Elton and Repatriation Commission (Veterans' entitlements)
[2018] AATA 1329
•21 May 2018
Elton and Repatriation Commission (Veterans' entitlements) [2018] AATA 1329 (21 May 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/2851
Re:Peter Robert Elton
APPLICANT
Repatriation CommissionAnd
RESPONDENT
Decision
Tribunal:Egon Fice, Senior Member
Date:21 May 2018
Place:Melbourne
The Tribunal affirms the decisions under review.
....................[sgd]....................................................
Egon Fice, Senior Member
VETERANS’ APPEALS – Standard of proof – post-traumatic stress disorder – major anxiety disorder – lumbar spondylosis – whether injuries war-caused – reasonable hypothesis – whether factual foundation of hypothesis is disproved
Legislation
Administrative Appeals Tribunal Act 1975
Veterans Entitlements’ Act 1986
Cases
Byrnes v Repatriation Commission (1993) 177 CLR 564
Keely v The Honourable Mr Justice Brooking (1979) 143 CLR 162
Morales v Minister for Immigration and Multicultural Affairs (1988) 82 FCR 374
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commissioned v Keeley (2000) 98 FCR 108
Woodward v Repatriation Commission (2003) 131 FCR 473
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM-IV-TR, published on 31 July 1994
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, DSM -5, published on 18 May 2013
Repatriation Medical Authority, Statement of Principles concerning POSTTRAUMATIC STRESS DISORDER, No. 5 of 2008, for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004, 9 January 2008
Repatriation Medical Authority, Statement of Principles concerning POSTTRAUMATIC STRESS DISORDER, No. 82 of 2014, for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004, 22 September 2014
Repatriation Medical Authority, Statement of Principles concerning anxiety disorder, No. 102 of 2014, made under subsection 196B(2) of the Veterans' Entitlements Act 1986, 28 November 2016
Repatriation Medical Authority, Amendment Statement of Principles concerning ANXIETY DISORDER, No. 99 of 2016, for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004, 28 November 2016
Repatriation Medical Authority, Statement of Principles concerning LUMBAR SPONDYLOSIS, No. 62 of 2014, for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004, 2 July 2014
Repatriation Medical Authority, Statement of Principles concerning LUMBAR SPONDYLOSIS, No. 37 of 2005, for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004, 16 November 2005
Repatriation Medical Authority, Statement of Principles concerning SPONDYLOLISTHESIS AND SPONDYLOLYSIS (Reasonable Hypothesis) (No. 24 of 2017), 27 March 2017
REASONS FOR DECISION
Egon Fice, Senior Member
21 May 2018
Mr Peter Elton enlisted in the Royal Australian Navy (RAN) on 7 July 1968 as a Junior Recruit. He underwent 12 months of naval and academic training at HMAS Leeuwin and was then posted to the Destroyer Escort, HMAS Parramatta on 14 July 1969 for Common Sea Training. He was promoted to Ordinary Seaman Electrical Mechanic on
13 September 1969, on his 17th birthday. When HMAS Parramatta went to Melbourne for a refit at Williamstown Naval Dockyard, on 27 October 1969 Mr Elton was posted to HMAS Sydney to continue his Common Sea Training.
While on board HMAS Sydney, Mr Elton had two trips to South Vietnam. The first was between 17 November 1969 and 5 December 1969 and the second between 16 February 1970 and 5 March 1970. This was the extent of his operational service.
Mr Elton has a number of medical conditions which have been accepted by the Department of Veterans’ Affairs (DVA) as having been war-caused. I am not concerned with those conditions. On 10 October 2013 a Delegate of the Repatriation Commission determined that his claim for right inguinal hernia, post-traumatic stress disorder, lumbar spondylosis and depressive disorder were not related to his service.
Dissatisfied with that determination, Mr Elton sought review by the Veterans’ Review Board (VRB). Also included in that application was a pension assessment at 100% of the general rate. In a letter dated 21 May 2015 the VRB informed Mr Elton that other than varying the diagnosis of lumbar spondylosis to include an additional diagnosis of spondylolisthesis, the decision of the Delegate of the Repatriation Commission was affirmed.
On 16 June 2015 Mr Elton lodged an application with the Administrative Appeals Tribunal (AAT) seeking review of the VRB decision. His application was heard by the Tribunal (Miss E A Shanahan, Member) on 23 and 24 March 2016. That application was in relation to post-dramatic stress disorder (PTSD), major depressive disorder (MDD) and lumbar spondylosis. The Tribunal handed down its decision on 6 July 2016 affirming the decision under review
On 4 August 2016 Mr Elton’s solicitors, Williams Winter, lodged an appeal with the Federal Court of Australia. On 12 December 2016 the Federal Court (Davies J) set aside the Tribunal decision and remitted the matter to the Tribunal to be decided according to law, having regard to the matters justifying the making of the consent orders set out in the notes to her Honour’s orders. Effectively, her Honour placed no restrictions on the taking of further evidence regarding all matters which remained in dispute between the parties.
On commencement of the hearing before me, Ms F Ryan of counsel, who appeared on behalf of Mr Elton, requested that I recuse myself on the basis of an apprehension of bias. That was because in 2013 I heard a matter in which Mr Elton was the applicant and the Australian Trade Commission was the respondent. According to Ms Ryan, I made adverse findings of credit against Mr Elton in the course of that hearing and therefore I should not hear this matter. After significant discussion, all of which is recorded in the transcript, I provided oral reasons to Ms Ryan for why I refused Mr Elton’s application to recuse myself. I need not repeat those in these reasons.
Ms Ryan also pointed out to me that the matter was heard by the Tribunal (Senior Member G Freidman) which made a determination in 2014. That was an application dealing with alcohol use disorder and cannabis use disorder. Ms Ryan explained that those conditions were caused by the same stressors which were to be put before me on this hearing. Senior Member Freidman’s decision was not appealed to the Federal Court. Ms Ryan mentioned that the author (Commodore PM Mulcare RAN Rtd.) of a report commissioned by DVA, the Writeway report, was the subject of cross-examination at the hearing before Senior Member Freidman. Commodore Mulcare was not cross-examined at the hearing before Miss Shanahan and Ms Ryan indicated she would seek to rely on the transcript of the cross-examination on this hearing. As it turned out, Commodore Mulcare was able to attend the hearing and was again cross-examined on the evidence and opinions set out in his report.
Ms Ryan informed me that Mr Elton’s MDD has since been accepted by DVA as being war-caused. It was no longer an issue before me. The conditions before me were
Mr Elton’s claimed PTSD; the differential diagnosis of generalised anxiety disorder (GAD); and lumbar spondylosis and/or spondylolisthesis.
Limitations as a consequence of remittal
On remitting this matter to the Tribunal on 12 December 2016, the Federal Court made the following relevant orders:
1. The decision of the Administrative Appeals Tribunal dated 6 July 2016 be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be decided according to law, having regard to the matters justifying the making of the consent orders set out in the notes of these orders.
3. …
While the parties to the Federal Court appeal consented to the orders made by Davies J, her Honour added that the Tribunal on remittal must have regard to the matters set out in the notes following her orders. Also, the fact that her Honour indicated that a differently constituted Tribunal should hear the matter is plainly a statement about the evidence upon which two previous Tribunals had made decisions. Being differently constituted points to a requirement to reassess the entirety of the evidence relevant to the matters which are in dispute.
The matters in the notes to her Honour’s orders deal with three topics:
·the finding that lumbar spondylosis was not war-caused did not take into account the whole of the material before the Tribunal when it made its assessment of the hypothesis relied upon to connect Mr Elton’s lumbar spondylosis to his service;
·the MDD finding which, by the time of the final day of hearing on 14 March 2018, had been accepted, and therefore was no longer in issue; and
·a procedural fairness aspect regarding a finding which I made in the matter of Re Elton and Australian Trade Commission [2013] AATA 133 which again was not an issue on remittal.
On the hearing of this matter before Miss Shanahan, Mr Elton relied on three incidents which he said were the cause of the psychological and physical injuries he subsequently sustained. They may be briefly described as the following:
·HMAS Sydney was required to sail through a typhoon on its way to Vung Tau Harbour on its first trip in November 1969 and at one point, Mr Elton believed the bow of the Sydney had broken off from the remainder of the ship and that he was at grave risk of being drowned;
·as the Sydney approached Vung Tau, Mr Elton and another naval rating were on the flight deck for reasons he could not recall and, because of the rough seas, he believed that he was in serious danger of being swept overboard; and
·when in Vung Tau Harbour, there was detonation of grenades or scare charges around the ship; gunboats in the harbour; helicopters in the air and landing on the Sydney with people carrying guns; and seeing and hearing aircraft dropping bombs.
In the course of the hearing I took evidence in relation to the three incidents I have referred to above. However, in her written closing submissions Ms Ryan relied only on the first two incidents. She explained that the third incident was not germane (relevant) to the hypotheses raised by Mr Elton but nevertheless, because of my alleged concern about the veracity of Mr Elton’s evidence in the 2013 matter, further evidence regarding the third incident was obtained by way of corroboration. I have more to say about that below.
Section 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act) makes the following provision regarding the Federal Court’s powers on remittal:
…
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
Constitution of Tribunal if Federal Court remits case etc
(6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal:
(a)the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and
(b)whether or not the Tribunal is reconstituted for the hearing – the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.
The Full Court of the Federal Court of Australia (Black CJ, Burchett and Tamberlin JJ) dealt with this issue in Morales v Minister for Immigration and Multicultural Affairs (1988) 82 FCR 374 where it said, at 386 – 387:
This Court on an appeal from the AAT make such order as it thinks appropriate by reason of its decision: s 44. The expression “by reason of its decision” delimits the general power to make such determination as it thinks appropriate. That is, orders can only be made if they are appropriate by reason of the decision on the point of law: Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454-455; Director-General of Social Services and Health v Hangan (1982) 70 FLR 212 at 223. The extent of this power of remittal is further spelt out by s 44 (5) which empowers an order setting aside the AAT decision and remitting the case to be heard and determined with, or without, further evidence in accordance with the Court’s directions. The provisions of subs (5) are not to be taken as limiting the general power in s 44 (4).
The Full Court of the Federal Court of Australia also dealt with a claim made by the applicant that the AAT was, regardless of remittal without limitation, subject to issue estoppel. In response, the Court said, at 387 – 388:
The applicant submitted that even if the case was remitted to the AAT without any limitation as to the scope of the matter to be dealt with, nevertheless the previous determination by the AAT that s 501(2) did not apply to Mr Gonzales created an issue estoppel with the consequence that Purvis J was in error in revisiting that issue and had been bound to determine it in the applicant’s favour.
Counsel for the applicant referred to many authorities bearing on whether issue estoppel applies to decisions of the AAT including… Counsel then submitted that we should conclude that a decision of the AAT can create an issue estoppel and that the determination that s. 501 (2) did not apply to Mr Gonzales had done so in the present case. The short answer to this submission is that our conclusion that Sackville J’s order related to the whole matter, so that the first decision of the AAT was set aside in its entirety, means that nothing remained upon which, on any view, an issue estoppel could be found.
In her written closing submissions, Ms Ryan referred to Morales submitting:
… The Full Federal Court observed that “the essentially administrative nature of the tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard among other things to the dictates of fairness, point to the conclusion that the tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the early decision at some time”.
The problem is, and regrettably I must say that I expected better from counsel, that
Ms Ryan failed to add the sentence which follows the statement quoted above by the Full Court of the Federal Court:
Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.
In this case, it seems to me that I should review all of the evidence regarding the incidents which Mr Elton claims gave rise to his psychological injuries, howsoever they may be named, as well as his lumbar spondylosis and/or his spondylolisthesis. That is because her Honour set aside the entire decision of the Tribunal which necessarily places all issues in a position where they must be re-determined. The order made by Davies J refers to: the decision be set aside and the matter be remitted without limitations regarding prior evidence. Therefore, as in Morales, nothing remains upon which an issue estoppel can be founded. In other words, I am not bound by any prior decisions made in relation to the facts in this matter.
If that were insufficient, it is well understood that decisions of prior Tribunals cannot be binding on subsequent Tribunals. While the findings in the first decision made by the Tribunal (Senior Member Freidman) in 2014 were not the subject of any challenge on appeal, those findings cannot bind any subsequent Tribunal. A subsequent Tribunal is at liberty to adopt those findings but it is not required do so.
Ms Ryan submitted that I should do so particularly as there was no fresh evidence regarding the first incident which involved the Sydney sailing through a typhoon. With respect to Ms Ryan, I cannot agree.
Although Commodore Mulcare in his oral evidence at the hearing before Senior Member Freidman referred to what was stated in the Ship’s Log regarding the sea swell, there was no objective analysis of the state of the sea at that hearing. When it was put to Commodore Mulcare in cross-examination that the weather was really rough, he stated it was only rough weather but it got really rough later on, which was a reference to the voyage in the Southern Ocean when the ship was transiting between Fremantle and Melbourne.
On the hearing before me, I had significant objective material regarding the sea state and, in my view, that material is relevant and was not referred to by Senior Member Freidman. Whether it was before him or not is irrelevant. Ms Ryan submitted that it was an abuse of process for the Repatriation Commission to contend that the first incident did not occur. With respect, that grossly overstates what was put by Ms C Dowsett of counsel, who appeared on behalf of the Commission. There was discussion about this evidence and particularly the report Commodore Mulcare provided for Writeway regarding the so-called typhoon. Apparently Commodore Mulcare had not been examined on that evidence at the hearing before Miss Shanahan. After it was thought that it may not be possible to get transcript of Commodore Mulcare’s earlier cross-examination, it was agreed that he would be cross-examined at this hearing, which in fact happened. His examination and cross-examination at the hearing of this matter did result in new evidence.
Diagnosis
PTSD/GAD
Prior to determining whether incapacity from a disease or injury is war-caused, a
decision-maker must first determine the nature of the injury or ailment which is claimed to cause the incapacity. As the Full Court of the Federal Court of Australia (Keane CJ, Jacobson and Bennett JJ) said in Repatriation Commission v Bawden (2012) 206 FCR 296, at 305:
… Diagnosis is a process which necessarily involves examining a collection of symptoms in order to identify disease in accordance with diagnostic criteria…
A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s. 120(4), they constitute a disease for the purpose of entitling a veteran to a pension.
Section 120(4) of the Veterans’ Entitlements Act 1986 (VE Act) deals with the standard of proof when determining a diagnosis. It provides:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
What is meant by the expression reasonable satisfaction was dealt with by the
Federal Court of Australia in Repatriation Commission v Smith (1987) 15 FCR 327, at 334-335, where it said that the expression was intended to introduce the standard of proof required in civil litigation. In other words, I am required to determine diagnosis on the balance of probabilities.
Where the injury said to have been suffered by the veteran is claimed to be PTSD, diagnosis raises problems peculiar to that disease or injury. By its description, it first requires a finding of a trauma or traumas sufficient to warrant such a diagnosis. Therefore, if a decision-maker (usually a psychiatrist) only examines the traumatic events described by the veteran which he or she claims occurred in the course of operational service, that may not yield an explanation for the symptoms described by the veteran because it fails to take into account that there may have been other traumatic events which have occurred outside the operational service of the veteran which have caused the development of PTSD.
There are further problems in making the diagnosis. As I have stated in previous decisions dealing with PTSD, a psychiatrist examining a veteran in respect of this injury must, necessarily, rely on statements about the traumatic event or events made by the veteran. The psychiatrist is in no position to verify any statement made by a veteran in the course of his or her examination, nor is a psychiatrist in a position to determine the accuracy of those statements. Invariably, the decision is clouded in circumstances where financial remuneration or benefit eligibility plays a role as it does in veterans’ cases.
The problem is further compounded for the reason that the diagnostic features of PTSD set out, previously in DSM-IV-TR and now DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, published on 18 May 2013) are available to any person who cares to search the Internet. Therefore, in respect of DSM-IV-TR, a psychiatrist is frequently given the description of an event which fits the description: involving death, injury or threat to the physical integrity of another person. The psychiatrist will also usually be given a description of the veteran’s reaction to such an event indicating that they felt intense fear, helplessness, or horror. That is despite whether that description is appropriate to the circumstances of the event. Often, it is not. The psychiatrist will then be given a number of the diagnostic criteria set out in DSM-IV-TR and now, DSM-5. Regularly, the words used by the veteran are precisely those words found in the Diagnostic Manuals. They are not words which those persons would ordinarily use in describing the event in question. Regardless, in those circumstances, a diagnosis of PTSD is often made.
The introduction to DSM-5 describes its use in the following way (page 19):
…The primary purpose of DSM-5 is to assist trained clinicians in the diagnosis of their patients’ mental disorders as part of a case formulation assessment that leads to a fully informed treatment plan for each individual. The symptoms contained in the respective diagnostic criteria sets do not constitute comprehensive definitions of underlying disorders, which encompass cognitive, emotional, behavioural, and physiological processes that are far more complex than can be described in these brief summaries. Rather, they are intended to summarise characteristic syndromes of signs and symptoms that point to an underlying disorder with a characteristic developmental history, biological and environmental risk factors, neuropsychological and physiological correlates, and typical clinical course.
Approach to Clinical Case Formulation
The case formulation for any given patient must involve a careful clinical history and concise summary of the social, psychological, and biological factors that may have contributed to developing a given mental disorder. Hence, it is not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis. Although a systematic check for the presence of these criteria as they apply to each patient will assure a more reliable assessment, the relative severity and valence of individual criteria and their contribution to a diagnosis require clinical judgement.
The introduction to DSM-5 recognises the problem of a useful measure for disability resulting from mental disorders. It therefore uses a generic diagnostic criterion dealing with clinical significance. The introduction states, at page 21:
…Therefore, a generic diagnostic criterion requiring distress or disability has been used to establish disorders thresholds, usually worded “the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.” The text following the revised definition of a mental disorder acknowledges that this criterion may be especially helpful in determining a patient’s need for treatment. Use of information from family members and other third parties (in addition to the individual) regarding the individual’s performance is recommended when necessary.
DSM-5 also issues a cautionary statement regarding forensic use of the document. It explains that the diagnostic criteria and text in DSM-5 are primarily designed to assist clinicians in conducting clinical assessment, case formulation and treatment planning. Nevertheless it recognises that the document is also used as a reference for courts and lawyers in assessing the forensic consequences of mental disorders. It cautions, however, that DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. It states that the dangers arise because of the imperfect fit between the questions of ultimate concern for the law and the information contained in a clinical diagnosis.
It is the rare occasion where I have been provided with a report from a psychiatrist where the psychiatrist has obtained information from family members or other third parties. This case is no different as will become apparent presently. In those circumstances, it is difficult to understand how a psychiatrist can arrive at a measure of the clinical significance of what has been reported by the veteran. If I were to simply accept what the psychiatrist says, which is based solely on the information given to the psychiatrist by the veteran, I am doing no more than simply ticking the box. Significantly more information is required in the evidence for a proper finding, on the balance of probabilities, that a particular mental disorder is not only apparent, but is clinically significant. That is because diagnostic criterion G in respect of PTSD provides:
The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Four psychiatrists gave evidence regarding Mr Elton’s psychological injury claim. They were Dr P Collier, Dr A Kaplan, Dr A Velakoulis and Dr N Strauss.
Dr Collier examined Mr Elton on five occasions commencing on 12 July 2012, prior to writing a report which is dated 9 November 2012. Mr Elton gave Dr Collier an account of his two trips to Vietnam on HMAS Sydney. These are the relevant parts of his report regarding those trips:
When in Vung Tau Harbour it was quite clear to him that they were in a war zone. There were gunships overhead and landing on board. Many heavily armed soldiers were on board. Boats with armed crews were around the ship. Charges were being used to deter enemy divers. Planes doing bombing runs could be seen.
… “We were told we were a major target… On the second trip a rumour went around that intelligence had learned that we were to be blown up. I was scared shitless.”
The hours on watch from days out of arrival in Vung Tau, and being in action stations while there, were exhausting.
…
While on HMAS Sydney the ship hit a typhoon just north of the Sunda 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 of 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 thought he was going to end up over the side because of the movement of the ship. Again he was in fear for his life.
Dr Collier said that some of the experiences described by Mr Elton clearly met the A or trauma criterion for PTSD according to DSM-IV-TR. He administered what he described as the Davidson’s Structured Interview for PTSD and found that Mr Elton reported a number of symptoms with at least a moderate degree of intensity.
The A criterion in DSM-IV-TR states:
A. The person has been exposed to a traumatic event in which both of the following were present:
(1) 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
(2) the person’s response involved intense fear, helplessness, or horror.
DSM-5 relevantly describes the A criterion as follows:
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(1)Directly experiencing the traumatic event(s).
(2)Witnessing, in person, the event(s) as it occurred to others…
Dr Collier then went on to describe what was reported to him by Mr Elton in respect of the diagnostic criteria listed under B, C and D. Given that responses are provided to all of the descriptors set out in those criteria, which includes five for B; seven for C; and five for D; it is reasonable to infer that each of those descriptors regarding responses to the traumatic event was put to Mr Elton by Dr Collier. It is unlikely that he volunteered all of that information without being prompted. The problem with that form of questioning is that it is leading, therefore suggestive of the response required. That evidence would carry significantly more weight if Mr Elton was simply asked to explain the concerns which he experienced as a consequence of the traumatic events to which he claimed to have been exposed.
After providing the answers given by Mr Elton to his questioning, without anything further, Dr Collier stated:
The range, duration and severity of the above symptoms indicate that Mr Elton’s condition meets the diagnostic criteria for PTSD, according to DSM IV.
I also consider the possibility of a depressive disorder affecting Mr Elton.
Under the heading Clinical Examination, Dr Collier recorded the following which is relevant:
… Anxious as [sic] interview. Mood essentially euthymic [cheerfulness of mind]. Normal thought stream and form. Circumstantial historian. No pervasive depressive themes. No suggestion of psychosis. Not suicidal or homicidal.
Cognition not formally tested, but alert and gave relevant answers to all questions put to him.
It is difficult not to come to the conclusion that Dr Collier has used the diagnostic criteria for PTSD in DSM-IV-TR in an inappropriate way without any evidence of clinical judgement. Dr Collier simply asked Mr Elton direct questions about the diagnostic criteria. Having received answers which one would have expected from a person in Mr Elton’s position, that is, in a self-serving way, Dr Collier concluded Mr Elton had acquired PTSD.
Significantly, Dr Collier did not address criterion F of DSM-IV-TR which states:
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Dr Collier did not take evidence from any family members or other third parties who may have, and probably must have, observed the behaviours which Mr Elton described in the answer to the questions put by Dr Collier in relation to the diagnostic criteria for PTSD. That, in my opinion, is a significant omission. Without the evidence of others, the only evidence that I am left with, and that which was before Dr Collier, was what was related to him by Mr Elton. If I am asked to make a finding regarding the diagnosis of PTSD on this material, I would simply be ticking the box. That is not the way in which this Tribunal can make a proper decision about diagnosis.
Dr Collier recorded the history given to him by Mr Elton, which included that after leaving the Navy, he commenced a marketing degree, and then left his studies for a real estate licence. He then worked as a real estate agent for more than 20 years. He lectured at the Royal Melbourne Institute of Technology and Swinburne University of Technology. He had been a successful radio broadcaster. More than often he had been self-employed.
Mr Elton also mentioned that he commenced a wine business in 2006. It seems that what Mr Elton omitted to tell Dr Collier about the wine business in 2006 was that this was conducted in Vietnam between 2006 and 2012. I am aware of this because I heard
Mr Elton’s application to the Tribunal in respect of an export grant relating to that business. It was a matter which was raised in the reasons for decision by Ms Shanahan but was not mentioned at the hearing. Consideration of that matter was referred to by Davies J in relation to procedural fairness. According to her Honour, both the Applicant and the Respondent agreed that Mr Elton was not on notice that the Tribunal would have regard to that decision when assessing his credibility.
While the matter was not specifically addressed before me, it was raised in relation to
Mr Elton’s application for recusal. I only raise it to make one small point and it has nothing to do with Mr Elton’s credibility. In answer to a question regarding Criterion C 2 of
DSM-IV-TR which states: efforts to avoid activities, places, all people that arouse recollections of the trauma, Mr Elton was recorded by Dr Collier as having said: states that being in Vietnam is difficult. Dr Collier did not attempt to explore this any further. Mr Elton told Dr Collier that he commenced a wine business. However, it is not clear whether
Dr Collier was told that the wine business was essentially for the purpose of exporting wine to Vietnam and that he lived in Vietnam for a considerable period of time as a consequence of that activity. That should have been explored by Dr Collier as should the remainder of the work activities Mr Elton described after he left the Navy. Dr Collier recorded that Mr Elton’s PTSD appeared to have had its clinical onset soon after Mr Elton returned from his first trip to Vietnam. Therefore, his ability to conduct all of those activities and possibly the reasons why he ceased conducting them are relevant in determining whether Mr Elton suffers from clinically significant distress or impairment from his claimed condition. Without that evidence from Mr Elton and in particular without evidence from family members and other third parties, it is not possible to determine, simply by the questionnaire provided by Dr Collier, whether Mr Elton in fact suffered clinically significant distress or impairment. The evidence regarding all of his activities post the Navy does not assist his claim. Those activities do not support a claim that Mr Elton has suffered clinically significant distress or impairment as a consequence of what he experienced in the course of his operational service.
Dr Collier gave oral evidence on the first hearing of this matter before Miss Shanahan. He was asked how he came to his diagnosis and he answered:
Well, questioning him I established that he reported extended periods of low mood and in association with the low mood, lack of ability to experience pleasure; concentration worse than usual; some appetite change; very low self-esteem and sometimes a level of suicidal ideation.
Strangely, in his written report Dr Collier expressly stated Mr Elton was not suicidal. Unfortunately, the cross-examination of Dr Collier focused essentially on Criterion A and whether or not the traumatic event or events as described by Mr Elton had a sound basis. In my opinion, that is unnecessary for the purpose of making a diagnosis of PTSD.
One simply needs to accept the account of the traumatic incident given by Mr Elton and then determine whether the symptoms following that event, described not only by Mr Elton but by others who have observed his behaviour, appear to indicate clinically significant distress or impairment in a range of activities. That is because, although it is expected that a veteran seeking compensation for PTSD will only refer to traumatic events which occurred in the course of his or her operational service, there is always the possibility that some other event may have triggered the onset of PTSD. Therefore, when one is attempting to determine whether the diagnosis is accurate, it is the subsequent symptomology which is paramount. The person may well have PTSD but it may not have been caused by the traumatic event described by the veteran. Diagnosis is simply the process of identification of the injury or disease.
Dr Kaplan examined Mr Elton on 14 August 2013. He provided a written report dated 16 August 2013. Dr Kaplan recorded Mr Elton telling him about the two tours of duty in Vietnamese waters on HMAS Sydney in late 1969 and 1970. He described three frightening incidents when HMAS Sydney was in Vietnamese waters. The incidents he described were when the ship suddenly and inexplicably shuddered and there was an unusual silence when Mr Elton thought the ship was about to sink; when he and another sailor found themselves on the flight deck in a storm and they feared they would be washed overboard; and the third incident was when Mr Elton said he was in the telephone exchange, well below deck and depth charges were dropped over the side periodically to deter divers. Mr Elton was not sure whether those explosions were depth charges going off and not enemy mines. The third incident now does not seem to have been part of
Mr Elton’s claim.
In the history recorded by Dr Kaplan, Mr Elton told him that following discharge from the Navy, he worked successfully for a telecommunications company, in sales, as a sales manager, and then for a computer company. He also said he spent 30 years working as a self-employed real estate agent. Mr Elton mentioned that in 2006 he established a wine export business and he continued this business until May 2012, retiring after a heart attack. Mr Elton apparently told Dr Kaplan that he was persuaded to go back to Vietnam in early 2000 and when he visited Vung Tau, he began just bawling my eyes out – just embarrassing. He said that this dread of going to Vietnam dissipated and he would later make frequent trips in the course of his business. In fact, Mr Elton understated that significantly as his wine export business involved a company in Vietnam in which he was a shareholder. Between 2009 and 2011 he lived in Vietnam almost entirely, returning to Australia for 131 days. Dr Kaplan was plainly not given an accurate account of Mr Elton’s involvement in Vietnam through his business. That information may or may not have affected Dr Kaplan’s opinion.
Contrary to what Mr Elton told Dr Collier, Dr Kaplan recorded Mr Elton saying: I’ve been suicidal on many occasions… There’s been times when I’ve quite seriously thought about it.
Mr Elton then proceeded to describe many of the symptoms which may be found in the Diagnostic Criteria for PTSD in DSM-IV-TR. For example, Mr Elton said that he was irritable, the irritability first developing after his first trip into Vietnam waters. He said his brother noted the change in his behaviour, complaining that Mr Elton was aggressive and drinking excessively. According to Mr Elton, his brother described the change in behaviour to him commenting that he was really a placid sort of a kid until then. Despite that, I had no evidence from Mr Elton’s brother or any explanation for why that was the case. In addition, Mr Elton is married, and no doubt his wife would have been well placed to provide evidence of the symptoms he described as experiencing. There appears to have been no reason why Mr Elton’s wife could not have accompanied him on examination by Dr Kaplan or why Dr Kaplan did not ask for her to be present. Mr Elton also mentioned that he had a few close and loyal friends over the years who had been understanding and tolerated his ranting and raving. No evidence was provided from any third parties.
Under the heading Mental State Examination, Dr Kaplan described Mr Elton presenting as an overweight, neatly and casually attired 60-year-old man. He said Mr Elton was voluble, direct and cooperative. He said Mr Elton described intrusive thoughts of his Vietnam experiences. He otherwise displayed no abnormalities of speech, thinking or perception. Dr Kaplan said Mr Elton was intense and appeared on edge.
As for his opinion, Dr Kaplan recounted what Mr Elton told him his symptoms were.
He made no reference to the Diagnostic Criteria in DSM-IV-TR or whether the symptoms caused Mr Elton clinically significant distress or impairment in social, occupational, or other important areas of functioning. There was no reference to any other persons having been interviewed. Despite all of that, Dr Kaplan found that Mr Elton’s condition was probably best characterised as PTSD with a differential diagnosis of a GAD associated with Depression. Once again, and with respect to Dr Kaplan, the evidentiary material he has described falls far short of what would ordinarily be required for a proper diagnosis of any psychological condition, whatever the cause.
Dr Velakoulis provided a report dated 21 April 2011 in which he said he first assessed Mr Elton in November 2010. It appears to have been as a consequence of his long-standing high level of alcohol intake and complications resulting from that. Dr Velakoulis said that one of the complications regarding Mr Elton’s alcohol intake was his occupation, that he had a significant wine distribution business in Vietnam. Mr Elton described his alcohol intake as an occupational hazard associated also with chronic stress.
Dr Velakoulis also said that Mr Elton described a cluster of symptoms possibly consistent with past PTSD but then added: I gather these have generally improved since 2004-5.
Mr Elton then apparently said that prior to this period, he experienced vivid service related dreams recurring on a nightly basis and in particular associated with being on
HMAS Sydney in typhoon conditions. He apparently said his dreams were now largely resolved and he experienced no daytime re-experiencing and no particular avoidance symptoms. He said he could be irritable and occasionally exhibited an exaggerated startle response but his sleep remained chronically disturbed. Mr Elton did refer to stressors, not related to his service with the Navy, but rather to expanding his business in Vietnam and his attempt to manage it.
He told Dr Velakoulis that he was once assessed by a psychologist for depression but never had treatment for that condition. He also told Dr Velakoulis that other than being unfit, mildly overweight and having gastric reflux and a fatty liver, he had no other significant illnesses and took no current medication.
In describing Mr Elton’s mental state, Dr Velakoulis said:
… he presented as alert and oriented to time place and person. He was mildly anxious but his mood was euthymic. Major themes related to work-based stress and his alcohol intake, which he did not feel was problematic. He was not suicidal. Brief attention and memory testing revealed no abnormality.
Dr Velakoulis concluded that Mr Elton likely had a past history of PTSD related to his naval experience although his current symptom profile was likely to be sub-clinical.
Dr Strauss interviewed Mr Elton on 6 June 2013 for the purposes of preparing a psychiatric report. His report is dated 7 June 2013. Mr Elton gave Dr Strauss a similar work history to those I have described above. In addition, this is the first occasion on which Mr Elton properly described his contact with Vietnam subsequent to his naval experience. Dr Strauss reported:
He said he was in the export Wine business for seven years and he said that in the latter years his business was under a good deal of financial pressure.
He said he finally stopped working last year [2012] because he took a heart attack in May. At that time he said he was spending a good deal of time in Vietnam particularly in Saigon because he exported wine to that area.
He said that he was told after his heart attack that he had significant problems with the blood supply to his heart and he said he had a number of stents placed in his heart both in Vietnam and in Australia.
Mr Elton did not mention to Dr Strauss feeling distressed or concerned in any way as a consequence of returning to Vietnam after his naval service in the area. He mentioned that he had been advised to stop working and that overall he lost money as a result of the wine export business. He said he now spends a lot of time seeing doctors and resides in Melbourne with his wife. Dr Strauss makes no mention of his wife being present on the interview.
Dr Strauss recorded a brief history of Mr Elton’s naval service given to him on interview. He said Mr Elton told him he completed two trips to Vietnam in 1969 and 1970 and that he had three incidents on board that were upsetting. What was not said about the trips to Vietnam in any of the medical reports is how long Mr Elton was in fact in the operational area. The three incidents he described are those to which I have referred above.
Mr Elton explained to Dr Strauss his long use of marijuana, for a period of some 20 years. He also described abusing alcohol. Mr Elton told Dr Strauss he had managed his life reasonably well despite abusing alcohol and cannabis and that his real estate business was reasonably successful. Over the years, he had not required any psychological or psychiatric treatment but stated he had been irritable at times and believed that his concentration had not been good for years. He put that down to cannabis use. Mr Elton also apparently said that there have been times when he had dreams and flashbacks to his time in Vietnam but these had ceased. He said when he went back to Vietnam he was initially fearful but adapted well to the country and coped living there intermittently.
Significantly, and again unpredictably, on this occasion Mr Elton said that at times he felt a little depressed but not often and that he was not actively suicidal. He mentioned he become irritable. He said he was not having any nightmares or flashbacks.
Under the heading Mental Status Examination, Dr Strauss noted that Mr Elton was somewhat outspoken and expressed himself quite clearly and forcefully. He struck
Dr Strauss as being a man with fixed opinions. He was not particularly depressed nor was he particularly emotional. He showed no evidence of psychosis or delusions or thought disorder.
Dr Strauss noted the three episodes described by Mr Elton and said that while they may have been distressing for a young man, they did not bring about the development of a psychiatric illness in him. Significantly for this case, Dr Strauss provided the following opinion:
I do not believe that he has any other psychiatric condition. I do not believe that he suffers from a post-traumatic stress disorder or a depressive illness.
Dr Strauss was also of the opinion that Mr Elton was suffering from alcohol dependence in partial remission but he did not believe that Mr Elton suffered from a condition described as drug abuse. He was of the view that from a purely psychiatric point of view, Mr Elton was capable of normal work and he did not believe that Mr Elton had an incapacity but that he may be incapacitated for work on physical grounds. From a psychiatric point of view, he appeared to be coping with his life reasonably well. He did see a few friends and he continued to live with his wife. He was involved in some domestic activities and seemed to be able to keep himself occupied. He concluded that Mr Elton did not have a significant psychiatric disability and that he did not require any psychiatric treatment.
Dr Strauss seems to have formed this opinion essentially on the nature of the stressors described by Mr Elton. With respect to Dr Strauss, while experiencing a traumatic event is an essential ingredient for the development of PTSD, it should not be limited, at diagnosis stage, to the traumatic event described by the veteran. There may be other reasons for the development of symptoms which resemble those for PTSD. Furthermore, Dr Strauss did not go any further and seek to interview Mr Elton’s wife or brother or any other persons associated with Mr Elton at any stage including through his working life in Australia or overseas. The reason may be that, as Dr Strauss said in the introduction to his report, he had been informed that Mr Elton was seeking entitlement for marijuana abuse in full remission and alcohol dependence. His focus seemed to be on those two conditions rather than PTSD or GAD. In referring to the stressors described by Mr Elton, Dr Strauss referred to 1A or 1B stressors which is a reference to the Statement of Principles (SOP) published by the Repatriation Medical Authority. The SOPs play no part in the diagnosis of a medical condition. They are used to determine whether hypothesis relied on by an applicant is reasonable. They have nothing to do with diagnosis.
It should be apparent that I find all of the psychiatric reports prepared in this matter to be deficient. They cannot assist in making a diagnosis of PTSD. To be fair to Dr Strauss, he was not asked to focus on PTSD or GAD. Nevertheless, his finding is significant in that he could not find that Mr Elton had a significant psychiatric disability from the information told to him by Mr Elton. The remaining psychiatrists relied solely on what was told to them by Mr Elton. Not one of them addressed the clinical significance of the symptoms given to them by Mr Elton. There was no assessment of third-party or independent evidence of the symptoms described by Mr Elton or evidence of clinically significant distress or impairment in social, occupational or other important areas of functioning. Mr Elton also provided contradictory information regarding his symptoms. While this may be due to the fact that the investigations were conducted between April 2011 and June 2013, that is unlikely to provide the entire answer.
In my opinion, the evidence before me on the diagnosis of Mr Elton’s psychiatric state does not permit a safe finding, on the balance of probabilities, that he has or at any stage had PTSD. Furthermore, the evidence does not permit a safe finding that Mr Elton suffers or has suffered from any other mental injury up until the time of his examination by Dr Strauss in 2013.
In the event that I am wrong about my findings on diagnosis, assuming that Mr Elton does have or has had PTSD or some other named mental injury, I shall proceed with the enquiry as to whether those injuries could be described as war-caused.
Lumbar spondylosis/spondylolisthesis
The first mention I am able to locate of lumbar spondylosis is in a report prepared by
Dr Rob Moffitt dated 31 October 2012. He described Mr Elton as reporting back pain radiating down to the legs and that pain persisting whether sitting or lying down. Dr Moffitt also reported crush fractures at T12 and L1, referring to a CT scan attached to his report. I did not have a copy of that report in evidence. I did have a brief x-ray report dated 14 April 2004 which stated the following:Vertebral alignment is straight with moderate narrowing of the L4/5 and L5/S1 discs. The other disc heights are normal.
The bones are mildly osteopaenic, and there is slight compression of the superior margins of the T12 and L1 vertebral bodies.
Moderate degenerative changes involve the L4/5 and L5/S1 posterior facet joints.
I also had in evidence an x-ray report done on 12 April 2005. The conclusion on that report stated:
Disc desiccation at L4/5, with mild broad-based disc bulge and what appears to be a sequested [sic] fragment which is compressing the left L5 nerve root. There is also a anterior spondylolisthesis of L5 on S1 secondary to bilateral pars and articularis defects with mild narrowing of the neural exit foramina.
Dr R Horsley, an Occupational Physician, examined Mr Elton on 11 September 2013 and provided a report dated 15 October 2013. Dr Horsley referred to a CT scan of the lumbosacral spine dated 4 July 2012 and said:
At L4/5 there is a small disc bulge indenting the thecal sac without compromising the spinal canal or exiting the neural foramina. At L5/S1 there is a minor spondylolisthesis with forward slip of L5 on S1 by approximately 5 mm secondary to bilateral pars defect. There is narrowing of the exit neural foramen bilaterally with flattening of the nerve root within the foramina greater on the right than on the left. The visualised portion of the sacroiliac joints demonstrates degenerative changes in both sacroiliac joints greater on the left than on the right.
Conclusion: Degenerative change in the lower lumbosacral spine particularly at L4/5 and L5/S1. Bilateral pars defects at L5/S1.
Associate Professor B Love, Orthopaedic Surgeon, examined Mr Elton on
29 September 2015. He provided a report of the same date. Associate Professor Love referred to the CT scan done in July 2012 and another in September 2015. He reported:
Further imaging including the CT scan dated July 2012 and September 2015 reveals severe linking osteophytes anteriorly through the lumbar spine with significant loss of disc height at the L5/S1 level and a degenerative spondylolisthesis at the L5/S1 level. The MRI confirms the findings of the multi-level degenerative disc disease.
I find that the evidence to which I have referred above supports a diagnosis of lumbar spondylosis/spondylolisthesis. The radiology indicates degenerative change in the lower lumbosacral spine.
War-caused injury or disease
Where a veteran has rendered operational service, as in Mr Elton’s case, the standard of proof is that set out in s. at 120 of the VE Act. Relevantly, it provides:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of the veteran, or the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120 A.
Section 9 of the VE Act deals with war-caused injuries or diseases. Relevantly, it provides:
(1)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 the veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or the disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
There need not be a direct consequence relationship between the occurrence and the disease contracted by the veteran. It may be an event or a series of events with a latent or delayed consequence in which the onset or development of the disease is not manifested until a later date (see Repatriation Commission v Keeley (2000) 98 FCR 108 at 115).
Bearing in mind the standard of proof provision in s. 120(1), I am required to consider the whole of the material before me when determining whether there is a reasonable hypothesis connecting Mr Elton’s PTSD/GAD and lumbar spondylosis/spondylolisthesis with the circumstances of the service rendered. Section 120(3) of the VE Act provides:
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
There is nothing in the provisions set out in the VE Act which entitles the Repatriation Commission, or this Tribunal on review, to presume that an injury suffered by a person is a war-caused injury or a defence-caused injury (s. 120(5)).
As is indicated by s. 120(3), the initial analysis involves an examination of the hypothesis put forward by the veteran by which his claimed injury or injuries are connected to his operational service. Since the introduction of the SOPs, when dealing with claims made after 1 June 1994, the reasonableness of the hypothesis must be assessed by reference to the SOPs where in respect of a claimed injury or disease, a SOP has been made by the Repatriation Medical Authority. This is dealt with in s. 120A of the VE Act which relevantly provides:
…
(3) For the purposes of subsection 120(3), a hypothesis connecting and injury suffered by person, a disease contracted by a person or the death of the 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.
When determining whether the whole of the material before the Tribunal discloses a reasonable hypothesis, it is important to bear in mind that a hypothesis is merely a proposition made as a basis for reasoning without the assumption of its truth. Therefore, there is no place for fact-finding in the process of determining whether the hypothesis is reasonable. I am required to look at the whole of the material and assess it against the factors which must be present as indicated by the relevant SOP for the causal connection to be made. Whether the facts establish the connection is the last step in this process.
Section 196B(2) deals with the functions of the Repatriation Medical Authority and the determination of SOPs. Relevantly, it provides:
…
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veteran; or
…
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 maximum exist; and
(e) which of those factors must be related to service rendered by the 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.
The expression related to service for the purposes of the Act is explained in s. 196B(14) in the following way:
(14) A factor causing, or contributing to, and 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
…
(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, and 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
…
The existence of a reasonable hypothesis
As I have already indicated, for the purposes of this analysis, I will assume that Mr Elton has developed PTSD or GAD or both. There is no such problem with his claim for lumbar spondylosis/spondylolisthesis.
PTSD
There are two SOPs which may be applicable in respect of the PTSD claim. The relevant SOP which was current at the time Mr Elton lodged his application with DVA was
No. 5 of 2008 which came into effect on 9 January 2008. The second SOP is
No. 82 of 2014 which revoked the previous SOP and came into effect on
22 September 2014.
SOP No. 5 of 2008 describes PTSD as a psychiatric condition meeting the diagnostic criteria derived from DSM-IV-TR. By way of distinction, SOP No. 82 of 2014 describes PTSD as a psychiatric disorder which meets the criteria derived from DSM-5. Because there are significant differences between the two relevant SOPs I should apply what was said by the Full Court of the Federal Court of Australia in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton (2001) 110 FCR 321.
The Full Court in Keeley explained how the SOPs under the VE Act in these circumstances should be applied. Lee and Cooper JJ said, at 122 – 123:
The subsection [120A(2)], in combination with s 196B, purports to limit the right to have a claim determined under the Act by restricting the material relevant to such determination to material that is relevant to the contents of a Statement determined under s 196B. The provisions do no more than clarify the meaning of the terms in
s 120(3) and how they are to be applied. They purport to restrict the operation of
s 120(3) to the terms of the Statement determined under s 196B and in doing so substantively reform the nature of the right that is to be determined under the Act by application of the provisions of s 120. The right that accrued to the respondent upon lodgement of a claim, to have the claim determined under any Act by the Commission, was “affected” accordingly.
…
Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision has been made, is to be conducted as if the former Statement had not been revoked.
The Full Court in Gorton upheld the decision in Keeley. While all of the judges (Heerey, Emmett and Alsop JJ) provided individual reasons, they were in agreement. What was said is best summarised by what Alsop J said at 336:
If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SOP, the SOP current at the date of the Commission’s decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SOP, the Tribunal is of the view that the claim should be refused, it should not do so without assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SOP. This is not a right of “election”. It is a sequential approach mandated by a combination of the Act and the Full Court’s decision in Keeley.
Following what was said by the full Court in Gorton, I should first apply the current SOP, being No. 82 of 2014, concerning PTSD. The important distinction between that SOP and its predecessor is that the criteria for establishing PTSD and its relationship with the service rendered by the veteran are based on DSM-5 which are significantly different to those described in DSM-IV-TR. Clause 3(b) of the SOP provides:
For the purposes of this Statement of Principles, “post-traumatic stress disorder” means a psychiatric disorder which meets the following criteria (derived from DSM-5):
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i) directly experiencing the traumatic event (s);
(ii) witnessing, in person, the event (s) as it occurred to others;
…
The repealed SOP, No. 5 of 2008, has the following description at Clause 3(b):
For the purposes of this Statement of Principles, “post-traumatic stress disorder” means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event which:
(i) 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
(ii) the person’s response involved intense fear, helplessness, or horror; and
…
In my opinion, SOP No. 5 of 2008 is likely to be more beneficial for Mr Elton. That is because it includes the words: or was confronted with. The Full Court of the Federal Court of Australia (Black CJ, Weinberg and Selway JJ) in Woodward v Repatriation Commission (2003) 131 FCR 473 dealt with that expression. The court said, at 495:
In any event, as a matter of ordinary language, to be “confronted” with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he “confronts”. This is no less the case when the confronting event is one involving death or serious injury.
The first traumatic incident described by Mr Elton was during the storm on his first trip to South Vietnam when the ship shuddered and lurched and then everything appeared to go still and quiet. Mr Elton described being petrified that the hull of the ship might have been breached and he climbed the ladder to the upper deck as quickly as he could, fearing he might drown. On that same trip, while still experiencing the effects of the storm, he was asked to participate with another sailor as a work party on the flight deck. In the course of being on the flight deck, he explained that the conditions seemed to worsen and he was terrified of being washed overboard while running for protection to the Tower of the ship which provided a degree of safety. The third incident, although not in its entirety relied upon by Mr Elton, did cause him to be concerned for his safety. In particular, he mentioned seeing aircraft on bombing runs and hearing the explosion of the bombs.
In my opinion, those events as described by Mr Elton satisfy Criterion A of the SOP
(No. 5 of 2008). While not necessarily physically confronted with a threat to his physical integrity, that was his perception at that time. In addition, he described fearing for his life. Mr Elton in his evidence also described persistently re-experiencing the traumatic event; avoidance of stimuli associated with the trauma; persistent symptoms of increased arousal; the duration of the disturbance persisting for more than one month; and his description of the disturbance causing clinically significant distress or impairment in social and occupational areas. In other words, his evidence addresses the remaining criteria for the establishment of PTSD.
Clause 5 of the SOP provides that at least one of the factors set out in Clause 6 must be related to the relevant service rendered by the person. Relevantly, Clause 6 provides:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post-dramatic stress disorder or death from post-traumatic stress disorder with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
And in Mr Elton’s case, it is the category 1A stressor which is relevant. That is described in Clause 9 of the SOP in the following way:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
…
On the evidence given by Mr Elton, I find that he was exposed to a category 1A stressor before the clinical onset of PTSD. That is, he experienced a life-threatening event. Therefore, I find that Mr Elton’s hypothesis is reasonable.
GAD
The only evidence before me of Mr Elton having GAD associated with Depression came from Dr Kaplan. The SOP dealing with that condition describes it as Anxiety Disorder rather than GAD. It points out it was formerly referred to as GAD. The relevant SOP is
No. 102 of 2014 as amended by No. 99 of 2016. The Amendment SOP replaced the definition of anxiety disorder. Nothing turns on that for these purposes. The factor which must exist before it can be said that a hypothesis is reasonable is that the applicant experienced a category 1A stressor within five years before the clinical onset of anxiety disorder. The definition of a category 1A stressor is identical to that in the SOP concerning PTSD. Assuming, for these purposes, that Mr Elton has acquired Anxiety Disorder associated with Depression, on his evidence, I find that his hypothesis is reasonable as it satisfies the factor requiring an experiencing of a category 1A stressor.
Lumbar spondylosis/spondylolisthesis
The current SOP for lumbar spondylosis is No. 62 of 2014. Clause 3(b) describes the condition in the following way for the purposes of the SOP:
… “lumbar spondylosis” means a degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs with:
(i) clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression; and
(ii) imaging evidence of degenerative change, including disc space narrowing or osteophytes.
The expression trauma to the lumbar spine is defined in the SOP as follows:
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, either altered mobility or range of movement in the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset; save for whether medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:…
The current SOP for spondylolisthesis (and spondylolysis) is No. 24 of 2017. For the purposes of the SOP, Clause 7(2)(a) describes the condition as follows:
spondylolisthesis means forward displacement (anteriolisthesis) or backward displacement (retrolisthesis) of one vertebra over the vertebra below;…
Regarding lumbar spondylosis, the factors which must be present as a minimum before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person’s relevant service are more beneficial to Mr Elton in the earlier SOP, No. 37 of 2005. In that case, the factor relied on by Mr Elton is stated as:
having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;…
As for spondylolisthesis, the factor in the current SOP (No. 24 of 2017) is slightly different to its predecessor, No.5 of 2006. The earlier SOP is probably more beneficial as it provides for a period of six weeks following trauma for the clinical onset of spondylolisthesis being established. The current SOP (No. 24 of 2017) requires the clinical onset to be at the time of experiencing the trauma. The revoked SOP (No. 5 of 2006) states:
experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical onset of spondylolisthesis or spondylolysis;…
In his evidence, Mr Elton described a fall in the course of the storm when on board
HMAS Sydney. On the scant information that is available, particularly as Mr Elton did not seek medical treatment at the time of the fall, the most favourable view which I can take is that he did suffer trauma to the lumbar spine. As described by Mr Elton, it does not appear to have been a high impact trauma resulting in an acute fracture of the vertebral part or dislocation of the involved vertebra. The evidence does not support that. Accordingly,
I find that the hypothesis connecting his operational service with his lumbar spondylosis is reasonable but not so his spondylolisthesis. The factor required to establish a reasonable hypothesis connecting his spondylolisthesis with his operational service is not apparent on the whole of the evidence before me.
Having found that Mr Elton’s hypotheses connecting his claim to PTSD, GAD and Lumbar Spondylosis with his operational service to be reasonable, the only remaining consideration is whether I am satisfied, beyond reasonable doubt, that there is no sufficient ground for finding that those conditions can be described as war-caused.
Whether there is no sufficient ground for making a determination that Mr Elton’s PTSD, anxiety disorder and lumbar spondylosis are war-caused
The final step in determining whether a veteran’s claimed injuries or diseases are
war-caused is an analysis of the evidence and findings on the facts. The High Court of Australia
(Mason CJ, Gaudron and McHugh JJ) put it this way in Byrnes v Repatriation Commission (1993) 177 CLR 564, at 570:Once a reasonable hypothesis is raised, the question for the Commission is whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or facts relied on to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.
This is where a careful analysis of the facts must take place. In Mr Elton’s case, there are a number of significant problems identified by the evidence which I must resolve. I should also point out that this has nothing to do with Mr Elton’s credibility. Findings regarding credibility have no place in a merits review process. It is a case of comparing Mr Elton’s evidence with objective evidence where that is available, particularly from contemporaneous documents prepared by persons with no interest in this matter. Where that evidence differs from the evidence given by Mr Elton, the best evidence will necessarily be the objective contemporaneous documentary evidence.
Mr Elton’s evidence, by its nature, is self-serving. It is based on memory of events which took place in excess of 40 years ago. The same can be said of the evidence given by three lay witnesses who provided written statements and gave oral evidence at the hearing of the matter. None of my findings in relation to this evidence should be regarded as a criticism of Mr Elton or those lay witnesses. It is not an assessment of their credit.
In her written submissions regarding the standard of proof, Ms Ryan directed my attention to the High Court of Australia decision in Keely v The Honourable Mr Justice Brooking (1979) 143 CLR 162. It was a special leave application to appeal the decision of the Supreme Court of Victoria where Justice Brooking found a witness to be in contempt of court and sentenced him to 6 months imprisonment. In the course of submissions from counsel representing the appellant, while the standard of proof was not in question, that being beyond reasonable doubt, it was put that additional criteria needed to be satisfied and beyond reasonable doubt was not enough. This is what led to the statement made by Barwick CJ in relation to that submission, where his Honour said, at 169:
Adherence to the well understood standard of proof in the trial of criminal offence is quite adequate to protect the individual charges [sic] summarily with contempt of court. To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.
In effect, what his Honour was saying was that the beyond reasonable doubt standard was as high as the law could put the degree of satisfaction required for a finding. I do not understand his Honour to be suggesting that in order to make a finding beyond reasonable doubt, the decision-maker must be certain of the facts upon which he or she relies. I find support in my understanding of what his Honour said in the judgement of Stephen J where he said, at 172, after referring to the submissions made by Judge Learned Hand in United States v. Appel (1913) 211 Federal Report 495:
What was said by Judge Learned Hand in United States v. Appel (1913)
211 Federal Reporter 495 and in subsequent American authorities upon which the applicant relied, like certain passages which appear in the judgements in Coward v. Stapleton (1953) 90 CLR 573, provides no support for the submission that some quite especially high standard of proof was called for in this case.… Because the very nature of this sort of alleged contempt involves a possibility that the testimony may in fact be honest truth, the witness indeed having made “a bona fide effort to answer the questions” (United State v. Appel (1913) 211 Federal Reporter, at p 496), great care is called for on the Court’s part in satisfying itself that he is in fact lying so as to fob off enquiry; what was said in Coward v. Stapleton (1953)
90 CLR, at p 580 does no more than emphasise this.
I should also refer to the following passage from the reasons given by Mason and Aickin JJ at 176:
At times the case presented for the applicant seemed to confuse the requisite standard of proof with the relevant legal principles to be applied. It is clear that the degree of satisfaction required before there can be a conviction for contempt of court is proof beyond a reasonable doubt. Anything less would be inappropriate to a finding of criminal contempt. But there is no basis for saying that some higher standard of proof can and should be employed in a case of contempt. The law acknowledges no higher standard of proof than proof beyond a reasonable doubt and, indeed, it is the standard which the law prescribes in criminal cases. No doubt a judge should be cautious in finding that an offence has been committed, but if there is satisfaction beyond a reasonable doubt that the relevant criteria defining the offence, however stringent, having in fact been fulfilled, no more is required.
I agree with Ms Ryan’s submission that the beyond reasonable doubt standard is an exacting standard. For that reason, there must be a sound basis for making findings in regard to the facts of this case.
First incident – fear of drowning and fall down a gangway
Mr Elton provided two written statements of evidence in this proceeding. The first was taken on 8 October 2012 and the second on 4 June 2015. In the first statement, Mr Elton relevantly said:
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 bowel 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 whole of the ship might’ve been breached from the impact that the swell of the ocean. I briefly stopped and listened for any noise and then 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 a back pain which has persisted since.
I will only point out differences in his second witness statement. Although Mr Elton in opening said he was climbing the gangway between decks, he later said he was climbing the rungs of a metal ladder between decks, lost balance and fell backwards and landed on his lower back. He said he fell onto a plate metal deck. He mentioned that the back pain became moderately severe couple of hours later on the same day and that he had a loss of range of movement. However, he did not attend the sickbay and said that was because there was a stigma attached to reporting injury or illness and he did not want to be regarded as a malingerer. He said his main duty at the time was telephone operator on the switchboard which allowed him to sit and stand at will. He was required to undertake general duties but he performed them with discomfort.
In his report, Dr Velakoulis recorded what appears to be the following verbatim statement made by Mr Elton regarding this incident:
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. 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 in a straight line but actually ran in a large arc, appearing as so we would go over the side. This was also a pretty frightening experience.
In the account recorded by Dr Collier, Mr Elton again said that he was working on the flight deck with another sailor when the waves became bigger and bigger. He is recorded as having said he was hanging on for dear life and at one stage he thought he was going to end up over the side because of the movement of the ship. He was in fear for his life.
Dr Strauss recorded Mr Elton telling him that he was on an outer deck with another sailor and the sea was very rough. He was extremely fearful he would be thrown into the water and that no one came to his assistance.
Dr Kaplan recorded Mr Elton stating he and another sailor found themselves on the flight deck in the storm. Mr Elton told Dr Kaplan 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 and came close to the edge of the deck, fearing they would be washed overboard and that there was no possibility of rescue.
The account of this incident recorded by Dr Horsley is similar but contains slightly different information. On this occasion Mr Elton told Dr Horsley that he and another sailor were located on the flight deck at the front of the vessel, halfway between the tower and the forward lift. He said they were holding on to stanchions because of the bad weather. They waited for a lull in the waves and then ran towards the tower. As they ran, the force of the weather pushed them towards the side of the vessel and he was fearful he would go over the edge.
In his written report, Commodore Mulcare mentioned that Mr Elton was a member of the Port Watch No. 1 Handling Team Vung Tau. He spoke with Captain John Sketchley (Rtd) who was the Cargo Officer on the November 1969 trip. Captain Sketchley recalled that the Handling Teams were primarily employed on the flight deck or in the hangar while the ship was unloading/loading in Vung Tau. He said the Handling Teams could also have taken part in the pre-stow on 27 November 1969 which would explain Mr Elton’s presence on the flight deck. However, if that were the case, there would have been officers, senior sailors and junior sailors on the flight deck which would have been a busy, potentially hazardous place as cargo was being positioned in the prevailing weather conditions.
In the course of oral evidence which Commodore Mulcare gave at the hearing before Senior Member Freidman, the following exchange is recorded:
… And there wouldn’t have been many people, or any people on top because of the weather, is that what you mean?--- Well, not on the flight deck because that would have been out of bounds except for any duty personnel for particular reasons, but it would have generally been out of bounds to the ship’s company and the troops.
Right. Now, when is it out of bounds? We’ve got bad weather, is it out of bounds during bad weather?--- Well, yes, yes, yes.
Yes. And are there other occasions when it’s out of bounds?--- Well, if you have cargo on the flight deck it was generally said to be out of bounds, perhaps except for the after [sic] end which was always kept clear so that troops could conduct live firings which they did on the way to Vietnam but not on the way home.
No. Is it out of bounds to an ordinary seaman who doesn’t have a specific duty up there?--- Out of bounds to anybody.
With respect to Mr Elton, the evidence regarding this incident is so vague that it is difficult to come to a reasoned decision about it other than to say the objective evidence does not support his statements. In addition to Mr Elton not being able to recall why he was on the flight deck with another sailor on the day when the ship was experiencing rough seas, Commodore Mulcare is certain that two sailors would not have been permitted on the flight deck in those conditions without specific duties. There being no other evidence of this event or anything which might establish some basis for the account given by Mr Elton, I must find that the foundation of the hypothesis in this case is disproved by the evidence of Commodore Mulcare. I have no reason to doubt that military discipline would be enforced strictly in this case given the state of the sea at the time.
Accordingly, I find, beyond reasonable doubt, that this event did not occur as described by Mr Elton and hence his statements regarding the incident are inconsistent with his hypothesis.
Third incident – helicopters landing on the deck with American personnel disembarking and seeing and hearing aircraft bombing enemy positions
While Mr Elton did not rely on these events as a stressor in this application, reference was made to in his written evidence and in the evidence of three lay witnesses in support of Mr Elton’s claim. Those witnesses were persons who served with Mr Elton on HMAS Sydney, two of them on both trips to Vietnam and the other on one.
In her written submissions, Ms Ryan referred to these matters given my expressed concern about the veracity of this evidence and therefore, she said, Mr Elton’s credit. Therefore, corroborative evidence was called when the hearing resumed on
14 March 2018. In fact I did not have any difficulty with the evidence given about helicopters landing on HMAS Sydney while anchored at Vung Tau. I had some concern with the evidence of observing bombing runs by what were described as Phantom F4 bombers.My first concern is that in his written statement of 8 October 2012, Mr Elton made no mention of observing bombing runs and hearing bombs exploding. No mention is made of it in the Statement of Facts and Contentions prepared by Mr Elton’s solicitors dated
13 October 2015. The earliest reference I am able to find regarding seeing aircraft on bombing runs is in the report prepared by Dr Velakoulis in December 2011. Dr Velakoulis recorded the following:A US gun ship landed on the flight deck, with all its might showing. This confirmed that we were in a serious place. We could see planes doing bombing runs, as well as the activities going on around us. War was evident.… (Emphasis added)
That statement appears to have triggered a request from DVA to Writeway to investigate the airstrikes recorded between 0600 hours and 1220 hours on 28 November 1969. Writeway responded that there were 3 such strikes during that period of time. The first occurred between 0912 hours/0941 hours, 57 km north north-east of Vung Tau; the second at 1030 hours, 37 ½ km north-east of Vung Tau; and the third at 1312 hours/1319 hours, 61 km north north-east of Vung Tau. On 27 February 1970, which was the second trip to Vung Tau for Mr Elton, there was one airstrike at 1410 hours/1450 hours, 58 km north-east of Vung Tau. That report indicated none of those airstrikes would have been visible from HMAS Sydney which was anchored some five and a half kilometres east of Vung Tau airfield. Mr Elton did not mention this to any of the other medical practitioners who subsequently examined him after Dr Velakoulis.
Mr Elton did mention the bombing runs in the course of his re-examination when I asked a question and received an answer in the following way:
It’s an operational area in a way, but you’re not carrying guns?--- Yes, but to us it was, you know, a bit different. You knew you were in a war zone, you could see planes flying over dropping bombs; it was not all that far away.
That subsequently led to my questioning later in the course of Mr Elton’s re-examination dealing with the airstrikes he said he observed. When the Writeway report dealing with airstrikes was read to Mr Elton, he described those reports as absolute nonsense.
Mr Elton described being able to see aeroplanes at 30,000 feet from 50 miles and he then said, without prompting:
You can’t see straight down but there are not doing bombing runs at ground level, they’re doing it from 30,000 feet.
The following questions from me and answers from Mr Elton are then recorded:
Let me assure you, you don’t do a bombing run in a Phantom from 30,000 feet?--- Well, they were starting up there and they were coming down, but they were visible, and you could stand there and you could watch them come down, and they come down on an angle like so, and then sometime later on they’d be going along and there it was, you could see the after effects of the bomb, and there was no question you couldn’t see it, it’s nonsense.
All right, you say that, but you’ve neglected to consider the fact that there are hills just north-east of Vung Tau?--- No problem, but they were about the height of the hills, they’re not that high, and they were coming from a high-level trajectory down, and – and you could see them quite clearly; there was no problem about it.
Shortly thereafter, the distance away seemed to diminish. Mr Elton said:
I saw the bombing runs and the evidence is that they were quite visible because 30 km is not – not visible, it’s just simply not, to see a plane in the air, is not – not visible at that height.
I disclosed to Mr Elton my 20 years’ experience as a pilot including some 12 ½ years as an RAAF pilot, flying, predominantly, fighters, and having made numerous intercepts of aircraft. I explained that picking up an aircraft visually at altitude, particularly a fighter/bomber such as an F4, would be limited to about five nautical miles or a little less than 10 km. As a consequence of that exchange with Mr Elton, I allowed Mr Elton further time to obtain evidence of the bombing attacks. Subsequently three witness statements were produced from lay witnesses.
I had in evidence a statement from Mr Neville James Cunningham which was taken on 22 February 2018. He said:
I also understand that Peter has indicated that he saw aircraft bombing whilst the Sydney was at anchor at Vung Tau. I can also confirm that evidence. I could see from the flight deck the explosions over the land and could hear the muffled sound of the explosions. The activity was a long distance away from where the Sydney was anchored but we were able to see and hear it.
Mr Cunningham gave evidence by telephone at the resumed hearing and was asked in examination-in-chief about his evidence. When asked what time of day it was when he saw the bombing attacks, he said he couldn’t say but it was possibly late AM. When asked to describe what he saw, he said two jets flew over the hills and they were clearly seen to drop bombs and he saw the explosions. When asked where in relation to the land he saw the explosions, Mr Cunningham said it was some distance away but there was a hill range behind Vung Tau and he could see where the bombs landed.
Cross-examination produced some interesting answers. When Mr Cunningham was asked how he understood that Mr Elton indicated he saw aircraft bombing, he agreed he had spoken with Mr Elton prior to making his statement. When asked whether Mr Elton told him what evidence he had given, Mr Cunningham did not deny that Mr Elton discussed his evidence but answered that it was not in detail. When asked whether
Mr Elton’s solicitors had told him about the evidence given by Mr Elton, he said he thought that she did. When Mr Cunningham was asked if the solicitor he spoke with requested that he confirm Mr Elton’s evidence, his answer was: yes. With respect, to attempt to produce evidence this way is wholly inappropriate and the solicitor who dealt with this matter ought to have known better.
The second witness, Mr Shane Francis Arnold, was also on the Sydney in November 1969 on its trip to Vung Tau. He provided a written statement of evidence which was undated. Mr Arnold said:
I also recall whilst we were at anchor I could see bombing from aircraft near what I now know to be the Long Hai Hills. I do not recall whether I saw the actual aircraft but I certainly saw explosions from the bombing.
In cross-examination, Mr Arnold confirmed that he did not in fact see the aircraft but rather was aware of explosions. His explanation that he could not recall whether he saw aircraft but in any event saw explosions from bombing makes little sense. Without seeing the aircraft, there is no basis for assuming, if he did see explosions, that they were the result of bombing unless he discussed his evidence with Mr Elton.
The third witness was Mr Robin Andrew Anderson who was also on board HMAS Sydney on the November 1969 trip to Vung Tau. He provided a written statement dated 22 February 2018. Mr Anderson said:
I understand that Peter’s evidence of seeing explosions from HMAS Sydney whilst we were at anchor in Vung Tau have been challenged. Like Peter, I also saw explosions from the Sydney and observed that the firing was occurring over the mainland. I could also hear the explosions although the sound was muffled because of the distance from where the action was taking place.
Mr Anderson described the explosions as occurring at the back of Vung Tau. When it was pointed out to Mr Anderson that he was referring to firing rather than bombing, he said that was incorrect and it should have been a reference to bombing. Just why that was so was not explained. When asked what distance away he heard the explosions, he said he could not say. Mr Anderson’s evidence was also unsatisfactory and he appeared to have been coached as was Mr Cunningham. In re-examination he was asked whether there were aircraft over land and where they were in relation to the explosions, he simply said they were fast moving and the explosions were all around. He described them as jet aircraft or fast moving jets. That is despite the fact that his written statement says nothing about aircraft or bombing. I can place no weight on Mr Anderson’s evidence.
In his cross-examination, Commodore Mulcare was referred to the DVA report which was taken from a Sitrep (situation report) dealing with air activity on the morning of the day in question. Commodore Mulcare then said, without prompting, that given where the Sydney was anchored, a view to the north or north-east of Vung Tau was not possible because there was mountainous terrain blocking the view between where the ship was anchored and where it was said the bombing had taken place, namely, the Long Hai Hills.
The Ship’s Log records that HMAS Sydney was anchored at Anchorage B12 off Pointe Ganh Rai. I had obtained a nautical chart disclosing the Vung Tau area; the shipping lanes and anchorages. The map has a scale and therefore distances are easily measured and it also depicts height contours of the land surface. The heights are said to be in meters. Anchorage B12 is approximately 1 ½ km from the land which then rises steeply to a height of 179 m (587 feet) directly opposite the Anchorage and, a little further to the south, up to 235 m (770 feet). When this chart was shown to Commodore Mulcare, he agreed that was exactly the problem to which he had referred. Given that this obstruction is essentially west of the Vung Tau airfield, and the Long Hai Hills are to the east and north-east of Vung Tau, direct line of sight to the Long Hai Hills is not possible from Anchorage B12. Even the Vung Tau airfield would not be visible from the Anchorage point. In any event, the distance from Anchorage B12 to the Long Hai Hills is approximately 25 ½ km (15 miles). Given the above evidence, it should be immediately apparent that statements made by witnesses, including Mr Elton, in these circumstances must be treated with extreme caution. For whatever reason, they are not supported by objective corroborative evidence. I can place no weight on that evidence.
Lumbar Spondylosis
Mr Elton attributed the cause of this injury or disease to his fall down the gangplank while HMAS Sydney was encountering rough seas on its way to Vung Tau in November 1969. I have already explained some of the difficulties I have found with this evidence including the fact that the nature of the fall and the height which Mr Elton said he fell differs in a number of reports. In fact in one of the reports he is said to have struck his back while scrambling up the gangway. The essential difficulty with this condition and the connection between the injury/disease and Mr Elton’s operational service is the factor which must as a minimum exist before the hypothesis can be said to be reasonable.
That factor is stated as experiencing a trauma to the spine prior to the time of the clinical onset of the condition.Other than Mr Elton’s evidence, I did not have evidence of a trauma to the spine producing the required degree of injury. Had Mr Elton experienced trauma to his spine, there can be little doubt that he would have sought immediate medical attention. Not only did that not happen, but Mr Elton said at first he did seek attention; he then said waiting to see medical personnel would take too long; and that in any event, he did not want to be regarded as a malingerer. With respect to Mr Elton, had he in fact experienced trauma to his spine, there would have been no question about malingering nor would he have hesitated to seek medical attention, however long it took to receive attention.
The radiology, both x-rays and the CT scan of his lumbosacral spine, do not disclose any evidence of past trauma. In fact all that is disclosed is degenerative change, particularly at L4/5 and L5/S1. There are also bilateral pars defects at L5/S1. Dr Love’s evidence at the first hearing was that he was strongly of the opinion that a pars defect can be congenital and is not always related to trauma.
I have referred to Associate Professor Love’s report of 29 September 2015. Under the heading Opinion, he said:
The extend [sic] of spondylolysis in this man’s lumbar spine is at the severe end of the spectrum of lumber spondylolysis and I judge that had he not had the accident in what I estimate to be November 1969, his spinal condition would not be at the same severity as it is now.
I have reached the conclusion that without a 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 10 years.
I have perused the documents which outline the acceptable factors in the statement of principles and I’m of the opinion that his condition fits that.
…
In his oral examination at the previous hearing, Associate Professor Love was asked to describe the difference between spondylosis and spondylolisthesis. He said:
Spondylosis is a degenerative condition of the spine. Spondylolysis is a defect in the spine which allows – potentially allows the shift of one vertebral body on an adjacent vertebral body and when that process actually occurs it’s then termed spondylolisthesis.
After viewing the x-rays and CT scans, Associate Professor Love was of the opinion that Mr Elton had degenerative failures of his spine and it also had shifts. He agreed that a pars defect was what he was referring to. When it was put to Associate Professor Love that there was a big gap in Mr Elton’s history, between 1969 and until the past 10 years, he agreed. When it was suggested to him that the gap would make any conclusions about causation highly speculative, Associate Professor Love said that his opinion was based on the history Mr Elton had given to him. Therein lays the problem. Without a complete and accurate medical history, causation must be speculative.
In my opinion, because Mr Elton did not appear to require medical attention and did not seek it at or about the time that he claimed his injury occurred, the only conclusion that can be drawn is that it was not sufficiently severe to warrant medical intervention. Therefore, there is no objective evidence of trauma, that is, the application of a significant physical force, to his spine. Without objective medical evidence, it is not possible to make a finding that Mr Elton satisfies the SOP dealing with lumbar spondylosis. Accordingly, I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved. The facts relied on by Mr Elton to support his hypothesis have not been established and accordingly cannot be true. That is not to say Mr Elton is not telling the truth. Despite his evidence, the medical evidence does not accord with his subjective account of what happened. There is also significant doubt about the severity of the claimed fall or the striking of his back against the gangway.
Conclusion
I have found that the evidence before me on this hearing is insufficient for me to make a finding, on the balance of probabilities, that Mr Elton has developed PTSD, GAD or any psychological condition. That is because all of the psychiatric reports which were before me in evidence do not properly address the diagnostic criteria set out in DSM-IV-TR or DSM-5. Not one of those reports refers to evidence from family or other third parties. There is no attention given to a finding of clinically significant distress or impairment in social, occupational or other important areas of functioning. Each of those reports relied solely on the subjective self-serving statements made by Mr Elton. To make a finding that Mr Elton has acquired a psychological condition on the basis of that evidence is the equivalent of simply ticking the box. That approach is, in my opinion, clearly incorrect.
I have found that, on the balance of probabilities, Mr Elton does have lumbar spondylosis/spondylolisthesis.
In the event that my analysis of the evidence dealing with the diagnosis of a psychological condition is incorrect, I have proceeded to determine whether that condition, by whatever name, could be described as war-caused in accordance with the VE Act. On examining the whole of the material before me, I have found that the hypothesis connecting
Mr Elton’s psychological condition with his operational service is reasonable as it satisfies the minimum which must exist for making that connection. The whole of the material points to Mr Elton experiencing a category 1A stressor.I have also found that the hypothesis connecting Mr Elton’s operational service with his lumbar spondylosis is reasonable. The whole of the material points to Mr Elton having experienced trauma to the lumbar spine. However, I have found that Mr Elton’s hypothesis connecting his spondylolisthesis with his operational service is not reasonable. That is because Mr Elton does not satisfy one of the factors which must, as a minimum, be present for his hypothesis to be regarded as reasonable.
The problem in this case is that on close examination of all of the evidence before me on the hearing of this matter, I have found that Mr Elton’s evidence was inconsistent with contemporaneous objective documentary evidence. I have found, beyond reasonable doubt, that the factual foundation of Mr Elton’s hypothesis regarding his psychological injury/disease and his lumbar spondylosis is disproved by documentary evidence.
I have found, beyond reasonable doubt, that the objective evidence proved facts inconsistent with Mr Elton’s hypothesis. On that basis, the conditions PTSD/GAD or any other form of psychological injury as well as his lumbar spondylosis cannot be described as having been war-caused.Accordingly, I find that the decisions made by the VRB on 21 May 2015 regarding the claimed conditions to which I have referred above and the decision regarding the assessment of disability pension at 100% of the General Rate were the correct decisions. I affirm those decisions.
I certify that the preceding 182 (one hundred and eighty two) paragraphs are a true copy of the reasons for the decision herein of
.......................[sgd].................................................
Associate
Dated: 21 May 2018
Date(s) of hearing: 6 September 2017, 14 March 2018 Date final submissions received: 13 April 2018 Counsel for the Applicant: Ms Fiona Ryan Solicitors for the Applicant: Williams Winter Counsel for the Respondent: Cathy Dowsett Solicitors for the Respondent: Australian Government Solicitor
1
11
0