Falzun and Repatriation Commission
[2007] AATA 1743
•7 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1743
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200300467
VETERANS' APPEALS DIVISION ) Re PAUL FALZUN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, MemberDr D Weerasooriya, Member Date7 September 2007
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans’ Review Board dated 20 August 2003 and, in substitution therefor, decides that:
· the applicant suffers from post traumatic stress disorder, alcohol dependence, and functional dyspepsia;
· none of those conditions is a war-caused disease, within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”);
· each of those conditions is a defence-caused disease, within the meaning of s 70(5) of the VE Act, with effect from 28 September 2001.
The matter is remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this decision.
...........[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - disability pension - applicant served in Royal Australian Navy from 1969 to 1981 - applicant rendered operational service in Vietnam from 22 February to 1 March 1971 - applicant rendered eligible defence service from 7 December 1972 to 6 April 1981 - applicant suffers from post traumatic stress disorder (PTSD), alcohol dependence, and functional dyspepsia - Statements of Principles - reasonable hypothesis that applicant's conditions connected with operational service - Tribunal satisfied beyond reasonable doubt that applicant's conditions not connected with operational service - applicant's conditions not war-caused - Tribunal reasonably satisfied that applicant's conditions connected with defence service - applicant's conditions are defence-caused - decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 6C, s 7(1), s 9(1), s 68(1), s 70(5), s 120, s 120A and s 120B
Statement of Principles Concerning Post Traumatic Stress Disorder (Instrument No 3 of 1999, as amended by Instrument No 54 of 1999)
Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 4 of 1999, as amended by Instrument No 55 of 1999)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 77 of 1998)
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission [2007] FCAFC 126
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal [2007] FCAFC 111
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Smith (1987) 15 FCR 327
Woodward v Repatriation Commission (2003) 131 FCR 473REASONS FOR DECISION
7 September 2007 Deputy President S D Hotop
Brigadier A G Warner, Member
Dr D Weerasooriya, Member
Introduction
1. Paul Falzun (“the applicant”) served in the Royal Australian Navy (“RAN”) from 1969 to 1981. He claims that he suffers from post traumatic stress disorder (“PTSD”), alcohol dependence, and functional dyspepsia, and that each of those conditions is either “war-caused” or “defence-caused”, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).
2. The Repatriation Commission (“the respondent”) determined that the applicant suffers from anxiety disorder, alcohol abuse, and functional dyspepsia, but that none of those conditions was war-caused or defence-caused. The Veterans’ Review Board (“VRB”) subsequently varied the respondent’s determination by substituting PTSD for anxiety disorder, but it otherwise affirmed that determination.
The Issues
3. The issues for the Tribunal’s determination are:
· whether the applicant suffers from PTSD, alcohol dependence, and functional dyspepsia; and, if so
· whether each of those conditions is war-caused or defence-caused.
The Tribunal’s Determination
4. For the reasons which follow, the Tribunal has determined that:
· the applicant suffers from PTSD, alcohol dependence, and functional dyspepsia;
· none of those conditions is “war-caused”, within the meaning of the VE Act;
· each of those conditions is “defence-caused”, within the meaning of the VE Act.
The Evidence
5. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T31, pp 1-101) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· various documents tendered by the applicant (Exhibits A1-A9) and by the respondent (Exhibits R1-R3); and
· the oral evidence of the applicant and of the following witnesses: Garry Beck, Robert Grant, Dr Brendan Jansen, Dr Peter Burvill, Captain Peter Birch (who were called by the applicant), and Captain John Macdonald (who was called by the respondent).
The Factual Background
6. The relevant background facts, as found by the Tribunal on the basis of the T Documents, are as follows:
7. The applicant, who was born on 31 August 1953, served in the RAN from 7 April 1969 to 6 April 1981. His RAN service included “operational service” (for the purposes of Pt II of the VE Act) from 22 February 1971 to 1 March 1971 and “defence service” (for the purposes of Pt IV of the VE Act) from 7 December 1972 to 6 April 1981.
8. On 15 May 2001 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for a disability pension under the VE Act in which he indicated that he suffered from “alcohol abuse”, “mood swings” and “stomach problems” and provided the following details:
· he first became aware of the signs and symptoms of his “alcohol abuse” in 1970 and he attributed that condition to his having been encouraged, as a young seaman, to “drink to a state of drunkenness” every time he drank during his service in the Navy;
· he first became aware of the signs and symptoms of his “mood swings” in 1970 and he attributed that condition to his having been encouraged during his Navy service “to not talk about [his] problems and to use alcohol to suppress issues”;
· he first became aware of the signs and symptoms of his “stomach problems” in 1969/70 and he attributed that condition to having to “eat on the run” during service in the Navy.
The applicant’s claim form also included a medical section completed by Dr Denis Lawrance in which he diagnosed the applicant’s claimed conditions as, respectively, “alcohol abuse”, “anxiety/depression”, and “anxiety manifestation”, and he stated that the applicant had first consulted him for those conditions in December 2000. (T4)
9. Dr Brendan Jansen, Psychiatrist, provided to the DVA a report dated 27 July 2001 in which he (inter alia) summarised the applicant’s service history and stated his assessment of the applicant’s psychiatric status as follows:
“…
Service History
Mr Falzun joined the Navy in April 1969 and was discharged in early 1981. He underwent basic training at HMAS Leeuwin, then was posted to HMAS Yarra, where he spent 12 months in Vietnam as an ordinary seaman on an escort destroyer. He was then posted to the shore base of Watson in Sydney and thereafter to the HMAS Stewart (sic), back to Watson, to HMAS Brisbane, back to the Yarra, back to Watson and then to Torrens. He was involved in night watches while he was in Vietnam, in Vung Tau Harbour, where he was instructed to shoot floating objects with his loaded rifle that looked like floating mines. He never had to actually do this. He described another incident where he and a colleague were painting over the side of the ship and the ship started up causing him and his colleague to fall some distance toward the propeller. The other most stressful incident was when he was moored in Hong Kong and there was some trouble brewing on the mainland. Again, armed with loaded rifles he was instructed to shoot anyone who attempted to board the ship.
…
Assessment
In relation to the questions you have raised, the diagnosis is twofold. He has:
1)Generalised Anxiety Disorder, and Alcohol Abuse.
He does not meet the criteria for Post Traumatic Stress Disorder, nor does he meet the criteria for Alcohol Dependence.
2)The date of onset, as mentioned, is coincident with his early years in the Navy, although as mentioned, in relation to his impulsivity, this was present before his Naval tenure.
3)In respect to aetiological factors, the relationship of the pressure of his early training was clearly related to the extent of his alcohol use and this was then perpetuated by the culture within the Navy. It is more difficult to directly relate his Generalised Anxiety Disorder to his Naval career as, although he experienced several stressful incidents, he does not attribute his anxiety to these. There are factors including his alcohol use and current family functioning which would aggravate the current anxiety. However, it must be said that his Anxiety Disorder appeared to have its onset, and certainly worsened, during the early years of his Naval career.
…”(T11)
10. Dr Frank Brennan, Gastroenterologist, provided to the DVA a report dated 31 July 2001 in which he opined that the applicant suffers from functional dyspepsia. (T12)
11. Dr Jansen provided to Dr Denis Lawrance a report dated 13 March 2002 in which, having reviewed the applicant and obtained a collateral history from Ms Claudia Ovenden, Clinical Psychologist, together with further information from the applicant’s wife, he stated that he had changed his initial opinion (as expressed in his report of 27 July 2001 to the DVA) that the applicant does not suffer from PTSD. He also suggested that the applicant be referred to another psychiatrist for a second opinion. (T15)
12. Dr Peter Burvill, Consultant Psychiatrist, prepared a report dated 12 November 2002 in which he noted that he had, following a referral from Dr Jansen, seen the applicant, together with his wife, on 3 occasions, namely, 8 October, 24 October and 11 November 2002, and continued:
“…
Mr Falzun has symptoms of Post Traumatic Stress Disorder PTSD), which have been present since his early days in the Navy, around the time of his service in Vietnam waters and shortly afterwards. While there, he had experienced a number of severe stressful experiences, which are outlined below. The symptoms of PTSD he has had over the past two years include dreams and nightmares of these stressful experiences, intrusive thinking during the day of these experiences, major efforts to avoid thoughts, feelings and situations which remind him of these experiences, marked diminution of interest and participation in his usual activities in his life, and a restricted ability to have loving feelings towards family members. His symptoms included major sleep disturbance, major irritability, outbursts of anger, difficulty in concentration, hypervigilance and exaggerated startle reaction to sudden unexpected noises. Since the recent Bali bomb disaster his hypervigilance has been extreme, with him wishing to protect his family, going to bed with a gun under his bed and wishing to take his family to the country to live in a safe place. His depressive symptoms have continued.
…
When Mr Falzun joined the Navy in 1969 he was allegedly bullied, called names such as ‘you are an idiot’, and ‘it is a waste of time trying to teach you anything’ by his teachers and was placed in a ‘backward class’ for dummies. He said that he had attended a technical high school that had subjects such was woodwork, metalwork and technical drawing but had very little background experience in mathematics, physics and geography. Hence was unable to cope with ordinary classes during his training.
After initial training he was posted to the HMAS Yarra where he experienced a number of stressful traumatic experiences. These have been documented by yourself in previous reports and include his frightening experiences in Vung Tau Harbour in Vietnam in very frightening circumstances at night, while they were on high alert near Vietnam Harbour (sic), when he was suddenly pounced upon by a senior sailor out of the dark, which considerably frightened him. It took him about one week to settle down from this experience.
He described his terror at seeing debris floating down from the river in which they were known to be Vietnamese hiding themselves or hiding explosives (sic), and this used to be a very frightening experience when on watch at night.
The most frightening and significant stressful experience was not in Vietnam during operational service, but during a period of eligible service thereafter. This was the well documented episode when he and another sailor were painting the propeller guards and the underneath of the ship, while positioned on a stage plank suspended above the water. After about one hour on this job one of the officers on watch at the time either forgot they were over the side painting, or was not told when he took over the watch, and turned the ship stern first. The propeller wash caught them by surprise. They immediately dropped the paint and brushes and watched them being sucked down into the propeller. Mr Falzun and his companion hung on by the ropes half in and half out of the water, attempting to alert somebody as to their dilemma, until finally the propeller stopped five minutes later. This was obviously a terrifying experience and caused marked anxiety immediately after the accident and has been the subject of dreams/nightmares ever since.
Mr Falzun also described another very stressful situation in which US marines showed them photos of people they had killed, and were allegedly proud of their ‘trophies’. Some of these pictures were of children who had been caught in cross fire. Mr Falzun was very upset by the pictures and the alleged attitude of the US marines towards them.
I obtained a history from Mr Falzun of continuing Post Traumatic Stress Disorder symptoms, from the time of these episodes in Vietnam and during the period immediate afterwards, which continued through the rest of his career in the Navy, and during his time in the Merchant Navy, until the present. He experienced recurrent dreams/nightmares, and intrusive thoughts during the day, related to a number of these stressful episodes, especially that when they were painting the propeller guard of the ship. It was clear from the history given to me, that over the years Mr Falzun dealt with these symptoms predominantly by heavy drinking, which helped him to suppress these thoughts and associated symptoms.
Mr Falzun first began drinking at the age of fifteen and a half, in very small quantities, just before joining the Navy. He drank very little during his training year at the HMAS Leeuwin. He continued to drink very little when he first joined the HMAS Yarra, although he did have several episodes of drinking excessively while on shore leave during this period. From about the age of 17 years, his drinking progressively increased while in overseas ports. He said that he drank a lot to forget what had happened to him in the service, especially the stressful situations described above. At that time he described drinking about half a bottle of bourbon per day while on shore leave.
His alcohol intake increased markedly after the experiences in Vietnam, and especially after the propeller painting episode. It was clear from his history that his overall alcohol intake increased markedly, and his tolerance towards alcohol increased progressively to a stage where he drank up to one bottle of bourbon daily. There were periods of amnesia for the events of the night before during this time in the Navy.
After he left the Navy and joined the Merchant Navy, during the early stage of his marriage and when the children were smaller, he had less money available for drinking. However, whenever an opportunity arose at social occasions he drank very heavily. He noticed that he would drink more quickly and larger quantities than most other people at these social occasions. It became increasingly clear that he did not have the ability to control his drinking if alcohol was available. There were episodes of attempting to hide his drinking from his wife. While drinking he became very verbally aggressive.
In latter years Mr Falzun had drunk regularly each night 8-10 stubbies of beer, several glasses of wine and a nightcap of scotch whiskey. If friends came to his house, or he went to their homes he would drink larger quantities of beer and bourbon. It has been only in the last six months that he has made a major effort to reduce his drinking, but only substituting full-strength with mid-strength beer. His wife described his episodic amnesia for events of the night before while drinking heavily.
During this time many of these symptoms of PTSD, especially his anger and verbally aggressive outbursts became more marked. He did not trust anybody and was often involved in physical fights with others. His stressful earlier experiences continued to hound him.
It was clear that Mr Falzun’s PTSD symptoms, generally aggressive behaviour and his heavy drinking while on leave from the Merchant Navy, became increasingly more marked and disruptive during the period prior to his final resignation from the Merchant Navy.
…
DIAGNOSIS:
In my opinion Mr Falzun’s history indicates the development of Post Traumatic Stress Disorder arising from the period shortly after his Vietnam experience and the post-Vietnam experiences, and the development of Alcohol Dependence, with the initial heavy alcohol intake beginning during his Vietnam experiences in the Navy and progressing thereafter.”
Dr Burvill then addressed the diagnostic criteria for PTSD and Alcohol Dependence, and concluded:
“In my opinion his alcohol dependence developed from the excessive use of alcohol as a means of reducing his anxiety and PTSD symptoms dating from his Vietnam and immediate post-Vietnam experiences.
In my opinion his alcohol dependence is related to his Naval experiences during Vietnam and the immediate post-Vietnam period.
He was suffering from Generalized Anxiety Disorder and PTSD at the time of the clinical onset of alcohol abuse, which later progressed to alcohol dependence.
…” (T20)
13. Dr Jansen prepared a further report dated 2 May 2003 in which he stated (inter alia):
“…
When I first assessed Mr Falzun I concluded that he had an Anxiety Disorder, and features of Alcohol Abuse. Subsequently, I have altered my diagnosis to conclude that the specific nature of the Anxiety Disorder is that of Post Traumatic Stress Disorder.
…
Mr Falzun joined the Navy on 7 April 1969 as a junior recruit. His problems began soon after. Despite his achievements at technical college he was placed in a class designed for those who are backward and academically challenged. Mr Falzun’s short stature did not help matters and was the cause of some teasing. Because of his personality style of tending to stand up for himself and defend others who are victims of such discrimination, it was easy for him to obtain a reputation as one who did not conform. It was about at this stage that his alcohol history began. He had not yet turned 17.
He was not yet 18 when, on his posting to HMAS Yarra, the ship was required to take on the role of escort destroyer for the HMAS Sydney. This involved transporting soldiers to Vietnam and a Far East deployment thereafter. News of soldiers who were killed and injured added to his fear and was not assisted by the culture of not discussing these matters. Again, Mr Falzun states that his alcohol use was his only way of managing his symptomatology,. He recalls another experience in Vung Tau Harbour in Vietnam where, in an attempt to scare him, a senior sailor jumped out of the dark as he was walking alone along a path. His fear had already been heightened by the information that floating debris may contain hidden Vietcong or explosives and he found night watch particularly stressful.
These most significant incident occurred, however, when he and a colleague were painting over the side of a ship. They were standing on a plank suspended with rope above the water. They were responsible for painting propeller guards and part of the hull of the ship. They had been painting for about an hour when the propellers suddenly started. It became apparent to them that one of the officers had either forgotten or did not know that they were over the side. They stopped painting immediately and hung on for approximately five or so minutes as they yelled for the propellers to be stopped. They were not far from the propellers and were concerned that they would be sucked down into the propellers’ stream. He remembers clearly that he was instructed not to complain or take any further action about the incident.
Numerous other stressful incidents pepper his service history. These include being instructed to shoot anyone who attempted to board the ship during some difficulties that they encountered when moored in Hong Kong, reacting angrily to the way that US marines bragged about and showed photographs of their victims, and the witnessing of violent incidents when on shore leave.
These experiences combined to cause significant psychiatric morbidity beginning at the time of his operational service. He described difficulties with anger management, loss of control and hyperarousal with hypervigilance and an exaggerated startle response. He described a tendency to excessive anxiety and worry which he found difficult to control, fatigue, muscle tension and difficulty sleeping. He described re-experiencing phenomena in the form of intrusive thoughts and memories, and nightmares of these stressful incidents. He described a tendency to withdraw from relationships and social activities. As mentioned, he treats many of these symptoms with significant alcohol use, which has been up to 20 drinks per day but, more recently, hovers around 10 drinks per day.
…
… it is my opinion that his major and initial psychiatric difficulties were consequent upon his Naval service and began at this time. Other factors have served to perpetuate his difficulties.
…” (T21)
The Applicant’s Evidence
14. The applicant confirmed that he had made a statutory declaration on 30 May 2003 in which he described certain incidents which he said had occurred during his RAN service as follows:
· The sentry patrol incident
“I was on the f’castle, the ship was in darken ship mode. The bosses told us to look for any floating debrie cos the enemy used this as cover to float themselves down to the hull. We had rifles, safteys on, being young and keen I kept a vigilant watch. This person being the ass that he was jumped out of the shadows at me, well, I dotted my duds and pointed the rifle at him, then he said if you point that at me you had better use it, and started to laugh at me. My heart was pounding, I was ready to kill what was in front of me luckily it was pitch black on the fwd deck cos he would have gotten a better giggle if he had seen the tears of frustration, anger and pure bloody hatred.
I’m not a sook, but I did think about releasing the safety, to do everyone a favour. Some memories stand out more than others, some I can’t erase, no matter what I do. My councillor has helped me, and still is. (sic)”
· The garbage run incident
“We did a garbage run on a Yank barge and the marines were waco. I still think to this day that they were high on dope. A couple of them showed us their trophys, VC’s ears tied around their necks. They also had pictures of dead VC, some shot others blown up. There was one in particular, it was of a village, there were dead kids and women, you could only tell this by the clothes they were wearing or what was left of them. It wasn’t good but we laughed along with them, why I’ll never know. (sic)”
· The tugboat incident
“When we finally pulled out of Vung Thou Harbour we went into battle stations. The radar had picked up a contact that wasn’t responding. Everyone was hyped, let’s get this so’n’so, we all thought it was a Russkie. Fortunately it turned out to be a yank sea going tug, the crew sunning themselves on the back deck and didn’t hear the radio until we were boreing down on them at 20kts plus, with sirens going and the to’s blinking, and raising flag call signs.
It’s hard to explain the relief, some just sat and smoked, some you could see had tears which was put down to dust and cordite in the magazines. Some just went to a vacant spot and had their own thoughts. (sic)”
· The Hong Kong incident
“In Hong Kong there was some civil unrest, something to do with the commo’s and the redcaps told us they we pretty angry. Well their I was again, standing watch, only this time we had the whole deck to patrol and they gave me a baton to ward off any unwanted boarders, repel any boarders they said, so I looked at my stick shook my heard and went on watch. Funny thing is I would have done what was required of me to the best of my ability until help arrived, I hope.
It must have been coincidence, not. Another person decided to ambush me, only he grabbed me from a darkened spot on deck. I don’t really know what happened next, all I know was I hit this bloke with the baton. That’s when he yelled out for me to stop and then proceeded to blast the hell out of me. He was beside himself cos I had got the better of him and he warned me not to say a word to anyone. I didn’t. It would have made my life absolutely unbearable. (sic)”
· The propeller incident
“The ship had stopped in the middle of the Pacific on a beaut day, calm, bright sun and hot. The quarter deck part of ship (AX) had a painting job to do, due to a collision with another ship whilst in port, the prop guard was hit. It’s probably not the only reason we stopped but we used to take advantage of things like this to repair and what we used to call ‘pretty coat’ the ship for its next port of call.
Two(2) AB’s were assigned the job of chipping and painting the prop guard and on the water line underneath the guard. We also had the job of touching up the stern transom. I went over the side with another AB on a stage plank with paint pots and brushes etc, while one man was told to stay on deck and tend to our needs just in case we needed more gear.
About an hour into the job, we were underneath the guard kneeling on the plank so as to get right down to the waterline when all hell broke loose. One of the officers on watch at the time either forgot we were over the side or was not told when he took the watch over and decided to turn the ship, probably to put the ship’s head into the wind. The propeller wash caught us, and we immediately dropped the paint and brushes and watched them being sucked down and into the prop’s. We hung on for dear life by the ropes that was holding the stage to the ships side half in the water, half out. We were yelling our heads off and wondering what had happened to the bloke who was supposed to look after our safety. Finally someone informed the bridge and after approx 5 min the props stopped. We received a half hearted apology and told to forget the incident, but I can’t seem to shake this memory. (sic)”
· The Subic Bay incident
“On shore patrol in the Phillipines with the local cops and Yank shore patrol we went to investigate a report about two (2) bodies under a bridge. They were laying face up half in the water, they had been mutilated. The cops said they probably tried to rip the whores off, they had been there about 2 days the crabs had done a job on their lower limbs, it wasn’t a pretty sight. These 2 service men were AWOL from the army and due to go back to Vietnam. (sic)”
· The Bombay incident
“In Bombay we were surrounded by beggars which is nothing unusual. One woman was carrying a bundle of rags, so I thought. Food, money she was calling out food for my baby. She shoved this bundle at me and I nearly threw up, it was a dead baby and decomposing. We threw money at her and the others and ran, we went to the nearest bar and washed the stink out of our mouths, the memory can’t be washed away. (sic)” (T26)
15. In a further statutory declaration made by the applicant on 9 February 2004 he elaborated on the sentry patrol incident (referred to in his abovementioned statutory declaration) as follows:
“In February/March 1971 – HMAS Yarra, visited the waters of Vietnam. It was during this incident that a senior sailor ‘jumped out on me whilst on Night Patrols’ around the decks of on the ship. (sic)”
He also described an additional incident as follows:
“In Toulon, France from 8-13 August 1977, I was posted to HMAS Brisbane in the year of, the ‘Queen’s Jubilee’. When the ship visited Toulon. During that time, I witnessed an incident where ‘a bar-maid was stabbed in the neck, breast, arm and side. She had several places that were bleeding profusely, this all happened in front of myself and another two sailors’, ie: See Robert Grant’s Stat Dec. (sic)” (“the Toulon incident”)
That statutory declaration was tendered in evidence by the applicant (Exhibit A1).
16. In his oral evidence the applicant said that he “could not be sure” that the sentry patrol incident occurred while HMAS Yarra was in Vung Tau Harbour but that he was “pretty sure” that it had occurred while HMAS Yarra was in “operational waters”. He said that that incident had made him feel “on edge” and “jumpy”. He also said that:
· the garbage run incident affected him in that he had “visions” about it and it made him “moody”;
· the tugboat incident was “not really significant” – it was “just something that happened”;
· in the Hong Kong incident he “laid out” the other person, and it was “not as serious” as the sentry patrol incident’;
· the Subic Bay incident affected him because is was “pretty scary”;
· in the propeller incident, while hanging onto the rope, he felt that he was going to be “sucked into the propeller” and that he was going to die;
· in the Toulon incident he thought that the “might die” because the attacker had a knife, and he only had a bar stool.
He said that the 2 “worst” incidents were the sentry patrol incident and the propeller incident, and that he still has nightmares about both incidents.
17. The applicant said that the “bastardisation” which he experienced in the RAN and the abovementioned incidents led to an increase in his drinking. He said that, following the sentry patrol incident, at HMAS Yarra’s next port of call he got “very drunk” and “started on hard spirits”, and from then on he “got drunk regularly” and his drinking got worse because of the subsequent incidents.
The Evidence of the Lay Witnesses
Robert Grant
18. Mr Grant confirmed that he had served with the applicant in the RAN, and that he had made 2 statutory declarations on 14 July 2003 in relation to the applicant’s claim for a disability pension. In one statutory declaration he declared as follows:
“1.During a South East Asian deployment in September 1975 onboard HMAS Brisbane an Indonesian warship came alongside to disembark a ships Pilot. As she made her approach she hit the side of HMAS Brisbane with such force as to dent the ship’s propeller guard and remove paint from the propeller guard and ship’s side.
2.As a result of this collision I was ordered, together with Able Seaman Paul FALZUN to paint the ship’s propeller guard whilst the ship was stopped in the water. We were standing on stage planking without any lifelines attached.
3.After approximately 10 minutes HMAS Brisbane’s propellers started to turn causing turbulent water to swamp the stage planking and cover our feet.
4.This caused both AB Falzun and I great concern and anxiety as we were not secured to the ship. We both grabbed hold of the propeller guard to prevent ourselves from being sucked into the water. We yelled for assistance and the personnel on duty realised something was amiss and contacted the bridge to inform them what was happening. We were then hauled up onto the ship’s deck and carried on with our daily tasks. We were not debriefed or given any explanation as to what caused the sequence of events that could have resulted in death or serious injury.
5.To this day I can still vividly see the paint pot disappearing into the wash of the ship’s propellers thinking that it could have been me.” (T27, p 83)
In the other statutory declaration he declared as follows:
“1.During the Queen Elizabeth II Silver Jubilee deployment to the United Kingdom and Europe onboard HMAS Brisbane we were berthed alongside the port of Toulon in the south of France during the period 8th-13th August 1977.
2.Whilst on shore leave with Able Seaman Paul FALZUN we ventured into a small bar. The bar had 5 or 6 stools at the bar and we took a seat. By using hand signals we managed to communicate with the young barmaid and get a beer each.
3.After some time a male customer entered the bar with a newspaper under his arm, sat down and ordered a drink. He then proceeded to have a conversation in French with the barmaid.
4.Without warning the man produced a long bladed knife from inside the newspaper, lent across the bar and started stabbing the barmaid around the upper torso.
5.At this point, in sheer shock and disbelief Paul and I jumped off our bar stools. With much adrenalin pumping and fearing for own lives we up ended our bar stools and using them as a Lion tamer would we proceeded to ward off this crazed attacker who had now caused serious injury to the barmaid. With my heart pounding and my life flashing before my eyes we managed to convince the attacker that he wasn’t going to get past both of us and get behind the bar to finish what he had started.
6.Once the attacker had left Paul and I rendered assistance to the barmaid who had slumped to the floor. The following sequence of events became a little hazy due to the effects of alcohol and shock but we administered first aid while others called an ambulance.
7.This is one of the most terrifying ordeals I have been involved in whilst visiting any overseas port and it will remain embellished in my memory.” (T27, p 84)
Garry Beck
19. Mr Beck confirmed that he had made a statutory declaration on 15 July 2004 in relation to the applicant’s claim for a disability pension. In that statutory declaration, which was tendered in evidence by the applicant (Exhibit A2), he declared as follows:
“The following is my best recollection of an incident involving Paul Falzun and Robert Grant which took place whilst HMAS Brisbane was berthed in Toulon France between the 8th and 13th of August 1977, as told to me the morning after the incident.
Robert and Paul had returned to a bar which we had visited the night before, at some stage during the evening, a man entered the bar armed with a knife and attacked the young woman behind the bar. Another woman, possibly the manageress, was also attacked when she tried to intervene.
At some stage during the attack, Paul and Robert were throwing chairs at the attacker to try and get him to leave and prevent him getting closer to them.
I think the police arrived, but I am unsure of what happened after this or what injuries the women suffered.”
Captain Peter Birch
20. Captain Birch confirmed that he had written a letter dated 10 August 2004 to the applicant’s (then) advocate in relation to his claim for a disability pension. The contents of that letter, which was tendered in evidence by the applicant (Exhibit A5), are as follows:
“During the months of February/March 1971, I, Peter John Birch R95503, served on board the HMAS Yarra. I was a Leading Seaman Marine Engineer.
The vessel was engaged in Escort Operations to the troop carrier HMAS Sydney and was in operational waters, from the 22-02-271 till 01-03-71.
During this time Mr Paul Falzun was an Ordinary Seaman UC on board the HMAS Yarra and was living in Three Mike Port Mess just on the opposite side from the engineers mess deck, in which I lived.
I remember Mr Falzun as he was quite often in the engineers mess deck cleaning.
On one occasion we were at anchor in Vung Tau Harbour and had an Operation Awkard in progress, (night op’s) I was involved in this operation and can remember it quite distinctly, I believe Mr Falzun was also engaged in garbage operations during our stay in Vung Tau and he was working on the barge taking the garbage ashore for disposal, I also believe that Mr Falzun was used on a Patrol around the Ship, Port Side Focsle, as all members of the ships crew had to turn too during this time to carry out operations as per combat zone and as per the Articles of War.
My Patrol consisted of myself and others patrolling the upper deck dropping scare charges into the water, from time to time.”
The Evidence of the Medical Witnesses
Dr Brendan Jansen
21. Dr Jansen said that he has been in private practice as a psychiatrist for 9 years. He confirmed that he first examined the applicant in June 2001 and that he has seen him monthly since then.
22. Dr Jansen confirmed that he had prepared reports dated 27 July 2001, 13 March 2002, 2 May 2003, 22 January 2004 and 24 March 2004 in relation to the applicant. Dr Jansen’s reports of 27 July 2001, 13 March 2002 and 2 May 2003 were referred to in paragraphs 9, 11 and 13 above. Dr Jansen’s report of 22 January 2004, which was tendered in evidence by the applicant (Exhibit A3), states as follows:
“This report is provided for the purposes of Mr Falzun. I have known the patient since June of 2001. Mr Falzun has the following diagnoses:
1 Post Traumatic Stress Disorder
2 Alcohol dependence.
Other relevant diagnoses are:
1 Generalized Anxiety Disorder
2 Alcohol abuse.
Post Traumatic Stress Disorder
The criteria for Post Traumatic Stress Disorder require exposure to a traumatic event with both of the following present:
1The individual 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.
2The person’s response involves intense fear, helplessness or horror.
Mr Falzun meets this criterion on several counts. The first incident which has been outlined in previous reports relates to when Mr Falzun was walking on the deck of the ship in the dead of night. He was already terrified by the context within which he found himself and this was exacerbated by the harassment he was perceived to have received at the hands of a leading seaman. He was walking along the deck of the HMAS Yarra when the leading seaman of his watch jumped out at him whilst Mr Falzun was performing his patrols. This incident occurred when one of Mr Falzun’s greatest fears was that Viet Cong may board the ship in attempt to sabotage their operations whilst they were stationed in the harbour.
The second incident occurred on the HMAS Brisbane in September of 1975. During this incident Mr Falzun and a colleague were painting over the side of the ship. They were standing on a plank suspended with a rope above the water painting propeller guards and part of the hull of the ship. They had been painting for about an hour when the propellers suddenly started. It became apparent to them that one of the officers had either forgotten or did not know that they were over the side. They stopped painting immediately and hung-on until their cries were heard and the propellers stopped. Mr Falzun remembers watching his paint brushes and paint tins being sucked into the stream of the propeller. They were not issued with life jackets and were positioned underneath the propeller guard below the water line.
There are other incidents which may also be relevant to this criterion. The first occurring on the HMAS Stuart in 1972 when he came across the bodies of two US marines who were found dead whilst they were absent without leave. Their bodies were lying in the water with their mutilated genitals placed in their mouths, their mouths having been stitched up. The bodies were partially decomposed.
He also witnessed an act of extreme violence in 1977 whilst on shore leave in Toulon, France. Also in 1977 whilst HMAS Brisbane was stationed in Bombay, he recalls a beggar begging money and food for her child. It became evident to Mr Falzun that the child was already dead.
An additional criterion for Post Traumatic Stress Disorder requires persistent re-experiencing or at least one of a number of symptoms. Mr Falzun experiences recurrent, intrusive and distressing recollections of the events including images, thoughts and perceptions, recurrent and distressing dreams of events, and intense psychological distress at exposure to cues that symbolize or resemble aspects of the trauma.
Post Traumatic Stress Disorder also requires persistent avoidance of stimuli associated with the trauma and a numbing of general responsiveness (not present before the trauma) as indicated by three or more of a list of symptoms. Mr Falzun described efforts to avoid thoughts, feelings and conversations associated with the trauma, efforts to avoid activities, places and people that arouse recollections of the trauma, markedly diminished interest and participation in significant activities, a feeling of detachment and estrangement from others, and a restricted range of affect.
Persistent symptoms of arousal are also required as indicated by symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, poor concentration, hypervigilance and an exaggerated startle response. Mr Falzun qualifies for all of the above.
Mr Falzun’s symptoms have lasted longer than a month and cause clinically significant distress.
Alcohol Dependence
For alcohol dependence to be present an individual needs to demonstrate:
1 Tolerance;
2 Withdrawal signs and symptoms;
3 A tendency to drink more than was first intended;
4 Unsuccessful attempts to cut down;
5 Excessive time related to alcohol use;
6 Impairment in social or work activities due to the alcohol; and
7 Prolonged use despite physical or psychological consequences.
Mr Falzun qualifies for all of the above.
The diagnosis of alcohol abuse under the Diagnostic and Statistical Manual, 4th edition (DSM IV) is not to be made if alcohol dependence is present. Therefore, although he qualifies for all the criteria for alcohol abuse, alcohol dependence is a more appropriate diagnosis.
…”
23. Dr Jansen’s report of 24 March 2004, which was addressed to the DVA and was tendered in evidence by the respondent (Exhibit R1), states as follows:
“Thank you for asking me to provide clarification as to my opinion on Mr Falzun’s psychiatric conditions. Specifically you have asked several questions and I will answer each of these seriatim.
1In your opinion, when did the conditions of Post Traumatic Stress Disorder and alcohol dependence become (in retrospect) diagnosable?
In my opinion, the condition of Post Traumatic Stress Disorder would have been in retrospect diagnosable soon after the first traumatic incident that I outlined in [my] report, namely when Mr Falzun was set upon whilst performing his patrols on the HMAS Yarra. I believe that the diagnosis of Alcohol Dependence would in retrospect have [been] diagnosable within 2 years of the incident described above.
2Have these conditions worsened since they first appeared?
It is my belief that the conditions have fluctuated and, for example, PTSD symptomatology would have worsened significantly after the second major trauma outlined in my most recent report, that is, the incident occurring on the HMAS Brisbane in September 1975. Bearing in mind that the alcohol dependence was in part a management strategy for the significant anxiety and post traumatic stress symptomatology, prior to receiving psychiatric assistance symptomatology of his anxiety and PTSD may have worsened at times of reduced alcohol intake. Notwithstanding this, it is my opinion that both conditions together would have contributed to a significant amount of disability.
3If so, is there a particular event following which deterioration of the conditions is noticeable and to which such deterioration can be attributed?
Please see above.
…”
24. In his oral evidence Dr Jansen said that, of the various incidents which the applicant experienced, as described in his reports, the “most significant” incident was the propeller incident.
Dr Peter Burvill
25. Dr Burvill, Emeritus Professor of Psychiatry, The University of Western Australia, said that he has been practising as a psychiatrist since 1964. Dr Burvill confirmed that he had prepared 2 reports, one dated 12 November 2002, the other dated 30 October 2003, in relation to the applicant. Dr Burvill’s report of 12 November 2002 is set out in paragraph 12 above. Dr Burvill’s report of 30 October 2003, which was prepared following a “lengthy interview” with the applicant and his wife on 16 October 2003, was tendered in evidence by the applicant (Exhibit A4). In that report Dr Burvill opined that the applicant satisfies the diagnostic criteria in respect of generalised anxiety disorder, PTSD and alcohol dependence. As regards PTSD, Dr Burvill acknowledged that the Toulon incident did not meet criterion A of the relevant diagnostic criteria, namely:
“the person has been exposed to a traumatic event in 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;”.
However, in relation to the propeller incident and the sentry patrol incident, respectively, Dr Burvill stated:
“I contend that the incident relating to the painting of the propeller guards underneath the ship, when the propeller suddenly and unexpectedly began spinning and the ship turned stern first, would have been an extremely stressful experience for anybody and would be accompanied by a ‘threat of serious injuries or death’. Anybody, including Mr Falzun by his own history, would have been terrified under those circumstances and would have anticipated being seriously injured or even sucked into the propeller and mangled and killed.
At my consultation with Mr Falzun on 16th October 2003 I concentrated more on his account of the incident of the senior sailor pouncing on him in the dark in Vung Tau Harbour, as it was very clear from Mr Falzun’s very disturbed state when I saw him. Increased nightmares and intrusive thinking of this event during the day were very prominent in his current symptomatology and were causing him enormous anxiety. The following circumstances should be taken into account in assessing the severity of the stressor:
- At the time Mr Falzun was a teenager, barely 17 years of age.
- He and his mates were in considerable anxiety regarding the whole situation of being sent to Vietnam.
- He was already suffering symptoms of Generalised Anxiety…
- At the time of the incident Mr Falzun was a young man, considerably anxious, a guard on a ship in an enemy harbour approximately 1000 metres from shore, and alone in the dark, when the leading seaman suddenly pounced upon him from out of the dark. This incident occurred in a setting where they knew, from what they had been told, that Viet Cong were prone to float down the river into the harbour in the dark, hiding behind debris in the water, armed, and ready to either plant mines on the holds of the ships or attempt to board the ships in the dark and cause damage thereafter.
- Mr Falzun told me that when the Leading Seaman, at the time unidentified to himself, jumped out at him he thought that he was being attacked by a Viet Cong who had boarded the ship from the harbour. He told me that he was very scared that the unknown person was about to kill him.
- In my opinion, this set of circumstances collectively would create a situation where a lad of his age, without any experience of war conditions, would suddenly find himself in a situation where he feared that his death was imminent. As such, in my opinion this incident fulfils the first criteria for PTSD of experiencing a severe stressor.
The severity of the stressful situation in this instance is underlined by the fact that this incident has continued to be a source of nightmares and intrusive thoughts during the day, causing much stress to Mr Falzun from the time of the incident until the present day.”
As regards alcohol dependence Dr Burvill stated:
“… In my opinion there is very clear evidence of alcohol dependence dating from a time after his addition of large quantities of spirits (half to one bottle daily) to the large quantities of beer which he is always drinking, an increase which occurred in 1971. Prior to that time it would be appropriate to make the diagnosis of Alcohol Abuse. However after Vietnam, in reaction to his Vietnam experiences, and his greatly increased alcohol intake in the form of additional large quantities of spirits imbibed, he developed clear symptoms of Alcohol Dependence as laid out in the Statement of Principles criteria for this condition These have been clearly outlined in my earlier report. I would draw particular emphasis to the following increase in his symptoms of alcohol problems, which took him well beyond the criteria of Alcohol Abuse and clearly into the criteria of Alcohol Dependence. These included:
- Increased tolerance for alcohol as shown by his needing increased amounts of alcohol to achieve the same effect.
- Characteristic withdrawal symptoms from alcohol with intake of alcohol to avoid these symptoms next day.
- Unsuccessful efforts to control his alcohol use.
- Continued heavy intake of alcohol despite the development of periods of amnesia next day of events o the previous night when drinking heavily.”
26. In his oral evidence Dr Burvill said that, in his opinion, the applicant had commenced to develop symptoms of anxiety disorder towards the end of his basic RAN training prior to his being posted to HMAS Yarra and that he subsequently developed PTSD as a result of the sentry patrol incident and suffered an aggravation of that condition as a result of the propeller incident. Dr Burvill explained that the applicant’s PTSD had “subsumed” his pre-existing anxiety disorder.
The Evidence of Captain John Macdonald
27. Captain Macdonald confirmed that, at the request of the DVA, he (on behalf of Writeway Research Service Pty Ltd) researched the various incidents which the applicant alleged had occurred during his RAN service (as described in his statutory declaration of 30 May 2003 set out in paragraph 14 above), and subsequently prepared a report, dated 17 May 2004, containing the results of that research. Captain Macdonald’s report was tendered in evidence by the respondent (Exhibit R2).
28. In his report Captain Macdonald provided information and commented regarding those alleged incidents as follows:
·The sentry patrol incident, the garbage run incident, and the tugboat incident
“HMAS Yarra in Vung Tau
3. On 22 February 1971 HMAS Yarra sailed from Singapore to rendezvous with HMAS Sydney for the final stage of one of SYDNEY’s many trooping and equipment runs to Vung Tau. Rendezvous was made at 1110 on 23 February. Following a series of exercises in company Defence Watches were closed up in the early morning of 25 February and YARRA was detached to sweep ahead of SYDNEY as she entered the anchorage. YARRA anchored off Vung Tau at 0701 and assumed Operation Awkward State 2.
…
5. As an Ordinary Seaman Underwater Control (ORDUC) under training at the time it is unlikely that the Veteran’s Defence Watch station would have been closed up in the Sonar Control Room. He may have been used as an armed upper deck sentry, as he contends, but this would be unusual for one so junior and unqualified in weapons usage. Significantly, if he were an upper deck sentry he would have taken up his post on the assumption of Operation Awkward State 2, ie sometime shortly after anchoring at 0701. The US Naval Observatory records that on 25 February 1971 in Vung Tau the start of Civil Twilight was 0646 and Sunrise was 0708 (Zone -8).
6. Garbage – sullage or ‘gash’ in naval terms – was normally ditched at sea from the after end of the ship (quarterdeck) where a chute was normally rigged over the stern. When closing land to enter harbour a direction was given over the Main Broadcast (PA System) ‘Out all Gash’ which meant that all ship’s general rubbish and galley waste was taken to the quarterdeck and ditched. When in an anchorage for a short period the waste was normally stowed on the quarterdeck in plastic bags or bins until the ship sailed and again cleared the coast. Only when a ship was in an anchorage berth for an extended period was it necessary to arrange for barge services to remove the rubbish to shore.
7. In a recent telephone interview with Commodore R M BAIRD AM RAN (Rtd) who was the Commanding Officer of YARRA in 1971, he could not recollect a garbage run to shore while at anchor in Vung Tau but considered this would have been a ‘most unlikely event’. He believed that it would have been unnecessary considering the short time the YARRA was at anchor and also that he ‘would have been reluctant to have any vessel alongside in that threat environment’ and ‘We also had ship’s divers in the water searching the hull so any barge movements close to the ship would have been undesirable and dangerous for the divers.’ He also indicated that he would not have been willing to send any YARRA personnel ashore in Vung Tau.
8. At 1445 YARRA weighed anchor and preceded SYDNEY out of harbour. At 1641, when both ships were about 20 miles south east of Mui Vung Tau, SYDNEY detached YARRA to investigate an unidentified surface ship contact detected about 12 miles ahead. YARRA increased speed to 26 knots and closed up at Action Stations while she closed and at about 7 miles identified the contact as the United States Ship (USS) ENERGY (MSO 436), an ocean going minesweeper, at 1652. YARRA then secured from Action Stations at 1657 and rejoined SYDNEY.” (footnotes omitted; original emphasis)
· The Hong Kong incident
“HMAS YARRA in Hong Kong
9. YARRA berthed in Victoria Basin, Hong Kong on 1 March 1971. This berth was within the confines of the Royal Navy Base, HMS TAMAR, which was surrounded by a high stone wall and accessible only through the main gates that naval police permanently manned. Period of civil unrest began in April 1966 and continued into 1967, erupting into riots, looting, strikes, and terrorist bombings throughout Hong Kong. These events finally subsided in December 1967 and a level of normality was restored.
10. Certainly in March 1971 when YARRA visited Hong Kong there was no significant risk to the ship or her company, particularly within the security of the Naval Base. However, it was common in those days to mount a wharf sentry by day for ceremonial purposes. Although armed with a rifle this was not normally loaded. By night the rifle was exchanged for a baton or ‘night stick’ (for obvious reasons) and a torch, the sentry often required to extend his patrol to include the ship’s upper deck as well as the wharf. Particular attention was paid to the unlit areas of water immediately outboard of the ship and between the ship and the wharf, looking for any approach by unauthorised small boats from the harbour side of the Naval Base or any other unusual activity.
…”
· The Subic Bay incident
“HMAS STUART in Subic Bay
12. In the period that the Veteran was serving in STUART (Sept 71 - Dec 73) the ship visited the Subic Bay area in the Philippines on only one occasion, 22-26 May 1972. This was in consort with HMAS LONDONDERRY and the period was mainly spent at sea using the target facilities provided by the USN in the Subic Bay Exercise Areas. However the ship did spend the nights of 24 and 25 May alongside at the Subic Bay Naval Base, when, it is assumed, leave would have been given to the ship’s company.
…
14. The USN had a permanent Military Police and Standing Shore Patrol presence in Subic Bay who had a good knowledge of the hazards facing servicemen when visiting Olongapo City and were very tough operators. When (RAN) ships arrived in Subic Bay the Provost Marshall or one of the Senior Chief Petty Officers or Marine Senior Sergeants on his staff normally gave them a briefing on these hazards. The researcher remembers well that part of their shock tactics was to emphasise the number of servicemen who had been killed on leave ashore in Olongapo and display a few rather disturbing photographs of a Marine who had been found in the river. The standard reason given for his death was that he had probably tried to ‘rip off one of the prostitutes’. These same photographs were part of the standard briefing aid for several years.
…
16. In March 1972 the Veteran was an Able Seaman and could well have been a (junior) member of STUART’s shore patrol, which would have been headed up by a Petty Officer and included a couple of Leading Seamen. It is not clear from his statement what patrol members were present at the time he alleges he came across the two bodies but it would be unlikely that his patrol would have been sent to investigate such a finding instead of the permanent USN Standing Patrol or the local police.
17. After the visit to Subic Bay the Commanding Officer of STUART recorded in his Report of Proceedings: ‘The result of the visit to the night lights of Olongapo City were much less disastrous than anticipated and I consider that STUART has escaped lightly with only a few cases of minor leave breaking.’”
· The propeller incident
“HMAS Brisbane – Indonesia (1975)
18. HMAS BRISBANE’s report of Proceedings (ROP) for September 1975 records that: ‘while embarking the pilot off the entrance to Surabaya on the morning of 19 September an incident occurred involving the TNI-AL Komar Class Fast Patrol Boat KRI KELAPLINTAN. BRISBANE was stopped in the water and had called the FPB alongside the starboard quarter. The FPB made a fast, shallow approach and failed to reduce speed or reverse engines, striking BRISBANE’s starboard propeller guard. Negligible damage was caused to BRISBANE however KRI KELAPLINTAN suffered damage to her port bow above the waterline.’
19. The Ship’s Log records this incident as occurring at 0645, with the Pilot and Australian Naval Attaché (ANA) Jakarta embarking from the FPB to BRISBANE at 0653 at which time the FPB cast off. The log then records that at 0657 the ship got underway to enter Surabaya Harbour so, on the basis of these recorded timings, it seems unlikely that there was sufficient time to provide paint and personnel and rig a stage at this time. Further, if the demand was urgent enough to stop ‘in the middle of the Pacific’ it is very unlikely that the task would have extended to chipping back the damaged paintwork before repainting and even more unlikely that the ship would have remained stopped for over an hour to complete the task.
20. The ship remained in Surabaya until 22 September where there would have been ample opportunity to repair the paintwork on the Starboard propeller guard. On sailing from Surabaya the ship entered Exercise SPIKA with Indonesian ships before anchoring off Karimun Jawa from 0944-1221 on 23 September for an exercise wash-up meeting before entering Tanjon Priok Naval Base (Jakarta) for the period 24-27 September. Here again, while at anchor on 23 September, there was an opportunity to repaint the propeller guard if this was required.
21. If such an evolution (sic) was undertaken from a wooden plank suspended over the ship’s side on ropes (‘staging’) RAN safety procedures require that personnel working on the stage must be secured by lifelines and wear life jackets. It would be most unusual if these measures were not observed and that personnel were not attended from the upper deck and particularly if in mid-ocean (as alleged).”
· The Toulon incident
“HMAS BRISBANE – Toulon (1977)
22. In 1977 HMAS BRISBANE was part of the RAN group that deployed to the UK for the Silver Jubilee celebrations. On the return voyage to Australia the ship visited Toulon, on the Mediterranean coast of France, from the 8-13 August. The Veteran does not make any reference to the stabbing incident in the bar in Toulon but in his Statutory Declaration … one Robert Gordon GRANT, who was in the company of the Veteran at the time describes the incident, the culmination of which was the provision of first aid and the calling of an ambulance – and presumably the gendarmes. No mention is made of a police presence or interviews, although surely such a serious offence as attempted murder would have involved police questioning of Messrs GRANT and FALZUN, if not there then later onboard the ship.
23. The Chief Petty Officer Coxswain (COPCOX) in warships is effectively the ship’s ‘policeman’ who investigates any incidents or disciplinary matters onboard and coordinates any trials or disciplinary proceedings for presentation to the Executive officer or Captain. He is also the primary interface with the civil powers ashore, particularly the local police. CPOCOX R J DAVIS, who research has identified as the Coxswain of BRISBANE from 1976-78, was located and interviewed by telephone on 14 May. He has no recollection of any reports of such an incident or any contact with the police while in Toulon.
24. Contact was also made with LCDR R A HOWLAND RAN (Rtd) who was the Executive Officer at the time. He too was quite confident that he had not heard of the alleged incident involving Messrs FALZUN or GRANT. Both those men interviewed expressed the view that had such a remarkable experience occurred news of it would quickly permeate through the ship’s company and that the CPOCOX and the Executive Officer would soon be aware of it.”
[The Tribunal notes that the Toulon incident was not referred to in the applicant’s statutory declaration of 30 May 2003, but it was referred to in Mr Grant’s statutory declaration of 14 July 2003 and in the applicant’s statutory declaration of 9 February 2004.]
Additional Medical Evidence
29. The respondent also tendered in evidence a brief report of Dr Frank Brennan, Gastroenterologist, dated 7 June 2005, which states:
“I was not aware that Mr Falzun had been diagnosed as having post-traumatic stress disorder. If this has been confirmed then the co-existence of this condition would tend to aggravate his symptoms of dyspepsia. In this way functional dyspepsia is very similar to irritable bowel syndrome.
…” (Exhibit R3)
Additional Lay Evidence
30. The applicant also tendered in evidence 4 statutory declarations made by the following persons on the dates specified: Michael Francis Milligan, 2 July 2004 (Exhibit A6); Donald Keith Baldwin, 1 July 2004 (Exhibit A7); Vivienne Michelle Baldwin, 1 July 2004 (Exhibit A8); Christine Anne Falzun, 13 July 2004 (Exhibit A9). It is unnecessary, however, to set out the contents of any of those statutory declarations in these reasons.
The Legislation
The VE Act
31. Section 5D(1) contains the following relevant definitions:
“disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
“injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
32. Section 6C refers to the rendering of “operational service” in an “operational area” in the period post World War 2, including service in Vietnam (Southern Zone) in the period from 31 July 1962 to 11 January 1973. Section 7(1) relevantly provides:
“… for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …
…”
The expression “defence service” is defined in s 68(1) to mean (relevantly):
“continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date”.
The expression “terminating date” is defined in s 68(1) to mean:
“the date on which the Military Compensation Act 1994 commences”.
The Tribunal notes that the Military Compensation Act 1994 (Cth) commenced on 7 April 1994.
33. Section 9(1) relevantly provides:
“… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
…”
Section 70(5) relevantly provides:
“For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…”
34. Section 120 relevantly provides:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
…
(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.
(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 Pat II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.
…”
Section 120A relevantly provides:
“…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind death met by the person;
as the case may be.”
Section 120B relevantly provides:
“…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that uphold the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
The Statements of Principles
35. The Repatriation Medical Authority (“RMA”) (established by s196A(1) of the VE Act) has determined, under s196B(2) of the VE Act, the following relevant Statements of Principles (“SoPs”) (which have been in force at all material times):
· Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 3 of 1999, as amended by Instrument No 54 of 1999);
· Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998).
Those SoPs relevantly state:
Post Traumatic Stress Disorder
“…
Kind of injury, disease or death
2.(a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b)For the purposes of this Statement of Principles, ‘post traumatic stress disorder’ means a psychiatric condition meeting the following description (derived from DSM-IV):
(A)the person has been exposed to a traumatic event in 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
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
…
‘relevant service’ means:
(a) operational service; or
…”
Alcohol Dependence or Alcohol Abuse
“…
Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b)For the purposes of this Statement of Principles,
‘alcohol dependence’ means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2)withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
‘alcohol abuse’ means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol-related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B.The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(dexperiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
...
Other definitions
8. For the purposes of this Statement of Principles:
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
…
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
‘relevant service’ means:
(a) operational service; or
…”
36. The RMA has determined, under s196B(3) of the VE Act, the following relevant SoPs (which have been in force at all material times):
· Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 4 of 1999, as amended by Instrument No 55 of 1999);
· Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 77 of 1998).
The relevant provisions of Instrument No 4 of 1999, as amended by Instrument No 55 of 1999, are similar to those of Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (set out in paragraph 35 above), except that clause 5 relevantly states:
“The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
…”;
and the expression “relevant service” is defined in clause 8 to mean:
“(a)eligible war service (other than operational service); or
(b)defence service (other than hazardous service)”.
The relevant provisions of Instrument No 77 of 1998 are similar to those of Instrument No 76 of 1998 (set out in paragraph 35 above) except that clause 5 relevantly states:
“The factors that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the one year immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…”;
and the expression “relevant service” is defined in clause 8 to mean:
“(a)eligible war service (other than operational service); or
(b) defence service (other than hazardous service)”.
Analysis and Findings
From what relevant injuries or diseases does the applicant suffer?
37. It is common ground that the applicant suffers from PTSD, alcohol dependence, and functional dyspepsia. On the basis of the abovementioned reports of Dr Jansen and Dr Burvill (in respect of PTSD and alcohol dependence) and Dr Brennan (in respect of functional dyspepsia), the Tribunal is reasonably satisfied, and finds, that the applicant suffers from those conditions. The Tribunal also finds that each of those conditions is a ‘disease’” (as defined in s5D(1) of the VE Act) for the purposes of the VE Act.
Is each of the applicant’s relevant diseases a “war-caused disease”, within the meaning of s 9 of the VE Act?
38. This question is, in accordance with s120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-cause disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s120(3) of the VE Act, the Tribunal shall be so satisfied if, after considering the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of’ the applicant’s operational service. If a relevant SoP, determined under s196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s120A(3) of the VE Act.
39. The Tribunal will now proceed to determine whether each of the abovementioned diseases suffered by the applicant is a “war-caused disease”, within the meaning of s 9 of the VE Act. In so proceeding, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal [2007] FCAFC 111 at [30]-[31]; Byrne v Repatriation Commission [2007] FCAFC 126 at [33].
The raised hypothesis
40. The Tribunal, having considered the whole of the material before it, is of the opinion that that material points to a hypothesis connecting the applicant’s abovementioned diseases with the circumstances of his operational service – that is, that certain incidents which the applicant experienced in the course of his operational service in Vietnam, namely, the sentry patrol incident, the garbage run incident and the tugboat incident, caused him to contract PTSD and, subsequently, alcohol dependence and functional dyspepsia. It is common ground that none of the other abovementioned incidents – namely the Hong Kong incident, the propeller incident, the Subic Bay incident, the Bombay incident and the Toulon incident – occurred during the period of the applicant’s operational service.
The SoPs
41. As previously mentioned, there is (and has at all material times been) in force a SoP, determined under s196B(2) of the VE Act, in respect of each of PTSD and alcohol dependence, namely, Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, and Instrument No 76 of 1998, respectively. A SoP has not, however, been determined under s196B(2) of the VE Act in respect of functional dyspepsia.
Is the raised hypothesis a reasonable hypothesis?
42. In the Tribunal’s opinion the material before it, including in particular the evidence and reports of Dr Jansen, Dr Burvill and Dr Brennan, points to:
· the applicant’s having “experienc(ed) a severe stressor” (as defined in clause 8 of the SoP concerning PTSD, for the purposes of para 5(a) of that SoP), in the sentry patrol incident (but not in the garbage run incident or the tugboat incident); and
· the applicant’s having subsequently contracted PTSD as a result of the sentry patrol incident; and
· the applicant’s having subsequently contracted alcohol dependence by reason of his excessive consumption of alcohol as a result of his PTSD (for the purposes of para 5(a) of the SoP concerning Alcohol Dependence or Alcohol Abuse); and
· the applicant’s having subsequently contracted functional dyspepsia as a result of his PTSD.
43. Accordingly, the Tribunal is of the opinion that the whole of the material before it points to a hypothesis connecting the applicant’s PTSD and alcohol dependence with the circumstances of his operational service (specifically, the sentry patrol incident) and that that hypothesis satisfies both para 5(a) of the SoP concerning PTSD and para 5(a) of the SoP concerning Alcohol Dependence or Alcohol Abuse, and that, therefore, that hypothesis is a reasonable hypothesis. The Tribunal is also of the opinion that there is a reasonable hypothesis connecting, by reason of his PTSD, the applicant’s functional dyspepsia with the circumstances of his operational service.
Finding
44. Finally, the Tribunal must consider, in accordance with s 120(1) of the VE Act, whether it is “satisfied, beyond reasonable doubt, that there is no sufficient ground” for determining that each of the applicant’s relevant diseases is a “war-caused disease”, within the meaning of s 9 of the VE Act. If the Tribunal is not so satisfied, it must, in accordance with s 20(1), determine that the relevant disease is a “war-caused disease”.
45. The Tribunal’s consideration of the question whether each of the applicant’s relevant diseases is a “war-caused disease” necessarily focuses on the applicant’s evidence, the evidence of Captain Birch, and the evidence of Captain Macdonald, in relation to the sentry patrol incident.
46. As regards the applicant’s evidence in relation to the sentry patrol incident, together with the history given by him to Dr Jansen and to Dr Burvill in relation to that incident (as recorded by them in their abovementioned reports), the Tribunal makes the following observations:
· the applicant’s initial evidence that the sentry patrol incident occurred at night in “pitch black” conditions while HMAS Yarra was in Vung Tau Harbour in “darken mode” is inconsistent with the factual information provided by Captain Macdonald in his report of 17 May 2004, namely, that, during the period of the applicant’s operational service on HMAS Yarra from 22 February 19071 to 1 March 1971, HMAS Yarra was in Vung Tau Harbour only on 25 February 1971 when it anchored at 7.01a.m. (some 15 minutes after the commencement of “civil twilight” and 7 minutes before sunrise) and remained there until 2.45pm when it weighed anchor;
· in his oral evidence the applicant said that he “could not be sure” that the sentry patrol incident occurred while HMAS Yarra was in Vung Tau Harbour but that he was “pretty sure” that it had occurred while HMAS Yarra was in “operational waters”.
As regards Captain Birch’s evidence, the Tribunal regards that evidence as too vague and general and, in its opinion, it does not necessarily corroborate any significant aspect of the applicant’s evidence. Accordingly, the Tribunal derives little assistance from that evidence.
47. The Tribunal accepts the evidence of Captain Macdonald and, on that basis, it is satisfied, beyond reasonable doubt, that the sentry patrol incident, as initially described by the applicant, did not occur. Assuming, furthermore, that a similar incident (involving a fellow crew member on HMAS Yarra suddenly jumping out at him while he was on patrol at night) occurred while HMAS Yarra was at sea during the period of the applicant’s operational service, the Tribunal would be prepared to accept that the applicant would have been startled or frightened momentarily by that occurrence. However, given that HMAS Yarra would have been at sea well away from Vung Tau Harbour and Vietnam and that, accordingly, the applicant would not have contemplated the possibility that that person was a member of the Vietcong, the Tribunal would be satisfied, beyond reasonable doubt, that he would not have “experienc(ed) a severe stressor” (as defined in clause 8 of the relevant SoP) in that incident.
48. Accordingly, the Tribunal is satisfied, beyond reasonable doubt, that the factual foundation of the raised hypothesis connecting the applicant’s PTSD with the circumstances of his operational service is disproved, and that, therefore, there is “no sufficient ground” (within the meaning of s120(1) of the VE Act) for determining that the applicant’s PTSD is a war-caused disease, within the meaning of s 9 of the VE Act: see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
49. Accordingly, the Tribunal, in accordance with s120(1) of the VE Act, finds that the applicant’s PTSD is not a war-caused disease, within the meaning of s 9 of the VE Act.
50. It follows from that finding that the Tribunal is also satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that either the applicant’s alcohol dependence or his functional dyspepsia is a war-caused disease, within the meaning of s 9 of the VE Act.
51. Accordingly, the Tribunal, in accordance with s120(1) of the VE Act, finds that neither the applicant’s alcohol dependence nor his functional dyspepsia is a war-caused disease, within the meaning of s 9 of the VE Act.
Is each of the applicant’s relevant diseases a “defence-caused disease”, within the meaning of s70(5) of the VE Act?
52. This question is, in accordance with s 120(4) of the VE Act, to be determined by the Tribunal “to its reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
53. For the purpose of determining whether each of the applicant’s relevant diseases is a “defence-caused disease”, within the meaning of s70(5) of the VE Act, the relevant service of the applicant is his “defence service” (as defined in s 68(1) of the VE Act) which commenced on 7 December 1972.
54. The circumstances of the applicant’s defence service, with which the applicant’s relevant diseases may arguably be connected, comprise the propeller incident, the Bombay incident, and the Toulon incident. It is common ground that neither the Hong Kong incident nor the Subic Bay incident occurred during the period of the applicant’s eligible defence service – a fact confirmed by Captain Macdonald’s report which establishes, to the Tribunal’s reasonable satisfaction, that the Hong Kong incident could only have occurred in the period 1-9 March 1971 and that the Subic Bay incident could only have occurred in the period 24-25 May 1972.
55. The Tribunal now turns to consider whether each of the applicant’s relevant diseases is a defence-caused disease, within the meaning of s70(5) of the VE Act.
PTSD
56. For the purposes of s120B(3) of the VE Act, the Tribunal accepts that the material before it raises a connection between the applicant’s PTSD and the circumstances of his defence service. The relevant material comprises the applicant’s evidence, and the evidence of Mr Grant, Mr Beck, Dr Jansen, and Dr Burvill.
57. As previously mentioned, there is (and has at all material times been) in force a SoP, determined under s196B(3) of the VE Act, in respect of PTSD, namely, Instrument No 4 of 1999, as amended by Instrument No 55 of 1999. The question is, however, whether, for the purposes of s120B(3)(b) of the VE Act, that SoP “upholds the contention that [the applicant’s PTSD] is, on the balance of probabilities, connected with” the applicant’s defence service. According to clauses 4 and 5 of that SoP, the factors, at least one of which must exist and be related to the applicant’s defence service before it can be said that, on the balance of probabilities, the applicant’s PTSD is connected with the circumstances of that service, include:
“experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder” (para 5(a)); or
“experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder” (para 5(b)).
58. In the Tribunal’s opinion – and, indeed, in the opinion of Dr Jansen and of Dr Burvill – the most significant incident, for present purposes, which is alleged by the applicant to have occurred during his defence service, is the propeller incident.
59. The propeller incident is referred to in the applicant’s evidence and Mr Grant’s evidence and in the history given by the applicant to Dr Jansen and to Dr Burvill (as recorded by them in their abovementioned reports). Accordingly to the evidence of the applicant and of Mr Grant, they were both involved in the propeller incident but, the Tribunal notes, there are factual discrepancies between their descriptions of that incident; for example, the applicant, in his statutory declaration of 30 May 2003, described that incident as having occurred while the ship was “stopped in the middle of the Pacific on a beaut day, calm, bright sun and hot” following a “collision with another ship whilst in port” in which the propeller guard was damaged, whereas Mr Grant, in his statutory declaration of 14 July 2003, described that incident as having occurred on board HMAS Brisbane “during a South East Asian deployment in September 1975” while HMAS Brisbane was “stopped in the water” following a collision with an “Indonesian warship” resulting in the propeller guard being dented. In his oral evidence, however, the applicant said that the incident occurred on the day following a collision between HMAS Brisbane and an Indonesian vessel in the port of Surabaya, Indonesia.
60. The Tribunal notes, on the other hand, that the applicant and Mr Grant were both adamant in their evidence that an incident did occur on HMAS Brisbane in which, while standing on a plank over the side of the ship for the purpose of painting the propeller guard, the ship’s propellers suddenly started to turn and the resulting turbulence of the water caused them to drop their paint tins and brushes and cling to the ropes supporting the plank (the applicant) or to the propeller guard (Mr Grant) to prevent them from falling into the water. In his oral evidence the applicant said that he felt that he was going to be sucked into the propeller and die, and that immediately after the incident he was shaking because he had “just escaped being chewed up” and becoming “shark bait”.
61. Both Dr Jansen and Dr Burvill opined that the propeller incident, as described to them by the applicant, was itself sufficient to cause the applicant to contract PTSD.
62. The Tribunal notes that Captain Macdonald, in his report of 17 May 2004, cast doubt on the veracity of the applicant’s, and Mr Grant’s, account of the propeller incident. The Tribunal also notes, however, that Captain Macdonald’s report does not go so far as to establish that such an incident could not have occurred, and, in fact, it confirms that HMAS Brisbane did indeed sustain some damage to its starboard propeller guard in a collision with an Indonesian Fast Patrol Boat at 6.45am on 19 September 1975 at the entrance to the port of Surabaya.
63. Notwithstanding the factual discrepancies between the descriptions of the propeller incident given by the applicant and by Mr Grant, and the views expressed by Captain Macdonald in relation to that alleged incident, the Tribunal, on the basis of the evidence of the applicant, Mr Grant, Dr Jansen and Dr Burvill, is reasonably satisfied that an incident occurred on HMAS Brisbane in September 1975 in which the applicant, while standing on a plank supported by ropes over the side of the ship and painting the ship’s propeller guard in company with Mr Grant, experienced, or was confronted with, an event – namely, the sudden and unexpected starting up of the ship’s propellers – which caused him to believe – reasonably, in the circumstances in which he was placed at the time – that he was about to die or at least sustain serious injury. The Tribunal is also reasonably satisfied that the applicant contracted PTSD as a result of that event.
64. Accordingly, the Tribunal is reasonably satisfied that the applicant, in the propeller incident, “experienc(ed) a severe stressor”, within the meaning of para 5(a) of that SoP, as a result of which he contracted PTSD, and that, accordingly, the applicant’s PTSD is connected with the circumstances of his defence service. In accordance with s120B(3) of the VE Act, therefore, the Tribunal is reasonably satisfied that the applicant’s PTSD is defence-caused.
65. In the light of that conclusion it is unnecessary for the Tribunal to consider whether the Bombay incident or the Toulon incident satisfies para 5(a) of the relevant SoP. Suffice it to say, however, that, in the Tribunal’s opinion, neither of those incidents satisfies para 5(a) of that SoP.
66. Accordingly, the Tribunal, in accordance with s120(4) of the VE Act, finds that the applicant’s PTSD is a defence-caused disease, within the meaning of s70(5) of the VE Act.
Alcohol Dependence
67. For the purposes of s120B(3) of the VE Act, the Tribunal accepts that the material before it raises a connection between the applicant’s alcohol dependence and the circumstances of his defence service. The relevant material comprises the applicant’s evidence and the evidence of Dr Jansen and Dr Burvill.
68. As previously mentioned, there is (and has at all material times been) in force a SoP, determined under s196B(3) of the VE Act, in respect of Alcohol Dependence or Alcohol Abuse, namely, Instrument No 77 of 1998. The question is, however, whether, for the purposes of s120B(3)(b) of the VE Act, that SoP “upholds the contention that [the applicant’s alcohol dependence] is, on the balance of probabilities, connected with” the applicant’s defence service. According to clauses 4 and 5 of that SoP, the factors, at least one of which must exist and be related to the applicant’s defence service before it can be said that, on the balance of probabilities, the applicant’s alcohol dependence is connected with the circumstances of that service, include:
“suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence …” (para 5(a)); or
“suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence …” (para 5(c)).
69. The Tribunal has found that the applicant contracted PTSD – a “psychiatric disorder” (as defined in clause 8 of the relevant SoP) – as a result of the propeller incident which occurred in September 1975 in the course of the applicant’s defence service. The question for the purposes of paras (a) and (c) of clause 5 of the relevant SoP is, however, whether the applicant was suffering from defence-caused PTSD at the time of the “clinical onset” (para (a)), or at the time of the “clinical worsening” (para (c)), of alcohol dependence.
70. As regards PTSD, the Tribunal is reasonably satisfied, on the basis of the evidence before it, that, although immediately before the propeller incident of September 1975 the applicant was not suffering from PTSD, he was nevertheless in a state of anxiety and general emotional fragility at that time and that he contracted PTSD shortly after that incident. The time of clinical onset of the applicant’s alcohol dependence is, however, somewhat more uncertain. Having considered the reports of Dr Jansen and of Dr Burvill and, in particular, the history of the applicant’s alcohol consumption as recorded in those reports, the Tribunal notes that:
· Dr Jansen’s initial assessment (in his report of 27 July 2001) was that the applicant was then suffering from alcohol abuse, and not from alcohol dependence;
· Dr Jansen, however, subsequently (in his report of 22 January 2004) opined that, although the applicant satisfied the diagnostic criteria for alcohol abuse, he also satisfied all of the diagnostic criteria for alcohol dependence, and that alcohol dependence was a “more appropriate diagnosis”;
· in response to a specific question put to him by the respondent, Dr Jansen opined (in his report of 24 March 2004) that the applicant’s PTSD ”would have been in retrospect diagnosable soon after” the sentry patrol incident, and that his alcohol dependence “would in retrospect have [been] diagnosable within 2 years of [that] incident”;
· Dr Burvill’s initial assessment (in his report of 12 November 2002) was that the applicant was then suffering from alcohol dependence;
· in that report Dr Burvill recorded that the applicant’s alcohol intake “increased markedly” after his experiences in Vietnam and “especially after the propeller [incident]”, and his tolerance for alcohol “increased progressively to a stage where he drank up to one bottle of bourbon daily”, and that after leaving the Navy he drank “very heavily” when the opportunity arose on social occasions and it “became increasingly clear that he did not have the ability to control his drinking if alcohol was available”;
· in that report Dr Burvill opined that:
-the applicant’s alcohol dependence “developed from the excessive use of alcohol as a means of reducing his anxiety and PTSD symptoms dating from his Vietnam and immediate post-Vietnam experiences”;
-the applicant was suffering from generalized anxiety disorder and PTSD “at the time of the clinical onset of alcohol abuse, which later progressed to alcohol dependence”;
· in his report of 30 October 2003, however, Dr Burvill opined that there was “very clear evidence of alcohol dependence dating from a time after his addition of large quantities of spirits (half to one bottle daily) to the large quantities of beer which he [was] already drinking, an increase which occurred in 1971”, and that “(p)rior to that time it would be appropriate to make the diagnosis of Alcohol Abuse”. (emphasis added)
71. The Tribunal notes that Dr Burvill did not express a precise opinion regarding the time of clinical onset of the applicant’s alcohol dependence; his expressed opinion was, in short, that the applicant contracted alcohol abuse after he had contracted PTSD, and that his alcohol abuse “later progressed to alcohol dependence”, and that this occurred at “a time after” he had substantially increased his alcohol intake in 1971 following his Vietnam experiences.
72. Although Dr Jansen, in his report of 24 March 2004, expressed the opinion that the applicant’s alcohol dependence ”would in retrospect have been diagnosable within 2 years of the [sentry patrol incident]” – which, according to the history given to him by the applicant, occurred in Vietnam in February 1971 – the Tribunal notes that the contents of his earlier reports were not consistent with that proposition and, indeed, in his initial report, dated 27 July 2001, he expressly excluded a diagnosis of alcohol dependence and, instead, gave a diagnosis of alcohol abuse. The Tribunal also notes that Dr Jansen did not explain, in any of his subsequent reports, the aspects of the applicant’s history of alcohol use which caused him to alter his diagnosis from alcohol abuse to alcohol dependence.
73. In the Tribunal’s opinion, the abovementioned medical evidence regarding the time of onset of the applicant’s alcohol dependence is unclear and unsatisfactory. Having carefully considered the whole of that evidence, however, the Tribunal is reasonable satisfied that:
· as a result of his experiences in Vietnam in February 1971 the applicant substantially increased his alcohol consumption and consequently developed alcohol abuse;
· as a result of the propeller incident in September 1975 the applicant contracted PTSD and further increased his alcohol consumption and began to develop alcohol dependence;
· the applicant subsequently contracted alcohol dependence;
· the time of clinical onset of the applicant’s alcohol dependence is uncertain – it may have been prior to his discharge from the RAN in 1981 or, alternatively, it may not have been until after his discharge from the RAN.
74. Accordingly, the Tribunal is reasonably satisfied that the applicant was “suffering from a psychiatric disorder” – namely, his defence-caused PTSD – “at the time of the clinical onset of alcohol dependence”, within the meaning of para 5(a) of the relevant SoP, and that he contracted alcohol dependence as a result of his defence-caused PTSD. It follow that the Tribunal is also reasonably satisfied that the applicant’s alcohol dependence is connected with the circumstances of his defence service. In accordance with s120B(3) of the VE Act, therefore, the Tribunal is reasonably satisfied that the applicant’s alcohol dependence is defence-caused.
75. Accordingly, the Tribunal, in accordance with s120(4) of the VE Act, finds that the applicant’s alcohol dependence is a defence-caused disease, within the meaning of s70(5) of the VE Act
Functional Dyspepsia
76. The respondent conceded, on the basis of Dr Brennan’s report of June 2005, that, in the event that the Tribunal determined that the applicant’s PTSD was defence-caused, it should also determine that the applicant’s functional dyspepsia was defence-caused. In the Tribunal’s opinion, that concession is appropriate.
77. The Tribunal, having regard to its determination that the applicant’s PTSD is defence-caused and to Dr Brennan’s report of 7 June 2005, is reasonably satisfied that the applicant’s functional dyspepsia is connected with the circumstances of his defence service.
78. Accordingly, the Tribunal, in accordance with s120(4) of the VE Act, finds that the applicant’s functional dyspepsia is a defence-caused disease, within the meaning of s70(5) of the VE Act.
Conclusion
79. It was common ground that, in the event that the Tribunal determined that any of the applicant’s relevant diseases was war-caused or defence caused, the date of effect of the Tribunal’s determination would, pursuant to ss157(2) and 177(2) of the VE Act, be 28 September 2001. The Tribunal accepts that proposition.
Decision
80. For the above reasons, the Tribunal sets aside the decision of the VRB dated 20 August 2003 and, in substitution therefor, decides that:
· the applicant suffers from PTSD, alcohol dependence, and functional dyspepsia;
· none of those conditions is a war-caused disease, within the meaning of s 9 of the VE Act;
· each of those conditions is a defence-caused disease, within the meaning of s70(5) of the VE Act, with effect from 28 September 2001.
The matter is remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this decision.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop, Brigadier A G Warner, Member and Dr D Weerasooriya, Member
Signed: ...............[Sgd Y Maker]..................
AssociateDates of Hearing 2 and 3 April 2007
Date of Final Submissions 3 July 2007
Date of Decision 7 September 2007
Representative of the Applicant Mr D Leask
Solicitor for the Applicant Leask & CoRepresentative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch Department of Veterans’ Affairs
0
9
0