Doust and Repatriation Commission - [2001] AATA 81

DECISION AND REASONS FOR DECISION [2001] AATA 81

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1461

VETERANS' APPEALS DIVISION       )
           Re      Jean Hillary DOUST
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date8 February 2001
PlaceSydney

Decision      The Tribunal sets aside the decision of a delegate of the Repatriation Commission dated 8 April 1997, and in substitution therefor determines that pursuant to s8 of the Veterans' Entitlements Act 1986 the death of Benjamin Albert Doust was war caused, and that war widow's pension is payable to Jean Hillary Doust on and from 26 December 1996.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension – Statement of Principles applied – whether causal relationship between Veteran's war service, alcohol consumption and death – "stressful event" – whether "stressful event" must be of the nature or equivalence of combat

WORDS AND PHRASES – "stressful event"

Veterans' Entitlements Act 1986 – ss 120(1), 120(3) and 120A

Statement of Principles – Instrument No. 5 of 1994

Repatriation Commission v Keeley (2000) 98 FCR 108
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bey v Repatriation Commission (1997) 79 FCR 364
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

8 February 2001 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 8 April 1997 that determined that the death of Benjamin Doust ("the Veteran") was not causally related to his war service. Jean Hillary Doust ("the Applicant") sought review of that decision by the Veterans' Review Board ("the VRB"), and on 20 August 1998 the VRB affirmed the decision. The Applicant lodged an application for review by this Tribunal on 19 October 1998. All applications for review were in time, and therefore the earliest date of effect is 26 December 1996 being a date not more than three months before she lodged her claim for war widow's pension.
At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The following evidence was tendered on behalf of the Applicant –

Statement of the Applicant dated 29 July 1999 (exhibit A)
Statements of Janette Doust dated 13 August 1999 and 9 March 2000, and 22 March 2000 (with 5 attachments marked "A" through to "E") (exhibit B)
5 photographs provided by Janette Doust (exhibit C)
Statement of George Chandler, undated (exhibit D)
Statement of Maurice McDarmont, undated and unsigned (exhibit E)
Reports of Dr Arnheim dated 17 March 1997 and 28 March 2000 (exhibit F)
Statement of Steven Lurie dated 28 March 2000 with Annexure marked "A" (exhibit G)
Report of Dr Norman Rose, consultant psychiatrist, dated 31 August 1999 (exhibit H)
Statement of Donald Doust dated 21 March 2000 (exhibit J)
Report of Dr Thomas Fiay dated 20 March 2000 (exhibit K)
Report of Dr Peter Bilenkij, urologist, dated 2 August 1989 (exhibit L)
Extract from "History of 2nd Australian Army Troops Coy RAE AIF" by Douglas Bennett (exhibit M)

A report of Mr Brendan O'Keefe, historian, dated 14 February 2000 (exhibit 1) was tendered on behalf of the Respondent.

The Applicant and her daughter, Janette Robyn Doust, gave evidence by video link at the hearing. George Chandler, Maurice McDarmont, Dr Arnheim, Dr Norman Rose, Donald Doust and Douglas Bennett gave evidence by telephone. Steven Lurie gave oral evidence.
legislation and issues
The Veteran rendered operational service in the Australian Army from 20 January 1942 to 14 December 1945. He died on 6 November 1995 from myocardial infarction, generalised atherosclerosis and hypertension. As the Veteran had operational service, this matter falls for determination pursuant to ss120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). That requires a reasonable hypothesis to be raised connecting the Veteran's death with his war service, that is not dispelled beyond reasonable doubt.
As the application was lodged after 1 June 1994, pursuant to s120A of the Act, the Tribunal is required to apply the relevant Statements of Principles in determining whether the hypothesis is reasonable. Following the adjournment of the hearing, the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 was determined, and subsequently the Tribunal resumed the hearing to take further submissions from the Respondent. The Applicant had at all relevant times sought to rely on her accrued rights to have the matter determined by the Tribunal in accordance with the Statement of Principles applicable at the time the primary decision was made.
The Applicant raised the following hypothesis:

The Veteran suffered a number of "stressful events" on service which caused or aggravated his alcohol abuse;
This alcohol abuse caused or aggravated the Veteran's hypertension which caused or aggravated his ischaemic heart disease;
The Veteran's ischaemic heart disease contributed to or caused his death.

Relying on the Applicant's accrued rights, the Statement of Principles applicable in determining this matter is Instrument No. 5 of 1994 for Psychoactive Substance Abuse or Dependence. The Applicant sought to rely on factor 1(a) viz.:
(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;

"Stressful event" is defined in the Instrument to mean –

an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."

The Respondent's representative conceded that the Veteran's hypertension was first noted in 1973 and that his ischaemic heart disease first manifested with angina in 1990. It was also conceded (transcript, 29 March 2000, p23) that alcohol dependence had been established. The only issue remaining was whether the evidence met the Statement of Principles for Psychoactive Substance Abuse or Dependence, and in particular whether the Veteran experienced a "stressful event" during his operational service.
the evidence
Because of the paucity of official information about the Veteran's movements during his service the evidence of fellow ex-servicemen from his unit and the research undertaken by Mr O'Keefe, consultant historian (exhibit 1), have provided some additional but minimal assistance to the Tribunal to identify the time and locations of the Veteran's service.
The Veteran's service records (T3) show that after he enlisted on 19 January 1942, at the age of 28 years, he was posted for training to Narellan as a carpenter. He was allotted to 2nd Army Troops Coy. RAE on 24 September 1942. He moved to the Northern Territory Line of Communication Area ("L of C") on 15 July 1943 (Mr O'Keefe noted that the Veteran's unit moved to the Northern Territory at that time) and the Veteran "Detrained 11 (CA) L of C Sub Area" on 20 July 1943. He was admitted to 107 AGH on 11 June 1944 for five days because of a rib injury. There is then an entry that on 15 May 1944 the Veteran "M.O. on cessation of detach. to 9 Aust A/A & Fort Coy". However, there is no record of the Veteran having been sent on detachment to 9 Aust A/A & Fort Coy or where he was located, except that he was in the South Australian L of C Area. Mr Bennett in his unofficial history of the unit (exhibit M) noted that the unit left the Darwin area on 23 September 1944 and travelled south to go on leave, and then went to Brisbane on 14 November 1944. That is consistent with the service documents that show the Veteran was AWL from 8 to 30 November 1944 and the L of C area was Queensland.
Mr Bennett described how the unit became known, unofficially, as the "Blue Duck" because No. 5 platoon had built a fishing boat during their time in Darwin, named "The Blue-Duck". By the time the unit left the Northern Territory they had become disappointed about the futility of their long arduous toil in preparing for a Division from the south that never came.
The Veteran's unit was then posted to Lae, and the main unit arrived there on 11 March 1945. Mr Bennett noted in his history (exhibit M) that when the unit assembled in Brisbane in November 1944 they were under the command of 1 Army Base Sub-Area who were to follow the 9th Division into Tarakan four days after the landing had taken place there. The Company underwent training and re-equipment in Brisbane. While it was rumoured that the unit was headed for Borneo, that did not happen. Mr Bennett wrote -
Weary of the mainland the Coy still hoped for overseas service. It came at last: 25.2.45, a month or so before 1 Aust base Sub-Area moved out, the BLUE DUCKS embarked for New Guinea, and out of all the areas to which they could have gone, it turned out to be LAE far from the Jap activity. The Blue Duck Show still justified its name.
Lae was intended as a temporary stopping place, but old-stagers of the Coy. knew what "temporary" means when used by the Army.
The Veteran embarked in Townsville on 2 March 1945 and disembarked in Lae on 6 March 1945, and Mr O'Keefe accepted this as evidence that the Veteran was in the advance party to Lae. That is consistent with Ms Doust's statement that her mother told her that the Veteran was in the advance party to Lae. Mr O'Keefe established from the Embarkation Roll for the unit that the Veteran was a member of No. 4 platoon on its embarking for service in New Guinea. The service records show that the Veteran was in Lae as a carpenter, and later a carpenter and joiner. Mr O'Keefe noted it was possible that the Veteran was involved in the construction of a Japanese POW compound at Nadzab, some 30 kilometres from Lae. While in New Guinea the Veteran sustained an injury to his face and was hospitalised in 2/7 Australian General Hospital ("AGH") in Lae from 20 May 1945 to 4 June 1945. Mr O'Keefe said that during 1945 the fighting against the Japanese in New Guinea was on the northern coast, several hundred kilometres northwest of Lae. He also noted that Lae was captured by the 9th Division in mid September 1943. By the end of 1944 Lae had developed into a large base for allied troops.
Mr Bennett noted that the Unit left Lae in May 1946 on their return to Australia. However, after the hostilities had ceased a number of the Company were sent home for discharge, and the service documents show that the Veteran returned to Australia and was discharged from the Army on 14 December 1945.
The Applicant said that the Veteran was a carpenter before the war. After the war he took up share farming which he continued until his death. She married the Veteran on 2 May 1942. She said she recalled her husband telling her his unit was bombed in New Guinea and Darwin. She also noted that her memory was not very good.
The Applicant said that before the war the Veteran was a happy person who was "always bright and cheery" but when he returned from the war he was "very nervy", irritable and drank quite a lot. She said that she met the Veteran in 1938 and they were married in 1942. She said that he did not talk much about his war experiences when he was home on leave during the war.
The Applicant said that from the time he was in New Guinea and Darwin the Veteran had bad dreams every few nights that caused him to get up and walk around the house. He also woke up in sweats. He did not tell her much about these dreams.
The Applicant said that when the Veteran was on leave during the war he was not drinking much, but from the time of his discharge he was a regular drinker and would drink alcohol every day. He did not drink during the day but would have two or three large bottles of beer every night and would get drunk at the club once a week or once a fortnight. His drinking reduced as he got older. She said he got on well with people, but tended to be a bit irritable and had bouts of depression after the war, when he would drink.
Janette Doust is the daughter of the Applicant and the Veteran. Her evidence was that her father's drinking habits would vary, but he usually drank about four bottles of beer a night and two bottles at lunch time. She remembered taking his lunch to him, including two bottles of beer, when he was working in the paddocks.
Ms Doust said that her father would not talk much about the war. She said he was an agitated person and the family learned to keep out of his way when they sensed he was going to lose his temper. He hated the family talking about the Japanese or the war and strongly defended the Americans for coming to Australia's aid. The family was not allowed to have anything "Japanese" in the house. Ms Doust said she thought her father was often depressed. He would make an effort if somebody came to the house, but if he was alone with the family he would "go off into himself" and spend long periods drinking or sitting. As a child she remembered him pacing the house at night. He "hardly ever slept". She said he "was always going to the 'fridge for something to drink or for something to quell his upset stomach".
Ms Doust said when the Veteran would drink in the evening she noticed he would "get in a state", he would stop talking and was very easily angered. She said she remembered periods when he would regularly "get into this state", but it did vary. She said she could not recall a day when the Veteran did not drink.
Ms Doust remembered talking to the Veteran about the war when she used to take his lunch to him. She would listen to him talk for about 15 minutes about the "exercises" he had to do (stabbing bags with a bayonet etc), the Japanese, and the bombing of the Japanese Hospital in New Guinea which may have had live people in it at the time. She remembered that the Veteran said "we blew it up". She thought her father meant that he and others had blown it up themselves, because he would get upset about it and the fact that he was in New Guinea to build, repair and fix things. The Veteran also said "we did horrible things" and "our side did horrible things". He was "subdued" when he would tell his war stories. She said she asked him questions but he would "shut her down".
In her statement dated 22 March 2000 (exhibit B) Ms Doust said that the Veteran had told her about a Japanese underground hospital that had been found while he was "doing clean up operations". She said that Japanese stragglers were found inside the hospital, and that the Veteran told her that he had helped to "block it up" and that they then blew it up while people were alive inside.
Ms Doust said the Veteran also told her that he was camped at Bachelor and that he was in Darwin during the last one or two bombing raids and helped clean up the damage. She recalled him saying there was a lot of damage and that he saw aeroplanes coming over. He talked about people being killed in the Post Office in Darwin. She did not know if he was present when this occurred. She said he did not say that bombs were falling around him in Darwin. He also talked about the Adelaide River War Cemetery where these people were buried.
Ms Doust said that in the early 1970s her father showed her some photographs from Darwin that he kept in an album, and told her about the cleaning up operation. She recalled seeing some photographs of the bomb damage in Smith Street, Darwin. She noted that the Veteran had labelled these photographs and he also asked her to label some of them. However, when she looked for some of these more recently she could not find them and thought the Applicant might have thrown them out.
After she left home Ms Doust returned to visit her parents regularly. She said that in the latter years the Veteran drank light beer. He continued to drink large quantities of beer, but he seemed more sober. She said that from the late 1960s the Veteran gradually became very antisocial. He would just "switch off" and sit for hours and would cry very easily.
Ms Doust recalled when she moved back to her parents' home about 1974 her father told her about a recurring nightmare he had experienced over a long period in which a Japanese soldier was pointing a gun at him (exhibit B). He told her that he had awoken on one occasion to find himself standing in the corner of his bedroom as though he was guarding a prisoner. She also noted in her statement that her father woke up in hot sweats and had to change his pyjamas three to four times a night from about the 1960s.
Trevor Doust, is the son of the Applicant and the Veteran. He provided a written statement (T27, p101) dated "Anzac Day 1997", in which he noted that the Veteran was frequently irritable, nervous and agitated, and that he had been told by relatives and friends that that was not the Veteran's nature before the war. Dr Doust, a veterinary surgeon, confirmed that throughout his life he noticed that the Veteran suffered from bouts of sleeplessness and sweating at nights, and it was not uncommon for him to drink four large bottles of beer a night.
George Chandler said in evidence that he served with the Veteran in the same Company during World War II. He said he first met the Veteran in about 1941 at Narellan. He remembered the Veteran being a "very nice chap, on the bright side".
Mr Chandler claimed that he served with the Veteran during the bombing raids at Adelaide River and Larrakeyah Barracks in Darwin. He said the bombing raids were stressful for everyone. He said that at Adelaide River the bombs were falling about 200 to 300 yards away. They were "out in the open", with only scrub for protection. He remembered the Japanese flying over, "dropping a few bombs" and then going away.
Mr Chandler said that there were two or three raids while he was in Darwin in about 1943, but he was not involved in the clean up as he was doing work for the Forestry Commission. He thought the Veteran was "probably" with him at this time as they were "probably" in the same unit and platoon. He agreed it was possible that other men in his unit could have been involved in the clean up without him knowing. He said that in Darwin the bombs fell about a quarter of a mile away. He thought that he and Veteran would have been in the trenches at the time.
Mr Chandler said that after the bombing raids he worked with the Veteran in Noonamah where, like Adelaide River, there was no protection from bombing raids. Whilst they were in Noonamah they did not know whether the Japanese aeroplanes would return or not.
Mr Chandler recalled that when the Company went to Lae from Townsville on the motor vessel "Taroona" they were fearful of enemy submarine attacks.
Mr Chandler stated that the Veteran was with him when they were building compounds for Japanese POWs in New Guinea at Nadzab. He said that the Veteran, like everyone else, had to do guard duty, either all day or all night. He said that at times the POWs would get angry and he felt he was in danger whilst guarding them. He could not recall an underground Japanese hospital.
Mr Chandler also stated that he and the Veteran saw wounded soldiers returning from the frontlines. He clarified that by the time he saw the wounded soldiers they had been bandaged and he never saw wounded flesh or blood.
Mr Chandler stated that when he was in New Guinea he noticed that the Veteran's personality had changed and that he had become a bit aggressive and irritable.
Mr Chandler said that after the war he saw the Veteran only at reunions. He estimated that the Veteran would drink between eight to ten beers at reunions. The Veteran did not speak about the war at those reunions.
Maurice McDarmont served with the Veteran in the same Company. He first met the Veteran at Narellan. He remembered the Veteran being a "normal country bloke" who was easy to get along with. He said the Veteran socialised, and he was not depressed or a loner.

Mr McDarmont stated that before being transferred to the Northern Territory one of the Veteran's tasks was to remove explosives from road blocks and under bridges, which had been set in preparation for a Japanese invasion. Mr McDarmont said that from his own experience he knew that this was a stressful job and that his sergeant had been blown up doing this job. Mr McDarmont was unsure if this sergeant was also the Veteran's sergeant but was sure that the Veteran would have been aware of this incident.
Mr McDarmont was transferred to Adelaide River but could not recall if the Veteran was there too. He said that at most times they were in different platoons. He said that after the bombing raids in the Northern Territory he noticed that the Veteran was a bit depressed, but he could not recall any conversations with the Veteran to indicate why he was depressed. Mr McDarmont confirmed that they were always aware that "action was going on" and would see bombers coming home from missions. When at Noonamah one spitfire crashed close to their camp and Mr McDarmont said that the Veteran would have been at the camp at the time. He also confirmed that sometimes they would see Japanese fighter planes overhead and were aware that the fighting was not far away.
Mr McDarmont said that he went to Darwin after Adelaide River. He could not recall any bombing raids in Darwin but recalled spotter planes high in the sky.
Mr McDarmont could not recall being involved in the clean up in Darwin, but said he might have done some clean up as every public building had been hit. He did not know what the Veteran was doing in Darwin as they were in different platoons. However, he said that they would have been part of the one scheme, to provide water and other services to various camps. He said that it was possible that the Veteran went to Darwin before he did. He could not recall ever being in slit trenches.
Mr McDarmont also stated that when he met the Veteran at the base camp in New Guinea he seemed dejected and it was difficult to communicate with him. He noticed that the Veteran's attitude had changed compared to when he first met him and he had become "a bit of a loner". He recalled someone saying that the Veteran was going "a bit troppo". Mr McDarmont said that in New Guinea the Veteran's tasks involved removing unexploded bombs left by the United States Air Force, putting a charge against the bombs and blowing them up. Mr McDarmont said that from his experience this was a very stressful job. Mr McDarmont said he was unaware of a Japanese presence when he was in Lae.
Mr McDarmont also stated that he was unaware whether there was an underground hospital at Lae, but he knew that underground installations were found there. He said that he was probably away from Lae at the time that engineering work was done in the underground installations. Mr McDarmont stated that he undertook work at the 2/7th AGH and saw casualties there. He said that the Veteran probably worked there too. He stated that it was distressing seeing soldiers with their wounds or amputations. Mr McDarmont said he had developed ulcers and believed they were caused by the stress of his war service, and that his platoon sergeant was repatriated to Australia from New Guinea with a psychiatric condition due to war service.
Mr McDarmont stated that after the war he did not see the Veteran until the late 1980s or early 1990s at a reunion. He recalled the Veteran drinking large quantities of alcohol at one reunion.
Mr Steven Lurie, the Applicant's solicitor, confirmed that he had had a telephone interview with Mr Merv Hill, who served with the Veteran. Mr Hill told him that he "knew Ben very well. We drank together during service quite a lot … but there was not enough to get drunk".
Mr Lurie said that Mr Hill told him he had a photograph of an underground hospital at Lae and that those photographs were being sold. Mr Hill told him that the hospital had been blown up, but did not indicate when that had occurred. Mr Hill said that this story was well known. Mr Lurie assumed this meant "well known" by people in the platoon. Mr Hill said there was a story "going around" at the time that the hospital was blown up with patients in it, but he did not know who did it. Mr Hill could not say if his unit had blown up the hospital because even when they were in the same platoon the engineers would not work together all the time. Mr Hill said to him that someone in his unit was a photographer and was selling photographs.
Mr Hill also said that "there would have been a lot of Japanese grave sites around the hospital, but they were not marked out. There were bodies found at Salamala where Mr Hill served, but Mr Hill said that the Veteran never mentioned to him that he had seen bodies. He said that even though he was in the same platoon as the Veteran (No. 5) they were not always working in the same place. However there was almost the full platoon in Salamala. The Tribunal notes that Mr O'Keefe's report is silent on Salamala.
Mr Hill said he did not see any Japanese "stragglers" close to Lae, but there could have been, as the Japanese had been sent out on patrol "in all different directions". However there were a few "stragglers" in Salamala, and native police went out and "brought them in". He said "we never knew how safe we were. Many a time people were ambushed from being too complacent". He said that the Veteran could have guarded POWs at Nadzab, but Mr Hill did not do this himself. He said that some did guard duty in an emergency.
Mr Hill did not give evidence at the hearing and did not provide a written statement. Mr Lurie's transcript of the interview concluded with the following statement from Mr Hill –
If you were feeling like I was you wouldn't want to give evidence. I need an operation on my throat. Sometimes I don't want to go out the door. I can't get a pension myself. They'll only give me 30%. I don't really want to go out of my way to help someone else.
Whatever I've said I'm genuine about.
Donald Doust, a cousin of the Veteran, served with the Veteran in the same Company. Mr Doust did not recall being involved in demolition, but they did some demolition training. He was not sure what the Veteran did as at times they were "split up".
Mr Doust did not see any bombing raids in the Northern Territory. He did not spend any time at Adelaide River where he understood some bombing took place. He was not sure whether or not the Veteran saw this.
Mr Doust said he did not know the Veteran before they were drafted in the same company. When he got to know him he noticed the Veteran was "the worrying type, a bit highly strung, his work was getting him down and was not his usual self". He said he noticed the Veteran was getting a bit irrational and one of the soldiers in their company said that the Veteran seemed to be "going a bit troppo". Mr Doust then had "a good yarn" with the Veteran and noticed that the Veteran was worried about things that did not worry him at all. The Veteran was worried about his family and could not stand the heat and boredom of his duties. The Veteran said that he was "sick of it" and wanted to go home.
Mr Doust did not know if the Veteran experienced bombing in Darwin as he was not with him at the time. He noted that when the Company went to Lae on the motor vessel "Taroona" there were known to be enemy submarines in the area and those travelling on the ship became aware of this.
When they arrived in Lae there were a lot of Japanese storage tunnels underground around the docks. Some of the men said that there was a hospital there too. He did not remember the Veteran talking about the hospital. Mr Doust said that he believed there was quite an extensive hospital under the mountains near the waterfront, but he never had anything to do with it and it had been abandoned long before he arrived.
Mr Doust said that when the allies "retook" Lae it had been heavily bombed and there "was talk" of dead bodies being dug up in the course of construction work.
Douglas Bennett is the author of a document entitled "History of Second Australian Army Troops Company RAE IAF" (exhibit M). He said he wrote the article after a number of reunions when some of the ex-members asked that a history of the unit be prepared. Mr Bennett prepared the history with the help of a number of others and produced it at the 1998 reunion. He did not have access to official documents, but believed that the document was "fairly exact". He considered it to include a complete account of No. 3 platoon of which he was a member because he kept diaries during his service. The Tribunal notes that exhibit M is incomplete, with pages 3 and 4 missing.
Mr Bennett remembered the Veteran but he was not closely associated with him as the Veteran was in No. 5 platoon and each platoon operated separately. Platoons 3, 4 and 5 were construction platoons. Mr Bennett said he thought the Veteran was in No. 5 Platoon because when he was compiling the history he discussed this with Merv Hill. Mr Bennett did not have a list of personnel in each platoon.
Mr Bennett spent some time at Narellan. He recalled while there his duties involved making up explosives such as putting gelignite in pipes and laying them in trenches. Mr Bennett said that Nos. 3, 4 and 5 platoons were probably involved in this. He recalled that Sergeant Bugden was accidentally blown up but was unsure of the platoon to which the sergeant belonged.
Mr Bennett was also at Adelaide River. He was there during one of the last bomb raids. He said that bombs were dropped at the back of the camp no more than 200 to 300 yards away during his guard duty. Mr Bennett did not recall the Veteran being there at the time. The following reference to the bombing raid at Adelaide River is recorded in Mr Bennett's history (exhibit M) –
It is recorded that when those members of No's 1 and 2 Platoons who had moved with the Unit were detailed for work at Adelaide Rive, on the morning following their arrival, they listened to a Japanese bomber circling overhead for hours waiting for a break in the clouds. The break came, the bomber descended dropped its bombs and hurriedly departed, it was the last raid on Adelaide River.
Mr Bennett said in his oral evidence that he then went to Darwin, but he was not there during the raids. He could not recall where the Veteran was, but noted that when he was preparing the history he found that No. 5 platoon was at Larrakeyah rebuilding a meatworks. Mr Bennett said that the Veteran might have been in Darwin during the last couple of raids as No. 5. platoon was stationed in the Darwin area. Mr Bennett recalled being involved in the clean up of Darwin himself even though he was stationed outside Darwin.
In the history he provided (exhibit M) Mr Bennett noted that –
On the 15.12.43 No's 2 and 3 Platoons transferred to Darwin (Vestey's Meatworks) where sections damaged by Air Raids were rebuilt and returned to Noonamah on the 30.12.43. …
During the Unit's stay at Vestey's and Noonamah dog fights between Spitfires and Japanese Zeros were witnessed, as well as bombing raids on Darwin.
No 1 and No 2 who had remained at Alice Springs after the main group left in November joined up with the Unit on Christmas morning 1943 and the Coy was again at full strength.

Mr Bennett also recorded that No. 3 Platoon was transferred to Adelaide River on 31 December 1943.

Mr Bennett recalled an underground Japanese mechanical repair station in Lae, but could not recall a hospital. He said this station had been bombed and sealed up before he arrived there in 1945. He said that the Veteran might have been there before him as a party went ahead of his platoon. There were Japanese POWs at Lae. A compound was built for the prisoners. He also recalled being on guard duty outside the Lae camp. This involved "keeping an eye" on the POWs while they were working in the compound. He said that the Veteran would have been doing the same kind of thing. He said he did not feel threatened by this duty, but noted that he was a tradesman and so was not in danger.
Mr Bennett recalled "getting the jitters" when he heard rustling in the long grass and thought that it was stray Japanese, but on that occasion "it turned out to be wild pigs". However, they were always conscious that stray Japanese could have been around.
In his report dated 14 February 2000 (exhibit 1), Mr Brendan O'Keefe, historian, made the following comments in respect of the Darwin bombing –
In the early hours of 12 November 1943, the Japanese carried out their last air raid on the Northern Territory. According to the most comprehensive report of this raid, the attacking Japanese aircraft dropped bombs on the Parap area of Darwin, in the Adelaide River area and in the Batchelor area. All of these areas were a long way north of Katherine where Mr Doust and his unit were based, and the unit thus did not come under attack from the Japanese aircraft. In fact, the unit's War Diary fails to mention the air raid. (Tribunal's emphasis)
Mr O'Keefe noted that when the Unit moved to New Guinea it was involved in building a compound for Japanese POWs at Nazdab, about 30 kilometres from Lae. It was possible that the Veteran was involved in this construction and that he took part in guarding Japanese POWs at that time. He noted that the War Diary did not indicate whether members of the Unit had any direct contact with POWs. He said that throughout the period of the Veteran's service in the Lae area there was no evidence of enemy activity nearby.
Dr Arnheim, the Veteran's local medical officer, said that the Veteran did not talk about his war experiences with him, and he could not recall the Veteran ever "opening up" to him. Dr Arnheim described the Veteran as being a "little excitable at times". He did not recall the Veteran consulting him in relation to depression, nor could he recall advising the Veteran to reduce his consumption of alcohol.
Dr Fiay, in his report dated 20 March 2000 (exhibit K), said he did not have clinical notes either of his own or of Dr Arnheim, the Veteran's previous general practitioner. Dr Fiay treated the Veteran from mid 1987 through to the Veteran's death in 1995. He examined the Veteran on 4 August 1988 in respect of new claims lodged by the Veteran. In respect of the Veteran's claim for "stress" Dr Fiay recorded "the anxiety due to his physical disabilities distort his sleep pattern badly. At times also palpitations. … His mild anxiety neurosis does create some problems in his marriage. His wife however is very understanding." (T11, p 36C).
Dr Fiay provided a further report dated 1 November 1988 in respect of the same claims, in which he recorded that the Veteran was -
Healthy for 28 years prior to joining the armed forces. Anxiety (stress), backpains etc came on during service and became gradually worse after the service."

Dr Fiay also recorded that the Veteran's consumption of alcohol has been heavy since service.

In his report dated 30 March 2000 (exhibit K), Dr Fiay said that in the absence of his clinical notes and those of his predecessor, Dr Arnheim, he was not sure whether there was documented evidence of the Veteran showing signs of PTSD. However, he noted that the Veteran told him that his alcohol consumption became heavy after he returned from the services, and also recalled that the Veteran suffered from anxiety/depression. Dr Fiay considered that palpitation was usually induced by anxiety. He recalled the Veteran saying that he drank to calm his "nerves and help him sleep". The Veteran was prescribed tricyclic anti-depressants in 1987.
Dr Norman Rose, psychiatrist, provided a medico-legal report and gave oral evidence by telephone at the hearing. He had interviewed the Applicant and Ms Doust for the purpose of providing his opinion. He obtained a history that the Veteran would drink a bottle of beer a day before the war, but after the war he would drink several bottles per day and that his drinking progressively became worse. He said the fact that the Veteran would cry a lot was consistent with a soldier who was aware of his dead mates and the terrible things that happened during the war.
Dr Rose diagnosed post-traumatic stress disorder (PTSD), noting that the Veteran had experienced a severe stressor (he obtained a history of being present during the bombing raids in Darwin and that he was under fire and bombing whilst serving in New Guinea, and also that he was involved in blowing up an underground Japanese hospital with people inside it, in New Guinea). He also noted the symptoms of irritability, agitation, sleep disturbance, nightmares, social avoidance and withdrawal, being upset with war movies, being consistent with the diagnosis of PTSD. He concluded from the history that the Veteran's PTSD was service related.
In relation to the evidence that bombs fell near the unit when it was stationed at Adelaide River, Dr Rose said in his oral evidence that this was potentially a stressor, but it depended on the Veteran's perception of events and fear of being killed or maimed or that somebody around him may be killed by the bombs. Dr Rose said that if one is subject to a bombing raid and the bombs are falling reasonably close by, this could engender fear. The Veteran might have experienced fear, terror of horror.
In relation to the death of the sergeant as a stressor, Dr Rose said it would depend on how "close" he was, and that merely hearing about a sergeant being blown up would not be a sufficient stressor. However, hearing this story, and then fearing he could be in a similar position and danger, could be a possible stressor. Dr Rose stated that if the Veteran was engaged in defusing bombs that would certainly be an adequate stressor.
Dr Rose said that if the Veteran had blown up the underground hospital while people were still alive, this would constitute a sufficient stressor. However, it would not be a sufficient stressor if the Veteran only heard that the hospital had been blown up and was not involved in the action himself.
Dr Rose had no doubt that if the Veteran was involved in digging up corpses or if he witnessed corpses being dug up, it would be a major stressor, on par with the "killing fields" in Cambodia or the war graves in Singapore. He also said that if the Veteran spent time in a hospital and witnessed the range of casualties passing through the hospital for two weeks it could potentially fulfil the definition of a stressor. However, it would depend on the severity of the casualties and how horrified he was.
submissions and consideration of evidence
The Applicant submitted that the following hypothesis had been raised by the evidence before the Tribunal, viz:

The Veteran suffered a number of "stressful events" on service which caused or aggravated his alcohol abuse;
This alcohol abuse caused or aggravated his hypertension which caused or aggravated his ischaemic heart disease;
The Veterans' ischaemic heart disease contributed to or caused his death.

Instrument No. 5 of 1994 defines "stressful event" as –
An incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.

It was submitted for the Respondent that in using the example of "combat" in the definition the stressful event must be equivalent to that of combat, that is, that it "has connotations of something pretty significant, a fairly highly stressful event" and that the Veteran's war service was not of that order of stressfulness.

The Tribunal considers that the Respondent's interpretation of the definition of "stressful event" is overly restrictive and cannot be sustained. If it had been intended that the external stimuli noted in the Statement of Principles was of a severity of a combat experience, then that should have been made explicit. As it was, the Statement of Principles gave but one example "(such as combat)", and therefore it is not open to the Tribunal to restrict the interpretation of the definition in the way suggested by the Respondent.

By reference to the New Shorter Oxford English Dictionary, 1993 Edition, the Tribunal notes that external means "… consisting of outward acts or observances … Of a thing presented in sense-perception: (regarded as) existing independently of the mind perceiving it…". The word stimuli is the pleural of stimulus. When used psychologically it means "any change or event which excites a nerve impulse and gives rise to a response or reaction…". While combat is a relevant example of external stimuli, the term is not confined to stimuli of that severity. In the context of the definition in the Statement of Principles the external stimuli must result in psychological stress associated with "subjective symptoms of increased stress". The Tribunal interprets that there is an essential subjectivity in this definition, that is, that the Veteran must react to the external stimuli by the development of increased stress that is essentially an internal reaction manifested by external signs and symptoms. It is necessary that the external stimuli be related to an incident in the Veteran's war service that resulted in his psychological stress causing him to manifest signs and symptoms of increased stress. The Tribunal will follow this reasoning in determining this matter.
It was submitted for the Applicant, in effect, that each of the following facts constituted a "stressful event". It was submitted for the Respondent in respect of each of the incidents raised by the Applicant that no reasonable hypothesis has been raised pursuant to s120(3) of the Act.

Training and working with explosives whilst based at Narellan both before and after the blowing up of a company Sergeant by such explosives

Mr McDarmont reported that the Veteran was performing these duties, and Mr McDarmont and Mr Bennett knew that a Sergeant was killed by an explosion. On the evidence of Dr Rose this event would be severe enough to constitute a severe stressor.
It was submitted for the Applicant that the Veteran reacted to that stressor, as evidenced by the fact that he was emotionally disturbed after this incident. The Applicant described her husband as "happy go lucky" and "always bright and cheery" before the war (exhibit A). Donald Doust, who did not know the Veteran before the war, considered that when he got to know his cousin he was "the worrying type and a bit highly strung" (exhibit J) and that after some 12 months in the Northern Territory the Veteran seemed upset and irrational.
Although it was submitted for the Respondent that there was conflicting evidence as to where the Sergeant was killed and that Mr Chandler thought it was in the Northern Territory, it was submitted for the Applicant, correctly, that Mr Chandler did not give evidence that the Sergeant was killed in the Northern Territory. The Tribunal notes that Mr Chandler's evidence was silent on that issue.
It was submitted for the Respondent that the Applicant's statement shows that the Veteran was not drinking much before he went to New Guinea, and he did not say anything to her or his daughter about the death of the Sergeant. The inference is that this was not an event to which the Veteran was close or that preoccupied him. The Respondent submitted that there is no evidence pointing to the death of the Sergeant being a stressful event for the Veteran as defined in the Statement of Principles. On this basis it was submitted for the Respondent that this incident was not one involving external stimuli of the nature of combat or some such similar incident.
The Tribunal notes that there is no evidence that the Veteran had any adverse psychological stress reaction to the Sergeant's death, nor is there any evidence about the Veteran's knowledge of this event. Indeed, it is difficult to see how this incident being a stressful event is even pointed to by the evidence. It is no more than hypothetical.

Bombers circling overhead and bombs falling within 200-300 metres at Adelaide River

It was submitted for the Applicant that both Mr Chandler and Mr McDarmont recall the bombing raids at Adelaide River (exhibits D and E). Mr Bennett also recorded the raid in the Unit history (exhibit M) and on cross-examination agreed that the bombs fell 200-300 yards from the unit. Mr Chandler stated that the troops had little protection from the bombs, that they landed about 200-300 yards away and that the raids were stressful to everyone (exhibit D). Mr McDarmont noticed that after the raids the Veteran was "a bit depressed". In coming to the conclusion that the Veteran experienced a "severe stressor", Dr Rose referred to the bombings. It was submitted for the Applicant that bombing as close as 200 to 300 metres away was much closer than the official policy set by the Respondent in relation to qualifying service matters.
It was submitted for the Respondent that, noting the evidence of Mr Chandler and Mr Bennett, the event did not appear to be particularly significant for either witness. Mr Bennett thought that the bomb had been dropped on the landing strip near the camp that had been mistaken for Batchelor. It was submitted for the Respondent that even though there was an advance party that went to Adelaide River at the time of the last bombing raid there, the main unit was still at Katherine at that time. The Veteran was with the main unit according to an entry in the unit diary, and it was submitted that there was "no sound evidence that he was in fact exposed to a bombing raid". The Respondent's advocate was concerned that the witnesses' evidence varied from one to five bombs having been dropped whereas the official records show that 16 bombs were dropped during the last raid. It was submitted that the evidence of Mr O'Keefe disproved the raised facts beyond reasonable doubt.
It was also submitted for the Respondent that the unit diary made no reference to any bombing raid, and had any part of the unit, including the advance party, been subject to a bombing raid, it would "most certainly have made an entry in the unit diary" as it would have been the most significant thing in terms of proximity to the enemy that the unit would have experienced during the war.
The Tribunal has considerable difficulty with the submissions of the Respondent regarding this incident. On the evidence it is a raised fact that a platoon of the unit was stationed at Adelaide River at the time of a bombing raid, and that the Veteran was there at the time when bombs were dropped some 200 or 300 metres away. The documentary evidence of Mr O'Keefe notes that bombs were dropped at Adelaide River on the same day as the last raid on Darwin. On the basis of the raised facts the Tribunal accepts that this constitutes a stressful event and fits the template of the Statement of Principles. However, in then moving to s120(1), the Tribunal finds, and is satisfied beyond reasonable doubt, that the Veteran was not stationed at Adelaide River at the time of the bombings; rather, he was deployed with the main unit in Katherine, and indeed some 11 days after the last air raid at Adelaide River the Veteran was rostered on mess duty with the main unit. The Tribunal is also satisfied beyond reasonable doubt that there was no movement of the advance party back to Katherine, so as to enable the Veteran to have been in Adelaide River (or Darwin) for the air raids on 12 November 1943 and then to return to Katherine by 19 November. The Veteran could not have been in Adelaide River (or for that matter, in Darwin) at the time of the last air raid. On the evidence provided by Mr O'Keefe the second last bombing in Darwin was in June 1943, before the Veteran and his unit moved to the Northern Territory L of C Area. Thus, this raised fact has been dispelled beyond reasonable doubt.

Bombers overhead and bombs falling at Darwin

Both the Applicant and Janette Doust recalled the Veteran saying he had been subjected to bombing raids in Darwin (exhibits A and B). Dr Rose stated that the Applicant recounted to him that the Veteran described having to hide when Japanese aeroplanes came over to bomb the area (exhibit H). Mr Chandler recalled bombing raids whilst at Larrakeyah Barracks in Darwin, that the Veteran was with him there and that they had slit trenches to jump into (exhibit D). Again, Mr Chandler described the bombing raids as "stressful to everyone" and Mr McDarmont said that the Veteran was "a bit depressed" after the raids. Mr O'Keefe's report suggests that bombing had ceased before the unit was stationed there. However, Mr Bennett recalled the occurrence of day trips to Darwin whilst some or all the Unit was still stationed outside Darwin. Dr Rose referred to the bombings when concluding that the Veteran experienced a severe stressor.
It was submitted for the Respondent that the evidence is conclusive that neither the Veteran nor his unit was subjected to bombing in Darwin, or cleaning up afterwards. Therefore, he would not have encountered shocked victims or immediate damage to property. The Respondent noted that the evidence of the witnesses, with the exception of Mr Chandler, was that the bombing of Adelaide River was the last raid and that they had not been bombed in Darwin. Mr O'Keefe reported that the main body of the unit moved north to arrive in Katherine on 6 November 1943, and that the second last air raid in Darwin was on 18 September 1943, before the Unit moved into the air raid area. It was submitted that there was no reasonable hypothesis raised in relation to this issue.
On the basis of the evidence before the Tribunal the raised fact is that the Veteran was subjected to bombing raids in Darwin. Moving to s120(1), the Tribunal finds, and is satisfied beyond reasonable doubt, for the reasons already identified in relation to Adelaide River, the Veteran likewise could not have been in Darwin at the time of the last raid on 12 November 1943 or indeed for the second last raid in Darwin on 28 June 1943.
However, the evidence of various witnesses of Japanese aircraft being spotted in the sky after the unit moved to Darwin, when the Veteran was stationed at Noonamah some 36 kilometres south of Darwin, is suggestive of the continuation of Japanese reconnaissance in the area. The examination of the various lay witnesses at the hearing did not seek to distinguish between actual bombings and the siting of enemy aircraft. Given the damage that the enemy had already achieved to Darwin and other parts of the Northern Territory by the time the Veteran and his unit arrived, the Tribunal considers that the evidence raises an hypothesis that the Veteran was aware of the presence of enemy aircraft and that he could have sheltered in slit trenches at those times. It was the Applicant's evidence that when the Veteran returned from Darwin she noticed a disturbance in his sleep and Mr McDarmont noticed in Darwin that the Veteran seemed "a bit depressed".
In respect of this issue the Tribunal finds that it meets the definition of a "stressful event" for the Veteran, that has not been dispelled beyond reasonable doubt.
It was submitted for the Respondent that although the Applicant gave evidence in relation to bombing raids at Lae and Darwin, it should be noted that the Applicant also said that her memory was bad. The Tribunal notes that despite the Applicant's evidence on this issue it was not her case, formally, that the Veteran was subjected to bombing raids in Lae, and presumably therefore the Applicant is not seeking to raise an hypothesis on the basis of this evidence. There is certainly no other support for such an hypothesis.

Involvement in the clean-up of Darwin

It was submitted for the Applicant that Janette Doust recalled the Veteran speaking of the bombing raids and showing her photographs of bomb damage and the buildings he helped repair (exhibit B). Mr Chandler considered that the Veteran could have been involved in clean up. The Applicant submitted that pursuant to the decision in Byrnes v Repatriation Commission (1993) 177 CLR 564 the Tribunal is entitled to assume a fact. The Applicant submitted that it is reasonable to raise as a fact that the clean up work of the destruction caused by the previous bombing was evidence of the death and injury that had occurred to civilians and service personnel. There is evidence that after the clean up the Veteran was emotionally disturbed. When he was in New Guinea he was considered by Mr McDarmont to be noticeably depressed, dejected and withdrawn and that at least one other person also considered him to be "going a bit troppo" (exhibit E).
It was submitted for the Respondent that the Veteran was not subject to bombing in Darwin or cleaning up within any short period afterwards, and he would not have encountered shocked victims or immediate damage to property. It was conceded that the Veteran might have been involved in some repair work on buildings in Darwin, but the evidence is that his unit was in Darwin some time after the bombing occurred and it was submitted that the work would not have been stressful for him. Certainly it would not have been something that would constitute a stressful event, such as combat.
The Tribunal does not accept the Respondent's submissions on this issue, particularly that the clean-up work would not have been stressful because the Veteran "would not have encountered shocked victims or immediate damage to property". In any event, that argument can only go to s120(1). The raised facts do not need to be proved in order for there to be a reasonable hypothesis. There is a raised fact that the Veteran was doing clean-up work and that he was observed to become depressed while he was in Darwin. The Applicant's evidence about his disturbed sleep is further evidence of this fact. The Tribunal does not agree that the nature of this event does not constitute a "stressful event" because it does not equate to combat. Indeed, the work performed by the Veteran was obviously the direct result of combat, and on the evidence of Ms Doust the Veteran was aware of the war graves at Adelaide River and the effects of the bombardment on Smith Street, Darwin. This suggests that he was conscious of the devastation to people, both servicemen and civilians, as well as to property. The Tribunal accepts that the Veteran's involvement in the clean-up in Darwin was a stressful event, and that he had a negative psychological reaction to this. Moreover, this fact has not been disproved beyond reasonable doubt.

Involvement in and/or awareness of the blowing up of an underground Japanese hospital that might have had persons in it who were alive when it was blown up

It was submitted for the Applicant that there was an abundance of evidence that there had been an underground Japanese hospital at Lae. The Applicant had a clearly labelled photograph of the facility; Mr Hill recalled the hospital and a story that was promulgated that it had been blown up with patients inside (exhibit G), and he too had a photograph of the remains of the hospital; Mr Lurie reported that Mr Hill said that the story of a hospital was well known to people in his platoon; and Donald Doust also recalled the hospital (exhibit J).
Dr Rose identified this incident as an extreme stressor. There is clear evidence from Janette Doust that the Veteran was greatly distressed by the incident and that it weighed on his mind. The Veteran obtained, retained over the years and labelled a photograph of the hospital site. Clearly it had some significance for him. It was one of the few instances he recounted to Ms Doust. It was submitted for the Applicant that this stressor and the Veteran's response to it are clearly raised. It was submitted for the Applicant that the Respondent seeks to discredit the whole story on the basis that it is not credible "that such a hospital would be discovered by his unit, blown up, and photos sold of the hole in the ground".
It was submitted for the Applicant that it is of no import whether the hospital was discovered by the Veteran's Unit, nor when exactly it was discovered. Neither is it inherently unlikely that an underground hospital would be discovered at a date later than the initial occupation of Lae. It was submitted that it would be a normal task for an engineering company to be given the task of destroying such an enemy facility. The only part of the story that might cause doubt is the assertion that there were live patients in the hospital when it was blown up. The doubt arises because, if purposely done, it would be an abhorrent act. However, there would be no reason for the Veteran to have invented the story of the hospital being blown up or of people being in it when it was blown up, and his story is corroborated. It was submitted for the Applicant that there is insufficient material before the Tribunal to disprove beyond reasonable doubt that the incident occurred.
It was submitted for the Respondent that the Japanese hospital at Lae may have been bombed when Lae was taken by the allies some 18 months before the Veteran's unit arrived. However, it is not credible that such a hospital would have been discovered by the Veteran's Unit, blown up and photographs sold of the hole in the ground. It was submitted for the Respondent that this was not a severe stressor for the Veteran. There were no bombing raids on Lae while the Veteran was there.
The Tribunal notes that the raised facts on the evidence are that the Applicant was in the advanced party to Lae, that there was a Japanese underground hospital blown up by his unit or at least by the allies, that there were people alive in the hospital at the time it was blown up, and that the Veteran had a photograph of the hospital. The Tribunal considers that this constitutes a "stressful event" in the terms of the Statement of Principles, and that therefore a reasonable hypothesis has been raised. In considering whether the fact has been dispelled beyond reasonable doubt, the Tribunal notes that Lae was recaptured by the allies 18 months before the Applicant and the advance party that arrived some five days before the main unit arrived. It would be incredible that 18 months after the capture of Lae the Japanese would still have been using their underground hospital, given that, from the photograph (exhibit C) it was located near the shore line in an area containing other buildings. It is also incredible that if it had been blown up by the advance party, none of the other witnesses who gave evidence at the hearing had direct knowledge about it. Any witnesses who had knowledge of a Japanese underground hospital were not aware that it had been blown up during the time the unit was there or just before it arrived.
In considering the evidence, particularly that from Ms Doust, and given that she gained the information from the Veteran many years ago when she was aged 17 years, the best the Tribunal can do with this evidence is to find that the hospital was at one time blown up but not by the unit or the advanced party, that the Veteran may have been involved in blocking off the area before the rest of the unit arrived, and he may have been horrified at hearing the story about the circumstances of its earlier destruction. It is incomprehensible that such a major incident would have gone unrecorded in any diary of the unit if it had occurred at the time the Veteran was there, and as noted already, there is no logical reason why it would have continued to operate as a hospital until the arrival of the Veteran's unit when Lae had been recaptured by the allies 18 months earlier. Taking all the evidence into account the Tribunal is satisfied beyond reasonable doubt that the incident did not occur as identified in the evidence that supports the hypothesis raised.
Given the rest of the evidence that supports the Applicant, the Tribunal does not intend considering any alternative hypothesis about this incident that might be suggested by the evidence.

Possibly observing dead bodies whilst undertaking engineering work relating to the underground hospital or otherwise coming across unearthed Japanese bodies

It was submitted for the Applicant that on the evidence of Donald Doust dead bodies were dug up during the unit's construction work (exhibit J). It was a reasonable assumption that the Veteran would also have viewed corpses that had been dug up. There was no disproof offered of these presumed occurrences. Because the Veteran had been observed in New Guinea by Mr McDarmont to be noticeably depressed, dejected and withdrawn, and by at least one other person considered him to be "going a bit troppo" (exhibit E) the Veteran's response to such incidents can be assumed to have occurred.
It was submitted for the Respondent that witnesses who knew the Veteran well and served with him noted that he did not mention anything to them about seeing bodies when he was in New Guinea.
The Tribunal notes that the Veteran was involved in construction work while he was in New Guinea, and in light of the raised facts the Tribunal considers that a reasonable hypothesis has been raised. The fact that he did not mention this to anyone does not disprove the possibility beyond reasonable doubt.

Disposing of unexploded ordinance in New Guinea

It was submitted for the Applicant that on the evidence of Mr McDarmont the Veteran's duties included the removal and detonation of unexploded bombs left behind by the United States Air Force. Mr McDarmont stated that he found this work very stressful. The same observations are made in respect of these duties as a stressor in respect of the explosives work carried out at Narellan, and the death that arose from that work.
It was submitted for the Respondent that the work of disposing of unexploded ordinances was work that the Veteran's unit was trained to do. There would have been proper procedures to be followed, and this does not represent a stressful event such as combat.
The Tribunal notes that this work was similar to that carried out by the Veteran at Narellan. There is no evidence that the Veteran himself found it to be stressful. However, by the time of his service in New Guinea he was already showing significant signs of stress, unlike his demeanour in Narellan, and while the hypothesis leaves open the effect of this task on the Applicant, in the light of all the circumstances the Tribunal finds that this is a reasonable hypothesis. Indeed, by this time, the nature of the stressor might well be less than it was soon after the Veteran's enlistment, because of his more vulnerable state of mind by the time he was in New Guinea. Having found that the facts raised a reasonable hypothesis, this has not been disproved beyond reasonable doubt.

Witnessing of casualties whilst admitted to the hospital at Lae

It was submitted for the Applicant that the Veteran was admitted to hospital whilst at Lae. Mr Chandler said he and the Veteran saw wounded soldiers coming back from the front line (exhibit D). He recalled that the conditions at the hospital were not good. He saw casualties (exhibit E). It was raised as a fact that the Veteran observed casualties whilst at the hospital. A number of those casualties reasonably may be presumed to have been horrific. It was also noted for the Applicant that the conditions experienced were in a field hospital in a third world country in wartime. It was submitted that there is no warrant for the Respondent's assertion that a person can only be severely stressed by the observation of casualties if one saw the casualty occur. It was submitted for the Applicant that a stressor has been raised. Although the Veteran's response has to be presumed, there is abundant evidence that his mental condition had deteriorated by and after that time.
It was submitted for the Respondent that seeing patients in hospital, far away from the fighting, does not satisfy the Statement of Principles.
The Tribunal notes that although there was no fighting anywhere near Lae at the time the Veteran was there, on the evidence of Mr O'Keefe, Lae had by that time become a large base for allied troops, and as such the Tribunal assumes that wounded troops would have been transported from other areas in New Guinea where fighting was continuing to the 2/7 AGH in Lae. Notwithstanding that first aid probably had been administered prior to the admission of the wounded to 2/7 AGH, it is a reasonable hypothesis that the Veteran was distressed when he saw the wounded men. He was, after all, a carpenter and not a medical orderly, he had been a patient in hospital for some days, and on the evidence of Mr McDarmont, the Veteran probably worked at the hospital. Mr McDarmont's evidence was that he himself found it distressing. The Tribunal agrees with the submission for the Applicant that by this time the Veteran's state of mind was such that the witnessing of casualties could have been distressing. The Tribunal considers that the facts raise a reasonable hypothesis that has not been dispelled beyond reasonable doubt.

Guarding Japanese POWs

It was submitted for the Applicant that the Veteran had recounted to her his recollection of performing these duties (exhibit A) and Mr Chandler's evidence was that he and the Veteran performed these duties (exhibit D). The Veteran suffered from recurrent nightmares, one theme being that he was standing guard over a Japanese soldier in the corner of his room. It was submitted for the Applicant that such an occurrence is evidence of the impact the experience had upon the Veteran.
The Tribunal notes the Applicant's written statement that refers to the Veteran building a compound for Japanese POWs, but it makes no reference to her having been told that he was guarding POWs.
It was submitted for the Respondent that there is no evidence that the event actually occurred, and that dreams are not to be taken literally. The evidence is that the Veteran awoke to find he was standing in the corner of his bedroom as if he was guarding a prisoner (exhibit B). It was submitted for the Respondent that there was no evidence that the Veteran actually had a dream about a Japanese soldier pointing a gun at him. It can be explained as expressing a general fear that he held during his service and is consistent with his general aversion to anything Japanese, as described by his daughter. The evidence given by Mr Bennett was that the Veteran, as a carpenter, would have had the same role in his platoon as Mr Bennett had, that is, they supervised the building work of the labourers. Although the Unit provided general guard duty on a shift basis, Mr Bennett said that the tradespeople were not involved in that directly. Mr Bennett did not experience any threat or incident related to the guarding of POWs. On the evidence of Mr O'Keefe the Unit's War Diary does not record any incident associated with the guarding of prisoners. It was submitted for the Respondent that there was no evidence of any incident associated with guarding prisoners which was a stressful event for the Veteran that would equate with the stress of combat. Hence, the Respondent's representative questioned whether the hypothesis raised met the template of the Statement of Principles. It was submitted that the evidence merely leaves open the question of whether such an event occurred. On this point the Respondent relied on the Federal Court decisions in Bey v Repatriation Commission (1997) 79 FCR 364, claiming that Bey held that "mere speculation is not sufficient"; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, claiming that Gosewinckel held that there has to be some evidence of the factor. It was submitted that there was no evidence of such an event.
It was submitted in reply for the Applicant that Bey was not a case relating to a factual event but involved a medical condition about which the medical experts said there was no known cause. It is that level of uncertainty that is required in order to say that a factor has merely been left open. In relation to the Respondent's submissions relying on Gosewinckel, it was noted by Counsel for the Applicant that the Respondent provided an incorrect characterisation of Gosewinckel. That matter in no way disturbs the test that all the Applicant has to do to meet s120(3) of the Act is to raise material and evidence, and that the finding of facts at that stage is not an issue. It was submitted that where the hypothesis deals only with part of the material before the Tribunal, the Tribunal does not need to weigh up the other material that may be inconsistent or irrelevant to the hypothesis in considering the task under s120(3).
The Tribunal considers that on the raised facts there is a reasonable hypothesis that the Veteran was guarding POWs and that he found this distressing to a point where he continued to dream about it many years later. The Tribunal also finds that this hypothesis has not been disproved beyond reasonable doubt.
application of the test pursuant to ss120(1) and (3)
It was submitted for the Respondent that no reasonable hypothesis has been raised when all the material is considered in relation to each of these alleged stressful events. It was submitted for the Applicant that the Respondent has failed to understand the test to be applied in s120(3) of the Act, and that the Respondent requires the Tribunal to prefer one set of facts over another in determining whether a reasonable hypothesis has been raised.
It was submitted for the Applicant that the unit diaries are somewhat incomplete, and that Mr Bennett's unofficial unit history compiled from information from various members of the unit, recorded various platoons moving to the Katherine area at times that did not accord with the official war record. Mr O'Keefe has proceeded on the assumption that the Veteran was a member in No. 4 platoon, whereas No. 5 platoon was the advance party.
The Tribunal notes and shares the concern of Counsel for the Applicant that the Respondent has failed to understand the nature of the test to be applied in coming to a decision that a reasonable hypothesis has been raised. Unfortunately this has added to the complexity in determining this matter. Part of that complexity is the number of separate "stressful events" on which the Applicant has relied, that have had to be considered separately. However, ultimately the Tribunal also has to consider on the whole of the evidence before it, whether a reasonable hypothesis has been raised linking the Veteran's drinking with his war service. The facts in this case reflect a Gestalt, where the total is greater than the sum of its parts. Put another way, the cumulative effect of the totality of separate events is greater than the weight that might normally be given to each event as a single entity.
The Tribunal notes that the Veteran was aged 28 years on enlistment, suggesting a level of maturity greater than most of his fellow servicemen. He had a drinking pattern established prior to service of one bottle of beer a day that increased to a number of bottles of beer a day from the time of his discharge. While there is evidence from one of the witnesses that he and the Veteran used to drink together on service, there is no evidence of alcohol abuse during service, and indeed the evidence was that beer was not plentiful at that time. There is evidence that the Veteran was a happy cheerful and easy-going person before service, but during his service he became irritable, dejected, depressed and "a bit troppo". He developed a sleeping problem from the time of his Darwin and New Guinea service, that continued throughout his life. His heavy drinking continued throughout his life, although it lessened somewhat before his death. He spoke to his family a little about the war, sufficient to communicate that he was distressed by what went on. This evidence provides a context for the consideration of the various alleged "stressful events", when considered in juxtaposition.
Ultimately, in determining whether the Veteran's death from ischaemic heart disease was causally related to his service in accordance with s120(1), 120(3) and 120A of the Act, the Tribunal must follow the steps as outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8 –
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 a 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 ss196B(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 s120(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. (Tribunal's emphasis)
The Tribunal is concerned that the Respondent's representative appeared to have a significant misunderstanding of the application of the legislation and the relevant case law. The Respondent's case appeared to have been built on the necessity of proving the facts raised, which is contrary to Deledio (supra).
The Tribunal finds that there was no issue regarding the credibility of any of the witnesses. Even though witnesses may have expressed concern about their recollection of events after a period of more than 55 years, and in particular the Applicant appeared to have a significant memory problem, the Tribunal found there to be a common theme, with a number of variations, running throughout the evidence. This added to its apparent authenticity, and reflected that although a number of the witnesses were from the same unit as the Veteran, the unit was separated from time to time, and indeed members of the one platoon were separated on occasions. Nevertheless, the Tribunal was able to obtain what appeared to be a reasonably detailed picture of the service life of the Veteran, sufficient to consider whether the raised facts raised a reasonable hypothesis that the Veteran experienced a stressful event/s during his service that caused him to develop a heavy drinking problem for the rest of his life.
The Tribunal notes the submissions by the Respondent's representative that the facts are left open by the evidence. However, the words of the submission leave the Tribunal concerned that the Respondent's representative has confused a case of where something is merely left open in an hypothesis on the one hand, with the lack of proof of a fact, or some uncertainty about the existence of the fact or even a conflict of evidence about a raised fact on the other hand.
Having considered all the material before it, the Tribunal finds that an hypothesis has been raised identifying a number of stressful events that the Veteran possibly endured during his operational service. Given the nature of the test to be applied in raising a reasonable hypothesis pursuant to s120(3) of the Act, the Tribunal considers that the hypothesis raised is reasonable. There is a real possibility, not fanciful, unreal or too tenuous, pointed to by the facts raised in the evidence, that the Veteran encountered "external stimuli that would result in psychological stress". The Tribunal considers that the Respondent's representative is reading far too much into the words "(such as combat)" causing an overly narrow interpretation of the definition "stressful event".
Of considerable importance in this matter are the observations of some of the witnesses of the Veteran's changed psychological state during his service. The Veteran's family's awareness that he found his war service stressful is also significant, and so too is his statement to his local doctor that he drank "because of his nerves". Moreover, the Veteran's drinking increased significantly by the time of his discharge. When taken as a whole, and when considering the various "stressful events" outlined by Counsel for the Applicant as a totality, the Tribunal considers that a reasonable hypothesis has been raised that links the Veteran's war service with his high alcohol consumption and ultimately with his death. Moreover, pursuant to s120(1), the Tribunal is not satisfied beyond reasonable doubt that the Veteran's death was not war caused.
The decision under review is therefore set aside, and in substitution the Tribunal determines that the death of the Veteran was war caused, and that a war widow's pension is payable to the Applicant on and from 26 December 1996.
I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  29 March 2000 and 18 January 2001
Date of Decision  8 February 2000
Counsel for the Applicant        Mr M. Vincent
Solicitor for the Applicant         Dibbs Crowther Osborne
Advocate for the Respondent Mr P. Godwin, Dept. of Veterans' Affairs