Dyson and Repatriation Commission
[2004] AATA 205
•12 February 2004
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2004] AATA 205
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/277
VETERANS' APPEALS DIVISION ) Re RONALD MAXWELL DYSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date12 February 2004
PlaceAdelaide
Decision For the reasons given orally, the Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' APPEALS – veterans' entitlements – Disability Pension – war-caused conditions of anxiety disorder, panic disorder and alcohol dependence or alcohol abuse – did applicant experience severe stressors or severe psychosocial stressors during operational service – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986 ss120, 120A
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 9 of 1999
Statement of Principles Instrument No 1 of 2000ORAL REASONS FOR DECISION
12 February 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 20 December 2001, which rejected a claim for payment of Disability Pension in relation to the applicant’s conditions of anxiety disorder, panic disorder, and alcohol dependence or alcohol abuse. The Veterans’ Review Board (VRB) affirmed the decision on 23 April 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower appeared as counsel for the applicant, who gave oral evidence, and called Dr P Furze, Psychiatrist, as a witness. Mr Crowe represented the Commission, which called Dr J Burvill, Psychiatrist, Lieutenant Commander J Griggs, RAN Retired, and Captain H Stevenson, Historian, as witnesses. Captain Stevenson gave his evidence by way of telephone link-up.
3. The applicant, who is 63 years of age, served in the Royal Australian Navy (the Navy) from 29 July 1957 at the age of 17, until 27 April 1967, the day before his 27th birthday. He was discharged as physically unfit for Naval service, as a result of injuries he received in a motor vehicle accident on 11 April 1966, unrelated to his service in the Navy. He has operational service in the Far East Strategic Reserve aboard HMAS Quickmatch (the Quickmatch) and HMAS Vampire (the Vampire) as follows:
24 September 1958 to 6 November 1958 HMAS Quickmatch
20 November 1958 to 8 December 1958
23 June 1960 to 8 July 1960 HMAS Vampire
15 July 1960 to 16 August 1960
10 September 1960 to 10 October 1960
14 October 1960 to 5 November 196015 November 1960 to 30 November 1960
4. The applicant maintains that his conditions relate to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
5. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that each of his conditions relate to his operational service, in that on the whole of the material, the severe stressors or severe psychosocial stressors which he experienced during his operational service, and within the 2 years immediately before the clinical onset of the conditions, connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the Factors set out in clause 5, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
7. The relevant Statement of Principles for alcohol dependence or alcohol abuse is Instrument No 76 of 1998 (the Alcohol Dependence SoP), and the applicant contends that Factor 5(b) of the Alcohol Dependence SoP is satisfied:
“(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
“Experiencing a severe stressor” is defined in the Statement of Principles as:
“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
8. The relevant Statement of Principles for the condition of panic disorder is Instrument No 9 of 1999, as amended by Instrument No 58 of 1999, (the Panic Disorder SoP). The applicant contends that Factor 5(a) is satisfied:
“(a)experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; “
“Experiencing a severe stressor” is defined in paragraph 7 above.
9. The relevant Statement of Principles for the condition of generalised anxiety disorder is Instrument No 1 of 2000 (the Anxiety Disorder SoP). The applicant contends in the alternative that Factor 5(a)(ii) and/or 5(a)(iii) is satisfied:
“(a)(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder;”
“Experiencing a severe psychosocial stressor” is defined as:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
The clinically significant psychiatric condition is “alcohol abuse”.. The Commission maintains that the applicant did not suffer a severe stressor, nor a severe psychosocial stressor during his operational service.
10. On 24 March 2000 the applicant lodged a claim for several conditions including post traumatic stress disorder. He was assisted by Mr Henstridge, an RSL advocate. He stated that he first became aware of the symptoms in 1975, and that they were caused by the stress of war service. He provided two reports from Dr Hundertmark, Psychiatrist. In his first report to the applicant's treating GP, Dr Kamenjarin, Dr Hundertmark stated that the applicant's recent stressors seemed to be a major fraud case with the Department of Social Security; that he received an 18 month suspended sentence and a 2 year good behaviour bond, and is paying back the money to the Department. In addition, the applicant had a string of losses, with his father, uncle and mother dying in the past 5 years. He had also experienced difficulties with his sister over his mother's will. Dr Hundertmark considered that the applicant was suffering from a major depressive illness in combination with significant anxiety features. Dr Hundertmark noted the applicant had been treated by a psychiatrist in the past, and was unable to tolerate Dothiepin. He prescribed a change of drug, Paroxetine and stated that he would follow up in 3 months time [T6/99-100].
11. Dr Hundertmark reported on 22 April 1997, that the applicant's mood was quite reasonable; that he continued to be under considerable financial strain making repayments of a loan to his son. Dr Hundertmark expressed concern at the applicant's alcohol intake of six stubbies per day with no alcohol-free days, and had encouraged the applicant to moderate his intake.
12. On 24 March 2000, the applicant lodged an Invalidity Service Pension Claim in which he stated that his deep mental depression commenced on 30 May 1992.
13. The applicant was referred by the Department of Veterans' Affairs (the Department) to Dr Burvill, Psychiatrist, for a report on the nature of his claim for post traumatic stress disorder and its relationship to service. Dr Burvill reported on 20 June 2000 that the applicant told him that he was smoking 50 cigarettes a day and drinking "about" 12 full strength stubbies a day, or more, at home. He took Stemetil for dizziness, Aropax for panic attacks, and medication for his stomach problems and hypertension. In 1966 the applicant was involved in a head-on collision. He was a passenger in a Mini Minor which collided with a Ford utility. He was admitted to intensive care at Heidelberg Repatriation Hospital. He was in and out of the hospital for 12 months on a bone-stretching frame, because his left femur was shattered, and could not be pinned. The result was a leg 1-1½ inches shorter than the other. Dr Burvill reported that, when asked, the applicant said that he did not think about the accident much, in fact, "not really" [T9/112]. He suffered also, in the accident, a fractured nose, jaw and vertebrae, and had a splenectomy and partial pancreatectomy.
14. Dr Burvill reported, in part:
“…
History of possible service stress:
Dr Dyson said that whilst of [sic] HMAS Quickmatch and HMAS Vampire, he was in the Far East Strategic Reserve, i.e. Malaysia/North Borneo, for periods of eleven months and seven months.
Whilst on HMAS Vampire he was one of three people doing classified work for Naval Intelligence in radar. They were operating classified equipment and housed separately and no one else had access to their equipment. He said they were doing a job that they “weren’t supposed to be doing”.. As a result, when they returned their papers were destroyed and they were told that they hadn’t been there. He said he didn’t know that would happen.
When giving this history, Mr Dyson suddenly became emotional and choked up. When asked why, he couldn’t explain it but said he’d searched all over Australia for someone who could confirm that history and he produced a letter and showed it to me from a Lieutenant Commander Retired M C Simpson saying that there were three men including Mr Dyson, doing these duties and it was something they could not speak of and it was new and sinister to them and nobody has access to their equipment and he personally was envious because he was not selected. [T9/113]
…
Summary:
It is my opinion that Mr Dyson suffers from major depression and co-morbidly suffers from anxiety disorder in the form of panic attacks, and further, has substance abuse disorder with alcohol dependence. Specifically I do not consider that he suffers from post traumatic stress disorder. Additionally he has significant physical symptoms, present for the last thirty-four years due to a motor vehicle accident.
I consider that Mr Dyson’s state of major depression and anxiety is sufficient to prevent him from working at any sustained employment, and consider he does not have any capacity for work.
In terms of causality, I considered that the emotionality which Mr Dyson displays when discussing his Naval Service and the emotional association he has formed with those events is part of his major depression, his anxiety state and his alcohol dependence, in that he has poor control of his emotional composure. I do not consider there was anything else of sufficiently distressing nature associated with his covert service to cause a psychological reaction afterwards.
He has had multiple life stressors associated with the onset of his major depression, and additionally could well have alcohol related depression. On the other hand, he had a serious motor vehicle accident whilst in Naval Service, of life threatening nature in so far as he had loss of consciousness and admitted to Intensive Care Unit, but has no bad memories from that as he did not remember the accident and states that he doesn’t really think about it much at all.
Therefore I cannot conclude that his state of psychological dysfunction relates to his Naval Service. In these circumstance I do not consider I need to complete an Impairment Assessment.” [T9/115-116]
15. On 20 July 2000 a delegate refused the application, and stated in relation to the applicant’s depressive disorder, that there was a history of alcohol dependence and alcohol abuse, which might have contributed to the depressive disorder, but the alcohol dependence or abuse was not due to operational service. Although there was an event which met the definition of a "severe psychosocial stressor" (the motor vehicle accident), it did not occur on operational service. In relation to panic disorder, the delegate stated that as the severe stressor did not occur on operational service, the claim could not succeed. In relation to alcohol dependence or alcohol abuse, again the history of having experienced a severe stressor, was not due to any identifiable illness or injury which could be related to service.
16. The applicant applied to the VRB for review of the decision; and at the request of his advocate, Mr Henstridge, Dr Ewer, Psychiatrist, provided a report of his interview with the applicant on 24 January 2001. Dr Ewer recorded that the applicant told him that he found it very stressful performing the work in the operations room, and the "secret work", spending 4 hour shifts alone in a locked room, and being unable to ventilate his feelings about the stressful work he was performing, to his fellow sailors; being aware of the location of enemy positions, and being significantly pressured by the possibility of making a mistake such that the wrong target would be bombed. Dr Ewer considered that the applicant was suffering from a generalised anxiety disorder, alcohol abuse and dependency, nicotine abuse and dependency, which Dr Ewer considered were related to the applicant's eligible service.
17. On 7 June 2001, the VRB affirmed the Commission's decision and stated in the course of its Reasons for Decision, in part, as follows:
“…
The stressors associated with his service employment are mentioned by Dr Burvill at folio 28 are [sic] set out in greater detail by Dr Ewer at folio 125. In summary it was the stress associated with performing secret direction finding duties while serving on HMAS Vampire when decisions he made might have a direct effect on his shipmates and allied forces, his anxiety about making these decisions (with the attendant possibility of making a mistake) and his inability to discuss his work with others because of its secret nature. [T16/153]
…
Dr Burvill makes reference to multiple life stressors associated with the onset of depression. Those events are set out in his opinion and in summary include a severe motor vehicle accident, a conviction for fraud, the jailing of the veteran’s son and the death of close family. He says, “I do not consider there was anything else of a sufficiently distressing nature associated with his covert service to cause a psychological reaction afterwards” and “I cannot conclude that his state of psychological dysfunction relates to his naval service”. Dr Hundertmark also remarks on the fraud case and loss of family. These non-service events are almost exactly contemplated in the definition of severe psychosocial stressor. There is no event during his eligible service that remotely approaches the severity of stressors required to satisfy the definition. [T16/156]
…”
18. On 14 December 2001 the applicant lodged, with the assistance of Mr Coxon of the Vietnam Veterans' Association, a further claim for anxiety disorder with panic attacks and alcohol abuse. He stated that he first became aware of the symptoms and disabilities in 1975; that he believed that his experiences on operational service caused these disabilities. He requested to be referred to Dr Ewer for assessment. On 20 December 2001 the delegate refused the application on the basis that although there was a history of having experienced a severe stressor (the motor vehicle accident) this did not occur on operational service.
19. The applicant applied to the VRB for review of the decision, and on 25 January 2002 forwarded to Mr Coxon "notes on relevant stressful events as discussed" [T20/172]. The applicant outlined seven alleged stressors, two of which Mr Coxon conceded at the VRB Hearing occurred after operational service. The VRB in the course of its Reasons for Decision stated that it raised with Mr Coxon the fact that an investigation had been made, and no support had been found for the applicant's claims; that the applicant had seen three separate psychiatrists and had not adverted to the stressors now relied upon. The VRB said at T2/7:
“…
The Reasons for Decision prepared by the Board after a previous hearing in respect of similar disorders, prepared after the Board hearing on 7 June 2001, give no indication that the veteran spoke of the incidents now relied upon. The report of Dr Ewer, at folio 56 does not identify stressors which would meet the definitions in relevant Statements of Principles. No mention is made of the stressors now relied upon by the veteran.
…”
20. The alleged stressors relied upon by the applicant in these proceedings can be summarised as follows:
1. The Secret Duties Incident
Whilst on board the Vampire the applicant was assigned to duties in UA3 radio room. UA3 was highly sensitive and secret direction finding equipment. Operators needed Commonwealth security clearance, and, the applicant says, were required to sign the Official Secrets Act. Only three crew members from a ship’s complement of 326 were given authority to operate this equipment and it was also their responsibility as radar ratings to maintain B deck – its superstructure, bridge radar aerials, and the forward mast which housed the UA3 receivers and aerials. This was very stressful and the applicant felt isolated from his shipmates.
2. The Slip Incident
When the Vampire was doing close company exercises, highline transfer or refuelling at sea, it was necessary to place white canvas painted protective covers on the UA3 aerials because of the highly sensitive nature of the equipment. One of the three operators had to climb to the very top of the forward mast to place the covers, often in very rough seas. This was an extremely precarious and dangerous position. While off the coast of Malaysia, on operational service, the applicant said that he was required to carry out this duty. He was at the top of the mast putting the protective covers in place when he accidentally slipped. He thought he would fall to the deck and be killed. He managed to grab hold of something and saved his life, but it took some time to gain enough control to climb down to the first platform below. He sat in the centre of the platform for some two hours, shaking, hanging on to the rails and unable to move after the shock of a near fatal slip.
3. The Nearly Overboard Incident
The Vampire was on patrol off the Malaysian coast and the applicant was on mess duty (cleaning up the mess deck). He took two 5 gallon buckets of rubbish to empty overboard in the aftershoot. When he stepped out of the starboard door onto the datum deck, he noted that the ship was travelling at a speed of over 30 knots. This did not bother him as it was normal procedure if a ship was ordered to change station as quickly as possible. He was almost abreast of the torpedo tubes when they went hard to port. The immediate effect of this was to flood the datum deck. The buckets he was carrying filled with water and he was swept aft at a speed of over 30 knots. He let go of the buckets and thought he would be swept through the guardrails. All he could do as a preventative measure was try to spreadeagle himself as he was bumped along the stanchions, although he did not think this would be enough to save him. He knew that if he was swept overboard as he fully expected to be, no one would have seen him and he would be lost at sea.
4. The Fired Upon Incident
When the Vampire was in Port Swettenham, the port for Kuala Lumpur, they were granted overnight leave and travelled to Kuala Lumpur in the back of Army trucks. Before leaving, they were instructed by the Duty Officer to stay in groups and not to split up. Their driver and the passenger in the front of the truck would both be armed for their protection. They were told that these trucks would be covered in protective wire to repel hand grenades thrown by insurgents. The 20 mile long route through the rubber plantations was known to be a favourite area of attack by rebels and insurgents. When they were still several miles from Kuala Lumpur, they were attacked and fired on by the enemy. They all feared for their lives and lay on the bed of the truck to avoid being hit by bullets. The truck covered the rest of the distance to Kuala Lumpur at breakneck speed – this in itself was terrifying to those in the back. Overnight leave was cancelled and after midnight, under cover of darkness, they had to be transported back along the same route to Port Swettenham, fearing for the entire route that they would be attacked again. The Navy personnel in the tray of the truck were all unarmed, and could do nothing but hope they would live through the attack.
21. There were two additional incidents which the applicant outlined in oral evidence, and the first of those is the “bodies incident”. The applicant’s first trip to Malaysia with the Far East Strategic Reserve was on the Quickmatch in 1958. Singapore had large open drains, and the “old salts” told them you could smell Singapore 22 miles out to sea, if the wind was right. They told them that after bombardments the insurgents floated the dead bodies down these drains as a psychological deterrent to them. They were young and thought they were making this up to scare them, and have a laugh at their expense. When they found it was all true they were horrified. None of them had even seen a dead body before. He suffered nightmares for a long time after that. In the course of his evidence the applicant said this incident occurred before his 18th birthday (28 April 1958), and therefore before commencement of operational service.
22. The second incident is the “torpedo incident”. The applicant stated that in November 1960 his second duty on the Vampire was Coxswain’s Office Writer. This duty was carried out in a small office aft of the torpedo tubes, and directly behind the ship’s laundry. CPO Coxswain Chandler and he were often in the office when the shipwright was testing pressure on each of the torpedo tubes. This was done by opening the rear doors on each tube (5 tubes), tying the torpedos down and individually testing each torpedo. On this day, the shipwright neglected to open the rear door on no 2 torpedo tube. When no 2 was pressure tested the torpedo broke the handy-billy tie down and ejected from the tube. The enormous pressure forced the torpedo through both laundry bulkheads and through the open door of the office in which the applicant was working. It finally lodged between the Coxswain and the applicant. This all happened very fast, and because they had no time to remove themselves to a safe position, they both thought they would be killed with their own ship’s torpedo. If the same mistake had been made with no 1 or no 3, they would certainly have been dead. The applicant said in the course of his evidence this incident did not occur during operational service and would not be pursued.
23. In the course of the Hearing, as the facts emerged, and the case unfolded, it became patently clear that the applicant was a witness whose evidence could not be accepted as against the evidence led to counter his evidence. The applicant and his wife had previously arranged an appointment, and left the Hearing Room after the completion of his evidence on the final morning, Wednesday 4 February 2004, and before the witnesses, Dr Furze, Captain Stevenson and Lieutenant Commander Griggs gave evidence. When Dr Furze and Captain Stevenson completed their evidence, the matter was adjourned until 1.00 pm when the Commission's final witness, Lieutenant Commander Griggs, was to give evidence. When we resumed, the applicant's counsel, Mr Ower, stated that he had attempted unsuccessfully to contact the applicant on his mobile telephone to obtain up-to-date instructions.
24. When Lieutenant Commander Griggs had completed his evidence at 1.35 pm, Mr Ower requested that I adjourn the Hearing to enable him to obtain instructions from his client regarding a possible withdrawal of the application for review. We resumed at 2.20 pm, and Mr Ower advised that again he had been unsuccessful in his attempts to contact his client. Counsel agreed to proceed with their addresses, and when the addresses had been completed at 3.25 pm the matter was adjourned, on the basis that Mr Ower's instructing solicitors would advise my Chambers by close of business on the following afternoon (Thursday 5 February 2004) whether they had instructions to withdraw. I have received no such advice from the applicant's solicitors, and instructed my associate to advise the parties yesterday afternoon (Wednesday 11 February 2004) that I would hand down an oral decision today.
25. I have outlined in the course of these oral Reasons for Decision, the history of the progress of the applications, but see no purpose in outlining the lengthy, contradictory, and unsatisfactory evidence of the applicant in relation to the alleged stressors, which led his counsel to seek instructions as to withdrawal of the proceedings. Suffice it to say, that Dr Furze gave evidence of his opinions based upon the veracity and accuracy of the applicant's statements; that I found Captain Stevenson and Lieutenant Commander Griggs objective and truthful witnesses, and that I prefer their evidence to that of the applicant in any areas of dispute in the evidence.
26. Dr Furze reported on 28 April 2003 [Exhibit A1] that the applicant told him that the debt he owed to Centrelink was $80,000. The applicant said in evidence that the amount was $40,000, but that he could not remember the year of his conviction. Dr Furze said in evidence that the most serious alleged stressor was the aerial incident (the slip incident), and that the applicant did not mention being shot at whilst driving between Port Swettenham and Kuala Lumpur (the fired upon incident). In relation to the question of the applicant's failure to inform his former treating psychiatrist and Dr Burvill of these alleged stressors, Dr Furze said that one explanation could be that the applicant's memory was not great recalling events more than 30 years ago, and being a man with significant brain damage from alcohol abuse. Alternatively, the memories might be uncomfortable, or another explanation could be that what he outlined might be untrue.
27. Captain Stevenson gave evidence in relation to the fired upon incident, which the applicant alleged occurred in September 1960. Captain Stevenson said that there was no record of a group of soldiers being attacked while driving from Port Swettenham to Kuala Lumpur. The formal cessation of the emergency was promulgated on 31 July 1960, and RAAF personnel posted at Butterworth near Penang from 1958 to 1959 were accompanied by their families. Children travelled by bus between the two locations to attend school without escort. In relation to the torpedo incident, each firing of a torpedo is recorded, and no record could be found of damage being caused by a loose torpedo on the Vampire during 1960. Such an incident, he said, would almost certainly be recorded in the Record of Proceedings. I accept Captain Stevenson's evidence.
28. Lieutenant Commander Griggs, who served on Vampire from 2 July 1962 to 8 May 1963 as Leading Seaman Radio Operator (Special), said in evidence that UA3 aerials are covered whilst in harbour, and are uncovered at sea. The covering is of metal, which slides over the horn of the aerial to protect the crystal which is susceptible to RF signals on land. It certainly is not covered with white painted canvas, as alleged by the applicant. White painted canvas would be ineffective in protecting the crystal. During replenishment at sea, the radar would be on stand by, as would the radar of the other vessel. Lieutenant Commander Griggs said that in his 15 years in the communication branch, and his 15 years as an officer in the Navy, he never applied the metal covers at sea.
29. Lieutenant Commander Griggs said in evidence that before a person is permitted to proceed up the mast, the "safe to transmit keys/board" must be drawn from both the radar and radar equipment, and placed in a special box or on a board on the bridge. As the ship is then "flying blind", a delay of approximately 15 minutes would have prompted an investigation by both the Radio Operator and the Officer of the Watch. A two hour delay, as alleged by the applicant, would be a situation that the Officer of the Watch would not tolerate. I accept Lieutenant Commander Griggs' evidence.
30. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe stressor”, or a “severe psychosocial stressor” during his operational service, and that Factor 5(b) of the Alcohol Dependence Statement of Principles is not satisfied, nor is Factor 5(a)(ii) or (iii) of the Anxiety Disorder Statement of Principles, nor is Factor 5(a) of the Panic Disorder Statement of Principles. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant's conditions of alcohol abuse, anxiety disorder and panic disorder were war-caused.
31. For these reasons the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 2, 3, 4, & 12 February 2004
Date of Decision 12 February 2004
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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