Elton and Repatriation Commission (Veterans' entitlements)
[2020] AATA 5361
•30 October 2020
Elton and Repatriation Commission (Veterans' entitlements) [2020] AATA 5361 (30 October 2020)
Division:VETERANS’ APPEALS DIVISION
File Number: 2015/2851
Re:Peter Robert Elton
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 30 October 2020
Place:Melbourne
The Tribunal decides to:
affirm the decision of the Repatriation Commission dated 10 October 2013 and 26 August 2014 as affirmed by a decision of the Veterans’ Review Board dated 5 May 2015.
…………[sgd]……………………
Deputy President S A Forgie
Catchwords
VETERANS’ AFFAIRS – disability pension – claim for post-traumatic stress disorder, generalised anxiety disorder, lumbar spondylosis and/or spondylolisthesis and spondylolysis – whether conditions war-caused – relevance of material from previous proceedings – Tribunal satisfied beyond reasonable doubt that applicant’s lumbar spondylosis and/or spondylolisthesis and spondylolysis not war-caused – Tribunal satisfied on balance of probabilities that applicant not suffering from post-traumatic stress disorder or generalised anxiety disorder – decision affirmed.
Legislation
Migration Act 1958
Safety Rehabilitation and Compensation Act 1988
Veterans’ Entitlements Act 1986; s 5C; s 7; s 9; s 13; s 14; s 17; s 19; s 120; s 196B
Secondary materials
Chambers 21st Century Dictionary Revised edition 1999, reprinted 2004, Chambers
Diagnostic and Statistical Manual of Mental Disorders Fifth edition, Arlington VA, American Psychiatric Association, 2013
Macquarie Dictionary Eighth edition, 2020, Macquarie
Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg in a Round Hole? (1996) 4 Australian Journal of Administrative Law 37
Cases
Border v Repatriation Commission (No. 2) [2010] FCA 1430; (2010) 191 FCR 163
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR 1; 29 ALD 1
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1
Delahunty v Repatriation Commission [2004] FCA 309; (2002) 38 AAR 511
Delahunty and Repatriation Commission [2003] AATA 914
Deledio v Repatriation Commission (1997) 47 ALD 261
Elton and Repatriation Commission [2014] AATA 475
Elton and Repatriation Commission [2016] AATA 479
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Green v The Queen [1971] HCA 55; (1971) 126 CLR 28; 46 ALJR 545
Keeley v Brooking (1979) 143 CLR 162; 53 ALJR 526
Lees v Repatriation Commission [2002] FCAFC 398
McLean and Repatriation Commission [2001] FCA 1505
Mines v Repatriation Commission (2004) 40 AAR 238
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Chatzidimitrou [2000] VSCA 91; (2000) 1 VR 493
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85
Repatriation Commission v Deledio (1998) 27 AAR 144
Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 33 AAR 370
Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690
Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798
Repatriation Commission v Thompson [2001] FCA 341; (2001) 32 AAR 514
Re Greenough and Repatriation Commission [2002] AATA 774; (2002) 70 ALD 470
Ogston v Repatriation Commission [1999] FCA 342; (1999) 86 FCR 578
Re Mr R and Commonwealth of Australia [1988] AATA 133; (1988) 15 ALD 167
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595; 48 AAR 558
Re Robertson and Repatriation Commission [1998] AATA 127; (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Re SAN and Comcare [2004] AATA 445; (2004) 81 ALD 149
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283; 74 ALD 366
The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36; (2017) 347 ALR 529; (2017) 91 ALJR 960
Woodward and Another vRepatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424
REASONS FOR DECISION
Deputy President S A Forgie
Mr Elton joined the Royal Australian Navy (RAN) on 7 July 1968 when he was 15 years of age. He joined for 12 years but served only until 21 January 1972 when he was discharged. At the time, he was an Able Seaman. He had operational service in Vietnam on board HMAS Sydney within the meaning of s 6C of the Veterans’ Entitlements Act 1986 (VE Act) from 17 November 1969 to 5 December 1969 (first tour of duty) and from 16 February 1970 to 5 March 1970 (second tour of duty). He has claimed a pension under the VE Act in respect of incapacity arising from various conditions. The Repatriation Commission (Commission) has accepted some and not others. On review, the Veterans’ Review Board (VRB) has accepted some conditions and affirmed the Commission’s decision on others.
Three differently constituted Tribunals have considered the decisions on review. The first, decided on 15 July 2014, to set aside earlier decisions and to substitute a decision that alcohol use disorder and cannabis use disorder are war-caused.[1] The second of the Tribunal’s decisions affirmed a decision of the Commission dated 10 October 2013 refusing Mr Elton’s claims relating to Post-Traumatic Stress Disorder (PTSD), major depressive disorder (MDD) and lumbar spondylosis and affirmed by decisions of the VRB dated 5 May 2015.[2] With the consent of the parties, the Federal Court allowed an appeal lodged by Mr Elton and remitted the matter to be re-heard by a differently constituted Tribunal according to law.[3] The Commission accepted Mr Elton’s claim for MDD and the Tribunal heard his claims for PTSD, generalised anxiety disorder (GAD) and lumbar spondylosis and/or spondylolisthesis and spondylolysis. It affirmed the Commission’s decisions refusing Mr Elton’s claims for PTSD, GAD and lumbar spondylosis and/or spondylolisthesis.[4] Mr Elton’s appeal to the Federal Court was allowed and the matter remitted to be re-heard according to law.[5]
[1] Re Elton and Repatriation Commission [2014] AATA 475; Senior Member Friedman
[2] Re Elton and Repatriation Commission [2016] AATA 479; Miss Shanahan, Member
[3] VID903/2016
[4] [2018] AATA 1329; Senior Member Fice
[5] VID724/2018; Davies J
The issues in this case turn initially on whether Mr Elton is suffering from PTSD or GAD and lumbar spondylosis and/or spondylolisthesis and spondylolysis. I have found that he is. That means that I must determine whether they are war-caused within the meaning of s 6C of the VE Act. I have concluded that I am satisfied beyond reasonable doubt that Mr Elton’s lumbar spondylosis and/or spondylolisthesis and spondylolysis are not war-caused. I am satisfied on the balance of probabilities that he is not suffering from PTSD or GAD.
LEGISLATIVE FRAMEWORK
Where a veteran is incapacitated from a war-cause injury or war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay pension by way of compensation to that veteran.[6] The qualifications to a veteran’s entitlement are not relevant in this case. A “veteran” is defined in s 5C(1).[7] Mr Elton is a veteran within the meaning of paragraph (a) of that definition because he is, by virtue of s 7, taken to have rendered eligible war service. He is taken to have done so because he has rendered operational service.[8] He rendered that service when he rendered continuous full-time service in an operational area as a member of the Defence Force allotted for duty in that area.[9] The operational area was Vietnam[10] and Mr Elton was allotted for duty in that operational area within the period from and including 31 July 1962 to and including 11 January 1973.[11]
[6] VE Act; s 13(1)(b) and (d)
[7] VE Act; s 5Q(1)
[8] VE Act; s 7(1)(a)
[9] VE Act; s 6C(1)(a)
[10] VE Act; ss 5Q(1); 5B(1) and Schedule 2; Item 4
[11] VE Act; ss 5Q(1); 5B(2) and Schedule 2; Item 4
An injury or disease is a war-caused injury or a war-caused disease if it comes within s 9 of the VE Act as qualified by s 9A. Only paragraphs 9(1)(a) and (b) are relevant in this case. They provide:
“Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”.
The requirement that a veteran lodge any evidence available to him or her when lodging a claim for a pension does not impose any onus of proof on him or her.[12] When a claim is made, it is not immediately submitted to the Commission. The Secretary of the Department of Veterans’ Affairs (Department) first causes an investigation of the matters, to which the claim relates.[13] Upon completion of the investigation, the Secretary will submit the claim to the Commission together with all evidence or documents that it holds The Commission has an obligation to consider any evidence or documents that the veteran submits with the claim or at a later time and any evidence submitted or furnished to it.[14]
[12] VE Act; s 14(4)
[13] VE Act; ss 17(2) and (3)
[14] VE Act; s 19(2)
The standard of proof by reference to which the Commission must consider the claim for a pension is set out in ss 120 and 120A. Section 120(1) provides:
“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.”
Unless making a determination to which s 120(3) applies, the Commission shall decide the matter to its reasonable satisfaction.[15] What is meant by the expression “reasonable satisfaction” was explained by Beaumont J, with whom Northrop and Spender JJ agreed, in Repatriation Commission v Smith.[16] The Tribunal should ask itself, his Honour said:
“… whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou 9 ALD 358; Easton and Repatriation Commission, Administrative Appeals Tribunal, unreported, 29 June 1987; Repatriation Commission and Faulkner, Administrative Appeals Tribunal, unreported, 22 May 1987).”[17]
[15] VE Act; s 120(4)
[16] [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798
[17] [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798 at 335; 547; 26; 800
Section 120(1) must be read with s 120(3), which provides in the context of a claim such as Mr Elton’s under Part II of the VE Act:
“In applying subsection (1) … in respect of the incapacity or 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 …;
(b)that the disease was a war-caused disease …; or
(c)that the death was war-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.”
As Mr Elton’s claim has been made after 1 June 1994 and has been made under Part II of the VE Act and relates to operational service, regard must also be had to s 120A.[18] Again in so far as it applies in the context of this case, s 120A(3) provides:
“For the purposes of s 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: …”
[18] VE Act; s 120A(1)(a)
This provision does not apply in relation to a claim if the Repatriation Medical Authority (RMA) has neither determined a Statement of Principles (SoP) under s 196B(2) nor declared that it does not propose to make a SoP in respect of the kind of injury suffered by the person, kind of disease contracted by the person or kind of death met by the person, as the case may be.[19]
[19] VE Act; s 120A(4)
In so far as it applies to operational service, 196B(2) provides:
“If the Authority is of the view that there is a sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)-(ca)…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1:For sound medical-scientific evidence see subsection 5AB(2).
Note 2:…
Note 2A: …
Note 3: For factor related to service see subsection (14).”
Again in so far as it relates to the circumstances of this case, 196B(14) provides:
“A factor causing or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey;
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of factor causing, or contributing to, a disease – it would not have occurred -
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person – it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
The manner in which ss 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission[20] (Deledio). An appeal from his judgement was dismissed by the Full Court of the Federal Court.[21] After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission[22] and Byrnes v Repatriation Commission,[23] his Honour concluded:
[20] (1997) 47 ALD 261
[21] Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O’Connor JJ
[22] (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR1; 29 ALD 1; Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ
[23] [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1; Mason CJ, Gaudron and McHugh JJ
“ Therefore when s 196B(2) says a factor ‘must ... exist’ and ‘must be related to service’, it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) since (1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran’s intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran’s intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee’s in the face of the Baume committee’s recommendations [in its report entitled “A Fair Go: Report on Compensation for Veterans and War Widows”]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis.” (page 275)
In its judgement on appeal, the Full Court of the Federal Court summarised the course that must be followed in cases involving a SoP. It said:
“… we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.[[24]]
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”[25]
[24] I respectfully note that the second sentence in this point is an accurate reflection of s 120A(3) but also note that s 120A(3) is qualified by s 120A(4). The qualification is to the effect that s 120A(3) does not apply in relation to a claim if the RMA has neither determined a SoP under s 196B(2) nor declared that it does not intend to do so in respect of the kind of injury suffered, disease contracted or death met by the person, as the case might be. That is to say, the reasonableness of the hypothesis must be assessed in the usual way with regard to matters such as whether it is obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous and without regard to any SoP.
[25] (1998) 27 AAR 144 at 159-160
The Full Court in Deledio divided the consideration of whether the material points to a hypothesis from whether that hypothesis is reasonable. As a later Full Court observed in McLean and Repatriation Commission:[26]
“It will be seen that in Deledio the Full Court effectively broke into three steps, the two steps postulated by the High Court in Byrnes, by distinguishing between formulation of the relevant hypothesis and consideration of its reasonableness. However the Court did not suggest that there was any test to be applied to the identified hypothesis other than that of reasonableness.”[27]
[26] [2001] FCA 1505; Whitlam, Madgwick and Dowsett JJ
[27][2001] FCA 1505 at [26]
In the case of Re Greenough and Repatriation Commission,[28] I reviewed the previous authorities including Repatriation Commission v Keeley,[29] Repatriation Commission v Gorton,[30] Ogston v Repatriation Commission[31] and Repatriation Commission v Thompson.[32] For the reasons I gave in that case and adopt in this, I concluded that these authorities require that:
“… the order in which the Tribunal is to approach the SoPs is:
first consider the claim by reference to the SoP in force at the date of the Tribunal’s decision;
if the consideration is favourable to the applicant, that is an end of the matter; and
if the consideration is not favourable to the applicant, consider the claim by reference to the SoP in force at the date of the Commission's determination (Gorton).”[33]
[28] [2002] AATA 774; (2002) 70 ALD 470
[29] [2000] FCA 532; (2000) 98 FCR 108; Lee, Cooper and Kiefel JJ
[30] [2001] FCA 1194; (2001) 33 AAR 370; Heerey, Emmett and Allsop JJ
[31] [1999] FCA 342; (1999) 86 FCR 578; Burchett, Branson and RD Nicholson JJ
[32] [2001] FCA 341; (2001) 32 AAR 514; Drummond, Whitlam, Emmett JJ
[33] [2002] AATA 774; (2002) 70 ALD 470 at [59.7]; 487
What it means to be satisfied “beyond reasonable doubt” was explained by Barwick CJ in Keeley v Brooking:[34]
“To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.”[35]
[34] (1979) 143 CLR 162; 53 ALJR 526; Barwick CJ, Stephen, Mason and Aickin JJ; Murphy J dissenting
[35] (1979) 143 CLR 162; 53 ALJR 526 at 169; 527
The standard has also been explained by Phillips JA in R v Chatzidimitrou[36] in the following way:
“… [T]he test remains one of reasonable doubt, not of any doubt at all; and ... the jury's function includes determining what is reasonable doubt – or to put that in more concrete fashion, whether the doubt which is left (if any) is reasonable doubt or not."[37] (emphasis in original)
[36] [2000] VSCA 91; (2000) 1 VR 493; Phillips JA and Cummins AJA; Callaway JA dissenting
[37] [2000] VSCA 91; (2000) 1 VR 493 at [11]; 498 approved in The Queen v Dookheea [2017] HCA 36; (2017) 262 CLR 402; 347 ALR 529; 91 ALJR 960; Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ at [34]; 422; 541; 970
In summing up to a jury in a criminal court, it is a misdirection for a trial judge to attempt to elucidate what amounts to reasonable doubt by saying, for example, that it is to be confined to “rational doubt” or “doubt founded upon reason”. In Green v The Queen[38] (Green) the High Court said of such attempts:
“ Sir Owen Dixon in Dawson v The Queen (1961) 106 CLR 1, at p 18 said of a summing up in a criminal trial upon the onus of proof that in his view:
‘… it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.’”[39]
[38] [1971] HCA 55; (1971) 126 CLR 28; 46 ALJR 545; Barwick CJ, McTiernan and Owen JJ
[39] [1971] HCA 55; (1971) 126 CLR 28; 46 ALJR 545 at [6]; 31; 546
In Green, the High Court went on to say:
“… A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. ‘It is not their task to analyse their own mental processes’: Windeyer J., Thomas v. The Queen (1). A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt founded on reason’ in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. …”[40]
[40] [1971] HCA 55; (1971) 126 CLR 28; 46 ALJR 545 at [15]; 32-33; 546-547
That is not to say that the verdict that the jury reaches cannot be scrutinised. It is scrutinised on appeal. The role of the appellate court was explained most recently in Pell v The Queen[41] when the High Court said:
“ The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”[42]
[41] [2020] HCA 12; (2020) 94 ALJR 394; Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
[42] [2020] HCA 12; (2020) 94 ALJR 394 at [39]; 402
It seems to me that, in determining whether it is satisfied beyond reasonable doubt that there is no sufficient ground for deciding that a disease or injury is war-caused, the role of the Tribunal is fashioned to some extent both by the traditional understanding of that standard of proof and the role of a criminal court of appeal when it assesses a verdict to decide whether the jury ought to have entertained a reasonable doubt as to the issue it had to determine. There is, however, one important distinction to be kept in mind. The distinction is that the criminal courts are considering a positive proposition i.e. whether an offence, and so all its necessary elements, have been proved beyond reasonable doubt. Section 120(1) requires the Tribunal to consider a negative proposition i.e. whether it is satisfied beyond reasonable doubt there is no sufficient ground for determining that an injury or disease is war-caused.
That distinction aside, the Tribunal is obliged to give reasons for its decisions.[43] That means that, unlike a jury, it must articulate why it is either satisfied, or not satisfied, beyond reasonable doubt that there is no sufficient ground for determining that an injury or disease is war-caused. It must examine the evidence from every view point including inconsistencies, discrepancies and inadequacies (as well as lack thereof) and decide whether it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination. As Mason CJ said in Bushell v Repatriation Commission:[44]
“ The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed …”[45]
[43] AAT Act; s 43(2)
[44] [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR 1; 29 ALD 1;
[45] [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR 1; 29 ALD 1 at 416; 31; 756; 4; 4
CONDITIONS ACCEPTED AND REJECTED AS WAR-CAUSED
In this section of my reasons, I have summarised the history of this matter in so far as it is not in dispute between the parties. It includes a summary of Mr Elton’s claims under the VE Act and the decisions made regarding them by the Commission, the VRB and the Tribunal as well as the appellate proceedings in the Federal Court.
Date
Event
Date of effect:
28/11/2010
21/12/2011
28/11/2010
(following decision by Veterans’ Review Board (VRB) on 25/09/2012Accepted disabilities:
Tinea
Onychomycosis of the Toenails
Fibrosis Post Desquamative Interstitial pneumonia
Chronic Obstructive Airways Disease(A)
28/02/2011
Claim for pension in relation to substance abuse drugs and alcohol.
09/01/2012
Disabilities not accepted by the Commission:
Marijuana Abuse in Full Remission
Alcohol Dependence14/08/2012
Noting with an asterisk those later accepted by the Commission either as claimed or as re-diagnosed with a date of effect of 14 May 2012, Mr Elton lodged a claim in relation to:
Emotional problems with depressed feelings
Alcohol/cigarette/drug abuse (desire)
*Erectile dysfunction with loss of libido
*Tinnitus
Right groin hernia
*Diabetes
*Liver function problems
*Heart disease
Lumbar disc25/9/2012
The VRB affirmed the Commission’s decision in relation to Marijuana Abuse in Full Remission and Alcohol Dependence.
11/10/2012
Application to the Tribunal for review of the Commission’s decision as affirmed by the VRB
Date of effect:
14/05/2012
Further accepted disabilities:
Erectile Dysfunction
Sensorineural Hearing Loss
Tinnitus
Ischaemic Heart Disease
Diabetes Mellitus
Fatty Liver10/10/2013
Commission accepted the conditions marked with an asterisk in the previous line of this table and refused claims it had re-diagnosed as:
Post-traumatic stress disorder (PTSD)
Depressive Disorder
Right inguinal hernia
lumbar spondylosis29/10/2013
Mr Elton applied to the VRB for review of the Commission’s decision.
13/11/2013
Commission assessed Mr Elton’s disability pension payable in respect of his accepted disabilities to that point in time. It continued the rate of disability pension payable to Mr Elton as 100% of the General Rate.
15/07/2014
Tribunal decision set aside Commission’s decision as affirmed by the VRB on 10 October 2013 and substituted a decision that Alcohol Use Disorder and Cannabis are war-caused with effect from 28/10/2010: [2014] AATA 475.
26 August 2014
The Commission assessed the rate of disability pension payable to Mr Elton having regard to the further disabilities of Alcohol Use Disorder and Cannabis as accepted by the Tribunal.
17/09/2014
The Commission assessed Mr Elton’s entitlement to a disability pension and increased it to 100% of the General Rate with effect from 28 November 2010.
17/09/2014
Mr Elton applied to the VRB for the review of a decision made by the Commission on 26 August 2014.
05/05/2015
The VRB varied the diagnosis of lumbar spondylosis to include spondylolisthesis at L5/S1 in addition to lumbar spondylosis.
The VRB refused claims for PTSD, depressive disorder, right Inguinal hernia and lumbar spondylosis and spondylolisthesis at L5/S1.
The VRB affirmed the decisions assessing disability pension at 100% of the General Rate.
16/06/2015
Mr Elton applied to the Tribunal for review of the decisions made by the Commission and affirmed by the VRB.
06/07/2016
The Tribunal affirmed the decisions: [2016] AATA 479.
12/12/2016
By consent, the Federal Court allowed an appeal and remitted the matter to the Tribunal, differently constituted, to be decided having regard to the matters justifying the making of the consent orders set out in its Order: VID903/2016.
The notes to the Court’s order identified errors in the Tribunal’s consideration of Mr Elton’s claims in relation to lumbar spondylosis, lumbar spondylolisthesis at L5/S1 and major depressive disorder as well as breach of procedural fairness.
06/09/2017
14/03/2018
13/04/2018By the time of the re-hearing, the Commission had accepted that Major Depressive Disorder was a war-caused condition. The parties identified the following matters as those in issue at the re-hearing:
(a) Other than major depressive disorder, alcohol abuse disorder and cannabis use disorder, which are accepted psychiatric disabilities, does Mr Elton suffer and, if any, is it war-caused?
(b) Is Mr Elton’s lumbar spondylosis war-caused?
(c) Is Mr Elton’s spondylolisthesis at L5/S1 war-caused?
The Tribunal identified the following conditions as those in issue:
(a) PTSD;
(b) differential diagnosis of generalised anxiety disorder; and
(c) lumbar spondylosis and/or spondylolisthesis.
21 May 2018
The Tribunal decided to affirm the decision of the Commission dated 5 May 2015 and the further decision assessing disability pension at 100% of the General Rate: [2018] AATA 1329.
4 September 2018
By consent, the Federal Court set aside the Tribunal’s decision and remitted the matter to a differently constituted Tribunal to be re-determined according to law: VID724/2018
EVIDENTIARY MATERIAL
I have set out the evidentiary material in chronological order as much as possible:
1968
When completing an undated Entry History Questionnaire, Mr Elton ticked the “No” box in response to a question whether he had any knee, back or joint injury.[46]
[46] Exhibit R1 at 10
Mr Elton’s rank on entry was JR2.[47]
[47] Exhibit R1 at 6
13 June 1968
Mr Elton’s category was changed to JREM.[48]
[48] Exhibit R1 at 6
7 July 1969
Mr Elton attended a Medical Officer at HMAS Penguin suffering from dysuria (painful urination) for two days following intercourse.[49]
[49] Exhibit R1 at 18
13 September 1969
Mr Elton was promoted to ORDEM (Ordinary Seaman Electrical Mechanic). Writing for Writeway Research Service Pty Ltd (Writeway Report), Commodore Mulcare, RAN Rtd, said that, under the training scheme in place in 1969, Common Sea Training was carried out before any specialist training and “Electrical Mechanic” indicated only the veteran’s future specialisation. It was not a skill.
26-27 November 1969
The Ship’s Log for HMAS Sydney on 26 November 1969 recorded:
1500 hours: “Wind 355 Force 4 Weather 6c/7. Sea 005/6 ft. …”[50]
[50] Exhibit R9
1700 hours: “Wind 350 Force 4, Weather BC/7 Sea 5 Swell 000 …”[51]
[51] Exhibit R9
1900 hours: “Wind 345 Force 4 Weather BC/7 Sea 5 Swell 010 …”[52]
[52] Exhibit R9
2300 hours:“Weather. Wind from 0540 Force 5. C6/7. Sea 4. Swell from 0150‑ - 8 feet. …”
An Executive Officer’s Temporary Memorandum numbered 62/69 and dated 26 November 1969 (EO Memorandum) set out the various steps involved in discharge and backload at Vung Tau. After identifying the task and facilities, the document set out steps involved in the task. The first was preparation and the second was pre-stow. Pre-stow was described:
“Subject to the Captain’s approval and satisfactory weather conditions, cargo is to be pre-positioned for discharge as follows:-
(a)Of the 140 pallets in A hangar, 109 are to be stacked in 4 rows, 2 tiers high, from 6 feet abaft Stbd forward crane; and 31 in 4 rows, just clear and abaft port forward crane.
(b)7 Land Rovers, to be ranged as necessary fwd of the after lift.
(c)Kombi Vans to be ranged 2 deep abreast of pallet stow, portside.
(d)Aircraft to be positioned around 1 spot as follows – 1a/c fwd of 1 spot, 2a/c positioned abreast and aft of 1 spot.
Note: (i) Pre-stow should be complete by 1800 27th November.
(ii)Pallets to be well covered by tarpaulins and properly secured in their new position. Land Rovers must also be secured.
(iii)Vehicles having a weight exceeding 15,000 1bs must not be driven on or over the lift unless securing keeps on the lift are fitted.”[53]
[53] Exhibit R1 at 232
The EO Memorandum referred to seven annexures including Annexure D set out the Defence Station and Cargo Operation Watchbill. ORDEM Elton was named in the No. 1 Handling Team (Port Watch lowers No. 2 M.C.).[54]
[54] Exhibit R1 at 238
The Ship’s Log for HMAS Sydney on 27 November 1969 recorded:
0300 hours:“Weather C6/7. Wind from 0540 Force 5. Sea 4. Swell from 0200 – 8 feet …”[55]
[55] Exhibit R9
0700 hours: “Wind 010 Force 5 Weather bc/7. Sea 3 Swell 010 6 ft. …”[56]
[56] Exhibit R9
1500 hours:“Wind 0150 Force 5 Weather 0/8 Sea 3 Swell 0.15 8ft …”[57]
[57] Exhibit R9
The Ship’s Log for HMAS Sydney on 27 November 1969 recorded:
0300 hours:“Weather 6/7. Wind from 0540 Force 5. Sea 4. Swell from 020 – 8 feet …”[58]
[58] Exhibit R9
0700 hours: “Wind 010 Force 5 Weather bc/7. Sea 3’ Swell 010 6ft …”[59]
[59] Exhibit R9
1100 hours:“Wind 015 Force 5 Weather 02/6 Sea 3 Swell 010 8 ft …”[60]
[60] Exhibit R9
1500 hours: “Wind 015o Force 5 Weather 0/8 Sea 3 Swell 015 8ft …”[61]
[61] Exhibit R9
1700 hours:“Weather 09/7 Wind 000o Force 4 Sea [illegible] Swell 030 8ft …”[62]
[62] Exhibit R9
Illegible:“Weather 09/6 Wind 010o Force 5 Sea 4ft. Swell 025 – 8ft”[63]
[63] Exhibit R9
2300 hours:“Wind 030 Force, Weather OP/6 Sea 5 Swell 0100 8ft …”[64]
[64] Exhibit R9
The Ship’s Log for HMAS Sydney on 28 November 1969 recorded:
0600 hours: “Commenced disembarking 8 RAR & Cargo
HMAS Sydney’s Captain, Captain Clarke, submitted a Report of Proceedings dated 3 December 1969 for November 1969. It included the following:
“11. After crossing a sheer line stretching across the centre of the South China Sea the weather turned very nasty and rain and a NNE wind of Force 5-7 had whipped up an 8-10 foot swell with 3-5 feet of sea. In this weather, on Thursday 27th November, the cargo party did well to pre-stow all cargo for disembarkation with the exception of twenty pallets containing cardboard containers of Xmas presents and cakes. In view of the damage which would have been done to this cargo by the driving rain I decided to anchor at VUNG TAU at 0600 on Friday 28 November. The advancement of the ETA by one hour was approved by the local harbour authorities, and after arrival the cardboard boxes were stowed on deck in preparation for off loading.
12. The unloading commenced at 0700, as usual, and went very smoothly. All troops were embarked/disembarked and cargo loaded/off loaded by 1148 and at 1200 on Friday 28th the SYDNEY weighed and proceeded out of Vung Tau to join the DUCHESS, who had weighed and proceeded at 1150. The two ships proceeded south through the very uncomfortable weather described in para. 11. A few glancing hits on the bottom of the LCM’s by waves again emphasised the vulnerability of these LCM’s, in their stowages in their stowages in the SYDNEY, particularly from a rough sea on the quarter.”[65]
[65] Exhibit R1 at 125-126
17 May 1971
An Examining Medical Officer noted in a Medical Examination Record that Mr Elton’s spine was normal.[66] The purpose of the examination was said to be “CW1 aircrew”.
[66] Exhibit R1 at 19
In cross-examination in the proceedings heard in September 2017 before Senior Member Fice, Mr Elton said that each of the examinations he underwent in the RAN was cursory.[67]
[67] Exhibit R17 at 268
11 June 1971
Mr Elton was promoted to EMC2.[68]
[68] Exhibit R1 at 6
17 June 1971
The title of the category was changed to “ABETC”.[69]
[69] Exhibit R1 at 6
2 July 1971
An Officer Candidate Nomination was raised in respect of Mr Elton.
3 September 1971
An Examining Medical Officer conducted a medical examination when Mr Elton was a CWS candidate. He noted in a Medical Examination Record that Mr Elton’s spine was normal and recommended that he was fit for CW1 (Air).[70]
[70] Exhibit R1 at 21
Mr Elton said of this and the previous medical examinations that they might have been related to the time that he “… went through for officer selection, in which case I wouldn’t have said there was something wrong.”[71]
[71] Exhibit R17 at 266
Mr Elton passed a Command Test Part 1 for Promotion to LS on 3 September 1971 and had passed a Command Test Part 2 for Promotion to LS on the previous day.[72]
[72] Exhibit R1 at 5
6 September 1971
An Xray taken at HMAS Kuttabul before Mr Elton’s CW1 medical showed his chest to be clear.[73]
[73] Exhibit R1 at 20
27 September 1971
The Board rejected Mr Elton’s Officer Candidate Nomination.[74]
[74] Exhibit R1 at 17
9 November 1971
Mr Elton failed Section 2 for Promotion to LS.[75]
[75] Exhibit R1 at 5
25 November 1971
A Daily Medical Record signed by a Medical Officer on HMAS Melbourne wrote that Mr Elton:
“Was apprehended in a workshop about to smoke ‘grass’. Denies smoking any today – had 1 stick yesterday. Days he has been smoking grass for 1 year but no other drugs. Has tried different varieties of marihuana. Does not regard himself as a drug addict wants to get out of the Navy – says he is depressed on occasions and was going to come up and visit me.
Is using grass as a means of getting out of RAN.”[76]
[76] Exhibit R1 at 22
29 November 1971
A Daily Medical Record signed by the same Medical Officer on HMAS Melbourne wrote:
“Now says he was not taking drugs to get out of Navy. Takes marihuana when he feels depressed. Thinks he is psychologically depressed.
Has grandiose ideas of study law and is quite convinced he is highly intelligent.
Requires psychiatric assessment.”[77]
[77] Exhibit R1 at 23
5 December 1971
The Medical Officer referred Mr Elton to a Consultant Psychiatrist. He repeated the history of Mr Elton’s having smoked marijuana for the previous year and thinking that he was psychologically addicted but only using when he felt depressed. The Medical Officer wrote in his referral that Mr Elton wanted to leave the Navy to study law but was currently facing a charge of being in possession of marijuana.[78]
[78] Exhibit R1 at 24
8 December 1971
Mr Elton pleaded guilty to a charge of possessing cannabis. He had stated that he had been smoking it for a considerable period and that he was dissatisfied with the service.[79]
[79] Exhibit R1 at 16
9 December 1971
Awarded a suspended sentence of 21 days’ detention after being convicted of unauthorised possession of cannabis.[80]
[80] Exhibit R1 at 248
13 December 1971
The Commanding Officer of HMAS Melbourne wrote:
“3. ELTON is a sailor who is dissatisfied with the service, and I consider that his taking drugs is a form of escape from the environment of service life. He was a candidate for promotion to officer rank and attended the September Initial Selection Board where he was classified as Category ‘C’. This may in some respects be the reason for his dissatisfaction.
4. Whilst reluctant to do so I recommend that he be discharged Services No Longer Required. I do this despite the fact that the taking of drugs is only a recent habit because I consider that as long as the sailor is retained he will continue to make use of them and may be an undesirable influence in the service.”[81]
[81] Exhibit R1 at 251
13 January 1972
Approval given for Mr Elton to be discharged from the Navy “Services No Longer Required”.[82]
[82] Exhibit R1 at 247
Discharge SNLR – services no longer required – approved.[83]
[83] Exhibit R1 at 16
19 January 1972
Mr Elton completed a document entitled “Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy” (Discharge Statement). He wrote “Nil” when asked whether he suffered from any disabilities at that time, had suffered from any disabilities during service and whether he had suffered from any disabilities he considered to be due to or aggravated by service.[84]
[84] Exhibit R1 at 12
Mr Elton said that he “… wouldn’t have said anything there because of the discharge.”[85]
[85] Exhibit R17 at 267
He said in cross-examination on 6 September 2017 that he:
“… didn’t say that everything was okay … [he] wouldn’t have been discharged.
… This is – it comes from navy regulations, they would’ve – they would’ve ---
…
Well, I have to say that the basis of it was what we were told and amongst ---
… By the other people around the mess and whatever, ‘Just make sure you get everything’ – ‘Say everything’s okay’, you had to do it.
… Yes, I accept the fact that I don’t know empirically but ---
… [B]ut the fact is you believe these things and so I went along with it because I wanted to get out.”[86]
[86] Exhibit R17 at 264-265
Mr Elton agreed that he had made the statements on the Discharge Statement knowing that he was not telling the truth but said that “… you’ll understand the rumours and scuttlebutt of the things that you’re supposed to do may not exactly be what is supposed to be.”[87]
[87] Exhibit R17 at 267
He also observed that it was well known that he had been discharged because of his drug use and yet there was no mention of it in the medical examinations.[88]
[88] Exhibit R17 at 267-268
20 January 1972
Mr Elton failed Section 2 for Promotion to LS.[89]
[89] Exhibit R1 at 5
An Examining Medical Officer noted in a Medical Examination Record that Mr Elton’s spine was normal. The reason for the medical examination was “Free Discharge”.[90]
[90] Exhibit R1 at 25
Mr Elton said in cross-examination by Ms Dowsett of counsel at the hearing before Senior Member Fice that there would not have been any mention of his spine because of his discharge.[91]
[91] Exhibit R17 at 267
19 July 1972
An Examining Medical Officer noted Mr Elton’s spine as “normal” on a Medical Examination Record.
12 April 2005
Dr Miranda Miocevic reported on an MRI of Mr Elton’s lumbar spine and concluded:
“Disc desiccation at L4/5 with mild broadbased disc bulge and what appears to be a sequestrated fragment which is compressing the left L5 nerve root. There is also a anterior spondylolisthesis of L5 on S1 secondary to bilateral pars and articualaris defects with mild narrowing of the neural exit foramina.”[92]
[92] Exhibit R1 at 161
22 July 2011
Mr Elton wrote a statement including a situation when the HMAS Sydney was sailing through a typhoon:
“I was working right down below, right up the front, when the ship appeared to be stopped by a wave, however I did not know this. All of a sudden the ship became motionless, with absolute quiet. No thudding of the motor, no throbbing of the propellers, absolute stillness & quiet. Not what is ever experienced in a ship underway. I thought that the front had broken off & I was in a sinking part of the ship. I was ‘shitting myself’. I ran up the gangway as fast as I could & was very relieved to find the ship in one piece.
On another occasion I was working on the flight deck. The ship was moving erratically & severely. Another sailor & Myself were sitting, hanging on to the rails around the forward lift. He at the front & I at the back. Both of us were too scared to move. I grabbed the stanchion & sat on flight deck. [illegible] Too frightened to move.
He eventually sidled around to my side & we waited for the ship to enter a big enough trough. When it did we ran for the tower. In doing this we tried to run a straight line, but actually ran a large arc, appearing as though we would go over the side. This was also a pretty frightening experience.”[93]
[93] Exhibit R1 at 36
In the same statement, Mr Elton said that, on his first trip back from Vietnam, he was given marijuana by one of the soldiers:
“… A lot were using it, so it seemed the ‘in’ thing to do. This soon manifested itself into a large habit. I was a heavy user, eventually being caught, in possession, whilst serving off Hawaii, on HMAS Melbourne. …
I maintained heavy usage for many years.”[94]
[94] Exhibit R1 at 37
With regard to alcohol, Mr Elton said:
“Also we given our ‘tot’ of one large can of Resches beer per day (interesting, as underage gain). This developed into a pretty good drinking habit as well.
Drinking was a standard pastime & just about the ordinary thing to do when ashore. Getting ‘pissed’ was Navy culture. I was living, working & playing with a predominantly much older group of men, which would not have been the case outside the Navy – hence all of us ‘younger kids’ grew up very quickly.”[95]
[95] Exhibit R1 at 37-38
28 July 2011
Mr Elton completed a questionnaire in preparation for his appointment with Dr Arthur Velakoulis, Consultant Psychiatrist.[96] Two days later on 30 July 2011, Mr Elton emailed Dr Velakoulis stating that he had found the completion of the questionnaire to be “… a tad eye opening & personally confrontational.”[97] He added further details relating to matters such as his consumption of alcohol and the difficulties he had experienced in concentration and his ability to work efficiently in his business. He did not add any information about his fall because he did not think it relevant to the questionnaire.
[96] Exhibit R1 at 61-74
[97] Exhibit R1 at 39
22 August 2011
In an Alcohol Questionnaire, Mr Elton said that he started drinking alcohol when he received a one can beer issue on HMAS Sydney in 1969. That increased to two to three large cans during 1969 and 1970. He could get other people’s issue and was becoming addicted to alcohol. Between 1970 and 2011, Mr Elton said he was drinking 15 standard drinks and spirits.[98] He considered that his drinking was due to his service because “… he was exposed at a young age to peer pressures and high levels of stress which help [sic] me to become hardened drinker at a young age.”[99] He continued alcohol consumption, he said, “Because I was addicted to the drinking life style.”[100]
[98] Exhibit R1 at 77
[99] Exhibit R1 at 76
[100] Exhibit R1 at 76
Commodore Mulcare reported on the availability of beer during Mr Elton’s service:
“24. In 1969, the sale of beer to ship’s companies was regulated by the following article in Regulations and Instructions for the Royal Australian Navy (ABR 5016),
º 5025A. Sale of beer to ships’ companies. The senior officer present may authorise the sale of beer to ships’ companies when –
(a)ships are in harbours or at anchorages where no leave can be given or, if leave is granted, beer is not reasonably procurable ashore; or
(b)ships are on long passages or in tropical waters,
and exercises at sea are not expected to be carried out later that day or night which involve night flying and rescue destroyer duties, or manoeuvres which may require ships being closer than standard distance, or more than a small proportion of a ship’s company being closed up.
2. Beer is not to be sold to any person under the age of 18 years. The issue of beer is not to exceed 27 fluid ounces daily for each person and is not to be resold or given away. It is to sold for cash and, except in the case of beer sold to Chief Petty Officers, containers are to be opened before sale.
3. The quantity of beer embarked is not to hamper the operational efficiency of the ship.
25. The veteran did not turn 18 until September 1970 and was not eligible for a beer issue when he served in HMAS SYDNEY. On trips to Vietnam, beer issues were usually made each evening except from the evening before arrival at Vung Tau. On return trips, beer issues were usually made every evening. Leading Seamen and below and [sic] had to collect their beer ‘issue’ and show or hand in their leave card to confirm their eligibility. Leave cards for underage sailors were distinctively marked. Sailors were only permitted to consume their own issue; trafficking was not permitted and personnel on both sides of the transaction faced disciplinary action if caught. Similar rules applied to Army personnel.”[101]
[101] Exhibit R1 at 229
11 December 2011
In his report dated 11 December 2011, Dr Arthur Velakoulis set out a detailed history of what he had been told by Mr Elton about the two incidents. Dr Velakoulis described two incidents as having occurred while the HMAS Sydney sailed through a typhoon in the Malacca Sea not far from Vietnam in November 1969. No mention is made in his description, or in the extract from a written statement made by Mr Elton regarding the incident in which the ship suddenly became motionless and absolutely quiet, of Mr Elton’s having fallen or hit his back while trying to get to the upper decks.[102]
[102] Exhibit R1 at 41
In cross examination by Ms Dowsett on 6 September 2017 regarding the omission of any fall in Dr Velakoulis’s report, Mr Elton said:
“I would say that I just simply forgot to put it on there.”[103]
[103] Exhibit R17 at 246
3 July 2012
Mr Elton summarised incidents leading to “stresses” in a document attached to a letter written by the Welfare/Pension Office seeking an appointment for him to receive further advice. He referred to a typhoon that they “hit … just north of the Sunda Straights.”[104] Mr Elton described two incidents that occurred. The first happened when he:
[104] Exhibit R11 at [6]
“… was right down below, right up forward, when the ship stopped dead. A great shudder & then total silence & stillness. I thought the front had fallen off … ran up the gangway as fast as possible.. thought I was going to die.”[105]
[105] Exhibit R11 at [6(a)]
Mr Elton made no mention of his falling from a ladder or of hitting his back while on a ladder.
16 July 2012
Mr Elton wrote in the Additional Information Sheet accompanying his Claim for Disability Pension that his right groin hernia had “… occurred during the severe fall which occurred during a Typhoon on HMAS Sydney on trip to SVN.”[106]
[106] Exhibit R1 at 89
Mr Elton’s General Practitioner, Dr Rob Moffitt, referred to results of an ultra sound and CT scan dated 9 July 2012. The report of those procedures showed minor spondylolisthesis with forward slip of L5 over S1 by approximately 5mm secondary to bilateral pars defect.[107]
[107] Exhibit R1 at 98
8 October 2012
Mr Elton made a statement describing:
“incident one: the Sydney encountered the Typhoon during the voyage to Vung Tau. During the storm I was below the waterline in the bow of the vessel. To the best of my recollection I may have been at the paint locker either collecting or returning some supplies. In any event, whilst I was in the bow below the waterline the ship shuddered and lurched and then briefly everything seemed to go still and quiet. The quietness may have lasted only a split second but it was an eerie feeling and I was petrified that the hull of the ship might have been breached from the impact with the swell of the ocean. I briefly stopped and listened for any noise and then I climbed the ladders to the upper deck at [sic] quickly as I could. I feared that I might drown. I recall that in my haste I tripped and fell down a gangway. It was a heavy fall and I developed back pain which has persisted since. My overriding concern, however, was to reach the deck as quickly as possible and my feeling was one of relief when I finally arrived on deck.”[108]
[108] Exhibit A1
Mr Robin Anderson and Mr Shane Arnold gave statements to the effect that the HMAS Sydney sailed through a severe storm or the edge of a typhoon on the first tour of duty in November to December 1969.[109] Mr Arnold was extremely anxious as the ship was being tossed around like a cork and he feared he might not live through the experience. Mr Anderson recalled that the storm was quite fierce with waves crashing across the bow. Mr Arnold and Mr Cunningham[110] also stated that they had not been given any “intelligence briefing” before departing for Vietnam.
[109] Exhibits A6 and A7
[110] Exhibit A8
Mr Elton’s statement also described:
“incident two: soon after the incident in the bow I was asked to participate with another sailor as a work party on the flight deck. This occurred during the same storm set out in the previous paragraph [relating to Incident 1]. I cannot now recall what precise duties we were given or even the name of the other sailor. I do recall, however, that whilst on the flight deck the weather conditions were very bad but then they seemed to worsen. I decided to return to the Tower (which was the closest and safest place to take refuge from the storm). I recall that I was terrified of being washed overboard.”[111]
[111] Exhibit A1
22 October 2012
Dr Moffitt OAM prepared reports regarding Mr Elton’s conditions. He reported that the clinical onset of Mr Elton’s lumbar spondylosis occurred in 1969 when he fell on a gangway on the HMAS Sydney. Dr Moffitt reported “Initial symptoms lasted weeks in 1969. Years later had intermittent back pain.”[112]
[112] Exhibit R1 at 143
8 November 2012
Mr Elton completed a Claimant Report – Carrying or Lifting Loads Lumbar Spondylosis. He reported that, from July 1968 to January 1972:
“During SVN service I was requested to lift a multiple number of items including electric motors, heavy boxes of food/Alcohol and General Stores – most of these items weighed well over 25kg and I lifted them every day of my war service and also in general service in the Navy.”[113]
[113] Exhibit R1 at 208
He completed a Claimant Report –Trauma Lumbar Spondylosis. The injury, he wrote, occurred during a typhoon on HMAS Sydney on the way to South Vietnam in November 1969. “During the thyphoon [sic] the ship seemed to stop as I raced up the gangway – fell down about 5 feet onto my bottom/back & onto the metal deck.”[114]
[114] Exhibit R1 at 209
Mr Elton also stated:
“Experienced extreme sharp pain / I felt the ship was sinking – stiffness began to occur.
… Straight away –
…
Some time later I did attempt to get medical treatment on the ship but there was little they could do – we just had to get on with the job.”[115]
[115] Exhibit R1 at 210
9 November 2012
Dr Paul Collier, Consultant Psychiatrist, wrote a report after seeing Mr Elton and reading a report by Dr Velakoulis, a summary of incidents leading to stresses written by Mr Elton, a note written by Mr John Meehan, RSL Pensions Officer, and a referral from Mr Elton’s General Practitioner, Dr Moffitt. He wrote:
“While on the HMAS Sydney the ship hit a typhoon just north of the Sundra Straits.
During the typhoon he was down below when the ship stopped dead. He believed that the bow of the ship had fallen off. He ran up the gangway as fast as possible. He thought he was going to die. ‘Quite seriously. I wasn’t thinking how or why (the front of the ship had fallen off), but in my head that’s what happened.
At another point during the typhoon he was working on the flight deck with another sailor when the waves became bigger and bigger. He was ‘hanging on for dear life.” At one stage he though he was going to end up over the side because of the movement of the ship. Again he was in fear for his life.”[116]
[116] Exhibit R1 at 190
did not record any mention of Mr Elton’s having spoken of a back injury.[117] He confirmed that in giving evidence at the hearing on 24 March 2016.[118]
[117] Exhibit R1 at 188-196
[118] Exhibit A9 at 127
11 March 2013
DVA asked Writeway Research Service Pty Ltd (Writeway) to research the incidents Mr Elton had contended occurred during his first and second tours of duty. Writeway took the description of the three incidents from the reasons for decision of the VRB dated 25 September 2012. That decision was concerned with Mr Elton’s claims in relation to Marijuana Abuse in Full Remission and Alcohol Dependence. The description set out by the VRB made no reference to Mr Elton’s claims in relation to a back injury and no reference was made to his fall from the ladder.
With regard to Incident 2, Commodore Mulcare wrote:
“12. The Veteran says that during the same storm, he was asked to participate with another sailor as a work party on the flight deck and that they were sitting down holding onto the guardrails around the forward lift too scared to get up. This lift, which serviced ‘A’ hanger, was used to bring pallets from the hanger to the flight deck … to be stacked near the port and starboard cranes … Annex D to the Cargo Operation Order shows the ORDEM Elton was a member of the Port Watch No 1 Handling Team at Vung Tau. Captain John Sketchley RAN Rtd, who was the ship’s Cargo Officer in November 1969, has advised that as far as he recalls the Handling Teams were primarily employed on the flight deck or in the hanger while the ship was unloading/loading in Vung Tau. However, the Handling Teams could also have taken part in the ‘pre-stow’ on 27 November which would explain the Veteran’s presence on the flight deck. In this case there would have been officers, senior sailors and junior sailors on the flight deck whould have been a busy, potentially hazardous place as cargo was being positioned in the prevailing weather conditions.
13. The Veteran does not recall what the two of them were doing on the lift, but they were probably sent there to strike down some or all of the guard rails around the lift …, so that movement of cargo could commence. If they had not been able to do so, other sailors would have been detailed to assist or take over the task. I cannot think of any other essential but uncomplicated task that would have required two people to work in the lift.”[119]
[119] Exhibit R1 at 225-226
7 June 2013
Dr Nigel Strauss, a Consultant and Occupational Psychiatrist, recorded that Mr Elton had:
“… said that in 1969 he developed back problems when he fell down a gangway on a ship in a storm and he said he still has back pain which restricts him from walking far and sitting for long periods.
…
He said that he completed two trips to Vietnam in 1969 and 1970 and he said he had three incidents on board that were upsetting.
He said that in the first episode he was at the front of the ship down below decks when the ship felt as if it was motionless and he said there was not a sound to be heard which was very unusual. He immediately imagined that the front of the ship had broken off and he was in a part of the ship that was sinking. He said he became extremely distressed and ran up to the top deck as fast as he could.”[120]
[120] Exhibit R1 at 274-276
4 July 2013
Dr David Hart, Consultant Respiratory Physician, wrote in his report
“… At the maximum in recent years he was able to work for 30 minutes very slowly but for the last 18 months he has not been able to do this because of lumbar pain radiating into his right buttock which worsens with exertion. He says that he is aware that he has damage to the back which he thinks has occurred as a result of falling down a gangway while on the ship during his period of service life. This back and buttock pain have severely limited his ability to do exercise and maintain fitness and also to lose weight in the last years.”[121]
[121] Exhibit R1 at 314
16 August 2013
Dr Albert Kaplan, Consultant Psychiatrist, noted in his report that:
“Mr Elton stated that he was subjected to three frightening incidents when HMAS Sydney was in Vietnamese waters. On one occasion there was a severe storm with wild seas and he was well below deck. The ship suddenly and explicably shuddered and there was an unusual silence. Mr Elton stated ‘I thought that was the finish’. He believes that the front of the ship had been breached and the ship was about to sink. He raced up a gangway, reached an open deck and discovered that the ship was safe.
A second incident occurred when he and another sailor found themselves on the flight deck in a storm. They were in full view of the bridge but no one threw them a rope. During a lull they made a dash for the bridge, came close to the edge of the deck, and feared that they would be washed overboard and knew that there was no possibility of rescue.”[122]
[122] Exhibit R1 at 319
He later wrote:
“Mr Elton stated that while his ship was in Vietnamese waters he suffered a fall and injured his back. He recovered, would have occasional episodes of back pain, and now suffers from constant back pain.”[123]
[123] Exhibit R1 at 322
16 September 2013
Professor Richard Harper, Consultant and Interventional Cardiologist, focused on Mr Elton’s heart condition. In the course of his report, Professor Harper noted that “Mr Elton’s lifestyle is affected by his cardiac condition but more particularly by a back problem, respiratory disease, obesity and post-traumatic stress syndrome.”[124]
[124] Exhibit R1 at 333
He also noted that “Another problem which limits his ability to do physical activity is a chronic back problem.”[125]
[125] Exhibit R1 at 333
15 October 2013
Dr Robyn Horsley, Occupational Physician, recorded that:
“Mr Elton states that he originally sustained a back injury during the first episode of anxiety when he was located at the front of the vessel and thought that the front of the vessel had peeled off from the main component of the vessel, in a storm. He hit his back against the stairs, as he rose quickly up to the deck. He did not have any specific treatment; he did not report the matter.”[126]
[126] Exhibit R1 at 369
15 July 2014
Senior Member Friedman summarised Mr Elton’s evidence at the hearing before him in relation to the Incident 1:
“10. In respect of the typhoon event, Mr Elton explained that the first voyage to Vietnam was uneventful until the ship left the Sunda Strait between the Indonesian islands of Java and Sumatra and encountered a typhoon. He stated that he had never experienced such weather and the ship rolled and listed in the huge swell. He was several decks below the flight deck in an enclosed area of the ship. As a general hand he was often required to perform duties such as painting and cleaning, and at the time he was on his own in the vicinity of the paint locker and may have been collecting or returning supplies. He said that he felt the ship moving erratically before it came to a halt. He had never before felt the sensation of stillness and quiet, and feared that he might drown because he believed that the bow had broken off. He said he was terrified and quickly sought to escape. He climbed the ladders to the upper deck, falling down a gangway in his haste. Mr Elton said that his overriding concern was to reach the deck as quickly as possible. He felt enormous relief when he arrived on the upper deck and discovered that the ship had not broken up. Mr Elton said that he has experienced nightmares in relation to the typhoon event and continues to do so.”
5 May 2015
At the hearing before the VRB, Mr Elton was asked to describe what had happened. He described trying to get up a ladder as fast as possible and falling off it when he had taken four or five steps up it. He landed on the lower part of his back but then:
“… got up and flew up the stairs again.
… The pain started very shortly after when I, sort of, came to the realisation I was in bed.
… I can’t recall now [how long the pain lasted], but I had problems ever since.”[127]
[127] Exhibit R12 at 20-21
4 June 2015
Mr Elton made a further statement:
“I suffered a heavy fall when I was climbing the gangway between decks soon after the incident referred to in my statement taken on 8 October 2004 as ‘incident one’. As I was climbing the rungs of a metal ladder between decks I lost balance and fell backwards and landed on my lower back. I fell onto a plate metal deck. I had immediate pain in my lower back. I had not suffered back pain prior to the fall. At the time that I was climbing the gangway I was in a panic out of fear that I might drown. Accordingly, although I was suffering back pain I immediately recommenced climbing the gangway until I reached the upper deck. The back pain became moderately severe after a couple of hours later on the same day and I also had loss of range of movement. I did not, however, attend the sick bay even though I was suffering low back pain. My reasons for not attending the sick bay related to the fact that there was a stigma attached to reporting injury or illness unless serious and obvious and I did not want to be regarded as a malingerer. Additionally, I believed that I would be treated unsympathetically even I did report. Furthermore, we were entering the war zone and everyone was expected to pull their weight.
My main duty at the time was as a telephone operator on the switchboard. Fortunately, these duties allowed me to sit and stand at will. I was, however, also required to undertake general duties and I performed them with discomfort.
I have continued to suffer low back pain and loss of range of movement in the back ever since the aforementioned incident. In the early years the back pain settled to at least a constant low-grade pain which fluctuated in severity. Over the years the symptoms have deteriorated. Currently I suffer constant moderately severe low back pain which is aggravated (particularly by activity).
I first noticed pain in my right groin following the fall and the symptoms have persisted ever since.”[128]
[128] Exhibit A2
29 September 2015
Associate Professor Bruce Love, Orthopaedic Surgeon, recorded:
“The HMAS Sydney, on which he was a seaman, was in a typhoon. He described the boat lurching severely with a sudden crash followed by silence. He said at that moment he was fearful for his life believing the boat may have been severely damaged and he attempted to climb a ladder from the area where he had been working. He ascended three or four steps and fell heavily onto his back onto a metal deck.
He said his back was sore for a short period of time and his immediate recollection of the events was that he was relieved that he had not been killed.
He said he had back pain for about two days which subsequently subsided but he did not make an attendance at the sick bay. He indicated that attendance at the sick bay in the Australian Navy at the time was considered a sign of weakness and hence why he would not attend.
He said the back pain persisted for about two days but settled and it allowed him to continue working in the Navy in a physical capacity until the age of about 20 when he decided to leave the Navy, having found himself not enjoying the experience.
…
He states that he has had back pain continuously since the incident on the HMAS Sydney. The pain has been of variable intensity but was present whilst still in the Navy, where he stated that lifting objects caused back pain. As time went by his symptoms have worsened.
He used to consider himself fit in his 20’s and played various sports including horse riding but found that horse riding began to cause back pain.
The extend [sic] in this man’s lumbar spine is at the severe end of the spectrum of lumbar spondylolysis and I judge that had he not had the incident in what I estimated to be November 1969, his spinal condition would not be of the same severity as it is now.
I have reached the conclusion that without severe injury his spine would not have reached this stage of degenerative change from the usual activities of life.
There is no contemporaneous information about the status of his spine in 1969 or in the years thereafter until the last ten years.
I have perused the documents which outline the acceptable factors in the Statement of Principles and I am of the opinion that his condition fits that.”[129]
[129] Exhibit A3 at 2-3
During the hearing in the Tribunal on 23 March 2016, Dr Love was asked whether it was “highly speculative to ascribe any condition to that incident occurring in 1969”[130] He replied that he had interpreted the event described to him as a “high impact event” and was of the opinion that the impact described to him was sufficient to suggest that the events that followed could be explained by that event. Dr Love agreed with Mr Purcell that a fall from a horse would also be a high energy injury and that regular horse riding would be a risk of aggravating any back condition.[131]
[130] Exhibit A10 at 74
[131] Exhibit A10 at 76-77
21 October 2015
referred to the Statement of Principles that he had been given regarding Lumbar Spondylosis and Spondylolisthesis as well as Spondylolysis and to a radiology report dated 12 April 2005. He concluded that Mr Elton suffers from Lumbar Spondylolysis and that the Statement of Principles for that condition had been met.[132]
[132] Exhibit A4
23 March 2016
In cross-examination, Mr Purcell explored with Mr Elton his statement that he had not attended the sick bay regarding his back because of the stigma associated with reporting injury or illness. The following exchange took place between Mr Purcell and Mr Elton:
6 September 2017
In cross-examination, the following exchange took place between Ms Dowsett and Mr Elton regarding his statement dated 8 November 2012 that he had attempted to get medical treatment but that there had been little they could do:
“So you did try and get medical treatment on the ship? --- Yes, but there were people on the boat, I couldn’t get to see anyone, so you had to get on with the job.
…
And so you are saying now that you did try and seek medical treatment? --- No, I’m not saying that at all, I’m saying that there’s a minor change, a difference in the thing which I hadn’t noticed and I’ve signed the document, and it’s an interpretative thing. I tried to go there. When I went to go to the sick bay there was a line of soldiers a mile long. I couldn’t get I so I just gave it a miss.
Did you try to go there or were you so worried about this culture you don’t go to the sick bay unless your arm’s falling off, that you didn’t try and go? --- Well, the reality is that I didn’t go eventually because of the culture. You’d have to understand that this is pervasive. You have to understand the time. We’re talking about a navy that’s very different today and something that your will never be able to understand at your young age of things were, and we didn’t go to the sick bay. I did try to go there one day, I thought, I’ll go there, and there was a line of soldiers a mile long at the thing and I couldn’t get in so I just gave it a miss; end of story; it’s as simple as that; there’s no mystery, there’s no – no anything else about it … So the whole basis of going to the sick bay would’ve created a very big thing of being a shirker and a baby and a God knows what amongst your mess mates, and so that’s the culture that existed, very, very firmly. There were certain rules that you just didn’t break.”[133]
[133] Exhibit R17 at 270-271
With regard to Incident 2, Mr Elton said that his fear during the storm had been that he was going to die. He feared that he was down below the water line and he was just trying to get up to the top. The fall and his back pain had nothing to do with his fear: “the fear had to do with the bloody ship falling apart.”[134] He remembered that, when he got to the top, there were people there and he told them that he thought that the front of the ship had fallen off.
[134] Transcript, 6 September 2017 at 262
14 October 2019
Incident 1
In giving evidence at the hearing on remittal, Mr Elton said that he had gone to the front of the ship. He would have had something to do there. There would not have been any people there as no living quarters were located in that part of the ship. An Anderson Locker, the paint store, some storage and the cells are located there. Mr Elton said that he could not recall why he was in that part of the ship. The weather was extremely rough and a ship is a noisy place, he said. It has the sound of motion and vibrations. It takes five miles to pull a ship up but, all of a sudden, the front of the ship went up and then down followed by absolute quiet. It was shuddering. Mr Elton said that he concluded that the front of the ship had fallen off. He was down below decks under the waterline at the bow of the ship and he was petrified. When he climbed the gangway, he slipped and fell back on the deck. It hurt but he got up and raced up the stairs and told people what he thought had happened. He was so relieved that it had not.
As a consequence of the fall, he suffered back pain at the time. It was quite severe back pain but Mr Elton could not recall how long it lasted. It was not a huge amount of time but he could not recall. Ever since that fall, Mr Elton said, he has had a problem with his back.
In cross-examination, Mr Elton said that he did not know how long the whole event took but agreed with Mrs Dowsett that it was a relatively short incident.
Mr Elton said that he had not told Dr Velakoulis about the fall because he was only interested in alcohol. He told Dr Velakoulis that he did not have a problem with alcohol but, of course, he did. Mr Elton agreed that he had not told him about his back injury in his follow-up email to Dr Velakoulis.
In cross-examination, Mr Elton confirmed that he had not gone to the sick bay about his back because to be called a malingerer was a terrible thing. His attention was drawn to the statement he had made on 8 November 2012 that he had attempted to get medical treatment but that there was little that they could do.[135] He denied that his evidence at the rehearing was inconsistent with that statement. It was all a matter of memory. He remembered major things such as the birth of his daughter, who nearly died, but not that of his son. He is a man of integrity and honesty, Mr Elton said.
[135] Exhibit R1 at 210 and see entry for 8 November 2012 above.
During cross-examination, Mr Elton was definite that the pre-stow had occurred at Vung Tau. The goods were lifted up and craned off. Had they been put on deck before that time, they would have fallen off. His response when shown the EO Memorandum setting out that the pre-stow was to begin on 26 November 1969 and be completed by 1800 on 27 November 1969 was “If it happened”. When Ms Dowsett drew Mr Elton’s attention to Captain Clarke’s Report of Proceedings for November 1969 and to [11] set out above, he said that the waves were a minimum of 30 feet if a person knows how they are measured. It was ludicrous to suggest that things were put on deck. It did not happen. It was ridiculous. He did not lie.
In re-examination at the latest hearing, Mr Elton said that the incident occurred at a time when there was nothing on the deck. Incident 1 must have occurred before the pre-stow.
When he had written “Nil” when asked in the Discharge Statement whether he suffered from any disabilities or had done so, he had not meant “Nil”, Mr Elton said in cross-examination. He had written that because he had to in order to get out of the RAN. The world was very different then, Mr Elton said. He still maintained that he was a man of honour who told the truth. He signed the Discharge Statement because he needed to, Mr Elton said. When Ms Dowsett put to Mr Elton that he would say whatever the thought was in his interests, he replied that he says what is true. At the same time, he acknowledged that statements he had made in the past were not exactly true. Had he not signed the Discharge Statement, he would have been stuck in the Navy for a lot longer. Mr Elton thought that it was harsh to suggest that he had “lied”. Ms Dowsett was making a mountain out of a molehill. His statement the had not suffered any disabilities was a minor thing of no consequence; it was an administrative thing.
In re-examination by Ms Ryan at the most recent hearing, Mr Elton said that he had not made any mention of his alcohol abuse as he wanted to be discharged. In response to me, Mr Elton said that he was discharged because he had used marijuana. His services were no longer required. It was also possible, he said to Ms Dowsett, that he had previously said that he wanted to get out of the Navy because it was not what he had expected. When told that he had already said that he wanted to come back to Melbourne, he replied that he had come back.
Dr Collier first saw Mr Elton on 12 July 2012 and had seen him on four subsequent occasions. The last two occasions were focused on gathering information for Dr Collier’s report, which is dated 9 November 2012. In that report, Dr Collie set out a comprehensive history of Mr Elton’s experiences in the RAN from July 1968 to January 1971. The incidents he reports on include Incident 1 and Incident 2. I have set out Dr Collier’s understanding of them in the chronological record at [26] above. Dr Collier concluded that “Since some of the above experiences would clearly meet the A or trauma criterion for post-traumatic stress disorder (PTSD), according to DSM-IV …”, he went on to identify Mr Elton’s symptoms. Later in his report, Dr Collie wrote:
“Mr Elton points out that although the circumstances at HMAS Leeuwin were difficult and confronting, he has not generally been subject to troubling recollections regarding his time at that base. Rather he has been troubled by recollections of the storm in the Sunda Strait, and by the impact of seeing the effect of Vietnam service on the soldiers who he and his mates were transporting.
PTSD appears to have had its clinical onset soon after Mr Elton returned from his first trip to Vietnam. As far as he can be discerned, experiences that occurred during that trip, including the storm, appear to have made a substantial contribution to the aetiology of the PTSD.
…
I think it would be fair to state that the stressful circumstances he encountered at HMAS Leeuwin may very well have made some contribution to the causation of his PTSD, major depressive disorder, marijuana abuse, alcohol dependence and erectile dysfunction, but from the history obtained it seems clear that the experiences he encountered while sailing on the HMAS Sydney made at least an equally significant, if not a greater contribution. In this respect, Mr Elton’s account of the timing of the onset of his psychiatric conditions, and his experience of much greater preoccupation over the years with the events on the HMAS Sydney than with those at HMAS Leeuwin, are of relevance.”[158]
[158] Exhibit R1 at 194
At [26] above, I have set out Dr Kaplan’s history of events related to him by Mr Elton. He concluded:
“In my opinion, Mr Elton’s Post-Traumatic Stress Disorder fits within the acceptable factors in the Statement of Principles in that he was confronted with events which involved threatened death or serious injury, and he experienced intense fear and helplessness (3)(b) (A)(i) and (ii). …”[159]
[159] Exhibit R1 at 328
In his report dated 11 December 2011, Dr Velakoulis reported Incident 1 and Incident 2 by setting out Mr Elton’s description of them in his statement dated 22 July 2011.[160] Mr Elton told Dr Velakoulis recorded that:
“In the period after his naval service, and commencing in the early 1970’s the veteran described the onset of quite vivid and emotional dreams which were associated with significant anxiety. I gather these dreams were associated with mild distress and occurred on a regular basis. The veteran denies any daytime re-experiencing though, and he states that the dreams eventually resolved in the 1990’s. Between the 1970’s and the 1990’s the veteran described some psychological and physical reactivity when exposed to the reminders of his Vietnam service, and he tended to avoid reminders of Vietnam. For example he had for some years been particularly averse to return there given his original experiences. He was not particularly distressed by watching Vietnam related war films but did avoid ANZAC ceremonies and Veteran reunions for some decades. There is also evidence of a transient period of exaggerated startle response, sleep disruption, periods of irritability and road rage and anger over several years.”[161]
[160] See [26] above
[161] Exhibit R1 at 43
Dr Velakoulis concluded:
“… Although somewhat diminished since 1990, his symptom profile would suggest that in the aftermath of his Vung Tau experiences he did experience post traumatic stress disorder symptoms. At current assessment however he does not reach the threshold criteria to sustain a diagnosis of Post Traumatic Stress Disorder. There is also no evidence to suggest a significant history of depressive symptoms.”[162]
[162] Exhibit R1 at 45
I have set out Dr Strauss’s understanding of the stressful incidents at [26] above. He concluded that Mr Elton:
“… had three episodes [including Incidents 1 and 2] which he described as being upsetting but I do not believe that these episodes could be described as being stressful enough to be categorised as 1A or 1B stressors.
They may have been distressing for a young man but in my opinion they did not bring about the development of a psychiatric illness in him.
…
I do not believe that he suffers from a post traumatic stress disorder or a depressive illness.”[163]
[163] Exhibit R1 at 279-280
Dr Strauss wrote his second report dated 7 September 2013 after reading reports written by Dr Collier and Dr Kaplan. He disagreed with their conclusions and continued that it was difficult for him to conclude that Mr Elton had any ongoing significant psychiatric problems. He held this view and, even though Mr Elton might have had some difficult times while he was in the Navy, he was not of the opinion that Mr Elton had been left with ongoing psychiatric ill health. Dr Strauss did not believe that Mr Elton necessarily required psychiatric treatment.
Although they took different views of them, none of the doctors questioned the events as described by Mr Elton but that is consistent with normal practice. I cannot do that same for I have to decide, on the balance of probabilities, whether Mr Elton suffers from PTSD before I can consider whether his condition is war-caused. That requires me to consider whether Mr Elton was exposed to “actual or threatened death, [or] serious injury …”. The meaning of “actual death or serious injury” is plain.
What is meant by “threatened” death or serious injury was considered by the Federal Court in predecessors of SoP 82 of 2014: SoP 3 of 1999 as amended by 54 of 1999 and SoP 5 of 2008. Both described the kind of injury or disease in terms that include a requirement that the veteran have been exposed to a traumatic event in which “the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and the person’s response involved intense fear, helplessness or horror …”. It did so in Stoddart v Repatriation Commission[164] (Stoddart):
“… The adjectival clause “that involved actual or threat of death or serious injury ...” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the ‘threat’ there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury.”[165]
[164] [2003] FCA 334; (2003) 197 ALR 283; 74 ALD 366
[165] [2003] FCA 334; (2003) 197 ALR 283; 74 ALD 366 at [50]; 294; 378; Mansfield J
Mansfield J concluded:
“In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”[166]
[166] [2003] FCA 334; (2003) 197 ALR 283; 74 ALD 366 at [55]; 296; 379
In Woodward and Another vRepatriation Commission[167] (Woodward), the Full Court of the Federal Court said:
“We consider that the reasoning of Mansfield J in Stoddartis persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”[168]
[167] [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424; Black CJ, Weinberg and Selway JJ
[168] [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424 at [144]; 499; 357-358; 445; 450
This is not altered by either Border or by Delahunty v Repatriation Commission[169] (Delahunty). Both of those cases were concerned with the application of the four steps in Deledio and not with the initial finding of the injury or disease suffered by the veteran. That is clear from the judgment in Border.[170] Although it is not expressly stated in Delahunty, it is clear from the Tribunal’s decision that led to the appeal to the Federal Court that it had decided that Mr Delahunty suffered from PTSD. [171] That finding was not a ground of appeal in Delahunty.
[169] [2004] FCA 309; (2002) 38 AAR 511; Tamberlin J
[170] [2010] FCA 1430; (2010) 191 FCR 163 at [22]; 169
[171] [2003] AATA 914; Rear Admiral Horton
I am concerned with the same issue as confronted the Tribunal and then the Federal Court in Stoddart and Woodward i.e. determining the condition from which the veteran suffered before considering whether that condition was war-caused. Unlike them, though, I may be faced with the situation upon which the Full Court in Woodward declined to express an opinion i.e. the situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. I think that the resolution of that issue in the context of SoP 82 of 2014 is to have regard to the words of criteria A, with which I am concerned. It is that “Exposure to actual or threatened death, serious injury … in one or more of the following ways (i) directly experiencing the traumatic event(s) …” (emphasis added). The “traumatic event” must be a reference to the event, in which there is actual or threatened death or serious injury. The words clearly require that there must be a traumatic event, to which, in Mr Elton’s circumstances, the person has exposure by directly experiencing it. The cases of Stoddart and Woodward recognise that identification of a traumatic event involves an objective test with some subjective elements. However, neither the words of criterion A of PTSD nor the words of Mansfield J in Stoddart contemplate a test that is not based on an objective test and has regard only to the veteran’s personal perceptions of events.
As I have said, the test is an objective test but that is based on the point of view of a reasonable person in the position of, and with the knowledge of, the veteran experiencing the events. In this case, the reasonable person is a person who, like Mr Elton, had joined the Navy when he was 15 years of age, had completed his initial training at HMAS Leeuwin and had served for 16 months in all before his first voyage to Vietnam. His evidence, which was not contradicted, was that he had topped his academic subjects at HMAS Leeuwin. He also said that he had not previously experienced stormy weather at sea.
Mr Elton described HMAS Sydney’s sailing through 40 foot waves at the time of both incidents.[172] He said that his view is supported by the Captain’s Report of Proceedings but I do not accept that is the case. The entries from the Ship’s Log for 26 and 27 November 1969, which are consistent with the summary of them in the Captain’s Report of Proceedings, do not support it. Having regard to the calculation of the combined sea and swell height chart,[173] the entries do not support a conclusion that the waves were 40 feet high. They do support a conclusion that the weather had been “very nasty” and that there had been driving rain to the extent that the cargo party had done well to pre-stow it on 27 November 1969 for disembarkation.
[172] Exhibit R17 at Transcript 6 September 2017 at
[173] Exhibit R13
The effect of weather of that sort on a ship the size of HMAS Sydney was described by Commodore Mulcare in his evidence given at the hearing before Member Friedman. He said:
“… it was a very large ship, it goes through waves and an eight foot swell is not that big so the ship would be moving around a bit certainly and it may have hit something a bit bigger and sort of shuddered to shake it off …
…
… The Sydney would be moving around quite a bit but it’s not as bad as a 15 foot swell for a start, which it experienced at other times. It was just rough weather, it was nothing very unusual about it. A ship suffered more bad weather on other occasions. …
…
… Yes, it’s better to try to and accommodate your ship movements to the sea by either slowing down or going faster, it depends on whether it’s a short, steep sea or a long rolling swell or whatever it might be. But a swell of sort of eight to 10 feet with a bit of wind as well, which is on this case, would certainly cause the ship to move, to roll and to pitch a bit and that’s just the very nature of being at sea.”[174]
[174] Exhibit R14 at 55-56
I accept that the weather was rough. The Captain described it as “…very nasty and rain and a NNE wind of Force 5-7 had whipped up an 8-10 foot swell with 3-5 feet of sea” on 27 November 1969. There is, however, no description of the weather that is consistent with the description of a typhoon, as Mr Elton described it, or of a hurricane as it is known in northeast Pacific and northern Atlantic.[175] Furthermore, the weather was not so rough that it had not prevented the pre-stow. Mr Elton emphatically denies that the pre-stow occurred on 27 November 1969 while HMAS Sydney was at sea but his emphasis is contradicted by the Ship’s Log and by the Captain’s Report of Proceedings. He states that the cargo would have been washed overboard had it occurred in that weather but the EO Memorandum dated 26 November 1969 that arrangements had been made for the cargo to be secured on deck. The Captain’s Report of Proceedings shows that regard had been had to the Christmas presents that were perishable and that would be damaged by the driving rain. They were not placed on deck until the ship reached Vung Tau.
[175] Exhibits R4 and R7
Neither Mr Anderson nor Mr Arnold gave evidence that Mr Elton had expressed his fear of the front part of the ship falling off to them. No other witness was called to do so. The objective evidence found in the ship’s records, the evidence of Mr Anderson and Mr Arnold and in the evidence of Commodore Mulcare is consistent with my finding that there was never a risk of the front part of the ship falling off either on 26 or 27 November 1969, of its losing its front or of breaking up in any way. Therefore, on the balance of probabilities, I am not satisfied that Mr Elton was exposed to actual or threatened death or serious injury as a result of what I have called Incident 1. That is a finding that is consistent with the medical opinions expressed by Dr Strauss and Dr Velakoulis. Therefore, I find that Incident 1 is not a stressor of the type described in cl A(i) of PTSD and he does not suffer PTSD by reason of that incident.
That brings me to Incident 2 described by Mr Elton. He has variously said that he is not sure when the event occurred and that it occurred within a couple of hours of Incident 1. It would certainly seem to have occurred during the same storm that HMAS Sydney was sailing through on 26 and 27 November 1969. No mention is made of Incident 2 in the Ship’s Log but that is neither here nor there. Given that there was no adverse outcome, it would not be expected to warrant a mention.
In Mr Elton’s statement dated 22 July 2011, he said that he described himself and another sailor hanging on to the rails around the forward lift with both being too scared to move. Their position would be consistent with Mr Elton’s being on the flight deck as part of the pre-stow. He was named in the EO Memorandum as part of the No. 1 Handling Team. His position at the rails around the forward lift is consistent with Commodore Mulcare’s evidence that removal of the guard rails would have been a task that could have been entrusted to a sailor in his position in the ship. That the work was done during the storm and in driving rain is consistent with the Captain’s description of the weather on 27 November 1969 in his Record of Proceedings. What this evidence is not consistent with is Mr Elton’s own insistence that the pre-stow did not take place until the ship reached Vung Tau. I do not accept his evidence in light of the clearly contradictory official records.
Mr Elton said that he and his colleague were in full view of the bridge but no-one threw them a rope. Mr Elton accepts that he would not have been on the flight deck without having been ordered to be there and he could not explain why he was there. Given that he was part of the No. 1 Landing Team for the pre-stow, given that Commodore Mulcare said that the No. 1 Landing Team could have taken part in pre-stow and given that the pre-stow took place on 27 November 1969, I find that he would have been on the flight deck for duties connected with the pre-stow. I accept Commodore Mulcare’s evidence that there would have been officers, senior sailors and sailors on the flight deck during pre-stow.
I accept that Mr Elton was scared when he had intended to run straight to the flight tower and had ended up taking an arc that took him towards the edge of the ship. I accept that he thought that, if were to go over the edge, the chances of his being rescued were remote. Whether or not that is exposure to actual or threatened death or serious injury is quite another thing. Even though he was an inexperienced sailor on his first voyage to Vietnam, those on the bridge did not throw him a rope as he thought that they should have. That he was not thrown a rope by anybody is consistent with an objective conclusion that Incident 2, however it is described, did not expose Mr Elton or his fellow sailor to a threat of danger. I am satisfied, on the balance of probabilities, that it did not expose them to actual or threatened death or serious injury.
Therefore and consistently with the evidence of Dr Velakoulis and Dr Strauss, I am not satisfied that Mr Elton suffers from PTSD.
B. Generalised Anxiety Disorder
Dr Kaplan said that Mr Elton’s “… condition is probably best characterised as a Post-Traumatic Stress Disorder with a differential diagnosis of a Generalised Anxiety Disorder associated with Depression.”[176] He was the only medical practitioner to diagnose GAD and linked it back to the incidents described by Mr Elton as having occurred on his first tour of duty to Vietnam. For the reasons I have already given, I do not accept that the incidents occurred as described by Mr Elton or that they could be described as “traumatic experiences”, which is the expression adopted by Dr Kaplan to summarise them. In light of that and in light of there being no other supporting medical evidence, I am not satisfied that Mr Elton suffers from GAD.
[176] Exhibit 1 at 328
DECISION
For the reasons I have given, I affirm the decisions of the Repatriation Commission dated 10 October 2013 and 26 August 2014 as affirmed by a decision of the VRB dated 5 May 2015.
| I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
..................[sgd].....................................................
Associate
Dated: 30 October 2020
Heard: 14 October 2019
Counsel for the Applicant:
Solicitor for the Applicant:
Ms Fiona Ryan
Mr Declan Canavan
Williams WinterCounsel for the Respondent:
Solicitor for the Respondent:
Ms Cathy Dowsett
Mr William Evans
Australian Government Solicitor
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