs, Writeway Research Service
5 July 2002
R2
Report from Captain H A Josephs Writeway Research Service
24 August 2002
R3
Personnel records for Mr Croxford from Defence Corporate Services
Various
R4
Report from Dr R Haik, Consultant Psychiatrist
16 May 2002
R5
Respondent’s Written Final Submissions
22 November 2002
ISSUES
3. The issues in this matter are:
(a) What is the diagnosis of Mr Croxford’s psychiatric condition(s)?
(b)Whether or not the condition(s), correctly diagnosed, is/are service-related.
SERVICE
3. Mr Croxford served in the Royal Australian Navy (“the Navy”) from 13 October 1971 until 28 May 1975 (T3, p3). Mr Croxford served in Vietnam in HMAS Sydney, from 1 November 1972 to 30 November 1972 and this constitutes operational service. Mr Croxford also has eligible defence service from 7 December 1972 until 28 May 1975.
LEGISLATION
4. A decision in this matter requires consideration of the provisions of the Veterans’ Entitlements Act 1986 (“the Act”). As the matters under contention in this case relate to Mr Croxford’s defence service (section 70 of the Act), the Tribunal will confine its consideration to the part of the Act which deals with defence service. In relation to Mr Croxford’s defence service, subsection 120(4) of the Act should be applied. The Tribunal is required to decide all relevant matters on the balance of probabilities to its reasonable satisfaction in deciding whether or not a particular condition is defence-caused. Furthermore, in relation to determining the correct diagnosis of any condition from which Mr Croxford might suffer, the Tribunal also must apply the reasonable satisfaction standard of proof. Subsection 120(4) of the Act states as relevant:
“120 Standard of proof
…
(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.
…”
5. The Tribunal is also required to apply section 120B of the Act in coming to its decision. Thus the Tribunal must decide this matter to its reasonable satisfaction in accordance with any Statements of Principles made by the Repatriation Medical Authority or any other relevant determination or declaration under the Act.
6. The relevant Statements of Principles are:
·Instrument Number 77 of 1998 concerning Alcohol Dependence or Alcohol Abuse.
·Instrument Number 59 of 1998 concerning Depressive Disorder.
·Instrument Number 144 of 1995 as amended by Instrument Number 14 of 1997 concerning Personality Disorder.
7. Section 119 of the Act echoes the beneficial nature of the Act. It reflects that the decision-maker should make decisions of an administrative nature with flexible procedures. Within the legislative framework, overly technical rules should not apply, allowing for the acknowledgment of the difficulty in providing evidence to support a claim for pension, in this instance, allowing for such matters as the passage of time and the fading of memories.
Evidence of Mr Rodney David Croxford
8. Mr Croxford told the Tribunal that he first joined the Navy when aged 15 and a half years. He stated that he progressed satisfactorily at school, liked and participated in sport in and out of school and generally had a good childhood. Mr Croxford believed he was an average student. He was a Patrol Leader in the Scouts Movement and participated in jamborees. He stated that he had no problems with authority figures in or out of school.
9. Mr Croxford stated that when aged approximately 14 and a half years he decided that he wanted to join the Navy just like his older brother. Mr Croxford left school at age 15 and a half years and joined the Navy straight from school. He served initially for 12 months in HMAS Leeuwin which he described as being like a boarding school and where he undertook basic seamanship training, including navigation skills. Mr Croxford stated that he was unable to leave the base unless accompanied. There was no consumption of alcohol and Mr Croxford progressed through his classes. He was selected to take a weapons mechanics course. Following one year at HMAS Leeuwin, Mr Croxford was transferred with about 20 young recruits to HMAS Sydney. He believed he served in HMAS Sydney for approximately two or three months as an Ordinary Seaman whose duties included cleaning the toilets, scrubbing floors and similar duties.
10. Mr Croxford described a number of incidents which occurred whilst he was serving in HMAS Sydney. On one occasion, Mr Croxford knew of a sailor who had fallen on the flight deck on some screws. Mr Croxford did not witness this incident, but he saw blood on the deck. Another incident occurred in Hong Kong when he and a colleague were required to assist American sailors on shore patrol. This involved Mr Croxford and his colleague travelling in a jeep with the Americans and assisting in controlling drunken sailors and helping to stop fights. Mr Croxford described how he remained in the jeep because he was too afraid, terrified at the thought of having to control a fight. Mr Croxford thought that the Americans probably thought that it was a great joke having two 16 year old sailors there to help them.
11. In Vietnam, while serving in HMAS Sydney, Mr Croxford described jet aircraft flying across to the mainland and dropping bombs. He recalled seeing the red flares of the bombs dropping over land while he sat on HMAS Sydney’s Flight Deck. Mr Croxford stated that he was scared that he was so close to the war. It was at this time, serving in HMAS Sydney, that he commenced consuming alcohol, Mr Croxford stated. Mr Croxford did not agree with a report by Mr L J Guilfoyle, Forensic Psychologist, that he commenced drinking in HMAS Leeuwin (T7, p51). He was not able to drink during this time as he was under the legal age for the consumption of alcohol and he was aware of that restriction at the time. Mr Croxford stated that he does not make up stories or tell lies and just did not know where Mr Guilfoyle had obtained information that he commenced drinking in HMAS Leeuwin.
12. In an Alcohol Questionnaire signed and dated by Mr Croxford on 23 March 1998 (T4), Mr Croxford noted that he commenced alcohol consumption in 1972 during service because of “peer pressure”. He furthermore noted that there was a change in the habit of his alcohol consumption increasing over time due to a “guilt complex in being in Vietnam”.. Mr Croxford noted that the reason for this increase was also stress and peer pressure. After service, Mr Croxford detailed in the Alcohol Questionnaire that his alcohol consumption became worse and he has now accepted the fact that he is an alcoholic (T4, p9). At Hearing, Mr Croxford stated that he did not know why he wrote about having a guilt complex in terms of him being in Vietnam. He stated that he consumed 26 ounce cans of beer which cost 20 cents and the beer issue in HMAS Sydney was one can of beer per day. This issue occurred between 6 and 8 pm but there was no issue if they were in an operational area. The issue was supervised by the Coxswain.
13. Mr Croxford stated that while serving in HMAS Sydney, he would become very inebriated when ashore with other sailors because ashore, he was free to drink without supervision. Mr Croxford acknowledged that he was not legally allowed to consume alcohol and others drinking with him were also aware he was too young. Mr Croxford stated that it was common practice for younger sailors to drink. He stated that he would consume alcohol quite often but only needed two cans before he was “on my back”, meaning he was inebriated. Mr Croxford stated that at that time, he consumed alcohol whenever he could.
14. After returning from Vietnam to Australia, Mr Croxford served in HMAS Cerberus in Melbourne, attending and passing a three month Weapons Mechanics course. At this time, he believed that he was drinking quite heavily and fighting. On one occasion he was arrested and charged with assault. Mr Croxford stated that he was drinking as much as he could, but he was still able to succeed in his course and became an Able Seaman at the lowest scale.
15. In mid 1973, when Mr Croxford was approximately 17 years old, he was drafted for two years to HMAS Vendetta, a Destroyer, with duties which included washing floors, cleaning toilets, painting the decks and generally undertaking what he described as “menial tasks”.. Mr Croxford was not undertaking his weapons mechanics duties for which he was trained and he was not happy about this. After a period of re-fitting the ship, Mr Croxford went to sea in the South East Asia region. He continued to consume alcohol while serving in HMAS Vendetta. Mr Croxford was still under the legal drinking age, but he managed to obtain alcohol anyway. He attained the legal drinking age of 18 in 1974. Mr Croxford stated that there was not a night that he would not drink when ashore and stated that he would “wipe myself out”. While serving in HMAS Vendetta, Mr Croxford estimated that he would consume six to eight cans of beer when ashore. There were 300 sailors in HMAS Vendetta with 60 or 70 in his mess. Mr Croxford stated that from 1975 until 1998 he continued to drink.
16. Mr Croxford stated that he believed that the officers on deck in HMAS Vendetta would have known about his drinking habits. Mr Croxford stated that he was always in trouble and was locked up for alcohol-related behaviour in Sydney, Singapore and Darwin. Mr Croxford was referred to a Staff in Confidence Report (Exhibit R3) by Commander A G Ferris, his Commanding Officer, who noted incidents in March 1974, when Mr Croxford dived into a fountain in the main street of Labuan, sustaining severe head/scalp lacerations and a hairline fracture of his skull. Further incidents were reported on 26 April 1974, when Mr Croxford was found guilty of using insulting language to an officer; on 17 October 1974, being found guilty of being drunk onboard and using abusive, insulting and provocative words; and, in Darwin on 22 January 1975, being convicted of improper use of a motor vehicle (Exhibit R3, p13). Commander Ferris reported that Mr Croxford’s record on board HMAS Vendetta showed him “not to be a very stable person”.. Commander Ferris further noted that he had spoken to Mr Croxford personally on several occasions and that Mr Croxford had been given every opportunity to behave, mature and accept some sense of responsibility.
17. Mr Croxford told the Tribunal that he could not recall Commander Ferris calling him to his office or talking to him about his drinking or other problems. He only recalled talking to the Commander when being convicted and this took five or ten minutes at most with the “riot act” then being read to him. Furthermore, Mr Croxford could not recall any counselling or assistance that the Navy provided to him in relation to his alcohol consumption problems. He did recall seeing a psychologist but not for ongoing counselling.
18. Mr Croxford could not recall a document dated 29 January 1975 which he identified as having been signed by him (Exhibit R3, p15). In this document, Mr Croxford noted that he considered the main reason for his previous misconduct was his inability to control alcohol intake. He further noted that the offences of which he had been convicted, would not have been committed had he not been affected by alcohol. Mr Croxford wrote that he realised that it was his responsibility alone to control his alcohol intake but noted that he was well aware that this was not easy to do. He further indicated that he had taken steps to limit his drinking and to keep it within reasonable bounds, foreshadowing that his future conduct would be satisfactory. Despite this statement at hearing, Mr Croxford told the Tribunal that he did not seek counselling from the Navy because he did not think that he had a problem.
19. In relation to his discharge, Mr Croxford stated that he was ashamed and upset that it had happened because he did not think that he was so bad as to be discharged. Mr Croxford stated that he was not the only sailor who had problems with alcohol and as far as he knew, sailors with such problems were usually “locked up with others” and were sent to Holsworthy to be “retrained”. These sailors were then returned into the system.
20. Immediately after discharge, Mr Croxford flew to Tasmania to stay with friends. He did not go home for some time. His parents were told of the discharge but he had not spoken to his father for the past 20 years until the night before the Tribunal hearing. Mr Croxford told the Tribunal that until recently, he could not face his parents, particularly with his older brother being so successful in the Navy. Mr Croxford told the Tribunal that he could not attend ANZAC Day marches because he feels ashamed.
21. Mr Croxford told the Tribunal that he had been married and has three sons. His wife and children found it hard to live with him because of his excessive drinking. Mr Croxford stated that he destroyed his marriage and alienated his children. His brother and sister will have nothing to do with him and his only stable relationships at present are with his mother and most recently, his father.
22. Mr Croxford stated that since leaving the Navy, he has been convicted on three occasions for driving under the influence of alcohol and his wife and children left him as a result of his alcohol-related behaviour. He stated that he needed to consume alcohol to socialise. Recently, Mr Croxford attended St John of God Hospital for six weeks undertaking a detoxification programme. Mr Croxford stated that in recent times, he has ceased his alcohol consumption.
23. The Tribunal notes that Dr J Tindale, Career Medical Officer from St John of God Hospital reported on 7 April 1998 (T10, p31A) that Mr Croxford had been referred to Dr Tindale for psychiatric assessment. Dr Tindale noted that Mr Croxford commenced drinking alcohol at the age of 16 and that since discharge from the Navy had not had a single day of sobriety. Furthermore, Mr Croxford was noted to have led an itinerant lifestyle with his family, social and employment structures having disintegrated. Dr Tindale noted that Mr Croxford had emotional and behavioural disturbances and alcohol dependence which in Dr Tindale’s further opinion were clearly related to a post traumatic stress disorder syndrome consequent to Mr Croxford’s naval service. Dr Tindale sought approval to have Mr Croxford admitted to St John of God Hospital for detoxification, rehabilitation and further assessment.
24. Mr Croxford described himself currently as living in seclusion. He locks himself up and has done this for some time. Mr Croxford stated that he finds it difficult to be near people. He stated that he has never had a girlfriend but he has had a wife. He becomes very angry for no apparent reason and is of the view that he “lost” his son because of his inability to control his anger. Mr Croxford stated that he wished he knew why he was so angry.
25. Mr Croxford told the Tribunal that he has had a wide variety of employment positions having worked in the fishing industry, for example in Tweed Heads, Port Lincoln and working in catching and processing tuna fish. He has also driven cranes and described an incident whilst working for a municipal council, when he drove a crane through power lines. He has also undertaken labouring positions, been a deckhand and as an assistant rigger (T16, p45).
26. In relation to his alcohol problem, Mr Croxford stated that he had undergone detoxification at St John of God Hospital in April 1998. He has also undertaken post traumatic stress disorder courses, and anger management courses. Mr Croxford believes that he did not receive any counselling in the Navy between January 1974 and 1975, when he was discharged.
27. Mr Croxford was referred to the opinion of Captain H A Josephs (Exhibit R2), who reported on 24 August 2002 that Mr Croxford would have received frequent counselling from his Divisional Officer, Divisional Senior Sailor or Executive Officer on board ship and furthermore, noted Commander Ferris’ report which indicated that Commander Ferris had spoken to Mr Croxford about his alcohol and disciplinary problems. Mr Croxford denied any of this activity taking place. He denied having counselling from his Divisional or Commanding Officers, Medical Officer or Chaplain. Mr Croxford stated that nothing was said to him apart from when he was in trouble and was paraded before the Commanding Officer or other relevant officer to have his charges dealt with. Mr Croxford stated that it was not possible that he did not recall speaking to his supervisors or others about his drinking apart from when he was being charged and processed. Mr Croxford stated that the Coxswain would just “run me in” and he would be paraded before the Captain’s table. The officers would certainly have known of his behaviour and his drinking, Mr Croxford stated. Mr Croxford was asked to consider a note made by Commander M J Taylor on 25 March 1975 (Exhibit R3, p10), in which Commander Taylor noted that Mr Croxford had made a statement to the psychologist that he “is too easily led by his mess mates”.. Mr Croxford agreed that he had seen a psychologist but this was not for any ongoing counselling. Mr Croxford did not remember that there was a recommendation in 1973 to discharge him which was withdrawn or that he was on probation.
28. Mr Croxford disagreed that he was given the opportunity to improve himself in the Navy and asked why he was not taken to Holsworthy to obtain assistance as were other sailors who be believed had similar alcohol problems to his own at that time. Mr Croxford stated that no one tried to get him “off the grog”.
Evidence of Mr N Gage, Advocate, Regular Defence Force Welfare Association
29. Mr Gage had written on Mr Croxford’s behalf to the Department of Veterans’ Affairs on 27 July 1998 (T9). Mr Gage had been in charge of RAAF trainees in 1968. He noted that if those under his care needed assistance because of a medical condition, psychological, physical or psychiatric condition, then he was required to deal with such issues.
30. Mr Gage told the Tribunal that if Mr Croxford had been under his care, he would have had to deal with him, by taking him aside, talking to him and making sure that he did not have any medical problems. Mr Gage stated that he was not sure of the procedures used by the Navy, but opined that all arms of the services were part of the Australian Defence Forces. Mr Gage did not know Mr Croxford until 1998, but believed that there should have been counselling for Mr Croxford, noting that there was no evidence that Mr Croxford had any constructive counselling while in the Navy. Mr Gage further opined that there was a hole in the medical records in relation to Mr Croxford and stated that in the RAAF, underage drinking was not condoned nor encouraged.
31. Mr Gage told the Tribunal that Mr Croxford rents property from him and he has been Mr Croxford’s Advocate in Department of Veterans’ Affairs matters since 1988. Mr Gage opined that Mr Croxford’s discharge was not in accordance with the “Defence Act”.
Concurrent Evidence of Dr A Dinnen, Consultant Psychiatrist and Dr R Haik, Consultant Psychiatrist
32. Dr Dinnen and Dr Haik had read each other’s report. Dr Dinnen noted that he examined Mr Croxford on 12 June 2002 and provided a report dated 18 June 2002 (Exhibit A1). Dr Dinnen reported that he found no evidence for a diagnosis of post traumatic stress disorder with no justification for asserting that Mr Croxford’s experiences in the Navy were traumatic events or a stressor of sufficient intensity to qualify for post traumatic stress disorder. Dr Dinnen opined that Mr Croxford suffers from a depressive disorder consequent to his premature discharge from the Navy. Dr Dinnen further reported that Mr Croxford either developed depression because of being discharged or depression developed on a background of psychoactive substance abuse through alcohol, which has been established.. In relation to his alcohol problem, Dr Dinnen considered that Mr Croxford was not properly supervised between the ages of 15 and a half to 18 while he was in the Navy.
33. Dr Haik provided a report dated 16 May 2002 (Exhibit R4), in which he opined that Mr Croxford did not meet the Statement of Principles’ requirements for a diagnosis of post traumatic stress disorder in that he was not exposed to a severe stessor as defined. Dr Haik opined that Mr Croxford suffers from alcohol dependence in remission and also from an avoidant personality disorder, none of which Dr Haik considered were connected in anyway to Mr Croxford’s naval service. Dr Haik further opined that Mr Croxford did not meet the Statement of Principles’ criteria for depressive disorder. Dr Haik concluded that Mr Croxford had an impairment rating of 24 points from Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”).
34. At Hearing, following discussion of each other’s opinion and questioning by the Tribunal and the parties, Dr Dinnen noted that Mr Croxford at age 46 has lost everything, including alcohol. Dr Dinnen confirmed his opinion that Mr Croxford does not suffer from post traumatic stress disorder. Dr Dinnen agreed with Dr Haik that Mr Croxford probably had some type of underlying personality disorder as a vulnerability, but it was the Navy’s effect on this which contributed to alcohol dependency and depression. Dr Dinnen did not agree that drinking to Mr Croxford’s detriment occurred post Navy as asserted by Dr Haik. Dr Dinnen opined that Mr Croxford’s main problem was his alcohol and by the time he left the Navy, he was alcohol dependent
35. The evidence, as Dr Dinnen understood it, indicated that Mr Croxford did not have a personality disorder prior to enlistment with the Navy. In this regard, Dr Dinnen concluded that Mr Croxford functioned at school and the evidence was that if there was going to be an avoidant personality disorder, then it would have had features present at that time. Thus, there was certainly no evidence that Dr Dinnen was aware of which pointed to avoidant personality disorder being present when Mr Croxford was in early adolescence. It was only likely to have been the experience of the Navy that heralded the symptoms of avoidant personality disorder, Dr Dinnen opined. Furthermore, Mr Croxford’s evidence was also that in the initial stages of his career in the Navy, he in fact enjoyed service in HMAS Leeuwin.
36. Dr Dinnen opined that Mr Croxford’s alcohol problems were not properly managed in the Navy. He was frequently disciplined so there was knowledge that he was drinking, experiencing difficulties and exhibiting inappropriate behaviour. Dr Dinnen stated that Mr Croxford should have been treated. At that time, in the 1970s the appropriate treatment would have been referral to a psychiatrist, Alcoholics Anonymous and to undertake some group psychotherapy. Dr Dinnen who was practising psychiatry in the 1970s stated that in 1973 or 1974, if Mr Croxford was his patient, he would have put him into a group therapy situation and organised Alcoholics Anonymous. Dr Dinnen opined that at aged 18 years, Mr Croxford should have been treated as opposed to experiencing the management he had in the Navy. Dr Dinnen did not agree that there was at that time a lack of clinical management or treatment options available for someone in Mr Croxford’s situation. As a psychiatrist at that time, if it was felt that a patient had alcohol problems the appropriate course was available in terms of the treatment options noted by Dr Dinnen.
37. Dr Dinnen believes that alcohol dependence led to Mr Croxford suffering from depression and that the alcohol dependence may have been formed on a background of vulnerability or personality disorder. In Dr Dinnen’s view, the clinical picture is not fully explained by personality disorder. Dr Dinnen did agree, contrary to his earlier contrary view, that from the naval documents, there was some effort made by the Navy to assist Mr Croxford. Dr Dinnen opined that there was still a missed opportunity to properly treat and manage Mr Croxford. If there had been earlier and more appropriate intervention by the Navy, Dr Dinnen opined that there would have been a better situation and outcome. Dr Dinnen opined that the Navy was acting in the position of a parent and Mr Croxford would not have been able to consume alcohol at home with his mother and father to the extent that occurred in the Navy.
38. Dr Dinnen stated that in terms of depression, the correct Statement of Principles is Instrument Number 59 of 1998 and he considered that Mr Croxford’s discharge was very stressful to him and constituted a severe psychological stressor before the onset of depression, thus satisfying Factor 5(a). An alternative proposition is that Mr Croxford had a clinically significant psychological condition in the form of alcohol dependence which satisfies the requirements of Factor 5(b). Dr Dinnen noted that depression was present from the time Mr Croxford left the Navy and was as a consequence of naval service. While Dr Dinnen had opined that the discharge was a stressful event and could have led to depression, he did not rely on this as his principal argument, stating that the main issue is Mr Croxford’s alcohol dependence. Dr Dinnen stated that in forming his opinion about depression, he was not relying on feelings of shame and embarrassment leading on to the depression. Dr Dinnen disagreed with Dr Haik concerning the impact of antidepressants, believing that such medication was of assistance to Mr Croxford.
39. Dr Haik believes that the onset of Mr Croxford’s avoidant personality disorder began in early adulthood and not before Mr Croxford joined the Navy. The disorder could be seen in Mr Croxford’s difficulty in relating to his peers, having no meaningful relationships, being hypersensitive to negative evaluation and using alcohol. When Mr Croxford joined the Navy aged 15, the symptoms were not then manifest, Dr Haik opined, but it was clear that back in those early days, Mr Croxford was not self-assured. Dr Haik stated that people with avoidant personality disorder are shy and withdrawn as children. Dr Haik was also of the view that Mr Croxford would have developed an avoidant personality disorder in the 1970’s whether or not he was in the Navy. Thus, in whatever environment Mr Croxford found himself during that period, he would have experienced the avoidant personality symptoms manifestly.
40. Dr Haik noted that Mr Croxford had told him that he was a “follower”, despite other evidence that Mr Croxford was a Scout Patrol Leader. Dr Haik opined that had Mr Croxford had a personality disorder before the Navy, the Navy would not have contributed in any way to that condition, nor would the Navy have contributed to Mr Croxford’s alcohol problems. Dr Haik further opined that alcohol problems would also have occurred whether or not Mr Croxford was in the Navy. In any event, consumption of alcohol had to have commenced in the Navy, because he was too young before joining the Navy. Some people, Dr Haik reported, have addictive personalities and with this and Mr Croxford’s avoidant personality disorder, he suffers and is uncomfortable in social situations, such as in the Navy. Dr Haik acknowledged that Mr Croxford’s being in the Navy did cause him to be in close proximity to people. In such circumstances, for Mr Croxford, alcohol then provides a sense of well-being and in Dr Haik’s opinion, Mr Croxford was in fact using alcohol to self-medicate.
41. Dr Haik believed that in the 1970s there was no treatment for alcohol problems. Dr Haik used to work at Callan Park Psychiatric Hospital in Sydney and people with alcohol problems were “locked up”.. If Dr Haik was treating Mr Croxford at that time, he would have recommended that Mr Croxford undergo a period of abstinence from alcohol and arranged a referral to Alcoholics Anonymous. Dr Haik stated that at the time of Mr Croxford’s discharge from the Navy, the Navy did have a duty to provide Mr Croxford with some help with his alcohol problem, including assessment as part of a clinical management issue. This would have been in addition to disciplinary measures. Dr Haik reiterated that in his view, there were no clear treatment modalities in the 1970s with alcohol problems possibly being dealt with by hospitalisation then Alcoholics Anonymous.
42. Dr Haik further opined that in the 1970s, Mr Croxford’s personality problems would have been missed and alcohol would have been seen as the problem. The Navy considered Mr Croxford unsuitable because of his behaviour. Dr Haik noted the Navy was not as erudite then as it is now.
43. Dr Haik concluded that Mr Croxford did not know that he had a problem and “wild horses” would not have dragged Mr Croxford to treatment. Mr Croxford had avoidant personality disorder and from that he became alcohol dependent. Navy life must have been provocative for him, Dr Haik concluded. Dr Haik did not agree that depression was a feature in itself in Mr Croxford’s life and opined that anti-depressants were not likely to help.
Evidence from Wing Commander, V J Fogarty (Rtd)
44. Wing Commander Fogarty provided a statement “To Whom It May Concern” dated 12 October 1998 (Exhibit A2). Wing Commander Fogarty stated that a duty of care “is intrinsic to the responsibilities of every member of the Defence Force in relation to those junior in rank, or in seniority if of the same rank” and with minors, a senior member of the Defence Force is charged with the responsibility of parents and carers. Failure to properly supervise and care for a minor constitutes a gross dereliction of duty, Wing Commander Fogarty stated.
PERSONAL RECORDS FROM DEFENCE CORPORATE SERVICES
45. Mr Croxford’s medical records and personnel records were provided (Exhibit R3) and contained within is the following evidence.
Commander A G Ferris, HMAS Vendetta
46. Commander Ferris provided a report to the Flag Officer Commanding, HM Australian Fleet dated 3 February 1975 (Exhibit R3), which detailed incidents involving Mr Croxford’s misdemeanours in March 1974, 26 April 1974, 17 October 1974 and 22 January 1975. Commander Ferris concluded that the Navy had persevered with Croxford for over two years during which time he had been “given the ‘benefit of the doubt’ on a number of occasions”. With Mr Croxford’s latest offence in Darwin, in 1975, Commander Ferris considered that the Navy had nothing to gain by retaining Mr Croxford “or types like him”. Commander Ferris recommended Mr Croxford’s discharge “UNSUITABLE” from the Navy.
J Tennent, Senior Psychologist
47. The senior psychologist provided a report to the Commanding Officer, dated 11 March 1975 (Exhibit R3). The reason for referral was “Assessment for discharge unsuitable”. The senior psychologist noted a number of offences by Mr Croxford and that they “were all related to excess alcohol intake”. It was recorded that Mr Croxford told the senior psychologist that he had reduced his alcohol consumption and was prepared to make a serious attempt to adjust to Service requirements. Mr Croxford was expressing an interest in being transferred to “MTH” and that he has the capacity to cope with the training course. Mr Croxford wanted to remain in the Navy as he liked navy life. It was recommended by the senior psychologist that Mr Croxford be posted from HMAS Vendetta and transferred to MTH and that he be further reviewed in six months, (August 1975), to assess his suitability for retention. If transfer to MTH, was not possible, then his discharge may be necessary, the senior psychologist noted.
Commander M J Taylor
48. Commander Taylor reported from HMAS Vendetta to the Flag Officer Commanding HM Australian Fleet on 25 March 1975 (Exhibit R3). Commander Taylor noted the senior psychologist’s report, but maintained the recommendation that Mr Croxford be discharged as unsuitable. If however, the senior psychologist’s recommendation that Mr Croxford be retained for six months was accepted, Commander Taylor opined that Mr Croxford should not be posted away from HMAS Vendetta, as the staff of the ship were fully conversant with his background and they would be better placed to accurately assess Mr Croxford’s suitability for retention than would any other ship or establishment. Reference was made to Mr Croxford’s statement that he was easily led by his messmates and Commander Taylor further opined that if that was correct, then it would apply wherever Mr Croxford was located. If Mr Croxford was to be retained, then efforts would be made in HMAS Vendetta to employ Mr Croxford in the MTH Category when he could be spared from his weapons maintenance duties. This would then enable a recommendation to be made concerning Mr Croxford’s suitability for transfer to MTH.
Minute Paper By DNLS
49. A Minute Paper dated 11 April 1975, noted the various opinions in relation to Mr Croxford’s future (Exhibit R3). In this regard, the senior psychologist’s recommendation that Mr Croxford be retained, transferred to MTH category and reviewed in six months was noted, but that if the transfer to MTH was not possible, Mr Croxford’s discharge may be necessary. The other recommendation by the Commanding Officer that Mr Croxford be discharged unsuitable was noted, but the Commanding Officer agreed with the senior psychologist’s report that if Mr Croxford was to be retained, he ought to be in the MTH category. The third recommendation was that Mr Croxford should be discharged unsuitable. All the authorities agreed that the MTH category is fully complemented and that Mr Croxford represented at best a “questionable transfer risk”. The conclusion was that Mr Croxford should be discharged unsuitable (Exhibit R3).
Evidence of Captain H A Josephs (Rtd), Writeway Research Services
50. Captain Josephs provided two reports dated 5 July 2002 and 24 August 2002 (Exhibits R1, R2). In his first report, Captain Josephs deals with various incidents detailed by Mr Croxford which occurred during his operational service in HMAS Sydney in Vietnam.
51. The second report of 24 August 2002 deals with the issue of alcohol consumption on service. Captain Josephs noted that while Mr Croxford served in HMAS Sydney, he would not have been entitled to an issue of beer until 20 January 1974 when he was serving in HMAS Vendetta. Alcohol was not freely available to sailors in HMAS Sydney, but at the Captain’s discretion and to his junior sailors, the beer was issued already opened. While the issue of beer was supervised, the consumption of it was difficult to supervise, Captain Josephs commented. Trafficking in beer was a punishable offence. Captain Josephs opined that it could not be stated with certainty that Mr Croxford would never have been able to obtain alcohol illicitly, noting that he may occasionally have been able to purchase a can of beer from a mate who did not want it. While Captain Josephs noted that there was no established procedure specifically for supervising young sailors to ensure that they did not drink to excess, Divisional Offices, Divisional Senior Sailors and Coxswain staff were expected to keep the behaviour of all sailors under observation and take appropriate corrective action when deemed necessary. This system usually worked well for the closed community of a warship, Captain Josephs opined.
52. In his naval experience, Captain Josephs noted that he never encountered a case or heard of a sailor becoming drunk or being disciplined for drunkenness in a ship while at sea. While it would not have been impossible for a sailor to smuggle a bottle of spirits on board, Captain Josephs did not consider that it would be possible to consume it to the point of being drunk without being detected by a senior sailor or officer. There is very little privacy in a warship and the routine at sea requires every member of the ship’s company to be available and capable of performing his duties. Captain Josephs noted that the first official recognition that a sailor had a drinking problem would occur after repeated instances of drunken behaviour ashore leading to disciplinary action on board. Such a sailor would receive counselling from his Divisional Officer and when appropriate, the Executive Officer and the Commanding Officer.. In ships with a Medical Officer/or a Chaplain, the sailor could be given confidential counselling by those officers.
53. Mr Croxford’s personnel file indicated an unacceptable pattern of disorderly behaviour related to alcohol covering a two year period leading to his being discharged unsuitable. In this regard, Captain Josephs noted that the Commanding Officer of HMAS Vampire referred to previous letters about Mr Croxford dated 5 July and 22 November 1973, copies of which are not available, but reference to them indicates the behaviour of Mr Croxford had been the cause of official concern over a long period. Captain Josephs noted that the letter dated 5 July 1973, recommended the discharge of Mr Croxford which resulted in him being placed on probation for six months. A letter dated 22 November 1973 written during his service in HMAS Vendetta, withdrew the recommendation because Mr Croxford appeared to have redeemed himself.
54. Captain Josephs concluded that it could be safely assumed that Mr Croxford would have received frequent counselling from his Divisional Officer, Divisional Senior Sailor and the Executive Officer. Commanding Officer Ferris noted that he had personally consulted Mr Croxford on several occasions, Captain Josephs reported. Furthermore, Mr Croxford had made a statement that he was well aware of the nature of his problem and that it was his personal responsibility to resolve it. Captain Josephs opined that the decision to discharge Mr Croxford was taken only after careful consideration at the Navy Office by every relevant authority and in the belief that he represented a doubtful case for retention in the service.
SUBMISSIONS
Applicant
55. Mr Sherlock submitted Mr Croxford has no idea why he commenced alcohol consumption but there is a contribution to the development of alcohol abuse or dependence as a result of his naval service. Mr Sherlock further submitted that Mr Croxford’s alcohol dependence satisfies Factor 5(e) of Instrument Number 77 of 1998 concerning Alcohol Dependence or Alcohol Abuse Abuse which states:
“(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.…”
56. Mr Sherlock submitted that the Navy was in the role of a parent and had a duty of care to properly look after and supervise Mr Croxford, particularly as he was a minor. In this regard, Mr Sherlock referred the Tribunal to Mr Gage’s Statement (T9).
57. Mr Croxford’s alcohol problem should have been properly treated and he should have been provided with anger management strategies. The appropriate standard of treatment is not what the Navy or other members of the Defence Force considered appropriate, but what qualified medical practitioners considered appropriate, Mr Sherlock submitted. Dr Dinnen had provided evidence of the type of treatment available for people with alcohol-related problems at the time contemporaneous with Mr Croxford’s service. Mr Croxford’s evidence at Hearing was that his aberrant behaviour under the influence of alcohol was either ignored or punished. Mr Sherlock submitted that this could not be considered to be appropriate clinical management. Mr Croxford was required to use service medical facilities and staff and was not really able to go to private practitioners, Mr Sherlock submitted.
58. In relation to the Respondent’s contention that Mr Croxford was unaware that he had a problem with alcohol and that this was not indicative of an inability to obtain appropriate clinical management for his condition, Mr Sherlock submitted that such a contention ignores the Applicant’s submission that the naval authorities were aware of Mr Croxford’s drinking problems and associated aberrant behaviour while he was still a minor. The Navy had responsibility for Mr Croxford’s welfare and yet provided no appropriate clinical management for him in his circumstances and essentially did nothing to help him, Mr Sherlock contended.
59. In relation to the issue of diagnosis of Mr Croxford’s possible other psychiatric condition/s, Mr Sherlock submitted that Mr Croxford has depression as diagnosed by Dr Dinnen. His life before service was non-eventful and furthermore, what Dr Haik had opined in terms of Mr Croxford being shy and withdrawn as a precursor to personality disorder, is speculative, Mr Sherlock contended. Mr Sherlock submitted that in relation to the Statement of Principles Instrument Number 59 of 1998 concerning Depressive Disorder, Mr Croxford’s circumstances satisfy Factors 5(a) and 5(b) which state:
“(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
(b)having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder;…”
Mr Sherlock submitted that the clinical onset of depression is, on the balance of probabilities, within one year of Mr Croxford’s discharge.
60. In relation to Factor 5(a) of the relevant Statement of Principles, Mr Sherlock submitted that the severe psychosocial stressor is Mr Croxford being discharged prematurely from the Navy and thus losing his career.
61. In relation to Factor 5(b) Mr Sherlock submitted that the significant psychiatric condition is alcohol dependence.
62. An alternate submission put forward by Mr Sherlock is that Mr Croxford has three psychiatric conditions namely: alcohol dependence, depression and personality disorder.
63. Considering the relevant Statement of Principles concerning Personality Disorder, Instrument Number 144 of 1995, Mr Sherlock submitted that Mr Croxford may satisfy Factor 1(b) which states:
“(b) inability to obtain appropriate clinical management”
64. Mr Sherlock submitted that if Mr Croxford was successful in establishing an entitlement for a psychiatric condition, whatever the diagnosis, the date of effect would be 26 January 2001 and the assessment of the rate of pension should be remitted to the Commission.
Respondent
65. Mr Marsh, for the Respondent, submitted that in the Act, there is no concept of a duty of care. Mr Marsh noted that both Dr Dinnen and Dr Haik agree that there is a diagnosis of alcohol dependence. The appropriate Statement of Principles is Instrument Number 77 of 1998. A relationship between alcohol dependence and service must be established on the balance of probabilities, Mr Marsh submitted. Dr Dinnen did not rely on there being a stressor. He dealt with the issue relying on Factor 5(e) dealing with the inability to obtain appropriate clinical management. In Repatriation Commission v Wellington (1999) 57 ALD 507, the Federal Court determined that the issue of clinical management must be judged on clinical treatment available at the time of the condition or injury and not on recent clinical management practices or standards. Furthermore, Mr Marsh submitted that clinical management is not limited to the Navy’s medical services and that Mr Croxford was not prevented from obtaining treatment from civilian services, if he so decided as was discussed in the Full Federal Court decision of Brew v Repatriation Commission (1999) 94 FCR 80. Mr Marsh submitted that it was also Mr Croxford’s responsibility to obtain treatment.
66. Mr Marsh further submitted that there is no evidence that the Navy prevented its members from obtaining treatment privately, albeit that the need to pay for such treatment would probably act as a disincentive to seek private medical attention. Reluctance to seek treatment for financial reasons does not constitute in Mr Marsh’s submission, an inability to obtain appropriate clinical management. Mr Marsh noted that in the Full Court decision in Brew v Repatriation Commission (supra), there were circumstances in that matter, similar to those in Mr Croxford’s case.
67. Mr Marsh submitted that the contemporary medical records relating to Mr Croxford do not support that there was inappropriate clinical management. From naval records, it appeared that Mr Croxford received counselling and Mr Marsh referred the Tribunal to Captain Josephs’ report in which Captain Josephs opined that Mr Croxford would have received frequent counselling from his Divisional Officer, Divisional Senior Sailor or Executive Officer. There was also mention by Commander Ferris on 8 February 1975 (Exhibit R3) that he had personally consulted Mr Croxford about his behaviour in addition to the report of 5 July 1973, which referred to Mr Croxford not being a stable person when he was serving in HMAS Vendetta. Mr Marsh noted that Mr Croxford was placed on probation for six months and this is an indication therefore, Mr Marsh contended, that the Navy was aware of Mr Croxford’s problems and in January 1975, Mr Croxford was still having problems.
68. Mr Marsh submitted that Mr Croxford was obtaining remedial assistance and counselling to address his alcohol problems, including self help options and taking responsibility. Such measures were part of appropriate clinical management, Mr Marsh contended. Commander Ferris’ Statement indicated that Mr Croxford himself was aware there was a long standing alcohol-related problem (Exhibit R3).
69. Referring to further service documents, Mr Marsh submitted that Commander Taylor in his report of 25 March 1975 (Exhibit R3) also shows that Mr Croxford had a lack of responsibility and also that not all of his behaviour was alcohol-related. Mr Marsh also referred the Tribunal to the report of senior psychologist, J Tennent, which indicated that previous counselling was undertaken as evidenced by the statement in the senior psychologist’s report, “following counselling by the psychologist…” (Exhibit R3).
70. Mr Marsh noted Mr Croxford’s evidence that he was unaware that he was suffering from alcohol abuse or dependence and never sought treatment for it in the Navy. It is significant that Mr Croxford first sought assistance for alcohol abuse or dependence in 1998 before he lodged his current claim for a Disability Pension, Mr Marsh contended. Accordingly, Mr Marsh submitted that there was no inability to obtain appropriate clinical management as was defined in the Federal Court decision in Brew v RepatriationCommission (supra). The majority in that matter held that whether objective or subjective barriers to obtaining treatment is made out in a particular case, depends upon the facts of that case, and furthermore at paragraph 25, whether “inability” is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to the issue. The majority of the Full Federal Court in Brew v Repatriation Commission (supra) also endorsed the primary judge’s use of the term “inability” to mean, from the Macquarie Dictionary: “lack of ability; lack of power; capacity; means” or “the condition of being unable; lack of ability, power or means” from the New Shorter Oxford Dictionary embraces what could fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier, such as the condition of being unable.
71. Mr Marsh submitted therefore that the test in terms of inability to obtain appropriate clinical management, by reference to the evidence would indicate that Mr Croxford was treated appropriately. The processes utilised leading to Mr Croxford’s eventual discharge were entirely appropriate, Mr Marsh submitted. The fact that he was not treated specifically for his alcohol problems does not suggest an inability to obtain appropriate clinical management as was discussed in Re Millen and Repatriation Commission [2000] AATA 508. In that decision, that Tribunal noted at paragraph 22 that an inability to obtain appropriate clinical management does not invite an inquiry as to the appropriateness of a claimant’s clinical management. It requires a claimant to show an inability to obtain that management. Deputy President McMahon further determined that whether a condition is misdiagnosed is irrelevant. The issue is whether or not the claimant was deprived of the opportunity to obtain appropriate clinical management. Mr Marsh referred the Tribunal to Johnston v The Commonwealth (1982) 150 CLR 331 in which, Gibbs CJ, Mason and Wilson JJ observed at 338-9:
“There is some force in the comment of his Honour in Lucas that ‘aggravation’ signifies ‘making worse’ rather than ‘becoming worse’, a comment reflected in the remarks of Brennan J in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb ‘aggravate’ than when it is applied to the noun ‘aggravation’, especially when it is used in a passive sense in the expression ‘suffers an aggravation’. ‘Aggravation’ may mean ‘An increasing..in gravity or seriousness’ as well as ‘being increased, in gravity or seriousness’.
…
…The proper projection of the disease, if detected in 1970, as on the finding of the tribunal it should have been, was no longer a disease ‘taking its natural and fatal course, unimpeded by timely treatment’, but a disease capable of effective medical management. If that be chosen as the starting-point for the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given time and treatment, it should have taken”.
72. Factor 5(e) of the relevant Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, Mr Marsh submitted, can only come into play when the condition is correctly diagnosed. This factor requires that the condition or disease is contracted before or during service. Mr Marsh acknowledged that this was satisfied given that the onset of alcohol abuse/dependence was in 1973. In Repatriation Commission v Wellington (supra), it was determined that there must be a contribution by service in a material way to the disease or a worsening, not just contiguous with service. Mr Marsh submitted that given Mr Croxford’s evidence that he did not consider he had an alcohol abuse problem during service and never sought management of it until 1998, it could not be said that the disease was contributed to in a material degree or aggravated by defence service by reason of any inability to obtain appropriate clinical management.
73. The Tribunal was referred to Repatriation Commission v Wedekind [2000] FCA 649, in which the Federal Court held that the mere failure to diagnose a condition does not amount to an inability to obtain appropriate clinical management. Kenny J noted in relation to Mr Wedekind’s condition of pterygium that:
“12. In summary, before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that:
(a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during the war service, after having contracted the pterygium;
(b) Subject to (c), his inability to obtain appropriate clinical management was related to his war service;
(c) The pterygium was contracted while he was rendering war service and was contributed to in a material degree by or was aggravated by his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether he was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service. “
74. Mr Marsh contended accordingly that the misdiagnosis or failure to diagnose cannot give rise to an inability to obtain appropriate clinical management. The disease itself must have already been aggravated by reason of the inability to obtain appropriate clinical management. Mr Marsh submitted that there is no evidence that anything that the Navy did or did not do in relation to the management of Mr Croxford’s alcohol problem was worse than it would otherwise have been, particularly given the absence of clinical management of any kind for a further 24 years. Mr Marsh concluded that the fact that the Navy procedure was apparently to treat Mr Croxford’s alcohol problems as a disciplinary issue, says nothing about inability on the part of Mr Croxford to seek and obtain appropriate clinical management. If anything, Mr Marsh submitted, the Navy’s disciplinary regime would have acted as deterrent to Mr Croxford’s drinking and that this deterrent was not present during Mr Croxford’s later life.
75. Turning to Mr Sherlock’s submission in relation to depressive disorder, Mr Marsh submitted that the diagnosis should be made on the balance of probabilities. Mr Marsh contended that Dr Haik’s diagnosis of personality disorder should be preferred on all of the evidence. Avoidant personality had also been diagnosed by a clinical psychologist, Mr Marsh submitted. In terms of Mr Croxford’s main psychiatric condition, while Dr Dinnen and Dr Haik have arrived at different diagnoses, they had done so in a professional way. Both psychiatrists agreed that there was a component of personality disorder in Mr Croxford’s case.
76. In relation to whether or not Mr Croxford’s personality disorder is service related, Mr Marsh considered the relevant Statement of Principles, Instrument Number 144 of 1995 as amended. Mr Marsh submitted that there is no evidence that Mr Croxford experienced a catastrophic experience (Factor 1(a)) or again, that there was any inability for him to obtain appropriate clinical management (Factor 1(b)). Accordingly, Mr Marsh submitted that the decision under review should be affirmed.
FINDINGS
77. The Tribunal has reached a decision in this matter taking into account the evidence, the submissions, the legislation and the case law. It is clear in this matter that many experts who have provided opinion believe that there is a psychiatric condition which could be: post traumatic stress disorder; alcohol abuse or dependence; avoidant personality disorder; or, depression. The Tribunal sees its task is initially to attempt to determine what is the appropriate diagnosis of Mr Croxford’s psychiatric condition. Once this is done, it must be established whether or not there is a Statement of Principles relevant to that diagnosis and then determine whether or not the condition is linked to service.
78. It is well established that the diagnosis must be established with the standard of proof being on the balance of probabilities with the determination being made to the Tribunal’s reasonable satisfaction.
79. At Hearing during concurrent evidence, Dr Dinnen and Dr Haik were in agreement that Mr Croxford does not suffer from post traumatic stress disorder as he does not meet the diagnostic criteria contained within the relevant Statement of Principles which is derived from DSM-IV. The Tribunal is also reasonably satisfied that a diagnosis of post traumatic stress disorder cannot be made out as Mr Croxford’s symptoms do not meet the diagnostic criteria contained within the Statement of Principles. While Mr Croxford may have some of the symptoms or features of post traumatic stress disorder as outlined by Dr Westerink (T14), the Tribunal in addressing the Statement of Principles diagnostic criteria is not satisfied that he meets all of the requirements to the requisite level.
80. Dr Dinnen agreed with Dr Haik during the course of concurrent evidence, that Mr Croxford suffers from a personality disorder as a vulnerability. The difference between the opinions of Dr Dinnen and Dr Haik is that Dr Dinnen did not consider that the existence of a personality disorder precluded a diagnosis of alcohol dependence and depression, which arises out of alcohol dependence. Thus, whether or not Mr Croxford has an avoidant personality disorder does not detract from Dr Dinnen’s opinion that the predominant psychiatric condition which is service-related is alcohol dependence. Dr Haik also agreed that Mr Croxford did suffer from alcohol dependence but he considered that this condition and avoidant personality disorder were not service-related.
81. The Applicant’s contention is that alcohol dependence is service-related because Mr Croxford had an inability to obtain appropriate clinical management for that condition when he was serving in the Navy. This contention relates to Factor 5(e) of the relevant Statement of Principles concerning Alcohol Dependence or Alcohol Abuse. For Factor 5(e) to be successfully met, it is necessary that there is a material contribution or aggravation to the condition of alcohol dependence with the alcohol dependence being contracted before or during, but not arising out of Mr Croxford’s service.
82. Dealing with the issue of diagnosis, the Tribunal notes the agreement of the expert medical witnesses as to a diagnosis of alcohol dependence in satisfaction of Statement of Principles Instrument Number 77 of 1998 and the relevant diagnostic criteria in that Statement of Principles, which the Tribunal notes is also derived from DSM-1V. Considering those diagnostic criteria and the evidence of the Applicant and the expert witnesses, the Tribunal is reasonably satisfied and so finds that Mr Croxford meets the diagnostic criteria for alcohol dependence including 2(b)(1), (3)(6) and (7) on service and post service.
83. The Tribunal turns to consider whether or not alcohol dependence is service-related by considering Factor 5(e) of the relevant Statement of Principles. The Tribunal has confined its attention to defence service as opposed to operational service as on an examination of the evidence, it is apparent that the problems Mr Croxford had arose out of defence rather than operational service.
84. The Tribunal finds that Mr Croxford commenced consumption of alcohol after he joined the Navy and that he was a minor at the time. The Tribunal accepts Mr Croxford’s evidence that he was able to obtain alcohol from other sailors who were of the legal drinking age. The fact that this was possible is attested to by Captain Josephs, although he believed that there would only be occasional instances of under age sailors being able to obtain alcohol (Exhibit R2). The Tribunal finds that Mr Croxford’s drinking continued and on his evidence, it worsened during service. The Tribunal in its examination of the material can find nothing to dispute this to the requisite standard of proof. Certainly, by the accounts contained within Mr Croxford’s Defence Personnel Records (Exhibit R3) there are reports by Mr Croxford’s Commanding Officer, Commander A G Ferris, of a number of incidents in 1974 and in 1975 which are alcohol-related. Furthermore, the Tribunal also notes a report by senior psychologist, J Tennent, on 11 March 1975, to the effect that offences in 1974 and 1975 committed by Mr Croxford are all related to excess alcohol intake. The Tribunal finds that from the commencement of Mr Croxford’s alcohol consumption in HMAS Sydney, this then worsened in HMAS Vendetta to the point where he was brought to the attention of the authorities on a number of occasions and charged and convicted of alcohol-related offences. The Tribunal considers that the onset of alcohol abuse was in 1973 during service in HMAS Vendetta and continued in a worsening pattern leading to alcohol dependence during 1974 and 1975.
85. From the documentary evidence and Mr Croxford’s evidence which is accepted, the Tribunal considers that the management of alcohol dependence in the Navy leading up to discharge in 1975, consisted principally of the use of the Navy’s disciplinary processes. There was a referral to the senior psychologist however this was for assessment in relation to possible discharge and on the material available to the Tribunal, did not represent ongoing counselling or assistance. Certainly, Mr Croxford denies other counselling. He also denies having any discussion with his supervisor or indeed his Commander beyond being told to cease drinking and being read the riot act for his behaviour.
86. The Tribunal notes Commander Ferris’ report of 3 February 1975 that Mr Croxford was not a very stable person (Exhibit R3) and that the Navy had persevered with him for two years [since 1973] and that there was a recommendation that Mr Croxford should be discharged as unsuitable. The senior psychologist on 11 March 1975 recommended a transfer to MTH posted away from HMAS Vendetta with a review in six months. This recommendation was not adopted and indeed, Commander Taylor’s recommendation was against transferring Mr Croxford from HMAS Vendetta.
87. Many people were aware of Mr Croxford’s alcohol-related behaviour, his poor record and instability. Mr Croxford himself notes this in his statement of 29 January 1975 (Exhibit R3), when he recorded that he had an inability to control his alcohol intake. It was his belief at that time that his convictions related to alcohol-effected behaviour. Mr Croxford wanted to stay in the Navy and this was apparent from other documentary evidence.
88. Dr Dinnen’s opinion is that at that time in 1973 through to 1975, when Dr Dinnen was practising psychiatry, such behaviour as Mr Croxford was exhibiting would have resulted in a treatment or clinical management regime of psychotherapy in a group milieu and/or attending Alcoholics Anonymous. Dr Haik eventually agreed with this proposition, although noted that treatment back in the mid 1970s was not as enlightened as it is today. Be that as it may, the Tribunal is satisfied that in the 1970s when Mr Croxford was experiencing his alcohol-related problems, there was a form of clinical management available to him. No such clinical management was provided to Mr Croxford. The Navy authorities certainly were aware of his alcohol-related problems and there was consideration of his behaviour which led to the investigation of whether or not he should be discharged. There was discussion with his superior officers and with the senior psychologist about his behaviour and there was a recommendation by the senior psychologist to put Mr Croxford on probation for six months, transfer him from HMAS Vendetta and also allow him to train in MTH.. The Tribunal finds that this recommendation was not followed through and considers that this is part of a failure to properly provide appropriate clinical management, based on the recommendation of the senior psychologist, to manage Mr Croxford’s alcohol problem. Certainly there was no clinical management as opined by either Dr Dinnen or Dr Haik made available to Mr Croxford.
89. Does this management of Mr Croxford’s alcohol problem and behaviour amount to an inability for him to obtain appropriate clinical management? The issue of appropriate clinical management requires consideration of a number of complex factors particular to Mr Croxford’s circumstances. Thus, the Tribunal finds that factors such as Mr Croxford’s age, his particular personality, the type of condition from which he was suffering and his service in the Navy must all be taken into consideration when determining whether or not he was able to obtain appropriate clinical management of his alcohol dependence. At the relevant time in 1973, Mr Croxford was 17 years old and was discharged when he was 19 years old. He was clearly suffering from alcohol-related problems which were notable whether it was in the 1970s or in 2003. Furthermore, inherent in a condition of substance dependence such as alcohol, is a lack of insight and great difficulty for sufferers in coming to any firm resolve to assist themselves, for example, by abstaining from alcohol consumption or seeking treatment. As was urged upon decision-makers in the Full Federal Court decision in Brew vRepatriation Commission (supra), each case must be looked at in terms of the particular evidence and without being too technical or theoretical.
90. As a young person suffering from an alcohol dependence, Mr Croxford, as has been shown, was highly unlikely to have been able to do anything to obtain treatment for himself, either in the Navy or through some civilian private facility. It is one thing to acknowledge that one has a drinking problem as Mr Croxford did in his statement (Exhibit R3), but quite a difficult and different matter to then have the ability to obtain appropriate clinical management for that condition. In the Tribunal’s view, it is unrealistic for an adult suffering from alcohol dependence to recognise and seek treatment for the condition without assistance, let alone a 17 year old away from his usual support mechanisms. At the very least, the Tribunal considers that the senior psychologist’s recommendation should have been followed, but more importantly, there should have been referral of Mr Croxford either to the naval medical and counselling facilities or advice given to him as to the need to seek medical and psychological intervention elsewhere.
91. The consequence of Mr Croxford not being able to obtain appropriate clinical management for alcohol dependence, on the Tribunal’s understanding of the evidence, resulted in a worsening of his alcohol dependence problem during his service in the Navy and thus a material contribution made to this condition beyond that which would have been expected as a natural consequence of the alcohol dependence. Had Mr Croxford been able to obtain a clinical management regime either by way of six months probation in a different setting to HMAS Vendetta or to have more appropriately obtained counselling referral to and/or referral to Alcoholics Anonymous, the Tribunal is of the view that the condition would not have been worsened or aggravated to the degree that it was.
92. It is the Tribunal’s view that Mr Croxford lacked the capacity or the means to seek management of his condition through the Navy. This is an objective factor. There is also a subjective factor present in the features of the condition of alcohol dependence in that the sufferer does not have the requisite tools to tackle that dependence including insight as to have how best to deal with the condition. Thus, the Tribunal finds that Mr Croxford had an inability to obtain clinical management in the legislative sense.
93. The Tribunal further finds that the Navy had the means to properly manage Mr Croxford and did not do so to the requisite clinical management standards of the 1970s. In this regard, the Tribunal distinguishes the facts in this case from the particular circumstances experienced by the Applicant in Brew v Repatriation Commission (supra); Re Millen and Repatriation Commission (supra); Repatriation Commission v Wedekind (supra): or in other Tribunal cases such as Re Crowe and Repatriation Commission (1999) 28 AAR 548 and Re Woodger andRepatriation Commission [2003] AATA 39.
94. The Tribunal finds that the worsening of Mr Croxford’s alcohol dependence is not just the natural progression of the condition. Thus, the Tribunal is reasonably satisfied that Mr Croxford had an inability to obtain appropriate clinical management and meets Factor 5(e) of the relevant Statement of Principles. Accordingly, alcohol dependence is determined by the Tribunal to be defence-caused pursuant to the Act. Mr Croxford is entitled to Disability Pension for alcohol dependence from and including 26 January 2001. The assessment of this defence-caused condition of alcohol dependence is remitted to the Repatriation Commission. The Tribunal notes Mr Croxford’s evidence concerning his reduction and/or cessation of alcohol consumption. This needs to be carefully addressed by a medical practitioner expert in the assessment of substance dependence. The Tribunal notes the discussion in DSM-IV about issues of remission in substance abuse and dependence conditions and this will obviously form part of the assessment process of Mr Croxford’s particular circumstances.
95. The Tribunal next considers whether or not Mr Croxford has a defence-caused condition of depression. The appropriate Statement of Principles is Instrument Number 59 of 1998. Dr Dinnen considers that Mr Croxford is depressed while Dr Haik does not agree. The Tribunal is reasonably satisfied on Mr Croxford’s evidence and the other material before it including Dr Dinnen’s opinion, that Mr Croxford does now suffer from depression. The date of onset of depression is however crucial to determining whether or not Mr Croxford meets the relevant factors in the Statement of Principles. The possible relevant factors are Factor 5(a), which requires Mr Croxford to have experienced a severe psychosocial stressor in the form of loss of his employment as opined by Dr Dinnen, or Factor 5(b), which requires having a clinically significant psychiatric condition, which in this case would be alcohol dependence. Both those factors require the presence of depression within one year of experiencing either the severe psychosocial stressor or suffering from a significant psychiatric condition.
96. Mr Sherlock has contended that Mr Croxford experienced depression within one year of him having been discharged. There is no evidence before the Tribunal which would allow the Tribunal to conclude that there is an onset of depression within one year of either suffering from a significant psychiatric condition or suffering depression within one year of 1975. The onset of alcohol dependence is agreed by all and accepted by the Tribunal to be 1973. The discharge occurred in 1975. The Tribunal notes the decision in Re Robertson and Repatriation Commission (1998) 50 ALD 668 which expounds the principle that clinical onset is when a condition is first brought to the attention or diagnosed by a medical practitioner. Even Dr Dinnen in his evidence did not provide a date of onset of depression. It would be highly speculative and certainly not pointed to in the material to the Tribunal’s reasonable satisfaction to conclude that depression occurred either in 1974 or 1976. In such circumstances, the Tribunal is reasonably satisfied that Mr Croxford does not with his particular circumstances meet the requirements of any of the factors of the Statement of Principles for depression.
97. In all of the circumstances and for the reasons set out above, pursuant to section 43 the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides:
(i)The diagnosis of post traumatic stress disorder with secondary major depression and alcohol dependence is varied to the diagnosis of alcohol dependence.
(ii)Alcohol dependence is found to be defence-caused condition with Disability Pension being payable with effect from and including 26 January 2001.
(iii)The assessment of the correct rate of Disability Pension for alcohol dependence is remitted to the Commission.
I certify that the preceding 97 paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr JD Campbell, Member
Signed: .......................................................................................
AssociateDate of Hearing 14 November 2002
Date of Decision 30 April 2003Representative for the Applicant Mr R Sherlock, Advocate, Legal Aid Commission of New South Wales
Representative for the Respondent Mr J Marsh, Departmental Advocate
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