Demczuk and Repatriation Commission
[2005] AATA 1012
•12 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1012
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/593
VETERANS' APPEALS DIVISION ) Re VICTOR NICHOLAS DEMCZUK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr ET Eriksen, Member Date12 October 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and:
(a) in place of that decision, determines that Mr Demczuk’s alcohol dependence and generalised anxiety disorder are war-caused; and
(b) remits the matter to the Repatriation Commission for reassessment of the applicant’s entitlement to pension in accordance with the Tribunal’s reasons for decision, and on the basis that his entitlement to pension in respect of the conditions of alcohol dependence and generalised anxiety disorder will commence from 25 March 1999.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - claim that generalised anxiety disorder and alcohol dependence were war-caused - consideration of Statements of Principles - applicant asserted that dropping of shell, being subjected to a mortar attack, disposing of ticking shells, concern re suspected mines, and encounter with patrol boats satisfied factors in Statements of Principles - consideration of date of clinical onset - decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Bayer Pharma Pty Ltd v Farbenfabriken Bayer AG (1965) 120 CLR 285
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Delahunty v Repatriation Commission (2004) 38 AAR 511
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Gerzina v Repatriation Commission [2004] FCAFC 96
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
O’Neil v Repatriation Commission (2001) 34 AAR 290
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
12 October 2005 Deputy President D G Jarvis and Dr ET Eriksen, Member 1. Victor Nicholas Demczuk served with the Royal Australian Navy, and was engaged in operational service in Vietnam on board HMAS Brisbane from 16 March 1971 to October 1971. On 24 May 1999, he lodged a claim for pension in respect of (relevantly) stress and anxiety. The Repatriation Commission decided that Mr Demczuk was not suffering from any anxiety disorder but accepted that he was suffering from alcohol dependence or alcohol abuse. However, the Commission decided that his alcohol related condition was not war-caused, and rejected his claim.
2. Mr Demczuk subsequently applied to the Veterans’ Review Board (“VRB”) seeking a review of the Commission’s decision. The VRB varied the Commission’s decision in that it accepted a diagnosis of generalised anxiety disorder, and otherwise affirmed the Commission’s decision, thus confirming the rejection of the claim. Mr Demczuk then applied to this Tribunal to review the decision of the Commission, as varied and affirmed by the VRB.
3. In a decision of this Tribunal differently constituted, the Tribunal:
(a)confirmed the rejection of the applicant’s claim in respect of generalised anxiety disorder, and also in respect of alcohol dependence; and
(b)set aside the Commission’s decision rejecting the claim for pension entitlement in respect of alcohol abuse, and determined that Mr Demczuk’s alcohol abuse was war-caused.
4. Mr Demczuk appealed against the order referred to in paragraph 3(a) above to the extent that it concerned generalised anxiety disorder, and the Commission cross-appealed from the order referred to in paragraph 3(a) above. On 29 October 2003, Mansfield J allowed the appeal and the cross-appeal, and further ordered that the application of Mr Demczuk for pension entitlement in respect of generalised anxiety disorder and alcohol abuse be remitted to the Tribunal for re-hearing according to law. We have heard Mr Demczuk’s application for review de novo, in accordance with this remitter. The transcript of certain evidence adduced at the first hearing of this Tribunal, together with a number of exhibits tendered in those proceedings, have been tendered in the proceedings before us. That evidence has also been updated and supplemented by further evidence and reports submitted in the proceedings before us.
Issue before the Tribunal
5. Both parties accept that Mr Demczuk’s conditions should be diagnosed as generalised anxiety disorder and alcohol dependence. The issue before us is whether these conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”).
6. The claim for pension was received by the Department of Veterans’ Affairs on 25 June 1999, and so if Mr Demczuk is successful in his claim, the earliest date of effect would be 25 March 1999, being three months before its receipt by the Department.
Background
7. Mr Demczuk was born on 2 February 1953. He joined the Royal Australian Navy on 22 August 1970 when he was seventeen, and served in the Navy from then until 29 February 1972.
8. Mr Demczuk did recruit training at a shore base, HMAS Cerberus. This took three months. On 11 December 1970 he was posted to HMAS Brisbane as an ordinary seaman to continue his training. During the period of his operational service, the Brisbane was attached to the US 7th Fleet for duties on the gun line off South Vietnam. Ships on the gun line provided naval gun fire support to allied land forces who were within range of the coastal regions of South Vietnam, and also harassment firings into known or suspected Viet Cong areas. After his operational service, Mr Demczuk had some training at Jervis Bay in loading guns, loading the magazines, keeping a look out for submarines, torpedoes and mines, and on being called to action stations.
9. Mr Demczuk asserts in the present proceedings, in essence, that certain stressful events occurred during his operational service, and caused the conditions on which his claim is based. From the evidence before us, including his witness statement (exhibit A3), it appears that he relies upon the following asserted events:
(a) he was on board the Brisbane when it came under mortar fire (the “mortar fire event”);
(b) he was in the magazine room of the Brisbane when another seaman dropped a napalm shell, he was told to take the shell to the upper deck and to dispose of it overboard (the “dropped shell event”);
(c) he carried shells from the turret on the upper deck to the rear of the ship and dropped them overboard and when he did this, he could hear the shells ticking (the “turret event”);
(d) while on sentry duty when the Brisbane was stationary off the coast of Vietnam, he saw something floating towards the ship, which he thought might have been a mine, and he fired several SLR rounds into it (the “sentry duty event”);
(e) while on watch on the Brisbane with another seaman, they observed an object somewhat close to the ship which they thought could have been a mine (the “lookout event”);
(f) he was on board the Brisbane when there was an announcement that the ship had come under sniper fire from the mainland (the “sniper fire event”); and
(g) he was on board the Brisbane when it pursued patrol boats up and around the Mekong Delta area, and he had to go to his action station in the magazine room. He was concerned that the ship might have been attacked because of the greater manoeuvrability of the patrol boats, and that he might have been unable to escape if the ship had been sunk (the “Mekong Delta event”).
Legislative Background
10. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
11. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
12. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
13. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
14. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
15. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
16. The claimed conditions of generalised anxiety disorder and alcohol dependence are the subject of SoPs. We will set out the relevant provisions of the SoPs below. We note that where a SoP exists we must apply the test prescribed by s120A(3) of the VE Act in the following way, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
17. In considering whether there is an hypothesis connecting Mr Demczuk’s conditions with his war service, and in applying the relevant Deledio steps to this end, we must consider all of the material before us, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
18. Any hypothesis that (once again, after taking into account all of the material before us) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with a veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). We refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
19. As regards the first step in Deledio, we are satisfied that the material before us points to an hypothesis connecting the claimed conditions with Mr Demczuk’s operational service. That hypothesis is that one or more of the asserted events to which we have referred above resulted in Mr Demczuk suffering generalised anxiety disorder and alcohol dependence, and that accordingly, those conditions are war caused.
20. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question. The SoP in respect of generalised anxiety disorder is Instrument No. 1 of 2000 (the “2000 Anxiety SoP”, being exhibit A1, T23, pages 123 to 127), and is the SoP currently in force. We must apply this SoP notwithstanding that it was not in force at the time of the original decision by the Commission : Repatriation Commission v Gorton (2001) 110 FCR 321. Counsel for Mr Demczuk, Mr Ower, contended that the earlier SoP in force at the time of the original decision by the Commission was more beneficial to Mr Demczuk. That earlier SoP is Instrument No. 48 of 1994, as amended by Instrument No. 275 of 1995 (the “amended 1994 Anxiety SoP”, being exhibit A1, T23, pages 128 to 131). In those circumstances, we must also consider that SoP, if the later SoP does not support the claim. The SoP in respect of alcohol dependence or alcohol abuse is Instrument No. 76 of 1998 (the “Alcohol SoP”, being exhibit A1, T23, pages 117 to 122).
21. We now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
22. Each of the SoPs provides in effect that at least one of the factors set out in the SoP must be related to the relevant service (being in this case, operational service) by the veteran before it can be said that a reasonable hypothesis has been raised connecting the asserted condition with the circumstances of the veteran’s service.
Are the asserted events consistent with the SoPs re generalised anxiety disorder?
23. In the case of the 2000 Anxiety SoP, the factors relied upon by Mr Demczuk are factors 5(a)(ii) and (iii), which read as follows:
“(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or …”
The expression “severe psychosocial stressor” is defined in clause 8 as follows:
“severe psychosocial stressor means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
24. In White v Repatriation Commission (2004) 39 AAR 67, Spender J decided that the definition of “severe psychosocial stressor” in the 2000 Anxiety SoP embodied both objective and subjective elements. His Honour said at [29] – [30]:
“29. The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
25. In the case of the 1994 Anxiety SoP, the factor relied upon by Mr Demczuk is the factor referred to in clause 1(b), which reads as follows:
“(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; …”
The expression “stressful event” is defined in paragraph 4 of the SoP to mean “an occurrence which evokes feelings of anxiety or stress.”
26. In O’Neil v Repatriation Commission (2001) 34 AAR 290, North J considered the meaning of the expression “stressful event” in the 1994 Anxiety SoP. His Honour decided that the task of the Tribunal was to determine whether it could be satisfied on the appropriate standard that the applicant actually subjectively felt anxious or stressed, and that it was not intended to test that subjective experience against some objective factor (see [11] and [12]). That case was decided before Woodward v Repatriation Commission (2003) 131 FCR 473 and Repatriation Commission v Stoddart (2003) 134 FCR 392. We note that in White (supra), Spender J referred to the judgment of Mansfield J at first instance in Stoddart v Repatriation Commission (2003) 74 ALD 366 and to Woodward (supra), in support of his conclusion that the definition of severe psychosocial stressor in the 2000 Anxiety SoP entailed an occurrence which must have certain objective characteristics, as well as, subjectively, evoking feelings of substantial distress in the person concerned. His Honour did not refer to O’Neil (supra). It may be that, in the light of these later cases, the definition of “stressful event” in the 1994 Anxiety SoP should be interpreted as also requiring an assessment of whether the occurrence in question could be characterised objectively as an occurrence of a kind which would evoke feelings of anxiety or stress. However, on the view we take of the material before us, it is not necessary for us to resolve this question.
27. Counsel for Mr Demczuk, Mr Ower, submitted that all seven of the asserted stressors would meet the definition in the 2000 Anxiety SoP of “severe psychosocial stressor”, and that alternatively, if we did not accept that contention, then they would meet the less stringent requirements of the definition of “stressful event” in the 1994 Anxiety SoP. He further submitted that there was material before us that three of the asserted stressors, namely the mortar fire event, the dropped shell event and the turret shell event, met the requirements of the definition in the Alcohol SoP of “experiencing a severe stressor”. As those three events are relied upon as satisfying the definitions in all three SoPs, we will now refer to the material before us in relation to those events.
28. In his evidence in the first hearing in the Tribunal, after referring to the mortar fire event, Mr Demczuk said that he was “absolutely shocked and particularly alarmed that it happened” because he had previously been told that nothing could reach the vicinity of the ship (exhibit A4, page 17, lines 16 to 20). He said he remembered “ducking because there was a guard rail” and referred to “absolute shock and fear” (exhibit A4, page 18, lines 10 and 26).
29. Mr Demczuk also referred in the first hearing to the dropped shell event. He gave evidence that one of the sailors had dropped a shell, and said: “The shell was a Willy Peter and we were always told to handle these carefully with gloves, like with kid gloves, because they were extremely dangerous” (exhibit A4, page 23, line 6). He explained that a “Willy Peter” was a napalm shell, and they had been told in training by the crew to handle such shells more carefully, and to make sure they did not drop them. The transcript then records the following question and answer:
“So what occurred immediately after this was dropped? --- Just the tension of it being dropped and sort of like relief that it didn’t go off.” (exhibit A4, page 23, line 30)
He then went on to say that he could not remember what had happened to the shell afterwards. He was adamant that it did not tick after it was dropped (exhibit A4, page 54, line 5).
30. Mr Demczuk also referred in his evidence at the first Tribunal hearing to an incident which according to his witness statement involved the disposal of a ticking shell overboard. He gave evidence that there were in fact two shells, not one. He described an unlocking process whereby the cap would be removed from a shell and a screw was turned. He said that at that stage the shells had begun ticking, and this was reported by the sailor in charge, and the response was to take the shells and dispose of them overboard. This evidence, and the reference in his witness statement to ticking shells in the magazine, appear to relate to a different incident from the dropped shell event to which we referred in the previous paragraph (see exhibit A8, page 7, lines 12 to 18, and exhibit A4, page 23, line 4). Counsel did not identify the ticking shells event as a separate stressor on which the applicant relies, but it is nevertheless relevant to our consideration of the turret event, to which we will now refer.
31. Mr Demczuk supplemented his written statement in relation to the turret event when giving evidence in the first Tribunal hearing. He said that he and apparently one or more other sailors were summoned to Mount 51 on the deck of the ship so that they could remove “ticking shells” from the turret and dispose of them. He said that these shells were armed and were ticking, and they had to be disposed of immediately, not by throwing them over the side, but to take them to the back of the ship and throw them over the side at the back of the ship. He said that this was awkward and a little bit more concerning because of the pitch and yaw of the ship. He said the shells weighed either 72 pounds or 75 pounds and each shell was carried by two men from Mount 51, which was located right up forward. He referred to the “threat of (sic) my life and the threat of death and being blown up by these things” in explaining what he was “going through”. It is also relevant to refer to the following questions and answers:
“Was the fear you experienced with doing this task similar to what you described earlier in the magazine room? --- All the fears were the same. Intense fears. Like the common statement was : there’ll be nothing left of you and we’ll just hose you off the deck. The truth, if one of these things went off there’d be no deck anyway.
Who made statements like that to you? --- Just the other sailors. If you take into consideration that I was an ordinary seaman and that’s always the lowest of the low with no training, no training like the other sailors had had …” (exhibit A4, page 25, lines 20 and 27).
32. We have also had regard to other evidence before us in relation to the three events concerned. We will refer further to such other evidence as necessary later in these reasons. We are satisfied, however, that the material before us in relation to these three events satisfies both the subjective and objective requirements of the definition of “severe psychosocial stressor” in the 2000 Anxiety SoP, and also the definition of “stressful event” in the 1994 Anxiety SoP (even if an objective characteristic is required in order to satisfy the latter definition).
Evidence as to the clinical onset of generalised anxiety disorder
33. It is next necessary to examine whether there is material before us that the clinical onset of anxiety disorder occurred within the two years immediately after the events to which we have referred. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
34. In the present matter, there is no evidence of any investigation leading to a finding by a doctor that the condition of anxiety disorder was present within two years of the events to which we have referred. We will therefore examine the symptoms or features of anxiety disorder, and consider the evidence before us as to when Mr Demczuk became aware of those symptoms or features.
35. The expression “anxiety disorder” is defined in clause 2(b) of the 2000 Anxiety SoP in terms which include generalised anxiety disorder. That disorder in turn is defined in clause 8 of the 2000 Anxiety SoP as follows:
“generalised anxiety disorder means a psychiatric disorder with the following features:
A.Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B.The person finds it difficult to control the worry; and
C.The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1).restlessness or feeling keyed up or on edge
(2).being easily fatigued
(3).difficulty concentrating or mind going blank
(4).irritability
(5).muscle tension
(6).difficulty falling or staying asleep, or restless unsatisfying sleep; and
D.The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E.The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F.The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.”
A very similar definition appears in clause 4 of the 1994 Anxiety SoP.
36. In his evidence before us, Mr Demczuk said that when he returned from Vietnam he felt terrible because he had anxiety and depression. He said that probably sixteen years ago he had found out what anxiety was, and he could “associate it with what it was back then” (transcript 20.09.04, page 29, line 39). He went on to describe the symptoms he had in the period of two years after he first went to Vietnam. He referred to feeling sick and nauseous, and said that his sleeping was not good; he would sweat a lot in bed, had a lot of nightmares, had difficulty in falling asleep, staying asleep and getting back to sleep if he woke up. He said his temper was volatile and he was aggressive, and he just knew there was something wrong but did not know what. He said that his symptoms continued after the two-year period to which we have referred. He said his symptoms of being nauseous, tense, sick and having difficulty in sleeping and other symptoms occurred very often (exhibit A4, page 36, line 20), and that the symptoms increased as time went on.
37. In his evidence at the first Tribunal hearing, Mr Demczuk was asked how he coped when he was posted to HMAS Cerberus after his return from Vietnam, and he answered:
“Drinking. Back then I knew I had a problem but I didn’t know what the problem was. I’d never heard of PTSD or any of this. I’d never heard anything. I knew, I just knew that there was something wrong and I couldn’t explain. Like I never heard of the word – like people say you’re having an anxiety attack but I never questioned it. I never knew what an anxiety attack was. I just remember being sick all the time.” (exhibit A4, page 44, line 17)
He proceeded to say that about fifteen years ago someone with whom he worked explained what anxiety was, and that he then took a lot of laxatives, apparently because he thought that this might assist him to get better.
38. In September 1999, the Department of Veterans’ Affairs referred Mr Demczuk to a psychiatrist, Dr Ewer, for advice regarding his claimed condition of stress and anxiety and its relationship to service. Dr Ewer provided a report dated 4 November 1999 in which he summarised the history he had obtained regarding certain events described by Mr Demczuk. Dr Ewer then made the following diagnosis in relation to the anxiety condition:
“I suspect that Mr Demczuk suffered from a Generalised Anxiety Disorder in the years after he returned to Australia. However, the symptoms of this condition have improved considerably and he does not currently meet the DSM-IV criteria for this condition.” (exhibit A1, page 52.6)
39. In his next report, which was dated 1 December 2000, Dr Ewer’s diagnosis was that Mr Demczuk “continues to suffer from a generalised anxiety disorder”. He did not in this report explain the apparent inconsistency with his previous report. He did, however, refer to this inconsistency in a later report of 13 February 2002. Further, in his oral evidence at the previous Tribunal hearing, Dr Ewer explained that Mr Demczuk is a person who does not express himself well about emotional or psychological issues, and with the benefit of further information, Dr Ewer thought that Mr Demczuk was suffering from anxiety disorder when he saw him in 1999, so that the statement in his first report to the contrary was incorrect.
40. In the report of 13 February 2002, being Dr Ewer’s third report, he explained that when he had seen Mr Demczuk again for the purpose of providing his second report, he not only formed the view that Mr Demczuk had previously been suffering from a generalised anxiety disorder, but that he had continued to experience that disorder and was suffering from that condition when he saw him. His report of 13 February 2002 continues:
“From the history provided to me I am of the view that Mr Demczuk’s generalised anxiety disorder began less than two years after the subject stressors.” (exhibit A1, page 3)
41. In cross-examination, however, Dr Ewer acknowledged that in his first report he had used the words “I suspect” deliberately, given that Mr Demczuk was not the best of historians and the length of time between when he was seeing him and the date of the asserted events. Dr Ewer referred later in his cross-examination to the absence of additional history in the form of a general practitioner’s notes, and to the presence of the legal conflict (arising from his claim against the Department for pension) which had been ongoing since he had been seeing Mr Demczuk, and his conclusion was that it seemed “possible” that he had the condition within the two-year period. In answer to the question whether he would put his opinion any higher than “possible” he said:
“I think, having reviewed all the information over the weekend, having seen Mr Demczuk many times, having spoken with his wife on a few occasions, probably the word I would use ‘possible’ (sic)” (transcript 12.09.05, page 27, line 27)
42. Mr Demczuk was later referred by the Commission’s solicitor to Dr Tony Davis, a consultant psychiatrist. He provided two reports, dated 11 August 2004 (exhibit R3(b)) and 22 December 2004 (exhibit R4(b)). He also gave evidence at the hearing before us. In his first report, Dr Davis said that he found it difficult to be “certain” about the association between the onset of anxiety symptoms and the exposure to severe psychosocial stressors. He concluded that while it might be reasonable to construct an hypothesis about the association with the events referred to by Mr Demczuk, he was “unable to offer an objective appraisal of the facts to necessarily substantiate this association”. (exhibit R3(b), page 6.6).
43. In his supplementary report of 22 December 2004, Dr Davis said that he had read all of the letters from Mr Demczuk to his then girlfriend (whom he later married). Dr Davis said:
“I consider that the letters do not depict a high level of stress in relation to service in Vietnam, and reinforce the notion that the alleged stressful events do not satisfy the definitions of ‘severe stressors’ as defined in the statement of principles.
It is noteworthy that the alleged stressful events were referred to briefly in only three of the letters, and there was no suggestion of a degree of emotional distress or reactivity related to these events. The tone and tenor of the letters was consistent throughout and not indicative of a man suffering a high degree of psychological morbidity.
I accept that it is possible that Mr Demczuk did not elaborate certain details of his service experiences because he did not wish to distress his girlfriend.” (exhibit R4(b))
44. In his oral evidence, Dr Davis referred to the tendency of people to attribute their condition incorrectly to specific events in their life, and in the case of veterans, they might incorrectly attribute their subsequent problems on their war-time experiences. He said that it would be extremely difficult after this interval of time to say whether Mr Demczuk’s anxiety disorder arose within two years of the stressful events on which he relies.
45. Part of the material before us is the bald assertion in Dr Ewer’s report of 13 February 2002 that Mr Demczuk’s generalised anxiety disorder began less than two years after the relevant stressors (see paragraph 40 above). However, we must have regard to all of the material before us, and Dr Ewer substantially retracted this opinion in cross-examination (see paragraph 41 above). We set out the diagnostic criteria for generalised anxiety disorder in paragraph 35 above. None of Mr Demczuk, Mrs Demczuk, Dr Ewer or Dr Davis described symptoms which would satisfy all of the features necessary for a diagnosis of generalised anxiety disorder, according to the diagnostic criteria in DSM-IV. While there is material before us relevant to the diagnostic criteria in paragraph C, there is little material before us in relation to diagnosis criteria A, B or E. As to criteria E, there is material before us as to significant difficulties in Mr Demczuk’s relationship with his wife, but this material suggests that this was caused by the level of his alcohol consumption, rather than by anxiety. We think that the evidence before us falls short of constituting evidence of “clinically significant distress or impairment” in any relevant area of functioning. We therefore conclude, having regarded all of the material before us, that that material does not point to the clinical onset of generalised anxiety disorder occurring within two years of any of the seven events relied upon by Mr Demczuk, so as to raise a reasonable hypothesis that that was the case.
46. Our above conclusion makes it necessary for us to consider whether there is material before us that Mr Demczuk was suffering a clinically significant psychiatric condition within two years immediately before the clinical onset of anxiety disorder, being the factor referred to in clause 5(a)(iii) of the 2000 Anxiety SoP. We accordingly now turn to the evidence before us as to Mr Demczuk’s drinking.
Are the asserted events consistent with the Alcohol SoP?
47. In the case of the Alcohol SoP, Mr Demczuk relies upon the factors referred to in clause 5(a) and (b) of the Alcohol SoP. These factors are as follows:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; …”
48. The expression “experiencing a severe stressor” is defined in clause 8 of the Alcohol SoP as follows:
“experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ 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;”
49. As mentioned above, counsel for Mr Demczuk relied upon the mortar fire event, the dropped shell event and the turret event, and submitted that these events satisfied the definition in the Alcohol SoP of “experiencing a severe stressor”.
50. It follows from the judgments of Mansfield J at first instance in Stoddart v Repatriation Commission (supra) and of the Full Court on appeal in Repatriation Commission v Stoddart (supra) that the question of whether an occurrence satisfies the definition must be judged objectively from the point of view of a reasonable person in the position, and with the knowledge, of the person experiencing the occurrence, and not by reference to a person who has full information in relation to relevant occurrence. According to Mansfield J, the relevant event or events must be such that they are “capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity” (at [55]). The Full Court (Carr, Finn and Sundberg JJ) dismissed the appeal by the Commission against Mansfield J’s judgment.
51. In Woodward (supra) the Full Court (Black CJ, Weinberg, and Selway JJ) approved Mansfield J’s judgment in Stoddart, except for one potential qualification. Their Honours said at [144]:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
52. In Delahunty v Repatriation Commission 38 AAR 511 Tamberlin J considered the definition of experiencing a severe stressor, and said at [27] that it was inherent in the nature of “stress” that there is a perception by the individual concerned. His Honour said that the definition incorporates the reaction of a wide range of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. He continued:
“While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
[28] There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.”
53. We finally refer to Guy v Repatriation Commission [2005] FCA 562 where the applicant was at risk of being electrocuted, but was able to escape from inside a boiler before the power supply was cut off, and so did not sustain any physical injury. The Tribunal concluded that there had been what could be described as an “anxious moment”, but thought that there was no incident which could be described as an event that might evoke intense fear, helplessness or horror. Tamberlin J held that the Tribunal had erred, and that the correct approach was to ask whether the event “might, or could possibly, evoke the relevant emotions” (i.e. intense fear, helplessness or horror), and the focus was “on the type and nature of the danger, namely, whether it can be characterised as being capable of evoking the relevant emotions” (at [20]). His Honour also said, at [19], that the Tribunal should have asked whether the incident was of a type which might evoke the relevant emotions (as indeed the Tribunal had concluded), and should not have asked whether the incident did evoke the relevant emotions.
54. We set out in paragraphs 28, 29 and 31 above, certain of the evidence before us relating to the mortar fire event, the dropped shell event and the turret event. We are satisfied that this evidence raises an hypothesis which is consistent with the definition of experiencing a severe stressor. The material to which we have referred is such that in each case, Mr Demczuk was confronted with an event that involved the threat of death or serious injury, having regard to his evidence as to his state of knowledge at the relevant time. We refer in that regard to the evidence as to his young age, the limited extent of his training at the time of the events, his prior understanding that the Brisbane would not come under fire, the warnings he had been given as to the care required in handling napalm shells, and his perception that the shells from the turret which he disposed of overboard were armed and unsafe.
55. There is also material before us that Mr Demczuk’s reaction to the three events was one of intense fear, although in the light of Guy (supra), it appears that such a reaction is not required by the definition of experiencing a severe stressor.
Evidence as to date of clinical onset of alcohol dependence
56. We now turn to consider the material before us as to the date of clinical onset of alcohol dependence. We referred in paragraph 33 above to the meaning of the clinical onset of a disease. This concept appears in both factors 5(a) and 5(b) of the Alcohol SoP. Once again, Mr Demczuk did not seek medical advice concerning his problems with alcohol, and there is no evidence before us that the disease of alcohol dependence or alcohol abuse was diagnosed within two years of the events in operational service on which Mr Demczuk relies. The diagnostic criteria for “alcohol dependence” and “alcohol abuse” are reproduced in the Alcohol SoP as follows:
(a) Alcohol dependence:
““The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;”
(b) Alcohol abuse:
“The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol-related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
B. The symptoms have never met the criteria for alcohol dependence.”
57. In the first Tribunal hearing, Mr Demczuk said that he did drink before going to Vietnam, but only on the weekends, although he did get drunk on one occasion when he visited Melbourne. He said that during his service in Vietnam his alcohol consumption increased greatly; he had an allowance of two cans of beer a day and on occasions would also have someone else’s beer. He said that when they went to Vietnam, he always abused alcohol at every leave when the ship was in port. He referred to having been beaten up in a fight when he was on shore leave at Subic Bay, and became “absolutely drunk” (exhibit A4, page 35, line 24) and to another occasion when he got drunk and had a fight with another sailor, also at Subic Bay. He also referred to one other fight in Singapore with the head chef at the Hilton Hotel, when he was intoxicated. He said that when he was on shore more drink was available, and the more he drank the better he felt. He also said that while he was on the tour to Vietnam, his drinking increased, because while at first he and other sailors would go site-seeing or shopping and then go to a hotel, later they went straight off ship to a place to drink. He said that when he arrived back in Australia they went on leave immediately and he was drinking and smoking extremely heavily. After six weeks’ leave he was posted back to HMAS Cerberus. He said that his drinking continued there, either at the base or on leave in Frankston, or if he was on leave, at home in Adelaide.
58. Mr Demczuk said that he got married in 1973. He said he had a couple of fights in the bar in pubs, a lot of fights with his wife and the police came around to his house on one occasion because of a disturbance. He said that a lot of the problems he had with his wife were because of alcohol, and that she objected to his drinking. He said that early in his marriage he abused his wife physically, but now did so mentally but not physically.
59. The applicant’s wife, Janet Marian Demczuk, also gave evidence. In her witness statement, exhibit A5, she said that before he went to Vietnam Mr Demczuk was a happy person who was never aggressive towards her, and did not drink a lot, but was more of a social drinker. She confirmed that they married in January 1973. She said after the first few months of marriage Mr Demczuk became aggressive, and all he wanted to do was drink, and he used to go out drinking with the boys and stay out all night. She said he also became verbally abusive and violent. She said in the early days she had to call the police a few times because she was so scared, that he would go to the pub after work to drink, and when he eventually came home he would continue to drink, and he used to drink a few flagons of wine a week at home in addition to what he was drinking at the hotel. She said he would also drink beer on top of that. She said that he used to be physically abusive. She said he neglected their baby and had no patience for anyone.
60. In the course of his cross-examination, Dr Ewer agreed that there were similar difficulties in determining whether there was a clinical onset of alcohol dependence within two years from the date of the stressful events as applied in the case of determining the date of the clinical onset of generalised anxiety disorder. However, he said that in his opinion alcohol dependence probably commenced within the two-year period, and he disagreed with the proposition that this was only a possibility. He was asked about the diagnostic criteria for alcohol dependence, as set out in paragraph 56 above, and said that the manifestations referred to in paragraphs A(1)(b) and (5) of the diagnostic criteria applied. However, paragraph A requires three or more of the manifestations to occur at any time in the same twelve-month period. Dr Ewer appears to have thought that the symptom referred to in paragraph A(3) was met, although his evidence as to this was unconvincing. When asked about paragraph A(6), Dr Ewer said that “it is on the borderline. I wouldn’t feel strongly that it definitely does it, but it comes close”, but he acknowledged that it did not satisfy this criteria.
61. Whilst the opinion expressed by Dr Ewer may not be supported by the manifestation of three or more of the symptoms described in paragraph A(1) to (7) of the diagnostic criteria in DSM-IV, we also take into account the evidence of Dr Davis as to the use to be made of the specific diagnostic criteria included in DSM-IV. In this regard, Dr Davis referred to the following remarks in the introduction to DSM-IV.
“The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment, and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgment may justify giving a certain diagnosis to an individual, even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms are present are persistent, and severe.” (exhibit R11, page (xiii))
62. The diagnosis of psychiatric conditions is to be made by medical witnesses using their clinical judgment and expertise, and DSM-IV is commonly used as a diagnostic manual in performing that function. It should not be treated as if it were a statutory or quasi-statutory instrument (Gerzina v Repatriation Commission [2004] FCAFC 96). We have reviewed the whole of the material before us, and we are satisfied that it points to an hypothesis that the clinical onset of Mr Demczuk’s alcohol dependence occurred within two years of the events upon which he relies in support of his claim for that condition, and that that hypothesis is not so speculative or tenuous as to be unreasonable. We accordingly conclude that there is material before us that is consistent with factor 5(b) of the Alcohol SoP.
Factor 5(a)(iii) of 2000 Anxiety SoP
63. We now refer again to factor 5(a)(iii) of the 2000 Anxiety SoP, which refers to a veteran having a “clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder”. The expression “clinically significant” is defined in clause 8 of the 2000 Anxiety SoP to mean “sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner”. Alcohol dependence is such a psychiatric condition.
64. We have concluded above that there is material before us that Mr Demczuk had alcohol dependence within two years of the occurrence of the events to which we have referred. There is also evidence before us that this condition continued, and it is accepted by both parties that he continues to suffer alcohol dependence. There is no evidence before us that this condition has ever been in remission; on the contrary, there is evidence that this condition has persisted since its onset following his return from Vietnam.
65. As mentioned above, and on the basis that we disregard speculation or possibilities, there is no evidence before us pointing to the clinical onset of Mr Demczuk’s generalised anxiety disorder having occurred within two years of the relevant events. It is, however, acknowledged by both parties that Mr Demczuk now has generalised anxiety disorder. We consider that this acknowledgement, in combination with the evidence before us that the clinical onset of alcohol dependence occurred within two years of the relevant events, constitutes evidence before us that Mr Demczuk developed generalised anxiety disorder within two years after a date when he was suffering from a clinically significant psychiatric condition, namely alcohol dependence. There is therefore evidence before us that is consistent with factor 5(a)(iii) of the 2000 Anxiety SoP. It is not in our view relevant that there is no material before us as to the date of clinical onset of generalised anxiety disorder since, as mentioned above, this must have occurred at some time after Mr Demczuk was suffering from alcohol dependence. In considering this factor, we have also considered clause 7 of the 2000 Anxiety SoP, and this clause is satisfied because we have found that factor 5(b) in the Alcohol SoP has been satisfied, so that the hypothesis connecting the alcohol dependence with the operational service is upheld by the Alcohol SoP.
Findings of Fact
66. It follows from our above conclusions that the disentitling provision of s 120(3) of the VE Act (which would mean that Mr Demczuk’s claim would fail if we had concluded that the relevant hypothesis was not reasonable) does not apply. We accordingly turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before us, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. In examining this question, we note that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). We also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.3, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
67. Counsel for the Commission, Ms Maharaj, placed emphasis on letters written by Mr Demczuk during his operational service and sent to his then girlfriend, whom he later married in January 1973, a copy of which we received as exhibit A2. Ms Marahaj submitted that the letters do not indicate that Mr Demczuk was anxious, fearful or concerned about his situation generally, or about the particular events upon which he now relies in support of his claim. Counsel drew our attention to the evidence of Dr Davis to the same effect. We note that Dr Ewer had put a different interpretation on extracts from at least some of the letters, and thought that they were supportive of Mr Demczuk’s concern about some of the events. However, Dr Ewer had apparently been dissuaded by Mr Demczuk from reading all of the letters because of his concern that they contained material of a personal kind, whereas Dr Davis was provided with the full complement of letters, and was able to read the extracts referred to by Dr Ewer in context.
68. We agree with Ms Marahaj’s submission that the letters are significant, because they were written at the time of operational service. A contemporaneous account provided by a witness, at a time before legal proceedings are in contemplation, is generally most important and useful in making findings of fact, especially when the relevant events happened so many years ago. In the present matter that evidence, as with other evidence before us, must be assessed according to the reverse criminal standard of proof referred to in s 120(1) of the VE Act. In our view, some aspects of the letters at least raise a reasonable doubt that Mr Demczuk had the subjective reaction required by the relevant SoPs. We refer in particular to the letter at page 13 of exhibit A2, in which (as we interpret that letter) Mr Demczuk expressed concern that somebody might have been killed on the occasion when a shell was dropped in the magazine. Further, the letter at page 225 refers to the crew being fired upon the day before by mortar fire. He then adds that they were out of range and those firing at the Brisbane “missed us by one mile”. This addendum no doubt takes into account Mr Demczuk’s retrospective assessment of the situation, but he nevertheless describes the event as having been “fired upon … by mortar fire”.
69. In construing the letters and the emotions which they might portray by reference to the relevant standard of proof, we take into account the possibility that Mr Demczuk might not have wanted to reveal to his then girlfriend that he was frightened or anxious about events occurring during his operational service and, on the contrary, he might have been exhibiting bravado by making light of his experiences.
70. The Commission called Peter Robert Oliver who served on all three guided missile destroyers operated by the Royal Australian Navy, including HMAS Brisbane, between 1977 and 1987. Mr Oliver was a specialist in the operations of the five-inch guns common to all of these destroyers. He explained the workings of the guns, including in particular the way in which the fuses were set. He said that the arming of the fuse required first that the shell be fired from the gun, second the application of the centrifugal force by the rifling in the gun barrel, and third a time delay of the order of 0.8 seconds to ensure that the projectile was about 2000 feet away from the ship when it was armed. He also said that the shells could not be armed by being dropped, even from a great height, and that it was highly improbable that the fuse could be damaged so as to activate the fuse mechanism.
71. We accept Mr Oliver’s evidence. We are satisfied beyond reasonable doubt that Mr Demczuk could not have heard the shells ticking, as he claimed was the case when he described the turret event, and that his recollection of this aspect of the turret event, and of other occasions when he heard shells ticking, was wrong. Nevertheless, Mr Oliver acknowledged in his evidence that on occasions damaged shells were disposed of overboard, and these shells were likely to have been referred to as “unsafe”.
72. Counsel also referred to evidence given by Commodore Mulcare, who was also called by the Commission, that there is no record of the Brisbane having come under either mortar fire or sniper fire, or of sentries having fired at mines or at suspicious objects in the water, or of various other events referred to by Mr Demczuk. Statements from other persons were obtained by Commodore Mulcare, but the persons concerned were not called to give evidence or subjected to cross-examination. In those circumstances, we do not attach much weight to the statements in relation to matters where the accuracy of recollections of events that occurred more than thirty years ago, or credibility, is in issue (see Bayer Pharma Pty Ltd v Farbenfabriken Bayer AG (1965) 120 CLR 285 at 295.5). In considering Counsel’s submission, we are required by s 119 of the VE Act to take into account any difficulties that, for any reason, (i.e. in the way of ascertaining the existence of any fact), including any reason attributable to the passage of time, or the absence of, or deficiency in, relevant official records. There is some contemporaneous documentary evidence of the mortar fire event in the form of the letter at page 225 of exhibit A2, where Mr Demczuk recounts the mortar fire event, and says it happened “yesterday”. It was also acknowledged in Commodore Mulcare’s report that on occasions, sailors might have fired at debris near the ship for practice. As to other events, Commodore Mulcare acknowledges that shells were occasionally dropped in the magazine and that shells were disposed of overboard. We would not have expected these matters to be noted in the ship’s records. The witness Werner gave evidence which was generally consistent with the sniper fire event and the Mekong Delta event.
73. Our function, as Mr Ower submitted, is not to inquire into the relevant events as if we were sitting as a Royal Commission. If we were, the force of the contentions of counsel for the Commission might well have led us to make quite different findings. However, we are required by the VE Act to make findings of fact according to the reverse criminal standard. In accordance with Ms Maharaj’s submissions, we have taken into account the criticism of Mr Demczuk’s evidence as to the asserted events, including the turret event and his recollection of the associated ticking, and we have considered the evidence holistically. Nevertheless, we are not satisfied beyond reasonable doubt that two of the three events relied upon by Mr Demczuk in support of his claim for alcohol dependence, namely the dropped shell event and the mortar event, did not occur, or that Mr Demczuk’s concerns regarding those two events can be regarded as wrongful attribution, as suggested by Dr Davis.
74. Finally, counsel for the Commission contended that on analysis none of the events entailed the necessary subjective reaction, and she drew attention to the applicant’s concession that four of the seven asserted events did not entail the subjective reaction required to meet the Alcohol SoP. We have referred above to the differing subjective reactions required for the three SoPs under consideration. We have also referred above to the evidence before us as to Mr Demczuk’s subjective reaction. We are not satisfied beyond reasonable doubt that he did not have the subjective reaction necessary to meet the definition of “experiencing a severe stressor” in the Alcohol SoP.
75. In case we are wrong in our conclusion regarding the material before us as to the date of clinical onset of alcohol dependence, we add (consistently with our inquisitorial function as outlined in Benjamin v Repatriation Commission [2001] FCA 1879 at [47]) that there is material before us that Mr Demczuk had symptoms which in our view would satisfy a diagnosis of alcohol abuse, and that the clinical onset of that condition occurred within two years of the dropped shell event and the mortar fire event. We refer in this regard to the evidence of Mrs Demczuk as to the effect on the marital relationship of Mr Demczuk’s drinking, including the extent of his drinking, that his conduct towards her included physical violence, and that on occasions she had to call the police.
Conclusion
76. For the above reasons, we are not satisfied beyond reasonable doubt there is no sufficient ground for determining that the conditions of generalised anxiety disorder and alcohol dependence were war-caused. We must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Demczuk’s conditions were war-caused.
Decision
77. For the above reasons, we set aside the decision under review, and:
(a)in place of that decision, we determine that Mr Demczuk’s alcohol dependence and generalised anxiety disorder are war-caused; and
(b)we remit the matter to the Repatriation Commission for reassessment of the applicant’s entitlement to pension in accordance with the Tribunal’s reasons for decision, and on the basis that his entitlement to pension in respect of the conditions of alcohol dependence and generalised anxiety disorder will commence from 25 March 1999.
I certify that the 77 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 20 and 21 September 2004 and 12, 14 and 15 September 2005
Date of Decision 12 October 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S Marahaj
Solicitor for the Respondent Australian Government Solicitor
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