Donnelly and Repatriation Commission
[2005] AATA 612
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 612
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/436
VETERANS APPEALS DIVISION ) Re GRAEME JOHN DONNELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date29 June 2005
PlaceMelbourne
Decision The decision under review is set aside and in substitution it is decided that the conditions of PTSD and bruxism are war-caused. Consistent with the concession made by the respondent the applicant is entitled to pension at the special rate. (Sgd) John Handley
Senior Member
VETERANS’ ENTITLEMENTS – applicant engaged in operational service on HMAS Vampire and HMAS Yarra – allegation of assault on a Vietnamese diver – call to action stations onboard Yarra – subjective belief of a threat of injury or death – s 31 review – respondent found the evidence of the applicant false in a material particular – pension cancelled – decision under review set aside – finding that event onboard Yarra not false ‑ decision set aside
Veterans’ Entitlements Act 1986 (Cth) s24(1)(c) and s31
Woodward v Repatriation Commission (2003) 200 ALR 322
Delahunty v Repatriation Commission [2004] FCA 309
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 49 ALD 193
Guy v Repatriation Commission [2005] FCA 562
Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION
29 June 2005 Mr John Handley, Senior Member 1. This application has an unfortunate history and may be briefly summarised as follows.
2. In May 1995 the applicant claimed “stress/anxiety” which was subsequently diagnosed as post-traumatic stress disorder (“PTSD”) and accepted as war-caused. Pension was then assessed at 30 per cent of the general rate. In September 1997 the applicant claimed bruxism and it was eventually accepted as war-caused. Pension was reassessed and was paid at 80 per cent of the general rate.
3. In January 2002 the respondent conducted a review pursuant to s31 of the Veterans’ Entitlements Act 1986 (“the Act”). The decisions to accept PTSD and bruxism as war-caused were revoked and it was determined that those conditions were not war-caused. General rate pension was cancelled.
4. The applicant applied to the Veterans’ Review Board (“VRB”) to review that decision and on 12 March 2003 the VRB affirmed the decision made pursuant to the s31 review.
5. The applicant applied in these proceedings to review the decision of the VRB.
6. The hearing of this application commenced in Wangaratta and concluded in Melbourne. Evidence was heard in Wangaratta from Mr Donnelly. Consulting psychologists, Dr Burge and Dr Byrne gave evidence in Melbourne. Evidence was also heard from Commodore Mulcare, a naval historian.
7. Mr Donnelly is presently 55 years of age having been born on 17 October 1949. He was a member of the Royal Australian Navy (“RAN”) between 6 April 1968 and 21 September 1971. He was engaged in operational service between 14 May 1969 and 25 May 1969 whilst onboard HMAS Vampire (“Vampire”) and between 22 February 1971 and 1 March 1971 when onboard HMAS Yarra (“Yarra”).
8. Mr De Marchi appeared on behalf of Mr Donnelly. Mr Rudge appeared on behalf of the respondent in Wangaratta and Mr Herman appeared in Melbourne.
9. A number of documents were received into evidence and will be referred to in these reasons.
10. Mr De Marchi submitted that the applicant would assert that the appropriate diagnosis of his illness was PTSD and to that extent he relied on Statements of Principles (“SOPs”) No. 3 and 54 of 1999. Additionally he submitted at the commencement of the hearing that by reason of the applicant’s pension being cancelled the respondent had an onus to establish that its decision was correct and preferable.
graeme john donnelly
11. Mr Donnelly relied on three incidents during his operational service as giving rise to the condition of PTSD.
12. The first incident occurred whilst in Vung Tau harbour. Mr Donnelly said that he was despatched to form part of the crew of a Cutter which patrolled the waters immediately around Vampire. He said that he and others in this vessel were ordered to shoot at refuse which was floating in the water because it may have contained mines. The refuse principally comprised boxes, tins and other detritus.
13. Mr Donnelly said that his crew came across a Vietnamese person who was believed to be a diver. Mr Donnelly said that he brought that person to their boat by a hook attached to a pole which was used for this purpose. He said that the leading hand in the vessel with him then struck the Vietnamese person about the head with the butt of his rifle. It was believed that the Vietnamese person was either killed or seriously injured. Mr Donnelly recalled that the person was then released by the leading hand and he “drifted away”. The applicant said that he was horrified by this event and a lot of argument between members of his vessel followed. He said that he was told to “shut up” by the leading hand and not report it or speak about it. Mr Donnelly said that it was this incident that he referred to in his claim for pension found at page 22 of the T-documents.
14. Another incident relied upon by Mr Donnelly occurred whilst he was a member of the crew of Yarra. During an occasion when Yarra was an escort for HMAS Sydney (“Sydney”) and after his vessel had left Vung Tau harbour, he recalled that members of the crew were called to action stations. He recalled that his vessel had observed another vessel which was then unidentified. Mr Donnelly said that he was required to attend his Seacat booth where sea to air missiles were launched. He said that he was the “aimer” and his role was to guide missiles by the use of a joystick. He was in the Seacat booth with the “controller” whose duty was to fire the missile when ordered to do so. Mr Donnelly recalled that the Seacat booth is located at midships which is the highest point on the ship and was described as a small open turret.
15. The applicant recalled that he was expecting the other ship to open fire upon his vessel. He said he believed that there was an immediate intention of discharging a missile and an order had been made to discharge a missile, however, the main gun jammed. He said this belief had recently been confirmed by another colleague.
16. The applicant said that he then felt “hopeless”. He said that he was “certain that I was then looking at a US ship and I thought that they would open fire on us”. He said he held that belief because he observed the vessel to be of United States origin and was also aware that HMAS Hobart had been hit previously by a US vessel. Two Australian servicemen were killed and others were injured in that incident.
17. The applicant said whilst that had he been the “controller” and had been ordered by the gunnery officer to release the missile, he was unsure whether he in fact would have obeyed the order. On reflection he thought that a missile had been launched, but acknowledged that his colleague (Mr Selwood) had confirmed that the gun had jammed. On reflection Mr Donnelly thought that had a missile been discharged he would have considered guiding it away from the US vessel. Mr Donnelly said that he frequently recalls this event and has dreamt about it.
18. On another occasion Mr Donnelly said that he had been told that an enemy mine had been found attached to the hull of one of his vessels. He said that he did not see it but he believed it to be true. He said that he assumed that a member of the crew of the vessel had located the mine. This also caused him some anxiety.
19. Mr Donnelly said that he was discharged from the Navy at the age of 22 and was first diagnosed with anxiety at the age of 24. He said he suffered a “breakdown” in 1991 when he was then working at a cheese factory in Gippsland. He was then being treated by Dr Lis, a psychiatrist in Gippsland who prescribed medication. He said he returned to work for a few weeks and was advised by his doctor to claim a pension. He refused that advice and moved from Gippsland to North Eastern Victoria where he and his wife obtained a share farming position and ultimately he obtained work as a farm labourer.
20. Mr Donnelly said that he now consumes Valium and Cipromil medication for depression and anxiety. He is being treated by Dr Darby, a psychiatrist in Albury and by Dr Randall his local medical officer (“LMO”) in Wodonga. He has also been admitted on one occasion to the North Park Hospital in Melbourne. He presently receives a service pension.
21. Mr Donnelly said that he last worked five or six years ago but ceased that employment when he lost his temper and threatened to shoot the owner of the farm where he resided.
22. Mr Donnelly acknowledged that in a report completed by Dr Cronin of September 2002, the history taken, of a suicide attempt by threatening to cut his wrists with razor blades was accurate. Mr Donnelly said that he was healthy and well prior to enlistment in the Navy. He said that he had been active in the Boy Scout movement and had obtained the Queen’s Scout Badge and a Duke of Edinburgh Award.
23. Mr Donnelly said that he would much prefer to be engaged in employment and felt humiliated by not working. Whilst he acknowledged that he had suffered symptoms of anxiety when employed, he said that these symptoms had commenced shortly after he was discharged from the Navy. (At this stage of the proceedings Mr Rudge conceded that the applicant had suffered an income loss and proof would not be required).
24. In cross-examination Mr Donnelly was asked to explain the absence of a report in his claim for pension of the belief that a mine had been attached to the hull of one of his vessels and the absence of a report with respect to the Seacat incident. He said that he recorded the first event that occurred, (the assault upon the Vietnamese diver) because he had been advised by a counsellor at the Vietnam Veterans’ Association that he need record one incident only. Additionally he said that he preferred not to refer to the other episodes for fear that he would not be believed.
25. Mr Donnelly was also asked to explain why he did not refer in his evidence to an event which occurred whilst he was undertaking exercises when the US vessel Frank E Evans collided with HMAS Melbourne. Mr Donnelly was taken to a report by Dr Darby found at T6 page 26 where he reports that Mr Donnelly was engaged in the rescue of persons who had been injured. Mr Donnelly said that his vessel arrived approximately one hour after the collision occurred. During the approach to the collision scene he and others had prepared to drop rope ladders and boats into the water in the event that persons were to be rescued. Upon arrival at the scene he said that he observed calm water with both vessels afloat. He observed HMAS Melbourne which had obvious damage and it was eventually escorted to Subic Bay. Mr Donnelly acknowledged that in a report completed by Dr Darby on 6 April 2000 (T28, p96) the episode with Frank E Evans appeared to be a “major factor” with the development of his PTSD. Mr Donnelly also acknowledged that he does experience nightmares where he is drowning but said that he is not aware whether those nightmares are related to his experience at the collision site between Frank E Evans and HMAS Melbourne.
26. Mr Donnelly acknowledged that had a mine been attached to a vessel of which he was a member of crew it would have been reported and he was surprised to learn that it had not been. Mr Rudge then took Mr Donnelly to a statement found at page 171 of the T-documents completed by Mr Christopher Web, a former member of Vampire, who recorded that as the vessel left Vung Tau harbour “a rumour spread through the ship to the effect that explosives had been found on the ship’s hull”. Mr Donnelly acknowledged that he understood this statement to mean that a mine had been located but it had been removed.
27. With respect to the episode concerning the Vietnamese diver who he said was struck by a leading hand, Mr Donnelly said that the Cutter was circling Vampire from a distance of between two and three hundred metres. He acknowledged that his vessel would have been visible from Vampire but he had no memory of being in radio contact with Vampire. He acknowledged that it might be thought unlikely that a diver could be detected, beaten, not observed from Vampire and not have been reported, but he was adamant that such an event did occur. Mr Donnelly said he thought the diver might have attached the mine to the hull of Vampire, but said that had he been killed, a report would not have been made “because he can’t do any more damage”. Mr Donnelly said he could not recall the name of the leading hand or the Petty Officer, who were the other members of the crew of the cutter when this incident occurred.
28. With respect to the event on board Yarra, Mr Donnelly said he occupied the gun turret in anticipation of engaging with an unidentified vessel. He acknowledged that a 4.5 inch gun was more likely to be the first weapon used upon a surface target, whereas a Seacat missile was more likely to be fired upon an aircraft.
29. Mr Donnelly said that he was adamant that he had been told – as were other crew members – that an unidentified ship had been refusing to answer call signals from Yarra and that he had been called to action stations. He acknowledged that he had been called to action stations in previous exercise drills but this was the first occasion where he had been called to that position “for real”.
30. Mr Donnelly said that he was unable to observe the unidentified vessel on the horizon, but said that he could make out its super structure and could see persons standing on the bridge by the binoculars that were allocated to him. He acknowledged that Commodore Mulcare had completed a report with a photograph annexed, which - if his history was accurate – would indicate that he would not have been able to observe that vessel had it been on the starboard side of Yarra. Mr Donnelly remained adamant that he did observe it when it was on the port side of Yarra and he observed it immediately before Yarra turned at, or about the time, that the call for action stations was made.
31. The focus of the cross-examination then turned towards the applicant’s time in service immediately prior to discharge. Mr Donnelly acknowledged that his father – who was a builder – had written to the Minister for the Navy in February 1971 requesting that he be discharged to assist in the family business. Mr Donnelly said that he approached Captain Baird and requested early discharge citing the need to help his father as the reason. In reality, Mr Donnelly said he wanted an early discharge from the Navy because he was then “frightened” but he felt he could not record this as the reason. Initially his application for discharge was refused and he then applied to complete a coxswain’s course. Mr Donnelly said this would have allowed him to work on shore at a desk where he would not have been required to go to sea or to Vietnam. He said that this would have not exposed him to any stress in service and whilst he acknowledged that he could have been required to go to sea it was understood that this would be unlikely.
32. The applicant then acknowledged that within his personnel file there were reports completed by a social worker and other officers who variously referred to him as obtaining good reports whilst undertaking the coxswain’s course. On another occasion a reference was made of him enjoying his service. Mr Donnelly acknowledged that he “did have some good times”, during and after completion of the coxswains course, he was “doing well” and his performance was improving.
33. When Mr Donnelly was eventually discharged from service he said that he did not work with his father. He obtained employment with the ANZ Bank as a security driver and then obtained employment with his father for three or four years but they then had a “falling out”. He found the work to be stressful, his father was “picking” on him and the business was being wound down. The applicant denied that being employed by his father had a negative effect upon him but he did acknowledge that he was unable to cope with co-ordinating tradesmen and contractors and dealing with building owners and building inspectors. He agreed that he was unhappy that his father had transferred him whilst a secondary student to the Essendon Grammar School because he hated having to wear a suit and a tie and a felt hat. Whilst he acknowledged the histories of this type had been found variously through medical reports and medical records, he also acknowledged that his father was a generous person who had bought him a home and a speed boat but who had become disappointed when he decided to leave Melbourne and drive an interstate truck. Nonetheless Mr Donnelly said that his father remained supportive and bought a truck for him.
34. In re-examination Mr Donnelly said that he wanted to be discharged from Vampire after the first trip to Vietnam because he was then terrified. He said there were numerous rumours around the ship that it was defective and that it was incapable of retaliation if it was fired upon. He said it was also believed that the captain of the vessel was not happy with its condition.
35. Mr Donnelly said that the history reported by Dr Darby was in parts, inaccurate, because he had relied on information obtained from a Vietnam Veterans’ counsellor. Mr Donnelly preferred the reports of Dr Cronin who he said provided an accurate history. He acknowledged that the records would suggest that he was coping well emotionally prior to discharge however Mr Donnelly said that he did not speak to others about his feelings and it was known that he was then drinking heavily which he associated with his anxiety. In fact he said that a divisional officer who had previously completed a favourable report had also disciplined him on two occasions for smuggling beer.
second day of hearing
36. When the application resumed in Melbourne on 12 October 2004, Mr De Marchi submitted that there were errors of law made by the respondent’s delegate in its section 31 review. It was submitted that the respondent changed its opinion as to the applicant’s entitlement to have the condition of PTSD accepted because there was a change in the SOP for that condition. He submitted that the amendment to the Instrument requiring veterans to establish that they were exposed to a “severe stressor” was an impermissible basis to conduct the section 31 review which required a finding that the events alleged in service were false. Additionally it was submitted that the section 31 review should have been conducted on the basis of the existence of the former SOP issued in 1994. It followed – on this submission – that the respondent erred in law and the decision should be set aside without calling any further evidence.
37. Mr Herman who appeared on behalf of the respondent on the second day submitted that the delegate in conducting the section 31 review referred to both SOPs (refer to pages 126 and 129 of the T-documents). In effect it was submitted that the application by the applicant did not have merit.
michael burge
38. Mr Burge is a psychologist who prepared a report dated 7 October 2004 at the request of the applicant’s solicitors.
39. Mr Burge has been in private practice since the mid 1990’s having previously been an employee of the Department of Veterans’ Affairs as a psychologist at the Repatriation General Hospital. In that capacity he was principally involved in treating veterans who suffered from PTSD. In his private practice, he has treated many persons with PTSD and has published extensively upon this illness. In 1995 he formed the Australian College of Clinical Psychologists after recognising a need for training other psychologists, particularly with respect to the illness of PTSD. He has subsequently conducted a number of training programs throughout Australia. Mr Burge is also a Member of the College of Counselling Psychologists.
40. Mr Burge assessed Mr Donnelly on 9 August 2004 and at that time had access to a number of documents being the reports of Dr Cole and Dr Byrne, statements of Mrs Donnelly and Commodore Mulcare together with the reports and clinical notes of Dr Randall, Dr Storti and Dr Darby. Mr Burge also had access to the Navy psychological file and the applicant’s personnel file.
41. In evidence Mr Burge, being satisfied the applicant suffers PTSD, said that there were two traumatic events which impacted upon Mr Donnelly; these being the episode where he observed an enemy diver being killed and another occasion where he perceived the risk of being shot or fired upon by a US ship whilst he was a member of the Yarra. Mr Burge noted that the applicant’s responses to questions asked of him in consultation were “sincere, spontaneous and honest”. He said that clinically he was satisfied – by reason of the applicant’s responses and based on his experience in practice – that the events alleged by Mr Donnelly actually did occur. He obtained a history of Mr Donnelly suffering from intrusive dreams and other behaviour where he avoids the sea. Mr Burge was aware that the applicant had been in conflict with his father, but on the history that he obtained, the PTSD commenced during service in the Navy and before he was employed by his father. On balance Mr Burge was satisfied that the applicant’s symptoms were consistent with PTSD and not with a generalised anxiety state only.
42. Mr Burge said that he was familiar with the opinions expressed by a number of other doctors who had both treated and had been engaged as consultants. He was also aware of the opinions expressed by the assessment team at the Repatriation General Hospital which included Dr John Douglas, a former Director of Psychiatry. Mr Burge was of the opinion that it was “most unlikely that so many others who found him to have PTSD could be wrong”. Specifically Mr Burge said that he had read the reports of Dr Byrne and he disagreed with his opinions and his conclusions. He disagreed with the opinions expressed in his first report where Dr Byrne found that the applicant suffered from generalised anxiety disorder. He also disagreed with the opinions expressed in a second report that those symptoms were associated with events outside service.
43. In cross-examination Mr Burge reaffirmed that both incidents relied upon by Mr Donnelly in service were stressful, particularly the episode whilst onboard the Yarra. Mr Burge said that Mr Donnelly was “shocked” by the presence of the United States vessel, this reaction having been reported by other doctors. He agreed that part of the applicant’s reaction to that episode was a consequence of a belief then held that he may have been called upon to fire upon an allied vessel.
44. When asked to comment upon references in the applicant’s personnel file completed (contemporaneously) by superior officers that he was coping well, Mr Burge remained of the view that the applicant was suffering PTSD during service. He said that it is not unusual for persons to present well to superior officers and it was his opinion that the applicant sought discharge from the Navy because he in fact was not coping and was drinking heavily. He remained of this view despite being aware of a report completed by Mr Donnelly seeking early discharge on the expressed need to help his father in his building business. Mr Burge said that this indicated the applicant was attempting to portray a positive image and to “hide his internal strife”. He said this was common behaviour of persons with PTSD. When he was asked to comment upon Mr Donnelly’s application to undertake a coxswain’s course, Mr Burge said that this was evidence of a person attempting to portray a positive image yet at the same time he was heavily abusing alcohol.
45. Other than the events relied upon in service, Mr Burge agreed that there was little contemporaneous documentation pointing to stress within service. He said that he relied on the applicant’s history throughout a consultation of two and a half hours duration. Mr Burge said that he was aware of the applicant’s difficult relationship with his father but said that this occurred after discharge and he interpreted it as difficulty on the part of Mr Donnelly coping and maintaining relationships which he said was a common feature of Vietnam veterans. He said the applicant’s reaction to his relationship with his father was a symptom of his PTSD and not a cause. He was satisfied that the applicant’s behaviour with respect to his father and his father’s discipline was consistent with the diagnostic criteria of PTSD.
46. Mr Burge said that he obtained a history that the applicant avoided the sea and images and memories of it and said this was an indication of his reaction to his naval service. He said that he was not aware that the applicant’s father had bought him a boat nor had he obtained a history of this. He said he was aware of letters written by the applicant’s father to naval personnel officers and to politicians seeking his early discharge. He said that the applicant’s father did exercise discipline over Mr Donnelly which he thought was typical of that “generation” but he did not regard the relationship as being “abusive”.
47. Subsequent to his discharge from service Mr Burge was aware that the applicant had heavily consumed alcohol, that he was angry, restless, had difficulty maintaining employment and was concerned with respect to some of his daughter’s behaviour. He was also aware that the applicant had relationship problems with his wife, children and workmates. Mr Burge said that these features would not have been enduring were it not for his naval experiences. He thought that in the absence of service these life events would have caused temporary anxieties.
48. Mr Burge was then asked to consider a report of Dr Lis, a consulting psychiatrist, who reported on 12 January 1994 to the applicant’s former solicitors (who were then acting in Workcare proceedings). The report concerns relationship difficulties Mr Donnelly had when employed by Allowrie Foods (as a cheese maker) in Drouin in the early 1990’s. The report refers to the applicant being abused by another employee, behaviour which continued even after disciplinary action was taken and the employee was directed not to associate with the applicant, including attempts to provoke the applicant. The report also records that Mr Donnelly became “grossly emotionally distressed” by reason of these events at the workplace. The report does not contain any history of distressing events in service; indeed, whilst there is a reference (page 5) to navy service in Vietnam, Dr Lis concluded that it did not cause any “obvious psychological problems”.
49. Mr Burge said that he was unable to explain why Dr Lis would have taken that history and preferred not to speculate as to the reasons why Dr Lis would not have obtained a history that the applicant’s service had not distressed him. Additionally, he said that he was not aware of Dr Lis’ experience in treating Vietnam veterans. Mr Burge said that he was aware of another report written by Dr Lis on 27 February 1996 where he acknowledged that he was incorrect in his former report when he recorded that events in service did not cause psychological problems. In his report of 27 February 1996 Dr Lis has recorded that the applicant had “suppressed memories of incidents which had indeed caused considerable emotional trauma”. He reported that a detailed history was given to him by the applicant who “then had tears in his eyes”. Mr Burge said that it was not his experience that traumatic events are repressed. In his experience persons who have been exposed to traumatic events usually have difficulty removing those memories or blocking intrusive images.
50. Mr Burge was then asked to comment upon whether the applicant’s role in the Franke E Evans collision with HMAS Melbourne contributed to his PTSD. He said that the applicant would have been distressed to see the chaos of that collision but it was his understanding that Mr Donnelly was involved in a support and backup role only and was not involved in the rescue of persons. It was his opinion that it did not contribute to his PTSD and it was unlikely that event would fit within the diagnostic criteria of PTSD.
51. Mr Burge was also asked to comment upon opinions expressed by Dr Byrne, particularly in his report of 20 July 2004, where he reported “memory is notoriously unreliable and malleable”. Mr Burge understood that opinion was a reference to research relating to survivors of childhood abuse. He described that research as relating to memories being repressed, where care needs to be exercised by therapists in questioning of persons – when they become adults – because memories of such events can be “amplified” and the interpretation of the “memory” can be incorrect or inaccurate. Mr Burge said that he did not agree that this research or “malleable” memory was relevant to adults and said that it was wrong to imply – as he understood Dr Byrne did in his report – that veterans have similar memory difficulties as other adults who had childhood trauma. Mr Burge concluded that Dr Byrne confused cognitive behaviour therapy between survivors of childhood abuse and adult veterans.
52. In re-examination Mr Burge reaffirmed that he believed the applicant to be a person of truth and he found nothing false in any of the history provided to him. He remained of the view that the applicant held the belief that whilst onboard Yarra he would be fired upon by the unidentified United States vessel, particularly as Mr Donnelly was aware of the catastrophe involving HMAS Hobart some years earlier. The incident involving HMAS Hobart was a reference to an Australian naval ship which was fired upon by a United States aeroplane and where there was loss of life. Mr Burge said “even friendly fire can kill you”.
helen donnelly
53. Mrs Donnelly is the wife of the applicant. She completed a lengthy letter on 1 October 2003 that was received into evidence as Exhibit A. In evidence Mrs Donnelly said that she had known her husband since they were both of the age of 14 years. She therefore knew him for five or six years before he travelled overseas to Vietnam.
54. Mrs Donnelly said that there was a considerable change in her husband after he returned from the first voyage. Previously she and her husband had spent a lot of time together socialising as teenagers but she noticed on his return that he was smoking cigarettes and drinking alcohol to excess. She also recalled that he had been prescribed medication from 1970 after he had been onboard Yarra.
55. As to the events relied upon by her husband in service, Mrs Donnelly said for him “everything is the truth – it is black and white – if he states it – it is the truth”.
56. Mrs Donnelly recalled her husband’s treatment with Dr Lis. She said during the first visits to him her husband was encouraged to apply for TPI pension because the doctor “picked PTSD straight away”. She said that her husband initially claimed from the workers’ compensation insurer and when that insurer alleged that his illness was associated with his naval service, a pension was claimed from Department of Veterans’ Affairs.
57. Mrs Donnelly said that she attended with her husband when he was interviewed by Dr Byrne. She said that she also spoke to Dr Byrne privately. She recalled that she was asked “leading questions”. She realised at the time that the “truth would not be forthcoming and he wouldn’t get truthful answers”. She recalled that Dr Byrne tended to emphasis the applicant’s family history and his reaction to involvement in the Evans/Melbourne collision.
58. In cross-examination Mrs Donnelly said that she did not discuss the apparent change in her husband’s behaviour after his first voyage. She then assumed that it was “because we were all growing up”. She said her husband’s letters to her referred only to his experiences in Singapore and did not refer to his time in Vietnamese waters. In fact she said that when he came back from his first voyage he did not speak of service in Vietnam.
59. Mrs Donnelly was then taken to the report of a social worker completed on 4 March 1971 following a number of enquiries made arising out of the applicant’s application for early discharge. The social worker refers to a telephone discussion with Mrs Donnelly where it was reported that she preferred that decision to be made by her husband because “he likes the Navy”. Mrs Donnelly said that she had no memory of ever speaking with any person in the Navy concerning her husband’s application for early discharge.
dr kenneth byrne
60. Dr Byrne is a consulting forensic psychologist who prepared two reports at the request of the respondent dated 9 February 2004 and 20 July 2004. Dr Byrne consulted with Mr Donnelly and his wife on 12 November 2003 over a period of four hours.
61. In his first report Dr Byrne concluded that whilst the applicant had been diagnosed by others as suffering from PTSD and the symptoms would suggest that diagnosis, he did not agree with it. It was his opinion that the applicant suffered from generalised anxiety disorder together with major depressive illness and alcohol dependence. It was his opinion that the generalised anxiety disorder began “during or shortly after his second tour of Vietnam”. Dr Byrne concluded that the generalised anxiety disorder was a combination of “the personality limitations referred to earlier and the call to action stations which he describes”. It was his opinion that the major depressive illness was caused by the events in employment with Allowrie Foods and the alcohol dependence was a consequence of his generalised anxiety disorder.
62. Immediately prior to preparation of his second report Dr Byrne was provided with a number of documents which were not available to him at first consultation. He was also provided with a lengthy letter prepared by the respondent summarising the contents of a number of other documents. Dr Byrne concluded that having read those documents it was his opinion that the applicant’s memory of the events of service “has been shaked with his treatment by Dr Randall”. Additionally having read the reports of Commodore Mulcare and observed the results of an MMPI evaluation, he was of the opinion that the “Seacat incident is quite unlikely . . . (to) have caused any enduring change in his personality”.
63. Dr Byrne reported that whilst he maintained his opinion as to diagnosis he was “less certain that there is a direct connection between these events and the onset of his disorder”. Nonetheless he reported that if the “Seacat incident” satisfied the criteria of experiencing a severe psycho-social stressor and if it were accepted that his anxiety symptoms began within two years following the incident he would then accept that the “Seacat incident” was the cause of his psychiatric illness.
64. In evidence Dr Byrne said that when he interviewed the applicant’s wife he would not have asked specific questions but would have asked open ended questions. He said he had a record of the questions that he did ask and would make them available if needed.
65. Dr Byrne confirmed that his diagnosis – as recorded in both reports – was of generalised anxiety disorder together with depression and alcohol abuse. He said he maintained these opinions having interviewed the applicant and his wife and read extensive documentation made available to him. He acknowledged that the symptoms described by Mr Donnelly were consistent with PTSD however Dr Byrne said that he prefers to “focus on the SOPs and he didn’t meet a stressful event”.
66. Dr Byrne was asked to comment upon evidence of Mr Burge that the applicant, during service, was irritable and had difficulty concentrating. Dr Byrne said that “putting on a brave face” whilst irritable or having difficulty concentrating would be beyond conscious control. He said that the records that had been made available to him indicated that Mr Donnelly was a good sailor and was described favourably by his superiors. He said that the applicant would not have been able to hide symptoms of irritability and poor concentration in the close confines onboard a naval vessel. This view was also reinforced by the applicant’s results of the MMPI test which he regarded as the “most widely used in the world – it is the gold standard”. On balance Dr Byrne acknowledged that the weight of contemporaneous records compared to observations on later presentations to a doctor for medico-legal reasons were important in forming opinions. He said the role of a treating doctor was to take the person’s symptoms on face value and relieve those symptoms. He said the role of a medico-legal examiner was to balance the information obtained in consultation with other information. He said this would require an assessment of the patient’s memory and ability to recall events. It followed, he said, that the greater the period between events occurring and having to recall, the greater the risk of distortion. He acknowledged that Mr Donnelly was a genuine person and did not attempt to mislead him, however he remained of the view that a person’s memory is malleable and it is an opinion which he says is commonly held by other psychologists. He said that there is research available to support this opinion. By way of example he referred to a research paper where persons who had witnessed a homicide were interviewed six months after the event and then again 18 months later. He said the recall of those persons had been distorted by the passage of time. It therefore followed in his opinion that memory is malleable and is subject to change. He did query however the opinion expressed by Dr Lis that the applicant had suppressed his memories of service. Dr Byrne said that in his experience persons who suffer from generalised anxiety disorder or PTSD complain that they suffer intrusive memories and also complain that they are unable to put those memories “out of their mind”.
67. Dr Byrne said that the applicant had been exposed to stressful events after service including litigation associated with his daughter and his own litigation to recover compensation and to recover pension from the respondent. He said that litigation exposes persons to substantial challenges to daily functioning. Dr Byrne also noted that the applicant and his father both had perfectionist personalities and in his experience it would be common for those sorts of people to develop resentment and to be in conflict. Dr Byrne noted that this was a characteristic also of the applicant’s relationship with others in employment, both employers and co-workers.
68. In cross-examination Dr Byrne acknowledged that the applicant’s alcohol habit and other symptoms were consistent with a diagnosis of PTSD. He said that the applicant does not “have PTSD because he doesn’t meet the Statement of Principle”. On further discussion Dr Byrne said that if he had been treating Mr Donnelly and or had been asked to express an opinion as to diagnosis without reference to a SOP he would have diagnosed PTSD. He said he was not surprised that Mr Donnelly had been treated at the Repatriation Hospital under Dr Douglas for PTSD or that other doctors had treated him for that illness. He regarded Mr Donnelly as being totally incapacitated “primarily by the psychological factors and is unlikely to return to work”.
69. In specific reference to his second report (paragraph 9.23.2.3) Dr Byrne confirmed that if the “Seacat incident” met the definition of “experiencing a severe psycho-social stressor” and if he were accepted that his symptoms of anxiety commenced within two years of that incident he would in turn accept that the “Seacat incident” was the cause of his PTSD.
commodore mulcare
70. Commodore Mulcare is a former Chief-of-Staff of the Navy who retired in 1991. He provided two reports at the request of the respondent dated 4 April 2004 and 18 May 2004.
71. In his first report Commodore Mulcare, having examined relevant records, reported that on 29 February 1971 Yarra closed defence stations and remained in a state of readiness whilst at anchor. Later, action stations were sounded apparently because another ship had been located but was not identified. He reported that moving from defence stations to actions stations to investigate an unidentified contact was normal procedure until such time as the identity of the other vessel had been established. Whilst it was his opinion that surface threat was then unlikely, normal and established procedures would have been undertaken.
72. In his second report Commodore Mulcare reaffirmed the opinions previously expressed with respect to the incident whilst onboard Yarra.
73. As to the episode whilst the applicant was a member of the crew of Vampire, Commodore Mulcare reported that the applicant would have been a member of a cutter crew which would have been patrolling waters around the Vampire. A report of proceedings (“RP”) accessed by him dated 19 May 1969 concluded that there were no incidents in the Vung Tau area, although scare charges were dropped and “suspicious” boxes floating on the water were fired upon with small arms. As to the allegation made by Mr Donnelly that a Vietnamese diver was killed, Commodore Mulcare reported that it was “extremely unlikely to say the least” that the cutter came across an enemy diver and did not report it, that the diver was pulled onboard, beaten about the head with the butt of a rifle, then cast back into the water and the offender was able to swear the other two crew members to secrecy.
74. In evidence Commodore Mulcare said that the incident whilst onboard Yarra did involve moving from defence stations to action stations because a ship had not been identified and Yarra was located in a war zone. He said that surface attack was unlikely because the North Vietnamese were not in that area and the South Vietnamese did not have a Navy. He said there was no reason to anticipate any enemy vessel. However he acknowledged that he could not “second guess” the Captain of Yarra. Commodore Mulcare said that there was no evidence of any shot being fired and there was nothing in any log or RP which would cause him to think otherwise. He said that there was no firing from the Yarra, or upon the Yarra, and had there been, there would have been a “flurry of apologetic signals”.
75. The Seacat missile had a range of 5000 metres and would have been directed at aircraft only. He said the weapon of choice in the event that Yarra engaged with the other vehicle would have been the 4.5 inch gun which would have been more accurate and lethal and could engage a target at up to 17,000 yards. He said from the records that he had read, the unidentified vessel was 7 miles away from Yarra and would have therefore been beyond the range of a Seacat missile.
76. In his second report Commodore Mulcare appended a copy of the ship’s log of Yarra of 25 February 1971. It records that at 1642hrs all hands were directed to action stations and at 1652hrs the unidentified vessel was in fact identified as the USS Energy. At 1657hrs persons were “secured from action stations”. Commodore Mulcare said that between 1642 and 1657 persons – including the applicant – would have been in action stations, however, between 1652 and 1657 those persons – including the applicant – would have been aware that they were not at risk. This is because at 1652 the other vessel had been identified and persons would have been notified.
77. With respect to the episode whilst a member of the crew of Vampire, Commodore Mulcare said that the crew within the cutter would have been under control of the “mother ship” at all relevant times. He said if something or someone suspicious had been detected, it would have been reported. He said the crew of the cutter were not autonomous. Additionally, Commodore Mulcare said that the cutter would have been viewable from the bridge of Vampire and probably from the bridge of Sydney which Vampire was escorting.
78. As to the collision of Frank E Evans and HMAS Melbourne, Commodore Mulcare said that by the time the applicant’s vessel had arrived on the scene persons would have been rescued or recovered. He agreed that the veteran in all likelihood would have observed the stern of the Evans afloat.
79. In cross-examination Commodore Mulcare said that Vampire was protecting and escorting Sydney. He said that he was not aware from any documents that he had read whether scare charges had been laid, at or about the time the applicant was a member of the cutter crew. He said that razor wire would have been dragged from the cutter to snare enemy divers, however any small arms fire (by rifle) would have been undertaken by officers onboard Vampire. He agreed that officers did fire upon floating boxes but they were not regarded as being of any threat to the ship.
80. With respect to the Seacat missile episode, Commodore Mulcare said that every person onboard Yarra would have been aware of the attack upon HMAS Hobart. He said that he was not aware whether the applicant was then terrified and whilst he would expect that a person in action stations could be stressed, he would have hoped that such a person would be “confident in his own ship”. Commodore Mulcare said that he was aware of a statement completed by Mr Selwood and agreed that the episode relied upon by the applicant onboard Yarra was not an exercise. He disagreed with the statement of Mr Webb who reported that a charge or mine had been found on the hull of Vampire prior to leaving Port. He said that if this had occurred “everyone would know about it and they would have been told”. Additionally he said there would have been a report of that finding.
81. With respect to the applicant’s allegation that a diver had been encountered whilst he was onboard the cutter, Commodore Mulcare said that in his “judgement” it would have been “extraordinarily unlikely that a diver had been located”.
82. In re-examination the witness said that the applicant would have been confined to action stations whilst onboard Yarra to “give the best opportunity to engage – and therefore to survive – if necessary”. He agreed that for up to 15 minutes the applicant would not have known whether Yarra was to engage the other vessel.
83. Commodore Mulcare said that HMAS Hobart was fired upon by an allied United States Aircraft near Tiger Island off the North Vietnamese coast in 1968. From 1969, United States and Australian vessels did not operate from the North but rather operated from the South of Vietnam. Commodore Mulcare agreed that Mr Donnelly may have experienced apprehension, particularly when he was confined to action stations. Nonetheless it was his opinion that Yarra was not at risk from the unidentified vessel unless it first opened fire.
84. At the conclusion of the evidence of Commodore Mulcare and by reference to the evidence earlier of Dr Byrne, Mr Herman, on behalf of the respondent, conceded that the appropriate diagnosis in this application was PTSD. It followed by this concession that the only applicable SOPs were those relating to that illness.
submissions
85. Mr De Marchi submitted that the applicable SOPs were issued in 1994 and in 1999. He said the first Instrument referred to experiencing a stressor whereas the second Instrument referred to experiencing a severe stressor. The former Instrument he said was more “lenient” and did not refer to a definition which contained references to fear, helplessness or horror. Nonetheless he submitted that the applicant did experience fear when onboard Yarra and said the evidence of Commodore Mulcare would be supportive of this contention.
86. It was submitted that the applicant was a witness of truth and there should be a finding that the incidents, whilst a member of the crew of Vampire and a member of the crew of Yarra, should be found as a fact as having occurred. It was submitted that the applicant’s wife and Mr Burge also supported the applicant as being a person of truth.
87. As to the episode onboard Yarra, it was submitted that the applicant was initially engaged in action stations and despite ultimately learning that the unidentified vessel was of United States origin, he was concerned that it could open fire and the Yarra could have then been engaged in combat. It was submitted that the applicant was well aware of the catastrophe to which the HMAS Hobart was exposed, and as Yarra approached the other vessel he could have been directed to guide the Seacat missile.
88. With respect to service onboard Vampire, it was submitted that even if the incident involving the death of the diver was “discounted”, it should be found that officers of the crew of Vampire did engage by firing upon floating boxes.
89. It followed that a connection existed between service and resultant PTSD, that the SOPs were satisfied and a finding should be made that PTSD arose out of service.
90. It was submitted that prior to the making of the section 31 decision the applicant was in receipt of pension at 80 per cent of the general rate. It was submitted that the decision under review should be set aside and pension should be restored to at least that rate. Indeed it was submitted that pension should be restored from the date that it was cancelled because the applicant presently is exposed to an overpayment of pension. Additionally it was submitted that if the condition of bruxism is accepted, together with PTSD, it will permit the applicant to assert an entitlement to special rate pension.
91. Additionally it was submitted that upon the documented evidence filed, together with the evidence of Dr Byrne and Mr Burge, there should be a finding of fact that the applicant is totally incapacitated and is unable to work because of his psychiatric illness alone.
92. In reply Mr Herman submitted that there was nothing in service to which the applicant was exposed which would satisfy the definition of either a “stressor” or a “severe stressor” within the SOPs from 1994 and 1999. He submitted that, whilst the applicant’s sincerity was not being challenged, he was in fact mistaken in his evidence. Accordingly, it was submitted that a finding of PTSD, by service, was not correct or preferable.
93. Mr Herman submitted that Mr Burge was unable to point to any contemporaneous evidence demonstrating that the incidents onboard Yarra or Vampire either occurred or would count for the applicant’s PTSD. He submitted that the hypothesis advanced by the applicant did not contain raised facts and was at best, supposition. Mr Herman pointed to the applicant’s personnel file which indicated that he made satisfactory academic progress, that the conversation with the applicant’s wife indicated that she was of the belief that her husband enjoyed being a member of the Navy and ultimately, the applicant was discharged from service in order to assist his father. Additionally it was noted that towards the end of his service the applicant applied for, and commenced, a coxswain’s course.
94. It was submitted that the file of Dr Darby points to the applicant first experiencing nightmares after the confrontation with the Evans/Melbourne incident, that the applicant’s father was “distant”, that the applicant was exposed to stressful litigation in his Workcare appeal and according to Dr Darby, the applicant experienced a “sense of injustice”. Additionally it was submitted that the files from the workers’ compensation insurer pointed to a psychiatric history having its root in workplace matters and not by service. Further to this, it was submitted that the file of Dr Randall should be approached with some caution – particularly having regard to the interpretation upon it by Dr Byrne. It was also noted that the file of Dr Randall does not contain any history with respect to the diver allegedly located and killed whilst the applicant was a member of Vampire.
95. It therefore followed that the extensive documented history – containing many inconsistencies – pointed to the applicant being an unreliable witness and the Tribunal should not be satisfied that any reasonable hypothesis has been raised.
96. Additionally Mr Herman submitted that there was no contemporaneous records supporting the incident whilst onboard Vampire and there should be a finding that no such incident occurred. It was acknowledged that the applicant was called to action stations whilst a member of the crew of Yarra but there was no evidence that it opened fire on the unidentified vessel. Additionally Yarra was located at more than double the range of a Seacat missile and the 4.5 inch guns would have only been used if Yarra was threatened or if it responded to fire upon it. It was submitted that Yarra identified itself to the USS Energy and there was no reason to believe that USS Energy would have opened fire upon Yarra.
97. Mr Herman relied on the Federal Court decisions of Woodward v Repatriation Commission (2003) 200 ALR 322 (“Woodward”), Delahunty v Repatriation Commission [2004] FCA 309 (“Delahunty”) and White v Repatriation Commission [2004] FCA 633 (“White”) particularly the comments of Spender J at paragraphs 30 and 32 in White.
98. Accordingly it was submitted that viewed objectively, the call to action stations would not have subjectively evoked feelings in the applicant as he has described.
99. With respect to assessment, it was submitted that in the event that PTSD was found to have been war-caused the application should be remitted to the respondent for assessment of pension. Mr Herman submitted that no enquiry had been made as to whether the applicant satisfied s24(1)(c) of the Act. Additionally it was submitted that the applicant has other injuries which may offend the “alone” test and it would be unwise to assume that the applicant was totally incapacitated by PTSD in the event it was found to be war-caused.
100. By reason of Mr Herman relying on the Full Court decisions as above, and particularly the decision of White, Mr De Marchi requested the opportunity to file a reply in writing. He said he sought the opportunity to familiarise himself with that decision.
101. A considerable delay occurred pending the filing of a reply by Mr De Marchi. In the interim both he and the representatives of the respondent apparently had discussions with respect to the pension payable to the applicant in the event that a finding was made connecting injury with service. These discussions (it would appear) were designed to avoid the consequential delay of remitting the matter to the respondent for assessment of pension in the event that injury was found to have arisen from service. Ultimately a report from Dr Randall, the applicant’s treating LMO, was lodged (refer later).
102. The Reply from Mr De Marchi did not add to the submissions previously made orally. Indeed the submissions contained a number of errors which were the subject of subsequent correspondence requesting correction. The reply did not respond to the submissions of Mr Herman with respect to the Federal Court decisions of Woodward, Delahunty and White.
103. Mr Rudge on behalf of the respondent lodged a letter on 3 March 2005 which made a number of concessions and, for reasons which will follow later, were properly made. The respondent conceded that in the event of a finding of “a psychiatric condition” being found to be war-caused that bruxism should also be found to be war-caused. The expression by Mr Rudge in his letter of “a war-caused psychiatric condition” suggests that he did not know that Mr Herman, who appeared on the second day of hearing, conceded that the appropriate diagnosis was PTSD.
104. The respondent also conceded that in the event of a finding of a war-caused psychiatric condition the respondent would concede the applicant had an entitlement to special rate pension with effect from 2 November 2001. That date was conceded having regard to the effect of s 177 (2) (a) and s 157 (2) of the Act.
further evidence
105. The multitude of documents lodged during the course of this review contained a number of medical reports, clinical notes of medical practitioners and statements of persons, most of whom were not called to give evidence. The contents of these documents were variously referred to in the evidence of the witnesses who were called. The following is a short summary of those documents, of which the contents and the opinions expressed were not subject to cross-examination.
106. Mr Edmond Kennedy wrote a letter (undated) (T‑documents, page 196) which stated that he served with Mr Donnelly on Yarra in February 1971 whilst carrying out escort duty with Sydney. Mr Kennedy wrote that after leaving Vung Tau “we were ordered to action stations as a consequence of contacting an unidentified ship. This was definitely not an exercise. Graeme Donnelly was the Seacat aimer at the time and would have witnessed first hand all that took place on that day”.
107. Mr Yurgen Horst Milenz (page 170) wrote a letter also undated confirming that he was onboard Yarra. He said that he heard gunfire – “one or two gunshots but I did not know why as the hatchers were clogged down so I could not see or gain access to the upper deck. This to the best of my knowledge was not an exercise as the call for action stations did not have the words ‘for exercise hands to action stations’ as was normal procedure”.
108. Mr Les Selwood (page 175) wrote a letter (undated) that he served with Mr Donnelly onboard Yarra in February 1971. He recorded “on leaving harbour we were ordered to action stations. I worked in the forward 4.5 gun turret. As we swung the gun onto the target (which I found out later to be an American ship they would not identify itself) the main gun jammed. I do not recall firing a shot but I can assure you that this was not an exercise”.
109. Mr Christopher Webb wrote a letter on 28 October 2002 (page 171) confirming that he served onboard Vampire with Mr Donnelly. He recorded that the vessel was carrying out a routine operation “Awkward” involving dragging razor wire through the water and dropping scare charges. He wrote “just as the ship left Vung Tau a rumour spread through the ship to the effect that explosives had been found on the ship’s hull. This led to a high degree of apprehension onboard the ship especially among the ordinary seamen as the ship was a training ship”.
110. Commodore Baird was in command of Yarra in February 1971. In a statement dated 26 July 2004 (Exhibit 12) Commodore Baird recorded the following:
On 25 February 1971, HMAS YARRA under my command, was escorting HMAS SYDNEY into and out of Vung Tau harbour to effect a change over of troops. Before dawn, with the ship at Defence Stations, YARRA swept ahead of SYDNEY on entry, provided protection during the day, and swept ahead of SYDNEY on departure.
YARRA was clear of the harbour when, late in the afternoon, an unidentified ship was detected ahead, then sighted at about 12 miles. It was painted as a warship. I reported this to SYDNEY together with my intention to investigate the ship. I sent YARRA to Action Stations and increased speed to 29 knots.
The ship was crossing SYDNEY’s mean line of advance at about right angles and moving slowly from left to right. My intention was to bring the ship into gun range so that I would maintain a position of gunnery advantage and I would keep between SYDNEY and the ship. SYDNEY had plenty of room to move away if necessary.
I closed the range to about 7 miles, keeping the target on the starboard bow so that the firing arcs of the 4.5 inch turret were open, and developing a firing solution if I needed it. This meant that the Seacat missile mounting was wooded for the approach and I knew that if I wanted to engage with the Seacat, I would have to open it’s firing arcs by turning away when I was within range.
Guns Tight was ordered. I did not order any weapon system to open fire. YARRA did not open fire. I was satisfied that if necessary I could have given adequate protection to SYDNEY and her valuable cargo of troops.
When the ship came within visual range, we could read its side number and identify it by flashing light and appropriate flag signals. It had not responded to any challenges during YARRA’s approach. When I was satisfied that it posed no threat, I conveyed this to SYDNEY, fell out from Action Stations and shaped course to rejoin SYDNEY.
111. Dr Darby was the applicant’s treating psychiatrist in Albury. His clinical notes were received into evidence. The notes contained a report of 29 November 1995 addressed to a medical officer at the Department of Veterans’ Affairs. The report contains a history received by Dr Darby from Mr Donnelly of a number of events in service, those events being, hearing of a mine that had been attached to his vessel at Vung Tau, witnessing an enemy diver “being savagely beaten to death” and when onboard Yarra firing over an American ship and having hesitated to execute an order to the firing of a missile. A history was also obtained of the applicant observing the damage to the Frank E Evans, being unsuccessful in his attempts to qualify as a naval diver and a sense of hurt and rejection when returning to Australia at the completion of Vietnam service.
112. Dr Lis provided a report to the applicant’s solicitors who acted in his workers’ compensation claim. The report recorded histories taken with respect to workplace events, but specifically it notes that during his enlistment in the Navy “he served in Vietnam but does not appear to have had any obvious psychological problems as a result of this experience”. Dr Lis wrote another report on 27 February 1996 where having reviewed Mr Donnelly and having obtained a more intimate history of his naval service, Dr Lis reported “on talking to him today I now understand that I was wrong because he had suppressed memories of incidents which indeed had caused considerable emotional trauma. He gave me a detailed account of several incidents and whilst so doing he had tears in his eyes”.
113. Dr Randall is the applicant’s LMO who has been treating him for approximately 12 years. In a report of 24 January 2003, Dr Randall confirmed that he had been providing “psycho-therapeutic intervention to address emotional disturbance that has been accepted as PTSD with associated conditions including substance abuse” for three years. He concluded “I have formed the strong opinion that his reaction to incidents occurring during service in the armed forces in Vietnam was the principle contributing to his subsequent and ongoing psychological issues”.
114. Dr Edward Cole provided a report at the request of the applicant’s solicitor on 22 July 2003. He obtained a history in service of the applicant being a member of Vampire when charges were dropped into the water at Vung Tau harbour. He also obtained a history of a Vietnamese person being struck with the butt of a rifle after which “he drifted away”. Dr Cole said that Mr Donnelly had told him that “there was a lot of yelling and shouting from the other men. He was told to shut up and forget about it”. He also obtained a history of being called to action stations when onboard Yarra and recalling that “a round was fired over the bows of another ship and an expectation of being fired upon”. Later Dr Cole was sent copies of the file of Dr Darby, and two files of workers’ compensation insurers. Dr Cole reported (23 September 2003) that his opinion remained unchanged and he continued to be satisfied that the applicant suffered from PTSD. He acknowledged that “the problems that he encountered in the course of his work” could have “the effect of aggravating his condition but his symptoms are of much longer standing and point to the part played by his condition by his war-time experiences”.
conclusion and reasons for decision
diagnosis
115. Dr Burge, Dr Randall Dr Darby, and Dr Cole were of the opinion that the applicant suffered from PTSD. The respondent conceded PTSD as the diagnosis. Dr Byrne thought the applicant suffered generalised anxiety disorder together with depression and alcohol abuse but dismissed PTSD as a diagnosis because, in his opinion, the applicant’s circumstances did not “meet the Statement of Principle”. That conclusion is impermissible. “The Statement of Principles function is limited to prescribing a medical – scientific standard with which a hypothesis must be consistent – so that the SOP can uphold the hypothesis . . .” (refer Deledio v Repatriation Commission (1997) 47 ALD 261 at 275).
116. I am therefore satisfied that “the kind of injury” (refer Repatriation Commission v Hancock [2003] FCA 711) is PTSD. Upon that finding the next enquiry is to identify whether there was a SOP “in force”.
117. The issue of which SOP applied in the circumstances of this application provoked a submission from Mr De Marchi that I had not previously heard. It was submitted that by reason of the present application having its origin in a s 31 review, the applicant was entitled to the benefit of the SOP “in force” at the time that his initial claim for pension was made (and accepted). In those circumstances it was submitted that the applicant was entitled to benefit from the application of the PTSD Instrument “in force” in 1994 (No. 15 of 1994). It was submitted that the applicant was entitled to adopt a SOP which was the most beneficial to him and in those circumstances it was submitted that the Instrument of 1994 was more beneficial than the Instruments that were issued in 1999.
118. The present application arose out of a review initiated by the respondent pursuant to s 31 (4) of the Act. Having decided in May 1995 that the applicant was entitled to pension for the condition of PTSD and later for the condition of bruxism, the Repatriation Commission (“the Commission”) later became satisfied that evidence before it when the original decision was made, was “false in a material particular”. In the exercise of its discretion it varied the decision previously made to accept PTSD and bruxism as war-caused and revoked those decisions. It is the latter decision that the applicant reviewed to the VRB which has given rise to these proceedings.
119. Analysis of the decision which has given rise to these proceedings reveals that the respondent, at all relevant times, conducted a review “on the disability pension claim you lodged on 30 May 1995” (refer page 130). The respondent determined that PTSD and bruxism were not war-caused pursuant to s 9 of the Act and payment of disability pension was cancelled with effect from 28 February 1995 (page 119) being three months prior to the date of claim. For the purposes of s 19 of the Act “the assessment period” commences at the date of application and in the context of this application, the date of application is May 1995. The applicant is therefore entitled to adopt the most beneficial SOP applying during the assessment period which concludes when this application is determined – in those circumstances that date will be the date of delivery of these reasons for decision.
120. Instrument No 15 of 1994 provided that a reasonable hypothesis connecting PTSD with service will be raised if a factor or factors exist as a minimum. The relevant factor under this Instrument was 1 (a) being:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder;
121. “Experiencing a stressor” was defined at paragraph 4 in the following terms:
“experiencing a stressor” means the following (derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and
(b)the person’s response to that event involved intense fear, helplessness or horror;
122. Instrument No 15 of 1994 was amended by Instrument No 225 of 1995 but that amendment related only to the ICD Code and has no relevance to this review.
123. Instrument No. 3 of 1999 revoked Instruments No 15 of 1994 and 225 of 1995 and by that Instrument factor 5 (a) applied being:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
124. The expression “experiencing a severe stressor” is defined at paragraph 8 in the following terms:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i)threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
125. Instrument No 54 of 1999 amended Instrument No 3 of 1999 but only by substituting the singular “Entitlement” as appearing in the former Instrument with the plural “Entitlements” by the latter Instrument.
126. As may be seen by comparing the above factors and respective definitions the difference extends beyond the additional word “severe” in the latter Instrument.
repatriation commission v deledio
127. The principles which the Tribunal is bound to apply in order to determine whether a hypothesis is reasonable are the principles decided by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206. Those four principles are recorded as follows:
“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.”
128. There is material presently before the Tribunal pointing to a hypothesis connecting PTSD with service. That material is the exposure by the applicant to the assault upon a person in the water at or near Vung Tau harbour, the report by others of a mine being attached to the hull of Vampire and the experience of being inside the 4.5 inch gun turret whilst at actions stations.
129. There are SOPs in force and accordingly the second stage of the Deledio analysis is satisfied.
130. I am satisfied that the third stage of the Deledio analysis is also satisfied because the hypothesis raised is reasonable. There is consistency with the material raised by the proceedings with the template of the SOP. The following analysis concerns the Instruments issued in 1999, but it would be no great leap to equally find that the 1994 Instrument is also satisfied.
131. The real focus of course is upon stage four of Deledio where findings of fact are to be made upon the material heard and presented in the proceedings.
132. When the hearing commenced it was submitted that the applicant would rely on the episode where a Vietnamese person was assaulted with the butt of a rifle and upon the other episode of the applicant’s experience onboard Yarra when in the gun turret. During the proceedings the episode of a mine allegedly being fixed to the hull of Vampire emerged. I am not now clear whether the hypothesis being advanced by the applicant is upon the basis of all of those incidents being responsible for the PTSD or one, or more than one, of those incidents in combination.
133. Nevertheless, reasons which follow, I am satisfied that the episode onboard Yarra did, as a fact, occur and was responsible for the PTSD.
134. The episode involving the alleged mine being fixed to the hull of Vampire was at best the subject of rumour. Mr Webb in his letter of 28 October 2002 (page 171) said that “a rumour spread through the ship” that explosives had been found on the ship’s hull. Dr Cole had a history of the applicant notifying him that he had been informed that a mine had been found. A similar history was given to Dr Darby.
135. The applicant’s case was never put at the level of him having observed the mine attached nor of any report being made to superior officers. There was no report of the mine being removed or it being detonated elsewhere.
136. I would have thought that in the event that a mine had been attached to the hull of Vampire that it would have gone beyond “rumour”, it would have been widely known and it would have been reported in the Record of Proceedings. The Record of Proceedings found within the T‑documents (page 172 – 173) refer to the vessel being on defence watch and at awkward stage, that scare charges were dropped and small arm fire was opened on “suspicious floating boxes”. But the report concludes “no incidents occurred whilst in the Vung Tau area”. It is inconceivable that had a mine been attached to the hull, it would not have been recorded in the Record of Proceedings. I am not prepared as a fact to find, on the balance of probabilities, that such an event occurred.
137. The episode involving the alleged assault on the Vietnamese diver, if true, would amount to a war crime. There is no support for the occurrence of the event other than the applicant’s evidence in these proceedings and upon the history he gave to some of the doctors. I agree with the conclusions of Commodore Mulcare that it is unlikely that the presence of an enemy diver would not have been reported. Furthermore the cutter was under the observation of the crew of both Vampire and Sydney, making it unlikely that the episode would not have been witnessed, and that all persons – both members of the crew within the cutter and those onboard the two vessels would not have ever discussed it or reported it. There is no record of such an incident in the Record of Proceedings and in the absence of that event being corroborated I am not prepared to find, on the balance of probabilities that the incident occurred. I am of the belief that the applicant himself believes the event truly did occur. I do not know whether it is a belief held by him based on an event which was imagined or dreamt or arose out of “an irrational perception or baseless apprehension” (refer Delahunty at paragraph 27). It is not for me to speculate. But on the probabilities I am not prepared to find as a fact that the event occurred.
138. There is no doubt in my view that the episode as alleged onboard Yarra did in fact occur. There is support for the applicant’s assertion that the event did not occur during an exercise and that personnel were ordered to action stations. These events are the evidence not only of the applicant, Mr Kennedy and Mr Selwood, but by a person no less than the Commander of the vessel, Commodore Baird.
139. The tragedy of this application is the finding of the review officer at the s 31 review that the allegation with respect to the calling for action stations onboard Yarra was in the nature of a training exercise. That information apparently came from a historian engaged by the respondent. It is not known why Commodore Baird was not then approached because if he had been, Commodore Baird would have reported, as he did in these proceedings, that he called for action stations. That event was not a training exercise. The applicant’s evidence of that event clearly was not “false in a material particular” (refer s 31 (4)).
140. On the applicant’s evidence he believed that he was at risk of either being shot at or having to shoot at another vessel. There was evidence from Mr Selwood that the gun in the turret had jammed, thereby reducing – if not eliminating – the opportunity to defend Yarra, if necessary. There was also knowledge of an earlier incident in which the Australian vessel, Hobart, had been attacked by an allied vessel. Additionally there was the statement of Commodore Baird who reported that Yarra positioned itself between the other vessel and Sydney, putting it at greater risk than Sydney in the event of conflict.
141. Commodore Mulcare said that the applicant would not have been able to observe the other vessel having regard to the position of Yarra. However Mr Donnelly said that his ship turned and it is clear from the statement of Commodore Baird that Yarra did not keep or maintain a straight passage towards the other vessel.
142. In those circumstances I am satisfied that the applicant did experience a stressor, indeed probably also experienced a “severe stressor”, within the meaning of the applicable SOPs.
143. Clearly the call to action stations, the manning of a gun turret and being required to operate weaponry and other missile technology in the event of being called upon to do so, put the applicant in a position where he would have been experiencing or had confronted an event which involved “threat of death or serious injury or a threat to another person’s physical integrity”.
144. In Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Court decided:
the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.
145. As Tamberlin J decided in Guy v Repatriation Commission [2005] FCA 562 – having relied on the above passage from Woodward, decided that the definition of “experiencing a severe stressor” within the 1999 SOP “did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances”.
146. In order to comprehend the applicant’s state of mind and reaction to the event onboard Yarra, it is important not to overlook that he had been at action stations for 10 minutes before the unidentified vessel was identified and then another five minutes before he became released from the secured position within the turret. It was suggested that the applicant was not at risk because the North Vietnamese did not have a navy and the South Vietnamese were allies. I doubt that those thoughts were foremost in the applicant’s mind between 1642 and 1657 hours on 25 February 1971 when he was locked into a turret while the vessel was at action stations whilst an unidentified vessel was in the vicinity. The applicant obeyed orders and in the event that he had been called upon to either fire or guide a missile, he would have been compelled to do so.
147. In Stoddart v Repatriation Commission [2003] FCA 334, Mansfield J discussed the circumstances of a finding where objectively a veteran was found not to have experienced a severe stressor because a vessel upon which he was onboard during operational service did not actually come under threat. His Honour concluded (paragraphs 40 – 41):
40 There is no doubt that there is a subjective element required to "experience" a severe stressor. The requirement that a threat should be experienced conveys simply that the threat should in fact be met, undergone or felt. The Tribunal did not in my view overlook that issue. It did not have to address the issue because it concluded that the acceptance of the applicant's claims about the occasions giving rise to his fears "do not objectively satisfy the relevant factors", namely being "confronted with an event or events that involved actual ... or threat of death, or serious injury".
41 In my view, it is at that point the Tribunal has fallen into error. It has required a "threat" to be one which, judged objectively and remote from the circumstances and state of knowledge of the person experiencing or witnessing or being confronted with the threat, has a real or actual prospect of actually resulting in death or injury or harm to physical integrity. I think it has thereby imported into the concept of a "threat" in the SoPs more than is demanded by their wording and by their purpose.
148. His Honour then discussed a hypothetical situation of a person being confronted by another person holding a gun. His Honour concluded that it was a threat to be confronted with a person holding a loaded gun and who is threatening to shoot but what of the situation if others know that the gun is unloaded or is a replica. His Honour concluded that the external observer might conclude that there was no actual risk of death or serious injury but in the context of the veteran then under review, there was a “threat” when battle stations were sounded, when an attack upon a vessel was anticipated but the attack never eventuated. His Honour concluded (paragraph 46) that the veteran may have been confronted with events which he perceived would involve threat of death or serious injury. There was no distinction upon His Honour’s analysis to be drawn between events which would actually involve the threat of death or serious injury and events which were perceived.
149. His Honour concluded at paragraph 50 in the following terms:
50 In my judgment, the meaning of the word "threat" as used in the definition of "experiencing a severe stressor" does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause "that involved actual or threat of death or serious injury ..." explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word "threat" a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of "sound medical-scientific evidence" in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted.
150. I am satisfied that the applicant, being a witness of truth, did experience and confront an event onboard Yarra, where he perceived that he was under threat of serious injury or death. It takes little imagination to conclude that a belief of the potential of two war ships firing at each other exposes persons onboard, no less Mr Donnelly, to a threat of serious injury or death. In all of the circumstances I am satisfied that the applicant, as a fact, did “experience a severe stressor” when onboard Yarra which has not been disproved beyond reasonable doubt by the respondent.
151. It is true that subsequent to service the applicant has experienced some unhappiness and stressful occasions associated with his relationship with his father, his workplace and within his own family, but those events have occurred subsequent to his naval service during which time I am satisfied his PTSD emerged. The evidence of Dr Burge, which I accept, points to persons with PTSD having difficulty maintaining relationships. The evidence of Mrs Donnelly where she compared her husband before and after service bears testament to his changed personality and his increased consumption of alcohol and cigarettes. Additionally, I am not satisfied, upon the evidence heard and read that the applicant’s involvement in the Frank E Evans collision made any contribution to his PTSD.
152. In all of the circumstances I am satisfied that the decision under review should be set aside. In substitution therefore it is decided that the conditions of PTSD and bruxism are war-caused. Consistent with the concession made by the respondent I am also satisfied that at relevant times the applicant has been entitled to pension at the special rate.
I certify that the 152 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Alice Beattie
AssociateDates of Hearing 28 May, 29 July and 12 October 2004
Date of Decision 29 June 2005
Solicitor for the Applicant Mr D De Marchi
Departmental Advocates Mr K Rudge and Mr K Herman
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