Farmer and Repatriation Commission
[2004] AATA 781
•23 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 781
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1884
VETERANS' APPEALS DIVISION ) Re
John Farmer
Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President
Dr P Lynch, MemberRear-Admiral AR Horton, Member
Date23 July 2004
PlaceSydney
Decision
The Tribunal varies the decision under review by determining that while the Applicant does not suffer from PTSD or Social Phobia, he does suffer from Alcohol Dependence and Malignant Neoplasm of the Colorectum. However, that Alcohol Dependence is not a war-caused injury or disease and the Respondent is not liable to pay a pension to the Applicant pursuant to s 13(1) of the Veterans’ Entitlement Act 1986.
..............................................
RP Handley
Deputy President
CATCHWORDS
VETERANS ENTITLEMENTS – disability pension – whether malignant neoplasm of the colon, alcohol dependence or alcohol abuse, and social phobia was as a result of operational service – necessity for Applicant to meet the relevant Statement of Principles – examination of the one incident upon which the Applicant relies during his operational service (being an incident on 9 May 1960) – examination of the ships’ logs of the HMAS Voyager and HMAS Melbourne as to the positions of the ships at the time of the alleged incident – examination of the Applicant’s alcohol use history – held that the Tribunal is not reasonably satisfied on the evidence that the Applicant could have experienced a severe stressor within the meaning of the Act – held that the Applicant does not suffer PTSD or Social Phobia but does suffer from Alcohol Dependence which was not caused by his naval service and therefore the Respondent is not liable to pay a pension to the Applicant pursuant to s 13(1) of the Veterans’ Entitlement Act 1986 – decision under review is varied.
Veterans Entitlement Act 1986 ss 120(1), 120(3), 120(4)
Statement of Principle No 58 of 2000 - Malignant Neoplasm of the Colorectum
Statement of Principle No 76 of 1998 – Alcohol Dependence or Alcohol Abuse
Benjamin v Repatriation Commission [2001] FCA 1879
Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002))
Connors v Repatriation Commission [2000] FCA 783
Fuss v Repatriation Commission [2001] FCA 1529
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Deledio [1998] FCA 391
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
23 July 2004 Mr RP Handley, Deputy President
Dr P Lynch, MemberRear-Admiral AR Horton, Member
Summary
1. The Applicant, John Farmer, who is aged 65, served in the Royal Australian Navy from 1956 to 1962. During his operational service, he claimed to have experienced a number of stressful events while serving on HMAS Melbourne. On 24 October 2000, he lodged a claim for disability pension and treatment for incapacity from bowel and rectum cancer and for alcohol dependence or alcohol abuse and post traumatic stress disorder (“PTSD”).
2. On 14 February 2001, a delegate of the Repatriation Commission (“the Respondent”) denied Mr Farmer’s claims for malignant neoplasm of the colon and alcohol dependence or alcohol abuse. The Veterans’ Review Board (“VRB”), on a review, affirmed the delegate’s decision but amended the diagnosis of PTSD to social phobia, in respect of which any claim by Mr Farmer was also refused. This is the decision to be reviewed by the Tribunal.
Background
3. Mr Farmer was born on 23 December 1938 and is aged 65. He served as an aircraft electrician in the Royal Australian Navy from 30 April 1956 to 22 December 1962. The majority of his service was land-based. He served on HMAS Melbourne for nearly a year between 13 October 1959 and 22 September 1960, but only 246 days were spent aboard the aircraft carrier. It is assumed his squadron was disembarked to the Naval Air Station, HMAS Albatross at Nowra from December 1959 to February 1960 and again in July 1960, during which periods he took leave.
4. The parties agree that Mr Farmer was involved in “operational service” in the Far Eastern Strategic Reserve from 7 April 1960 to 28 April 1960, from 6 May 1960 to 20 May 1960, and from 6 June 1960 to 16 June 1960. Mr Farmer subsequently claimed that several stressful incidents occurred during this period while he was aboard HMAS Melbourne but only the incident on 9 May 1960, involving the ditching of a Gannet, is documented as having occurred during his operational service
5. After leaving the Navy, Mr Farmer worked in a bakery, as an electrician for the Postmaster General (“PMG”) at Sydenham and at Garden Island, and then as a cigarette vending machine technician before getting a job as a poker machine technician, work he did for the next 30 years until his retirement in 1997.
6. Mr Farmer was first married in 1963 but divorced in 1967. He has two children by that marriage with whom he has no contact. He remarried in 1974. His wife has a son by a previous marriage and she and Mr Farmer have a son and a daughter. They also now have grandchildren. Mr Farmer was diagnosed with rectal cancer in June 1995 and underwent surgery on 6 March 1996, as a result of which he now has a permanent colostomy.
7. On 24 October 2000, Mr Farmer lodged a claim for disability pension in respect of a number of conditions that had not previously been accepted as service- related, including “bowel-rectum cancer” and “PTSD”. He also stated on his claim form that his conditions were affected by his addiction to alcohol and tobacco.
8. On 14 February 2001, a delegate of the Respondent decided to refuse the Applicant’s claim for malignant neoplasm of the colon, PTSD and alcohol dependence or alcohol abuse. In reaching this decision, the delegate rejected opinions expressed by Dr Morris and Dr Altman who both diagnosed Mr Farmer as having war-caused Alcohol Dependence.
9. On 20 April 2001, Mr Farmer applied to the VRB for a review of this decision stating that the delegate had not taken into account all the relevant information. His application was acknowledged by the Respondent on 27 April 2001. On 7 May 2001, a review officer decided not to intervene to conduct an internal review. On 27 July 2001, Mr Farmer lodged an application for a second review of the decision. On 28 November 2001, a review officer affirmed the decision not to intervene on the basis that the alleged stressors could not be identified and that he was unable to identify a significant increase in the Applicant’s smoking habits. Mr Farmer sought a review of this decision.
10. On 21 March 2002, Mr Farmer’s application came before the VRB for hearing. Mr Farmer did not attend the hearing. The VRB adjourned the hearing in order to obtain further information including a further psychiatric report from Dr Kaplan and records of HMAS Melbourne, and to enable the VRB to invite Mr Farmer to give evidence. He declined this invitation and asked the VRB to deal with the application in his absence. A psychiatric report of Dr Kaplan dated 15 July 2002 (T p80) diagnosed that Mr Farmer did not have PTSD but Social Phobia and Alcohol Dependence not due to naval service.
11. On 19 November 2002, the VRB decided to affirm the decision in relation to malignant neoplasm of the colon and alcohol dependence and alcohol abuse. It set aside the decision that Mr Farmer’s PTSD was not war-caused and substituted a decision that he was suffering from social phobia which the VRB then found was not war-caused. Mr Farmer was notified of the decision by letter dated 25 November 2002.
12. On 9 December 2002, Mr Farmer lodged an application for a review of this decision by the Tribunal. The parties agreed that should Mr Farmer’s application be successful and the Tribunal finds his disability to be war-caused, then the date of effect is 24 July 2000 and the matter should be remitted to the Respondent for calculation of the rate of pension payable.
13. At the hearing on 16 February 2004, the Applicant was represented by Neil Dawson, of Counsel, and the Respondent was represented by Nigel Bunn, Advocate, of the Department of Veterans’ Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with documents tendered by the parties at the hearing. Oral evidence was given at the hearing by Mr Farmer, and concurrently by the two expert witnesses, consultant psychiatrists Dr A Dinnen and Dr J Roberts. On completion of the hearing, the parties prepared written submissions which were considered when the Tribunal resumed on 23 March 2004. Following this, the Tribunal decided that further evidence was required in respect of HMAS Voyager’s movements on 9 May 1960, such a request being put to the Respondent. Additional documents comprising a further research report and copies of the relevant ships’ logs for 9 May 1960 were provided. The hearing was then resumed on 30 June 2004, when telephone evidence was given by Captain HA Josephs RAN (Rtd) and Captain WE Rothwell RAN (Rtd).
Applicable Legislation
14. A war-caused injury or disease is defined in s 9(1) of the Veterans’ Entitlement Act 1986 (“the Act”). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service as defined in s 6.
15. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
16. Section 21A provides for the Respondent to “determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions, which is currently in its fifth edition (“GARP”). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A. However, a veteran may be entitled to payment of pension at a higher Intermediate or Special Rate if certain criteria, set out in ss 23 and 24 respectively, are fulfilled. In this case, the parties have asked that if the Tribunal finds in favour of the Applicant, the matter should be remitted to the Respondent to determine the rate of pension payable.
17. There is no dispute as to Mr Farmer’s operational service as defined in s 6 of the Act. The standard of proof to be applied in relation to operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person’s service.
18. Because the Applicant’s claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles (“SoP”) in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP when considering whether or not the material before it raises a hypothesis connecting the injury or disease with the circumstances of the person’s service.
19. Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply, the respondent shall decide any other matter arising under the Act or the regulations “to its reasonable satisfaction”.
Mr Farmer’s Evidence of his Naval Experiences
20. Mr Farmer said he left school at the age of 16 and went to work at Target Woollen Mills for a year before joining the Navy at the age of 17. He undertook his initial training at HMAS Cerberus in Victoria before being posted to HMAS Albatross at Nowra where he spent three years training as an aircraft electrician and in squadron service before going to sea. In March 1960, he joined HMAS Melbourne as a member of 816 Squadron, his responsibilities involving electrical maintenance and repair of Fairey Gannet twin engined anti-submarine aircraft. During operations of his Squadron, he was stationed on the flight deck, in the vicinity of the catapault for take offs and adjacent to the “island” for landings, in order to deal with any electrical problems in the aircraft.
21. Mr Farmer said he thought the first incident in respect of which his claim is made, involving a Sea Venom jet aircraft landing, took place during the day on 16 March 1960. As the plane taxied “too fast” up the flight deck towards the forward deck park, the right wing collided with the island structure causing the plane to slew to starboard and collide with a sponson, a protective metal screen shielding the twin bofors mounting just forward of the island. Mr Farmer was standing beside the sponson when this occurred, this being his place of duty for landings. He described the aircraft mounting the sponson. He was afraid that “because the bottom of the plane had been ripped out the fuel tank would explode”. He therefore ran to the starboard catwalk beside the island. He was very shaken by this incident and could not stop thinking about it for several days. He still thinks about it all the time, especially if he cannot sleep at night.
22. An initial research report prepared for the Respondent by Captain Josephs (T p48) makes no mention of this aircraft accident. However, a photograph of the aircraft is shown in HMAS Melbourne – 25 Years (Exhibit A4). This reveals that the aircraft mounted a protective screen guarding the bofors mounting. There is no indication in the photograph that the bottom of the aircraft was “ripped out”, but clearly damage was done. The report by Captain Josephs refers to a night emergency crash barrier landing by a Sea Venom on 16 March 1960. Mr Farmer could not recall this incident. Notwithstanding that this accident involved an aircraft for which Mr Farmer had no responsibility; the Tribunal is a little surprised that he could not recall it happening given that it was a most unusual and potentially dangerous landing.
23. The second incident referred to by Mr Farmer took place on 30 March 1960 and is confirmed in Captain Joseph’s report. A Gannet was coming into land and Mr Farmer was waiting to speak to the pilot to check there had been no electrical problems. The aircraft approached the flight deck “sideways”, the left wing hitting the deck and breaking off at the wing root. The aircraft keeled over on to its port side causing the two in-line propellers, each with four blades, to strike the deck. Mr Farmer said he observed bits of metal flying down the deck at high speed, whether from the blades of the propellers or from the aircraft’s rocket launchers, he was not sure. He panicked, and along with between 24 and 50 other men in that area on deck, dashed to the small doorway leading into the island and the Aircraft Control Room, about six or seven feet from where he was standing: “everybody scrambled through the door” to get out of the way. He was terrified by the possibility that if he stayed there, he would be “cut to pieces” by flying shrapnel. Initially, he said he had been standing about 20 to 30 feet from where the aircraft came to rest, but agreed with the Tribunal on questioning that this could have been as much as 200 feet.
24. There is no other evidence before the Tribunal as to whether the propeller blades broke or other pieces of metal were propelled along the deck. The research report notes the view of Lieutenant (as he then was) McNay, the pilot of this aircraft, that the design of the propellers was such as to prevent disintegration, but this cannot be confirmed. However, a statutory declaration by Lieutenant VB Fazio RAN (Rtd) relates how blades broke away from a Gannet propeller and travelled 200 yards when a Gannet’s nose-wheel retracted so that the aircraft hit the runway when landing at HMAS Albatross (T p123).
25. The third incident referred to by Mr Farmer occurred on 9 May 1960, during a period of operational service, when Melbourne was engaged in naval exercises in the South China Sea. With the ship steaming at, he thought, about 21 knots, a Gannet aircraft suffered an engine failure on catapault launch. Mr Farmer was standing in his position abreast the catapault, and observed the pilot tapping on the canopy to indicate there was a problem. After the catapault launch, Mr Farmer ran to the bow, a distance of some 140 feet, from where he observed the aircraft ditch at what he estimated to be some two kilometres ahead on the starboard bow. He saw the aircraft bounce once before settling in the water; he thought it floated for one to two minutes before sinking.
26. Mr Farmer said he remembered HMAS Voyager being stationed close to the port side of the Melbourne during these flying operations, he thought probably 20 to 30 feet away. He later agreed with the Respondent’s advocate that the distance was more likely to have been 150 to 200 feet. His understanding was that rather than a helicopter fulfilling the “plane guard role”, as was usual in daylight hours, Voyager was undertaking that task to meet the particular requirements of the exercise. He agreed he was not himself briefed on the exercise requirements. He believed that, at that time, the helicopter(s) were stationed aft on the flight deck.
27. Mr Farmer said when the Gannet ditched, the Voyager increased speed and altered course, cutting across in front of the bows of Melbourne turning to starboard to go to the rescue of the crew of the ditched plane. He described Voyager passing heeled to starboard, only six to ten feet in front of Melbourne. From the front of the flight deck, he could see the crew on the deck of the Voyager running for the lifeboats. Even though the Voyager passed across Melbourne’s bows in only a couple of seconds, he was terrified that there would be a collision. He felt helpless and thought he would be thrown into the water. If there had been a collision, there would have been explosions, disrupted fuel lines and men in the water covered in oil. He was so upset but cannot now remember what he did next.
28. In the event, a helicopter rescued the pilot of the Gannet, the two observers on board being recovered by a British destroyer, HMS Cavalier. Mr Farmer thought Voyager was in the vicinity of the aircraft at that time, but stated that he was not concentrating on the situation at the crash point. In response to a question from the Tribunal, Mr Farmer stated that the likelihood of a collision with Voyager was a more stressful event than the loss of the Gannet, which happened some distance ahead of Melbourne.
29. The Tribunal notes that Melbourne’s architecture means that the flight deck overhangs the bow at the waterline by about 23 feet. This suggests Mr Farmer would have been unable to see a near miss with Voyager as he claimed of only six to ten feet. Moreover, there are no guardrails on the flight deck during flying operations so Mr Farmer is unlikely to have been close to the edge of the flight deck.
30. At the hearings on 16 February 2004 and 23 March 2004, the Tribunal had before it a copy of the deck log of HMAS Voyager for 9 May 1960. This document appeared to indicate that at the time of the Gannet ditching, Voyager was not in the position described by Mr Farmer, nor had the ship been in such a position at any time that day. As earlier noted, the Tribunal sought further evidence from the Respondent, in the hope that it might clarify the issue.
31. Captain Josephs provided a supplementary report dated 17 May 2004 (R6), together with a copy of the deck log of Melbourne for 9 May 1960. Captain Josephs had requested the Royal Navy to provide copies of the deck logs of HMS Cavendish and HMS Cavalier, ships that were also known to be escorting Melbourne during the same exercise on that day, and these copies were received immediately prior to the resumed hearing on 30 June 2004.
32. The oral evidence of Captain Josephs, in support of the interpretation of ships’ logs contained in his supplementary report, indicated that at the time of the aircraft ditching, ships in the formation – the exact number being unknown – were stationed in a circular screen on circle 3, with Melbourne in the centre. He initially believed that the circles were 1000 yards apart, but had come to believe they were possibly 2000 yards apart. Thus, Voyager, stationed on the screen in Station 3 as identified in her deck log, was at a minimum 3000 yards from Melbourne but possibly at 6000 yards. Station 3 would have been to the right, that is to the east, of the screen axis which was 000 degrees, or due north.
33. Captain Josephs noted that Melbourne altered course from 240 degrees to 000 degrees at 1315 to launch the Gannet aircraft. (The Tribunal notes that the alteration to 240 degrees occurred at 1200, and such an alteration at that time is also recorded in the logs of Cavendish and Cavalier. Voyager’s log records an alteration to that course at 1230.) Only Cavalier’s log records a similar alteration to 000 degrees at 1315, but the Tribunal understands that normally all ships in the screen would conform to the movements of the carrier in order to maintain the screen.
34. The launch of the Gannet at 1321 is recorded in Melbourne’s log. Voyager’s log records a turn to a course of 230 degrees at 1325 – four minutes later, assuming their clocks were synchronised. Melbourne’s log indicates the ship stopped engines but did not go astern after the Gannet launch, and then, at 1330, increased speed to 20 knots in order to recover the ditched Gannet. Captain Josephs postulated that Voyager could have passed ahead of the Melbourne, but in his report noted consultation with four officers serving in Melbourne or Voyager at the time, none of whom recalled any risk of collision.
35. Captain Rothwell explained to the Tribunal that he had been able to clarify where he was on Melbourne at the time of the Gannet incident once he became aware of the details of the particular accident and the name of the pilot. His initial thought was that he had been on watch on the ships’ (navigation) bridge, but this appeared not to have been the case because the initials of the officer of the watch in the deck log which were not his. However, he clearly remembers observing the takeoff and ditching and, if he was not on the ship’s bridge, he was probably on the Admiral’s bridge one deck below. This is his likely explanation given that he was a member of the Admiral’s staff.
36. Captain Rothwell observed the aircraft ditch about 5 degrees off the starboard bow, some distance ahead, and saw the helicopter rescue the pilot. He did not see the rescue of the two observers. At no stage did he see Voyager. He had no knowledge of where Voyager was stationed, but confirmed that Circle 3 of the screen would have been 3000 yards from the centre of the formation. He was also of the view that the angular spacing of Station 3 (from the screen axis) would have depended on the number of ships in the screen, that is, the bearing of Station 3 would have been signalled in the order to assume the screen.
Mr Farmer’s Evidence of his Post-Naval History
37. Mr Farmer said he is an emotional man. He has flashbacks and nightmares/bad dreams concerning the incidents all the time. He keeps on going over what happened and what might have happened and how his life could have been threatened.
38. Mr Farmer said he started drinking on joining the Navy at the age of 17 in 1956. He was not then a heavy drinker and would only have about four middies of beer a day. After the first incident in 1960 and his near death experience, he started drinking more. If a beer ration was issued at sea and there was no night flying, he would drink at least two and sometimes four 750 mls bottles of beer if he could buy the beer rations of other sailors who did not drink. When ashore, he might drink up to a dozen schooners of beer. After the second and third incidents, he was drinking three or four bottles of beer if at sea, and more heavily if he was ashore.
39. After his service on Melbourne, Mr Farmer returned to HMAS Albatross before being posted to HMAS Kuttabull in Sydney. He left the Navy on 22 December 1962. He then worked in a bakery for a short while and for the Postmaster General before getting a job as a cigarette vending machine technician. After this, he got a job as a poker machine technician, work he did for the next 30 years until he retired in 1997. This period included his working for a number of poker machine companies and the Port Kembla Leagues Club where he was the resident technician and also a barman. From 1984 to 1997, he worked for Aristocrat Technologies covering the area from Wollongong to Sussex Inlet.
40. Mr Farmer said that during those 30 years as a poker machine technician, he would not drink during the day when he was driving from one club to another, but after work, he would often have six schooners of beer, two or three glasses of wine and two or three sherries. After his bowel surgery on 6 March 1996, he reduced his drinking for a while; on a few occasions, he stopped drinking but it only lasted a day or two.
41. After the surgery, Mr Farmer continued working for about a year but he found it very difficult because he could not lift the poker machines and had to call on others for help. Also, not all the clubs had appropriate facilities where he could deal with his colostomy. So eventually, in 1997, he retired. The only work he has done since then is some voluntary work for Cancer Care, collecting patients and taking them to the hospital for treatment, waiting for them – sometimes for up to four or five hours – and taking them home again afterwards. He did this three days a week until about 2002.
42. Mr Farmer said he continued to drink six schooners a day, two or three glasses of wine and two or three sherries until about five weeks ago when he was diagnosed with diabetes. Then, four weeks ago, he had surgery to remove his gall bladder. He was in hospital for 14 days and had no alcohol during that period. After the surgery, he had no food or drink for seven days and spent two days on life support. Since being discharged from hospital, he has only had one beer and one scotch a day.
Concurrent Medical Evidence of Dr Dinnen and Dr Roberts
43. Dr Dinnen is a Consultant Psychiatrist who examined Mr Farmer on 31 July 2003 at the request of the Applicant for the purpose of preparing a medico-legal report, which is dated 11 August 2003. Dr Dinnen said his interview with Mr Farmer was dominated by Mr Farmer’s account of the three incidents which he related in matter of fact fashion describing the effect each incident had on him in terms of consumption of alcohol. Dr Dinnen said in his opinion Mr Farmer does not have as much control of his drinking as he thinks he does. Dr Dinnen considered a diagnosis of alcohol dependence is warranted and that Mr Farmer’s health problems are proof of his alcohol abuse. A large amount of time, attention and effort has gone into Mr Farmer’s alcohol consumption over the years. That Mr Farmer has a psychological and physical dependence on alcohol is indicated by his tolerance and continuing use of alcohol despite his health problems.
44. Dr John Roberts is a Consultant Psychiatrist who examined Mr Farmer on 2 June 2003 at the request of the Respondent for the purpose of preparing a medico-legal report, which is dated 11 June 2003. Dr Roberts subsequently prepared a supplementary report dated 18 September 2003. Dr Roberts acknowledged that the incidents described by Mr Farmer fulfil the description of “stressor”. However, Mr Farmer told Dr Roberts that he could control his alcohol consumption over time. If he could not control this, one would expect an increase in consumption. While Mr Farmer is clearly drinking to excess, there is no evidence of cognitive impairment or diminished effect and no evidence of an increased Gamma GT level to support a diagnosis of alcohol dependence.
45. Both specialists agreed that although Mr Farmer has some features of PTSD, his presentation is not such as to meet a diagnosis of PTSD. Dr Dinnen commented that Mr Farmer’s “anxiety has been dissolved in alcohol for many years”. Dr Roberts commented that a person who considers himself not to have a mental disorder, which is what Mr Farmer told Dr Roberts, cannot be said to have PTSD. One would expect Mr Farmer to be aware of the condition affecting him.
46. Dr Dinnen said that while a high Gamma GT level is indicative of liver damage in a case of alcohol abuse, this would not always be present. Mr Farmer’s lack of emotional reaction to questioning is an indication of alcohol working to numb the experience. However, Professor Richard Mattick, a clinical psychologist, in a report dated 9 July 2003 (R1) referred to information provided by Mrs Farmer:
7.1.1 Over time his drinking habits have changed. Previously he would drink mainly beer but now drinks beer, spirits and sherry in large amounts. She said that he frequently refers back and alludes to his time while serving in the Navy on the HMAS Melbourne. She also said that drinking over time has changed her lifestyle. He has become less sociable with friends and acquaintances. He has frequent mood swings which she said she has learned to live with by ignoring them and ignoring what he says to her.
47. Dr Dinnen said Mr Farmer’s experience of what he perceived to be a near collision between the Melbourne and the Voyager on 9 May 1960 is likely to have a longer term effect because of the accident in 1964 when Voyager was cut in half as a result of the collision with the Melbourne. A person’s memory can be coloured by life experience and possibly magnified by subsequent events.
48. Dr Roberts agreed that if it can be shown that Mr Farmer increased his alcohol intake over time, then the required minimum of three diagnostic criteria for alcohol dependence in SoP No 76 of 1998, Alcohol Dependence or Alcohol Abuse, would appear to be met: criteria (1)(a), (4), and (7). Mr Farmer’s evidence is that he moved from drinking just beer, to drinking beer, wine and sherry and occasionally also spirits. Dr Roberts agreed that Mr Farmer’s evidence of his being threatened by serious injury or death in the course of the incidents he described meets the requirements of SoP No 76 for a “severe stressor”.
49. Dr Dinnen noted, in relation to para 5(d) of SoP No 76, that Mr Farmer experienced a severe stressor within two years immediately before the clinical worsening of alcohol dependence or alcohol abuse. Dr Dinnen said there is no evidence of social impairment in Mr Farmer’s case. However, it is common for users to deny they have a problem. Both Dr Dinnen and Dr Roberts agreed that one would expect abrupt withdrawal from alcohol to give rise to some symptoms, for example agitation or discomfort. But Mr Farmer may have experienced symptoms when he was in hospital for 14 days following gall bladder surgery. Fourteen days should be sufficient to overcome the effects of withdrawal.
Discussion of the Law
50. The issue for the Tribunal to determine is whether Mr Farmer’s claimed disabilities of malignant neoplasm of the colon, alcohol dependence or alcohol abuse, and PTSD or social phobia are war-caused. The steps to be followed in making such a determination were stated by the Full Federal Court in Repatriation Commissionv Deledio [1998] FCA 391. The first step requires the Tribunal to consider all the material before it and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. The connection must be established to the “reasonable satisfaction of the Tribunal” pursuant to s 120(4). Thus, the Tribunal must first decide whether Mr Farmer suffers from a diagnosable injury or disease, and then consider whether the material points to a hypothesis.
51. The second step, where the material raises such a hypothesis, requires the Tribunal to consider whether there is in force any relevant SoP. In this case, the relevant SoP concerning malignant neoplasm of the colon and malignant neoplasm of the rectum is Instrument No 58 of 2002, the relevant SoP concerning alcohol dependence or alcohol abuse is Instrument No 76 of 1998, and the relevant SoP concerning PTSD is Instrument No 3 of 1999. There is no relevant SoP for social phobia.
52. Having ascertained this, the third step requires the Tribunal to decide whether, in its opinion, the hypothesis raised in respect of each claimed disability is a reasonable one. As stated by the Full Federal Court in Repatriation Commission v Budworth [2001] FCA 1421, the standard of proof to be applied is that provided by subsection 120(4), of “reasonable satisfaction”. In Benjamin v Repatriation Commission and Budworth v Repatriation Commission (S13/2002/21 (June 2002)), the High Court refused special leave and stated their agreement with the decisions of the Full Federal Court in Benjamin v RepatriationCommission [2001] FCA 1879 and Budworth (supra). For a hypothesis raised to be a reasonable one, there must be material before the Tribunal which points to each of the required individual elements in the SoP: Connorsv Repatriation Commission [2000] FCA 783. As Wilcox J pointed out in Fuss v Repatriation Commission [2001] FCA 1529 at paragraph 49:
the factors as specified in any relevant Statement of Principles must be pointed to by the facts before the Commission (or Tribunal), even though not proved upon the balance of probabilities.
53. In Woodward v Repatriation Commission [2003] FCAFC 160, the Full Federal Court considered the meaning of the expression “experiencing a severe stressor” that appears in the SoPs concerning both alcohol dependence or alcohol abuse and PTSD. The Court, at paragraphs 142 to 144, endorsed Mansfield J’s exposition at first instance in Stoddart v Repatriation Commission (2003) 197 ALR 283, where in the words of the Full Court, Mansfield J said:
the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.
54. However the Court, at paragraph 144, in the absence of full argument on the point, preferred not to express an opinion about the situation in which the perception of a threat, although real in the mind of the individual, is not objectively reasonable.
55. On appeal against Mansfield J’s decision, the Full Federal Court in Stoddart (supra) at paragraph 30, also endorsed Mansfield J’s exposition and adopted the Full Court’s paraphrase of that exposition in Woodward (supra) quoted above.
56. The fourth step set out in Deledio (supra) requires the Tribunal to consider, in accordance with s 120(1), whether it is satisfied beyond reasonable doubt that the condition did not arise from a war-caused injury. It is at this stage that the Tribunal is required to make relevant findings of fact based on the evidence before it.
57. Clause 5 of SoP Instrument No 76 of 1998 – Alcohol Dependence or Alcohol Abuse – provides that the factors which must be present to raise a reasonable hypothesis connecting alcohol dependence or alcohol abuse with the person’s service include:
…
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
58. Clause 5 of SoP Instrument No 58 of 2002 – Malignant Neoplasm of the Colorectum – provides the factors that must be found relating to service, before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum with the circumstances of the person’s service. These include:
(a)suffering from a colorectal adenoma before the clinical onset of malignant neoplasm of the colorectum; or
(b)smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum; and
(i)smoking commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum; and
(ii)where smoking has ceased, the clinical onset has occurred within 30 years of cessation; or
(c)drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum; or …
Application of the Law
59. Turning to the application of the four steps in Deledio (supra) in Mr Farmer’s case, the first step requires that the Tribunal decide whether Mr Farmer suffers from a diagnosable injury or disease and, if so, whether the material before it points to an hypothesis connecting the injury or disease with the particular circumstance of Mr Farmer’s operational service.
60. The parties agree that only one of the incidents sought to be relied on by Mr Farmer took place during that part of his service classified as operational service. This was the incident on 9 May 1960. However, Mr Dawson contended that three earlier incidents which the parties agree did not take place during operational service made Mr Farmer more susceptible to suffering an injury on that occasion.
61. The first of the three earlier incidents involved a Sea Venom aircraft colliding with a gun sponson near where Mr Farmer had been standing. Mr Farmer said he was very shaken by this incident which he thought probably occurred on 16 March 1960. However, he remembered this as a daytime incident whereas Captain Josephs (T p48) states that Melbourne’s Report of Proceedings refers to the incident on 16 March 1960 occurring at night. While this incident undoubtedly occurred during his period on board Melbourne, Mr Farmer’s account seems a little exaggerated when compared with the photograph of the crashed aircraft in HMAS Melbourne – 25 Years.
62. The second of the earlier incidents occurred on 30 March 1960. This involved a Gannet aircraft, breaking a wing on landing, causing the aircraft to keel over on the port side and the propeller blades to hit the deck. Mr Farmer claims that bits of metal were sent flying down the deck at high speed. He and others dashed through a small doorway in the island leading into the Aircraft Control Room. He said he was terrified of being “cut to pieces”. The Tribunal notes the view attributed to the pilot of the Gannet in Captain Josephs’ research report, who “advised that modern aluminium propellers could be severely damaged but did not shatter in the manner described by the veteran” (T p50). Photographs of the Gannet in HMAS Melbourne – 25 Years also show the propellers bent but intact. Given the length of the deck and the photograph of the Gannet lying on its side on the deck after the accident, the Tribunal questioned Mr Farmer about his initial evidence that he was 20 to 30 feet from where the aircraft came to rest. He agreed that he might have been as much as 200 feet away.
63. The third incident described by Mr Farmer in additional information provided to the VRB but about which he did not give evidence before the Tribunal concerned Melbourne’s flight deck lift well. According to Mr Farmer, he was one of approximately 300 seamen sitting in the lift well watching a movie because night flying had been cancelled as a result of bad weather, when someone brought the flight deck lift down. Mr Farmer estimated that the lift weighed about 80 tonnes. He thought they were all going to die because they only had three seconds before the lift would have crushed them. However, a Petty Officer in the alleyway hit the emergency button and the lift stopped about six feet above them [according to Dr G Altman’s report of 17 July 2001 p1]. Mr Farmer claims that this happened during the “Sea lion” exercises between 1 and 13 May 1960 (T p135).
64. In his report dated 15 November 2001 (T p48), Captain Josephs states there is no mention of this incident in Melbourne’s Report of Proceedings and said it was “unlikely to have occurred” because:
safety blocks would be activated to prevent inadvertent lift operation, and control keys would be placed in safe custody. Lifts would not operate at any time without automatically activating a very loud alarm bell which commenced sounding about 30 seconds before the lift began to move. On each wall of the lift well there were red-painted vertical emergency stop bars, which could be turned to effect an immediate stop.
Mr Farmer contended that “there was no 30 second warning bell. The lift came straight down with the bell ringing” (T p58). Counsel for Mr Farmer did not question him about this incident at the hearing and Mr Farmer made no mention of it.
65. The only documented incident relied on by Mr Farmer that took place during his operational service was the incident on 9 May 1960 when a Gannet aircraft suffered an engine failure after a catapault launch and, as a result, ditched into the sea. However, it is not the ditching of the aircraft that is the subject of Mr Farmer’s nightmares and flashbacks. Rather it is his recollection of the Voyager speeding to the rescue of the crew of the aircraft and cutting across the bows of Melbourne to starboard at a distance of six to ten feet. Mr Farmer said he was terrified that there would be a collision. He felt helpless and thought he would be thrown into the water. If there had been a collision, there would have been explosions, disrupted fuel lines and men in the water covered in oil.
66. Assuming that such an event took place on 9 May 1960 which was capable of conveying a risk of death or serious injury, how did it affect Mr Farmer’s health? After leaving the Navy on 22 December 1962, he worked in a bakery, at the PMG’s Department and as a cigarette vending machine technician before getting a job as a poker machine technician, work he did for the next 30 years until his retirement on 18 July 1997. He worked for Aristocrat Technologies from 1 June 1984 and resigned when he experienced difficulty lifting and in finding appropriate facilities to deal with his colostomy, following surgery for colon cancer on 6 March 1996. His staff performance appraisal conducted on 1 May 1997 (R5) stated that his work was “of a high standard”. He was commended for his communication skills: “John communicates well with customers and co-workers”.
67. After retiring, Mr Farmer undertook voluntary work driving patients for Cancer Care on three days a week for up to four or five hours until he moved from Wollongong to Anna Bay in 2002.
68. Although Mr Farmer did not give evidence about this at the hearing, it appears from the medical reports that he has a good marital relationship of 30 years duration. He and his wife have children and grandchildren.
69. Mr Farmer states that he suffers from nightmares and flashbacks “all the time” concerning the four incidents during his service on HMAS Melbourne. While Dr Dinnen commented that Mr Farmer’s “anxiety has been dissolved in alcohol for many years”, both he and Dr Roberts agreed that while Mr Farmer’s presentation has some features of PTSD, his presentation is not such to meet a diagnosis of PTSD.
70. The Tribunal accepts the preponderance of psychiatric opinion that although Mr Farmer had some symptoms of PTSD, these were insufficient to found a diagnosis of PTSD. Dr Kaplan made an alternative diagnosis of Social Phobia, but the Tribunal considered this was not supported by the evidence.
71. A diagnosis of Alcohol Dependence was made by Professor Mattick (Clinical Psychologist), and all the psychiatrists diagnosed Alcohol Abuse and/or Dependence. The Tribunal accepts that the evidence shows Mr Farmer suffers from Alcohol Dependence. In terms of the first step of Deledio (supra) the Tribunal is reasonably satisfied that Alcohol Dependence and Malignant Neoplasm of the Colorectum are the two relevant diagnosable conditions and that the material before it points to an hypothesis connecting these conditions with Mr Farmer’s operational service. In each case there are relevant SoPs in force – SoP No 58 of 2002 and SoP No 76 of 1998, referred to above.
72. The third step in Deledio (supra) requires the Tribunal to decide whether, in its opinion, the hypothesis raised in respect of Alcohol Dependence and Malignant Neoplasm of the Colorectum is a reasonable one: does the material before the Tribunal point to each of the required individual elements of the two SoPs? The relevant SoP concerning Alcohol Dependence is Instrument No 76 of 1998. Clause 5 states the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with the circumstances of the person’s relevant service.
73. The Applicant relies on two of those factors:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; and
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse.
The phrase “experiencing a severe stressor” is defined in clause 8 as follows:
“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 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 Force, or other service where the Veterans’ Entitlement 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;
74. Does the material before the Tribunal point to Mr Farmer experiencing a severe stressor as a result of the incident on 9 May 1960? Applying the Federal Court’s interpretation of “experiencing a severe stressor” discussed in paragraph 53 above, did Mr Farmer experience or was he confronted by an event capable of conveying in his mind the threat of death or serious injury?
75. At paragraph 29 above, the Tribunal has noted its reservations concerning Mr Farmer’s account of the incident on 9 May 1960 as a result of Melbourne’s architecture. There is no record of a near collision in Melbourne’s Report of Proceedings for that day. Captain Josephs states in his report (T p48):
ships in company may often manoevre closely and the judgement of distance between them by an inexpert observer may be difficult, but a passing as close as that described by the veteran would be regarded as a very serious incident, and would be unlikely to remain unrecorded.
76. Mr Farmer referred the Tribunal to photographs of Melbourne sailing in close company with other ships (T p65, p125 and A4). However, these photographs appear to have been taken for public relations or promotional purposes or during fuelling or personnel transfer and are unlikely to represent operational positioning for aircraft operations. Moreover, the deck log for Voyager for 9 May 1960 (T pp129-130) indicates that for many hours leading up to the time of the ditching, and for some time thereafter, Voyager was stationed on a defensive screen on Circle 3, probably at a range of 3000 yards from Melbourne and at Station 3, ahead and to starboard of Melbourne. There is no indication that Voyager was ever brought into a plane guard station. Moreover, if Melbourne had been sailing at 21 knots at the time of the incident as Mr Farmer suggested, Voyager, which had a top speed of about 30 knots, would have taken at least two minutes to be in a position where its stern was level with Melbourne’s bow to enable it to turn. Even then, had Voyager turned to starboard across Melbourne’s bow, Voyager would have listed to port and not to starboard as Mr Farmer claimed.
77. The Tribunal concludes that Mr Farmer’s recollection of these events is entirely fanciful. There is absolutely no evidence to support his claim that Voyager was stationed close on the port side of Melbourne and passed close across her bow and from port to starboard. On the contrary, the evidence indicates she was stationed at a distance of 3000 yards to starboard of Melbourne. Although Voyager did turn towards Melbourne on a south westerly course shortly after the ditched Gannet had been recovered, she would have passed Melbourne from the starboard side (not from the port side as Mr Farmer claimed). Moreover, given the speeds of the two ships and the distance involved, Voyager could have passed either ahead or astern of Melbourne depending on her exact position at Station 3 and whether she turned to port or starboard to assume the south westerly course. Captain Josephs’ supplementary report indicates that four officers consulted, who were either on Melbourne or Voyager at the time, had no recollection of any incident or near collision involving the two ships. Captain Rothwell gave evidence that he observed the ditching of the Gannet from the bridge of Melbourne, that at no stage did he see Voyager, and that he had no memory of any incident with Voyager.
78. Mr Farmer told Dr Dinnen that his memory of Voyager crossing Melbourne’s bow is his most frequent intrusive recollection (A1, p3). Dr Dinnen records in his report (A1, p3) that Mr Farmer recalled how terrifying it was when Voyager went across the bow, particularly in the light of the subsequent tragedy in 1964 which he attributed to the same sort of reckless carelessness on the part of Voyager. In evidence, Dr Dinnen said what Mr Farmer perceived to be a near collision on 9 May 1960 is likely to have a longer term effect because of the accident in 1964. A person’s memory can be coloured by life experience and possibly magnified by subsequent events.
79. The Tribunal is not reasonably satisfied that the material before it points to any event taking place on 9 May 1960 which was capable of conveying a risk of death or serious injury. Even if the Tribunal is wrong in so concluding, the Tribunal is not reasonably satisfied that the material points to the clinical onset of Alcohol Dependence within two years of Mr Farmer experiencing the alleged stressor or within two years of the clinical worsening of Alcohol Dependence.
80. The Tribunal found it difficult to work out the history of Mr Farmer’s alcohol consumption because his various accounts do not include any significant chronology. Information from the Alcohol Questionnaire completed by Mr Farmer (T5, 12 December 2000) and the history recorded by Professor Mattick in his report of 9 July 2003 (R1) proved useful, as was Mr Farmer’s oral evidence at the hearing. It appears that Mr Farmer started drinking at the age of 17 in 1956 when he joined the Navy. At that time, he drank three or four middies of beer a day when he drank which was not everyday. From HMAS Cerberus in Melbourne, he was posted to HMAS Albatross in Nowra. There he drank one or two schooners a day on the three or so days a week that he drank. On joining HMAS Melbourne in October 1959 he was drinking approximately two and a half 750ml bottles of beer a night when it was available on board. This escalated to three or four bottles if he could get that amount by purchasing the rations of others. When ashore, he might drink up to a dozen schooners of beer.
81. In September 1960, Mr Farmer was posted back to HMAS Albatross. He used to drink about six schooners of beer a day together with, if he was at one of the Nowra clubs, two glasses of scotch whiskey. From Nowra, he was posted to HMAS Kuttabull in Sydney where he continued to drink a similar amount or more – up to eight schooners and four glasses of scotch.
82. After leaving the Navy on 22 December 1962, Mr Farmer’s drinking seems to have moderated a little for a few years, but then increased again when he began work as a poker machine technician when he was usually working in pubs and clubs. He said he was then drinking heavily again – six to eight schooners of beer a night, and two scotches. The Tribunal notes, however, that Professor Mattick records Mr Farmer telling him that he drank two schooners of beer and two scotches at each of the clubs he visited, of which there were up to five per day. Towards the end of his working life, Mr Farmer began reducing his consumption of beer and substituting wine and sherry, although his consumption of alcohol was approximately the same.
83. Mr Farmer’s evidence is that he can control his drinking. He has said he stopped drinking on a few occasions for “a day or two” and, since about four weeks ago, following gall bladder surgery and his being diagnosed with diabetes, he has had only one beer and one scotch per day. Dr Dinnen said, in his opinion, Mr Farmer does not have as much control over his drinking as he thinks he does. Dr Roberts noted that there is no evidence of cognitive impairment or increased Gamma GT level to support a diagnosis of alcohol dependence. However, Dr Dinnen said that while a high Gamma GT level is indicative of liver damage in a case of alcohol abuse, this would not always be present. He suggested that Mr Farmer’s lack of emotional reaction to questioning is an indication of alcohol working to numb the experience. Mrs Farmer’s evidence to Professor Mattick, recorded in the latter’s report dated 9 July 2003 (R1), also indicates that Mr Farmer’s drinking has, over time, made him less sociable and subject to mood swings.
84. After his bowel surgery in March 1996, Mr Farmer reduced his drinking for a while but it steadily increased again to a similar alcohol consumption. At the time of his application on 24 October 2000, he was drinking up to six schooners of beer a day, two or three glasses of wine and two or three sherries. This continued until about January 2004 when he was diagnosed with diabetes and underwent surgery to remove his gall bladder.
85. Thus, the history of Mr Farmer’s alcohol consumption shows a steady increase during the period of his naval service, especially after service on HMAS Melbourne. He told Professor Mattick that he drank more after the traumatic incidents on Melbourne. Mr Farmer continued to drink heavily on leaving the Navy although this may have been in part due to the nature of his employment servicing and repairing poker machines in clubs.
86. As to the date of the clinical onset of Alcohol Dependence, Professor Mattick said that Mr Farmer probably met the criteria for Alcohol Dependence with an onset in the early 1990’s when he was advised to cut back his consumption by an unnamed doctor (Dr Robert Kaplan’s Report of 15 July 2002 (T p82)). The Tribunal has no evidence as to the unnamed doctor. Professor Mattick’s opinion is supported by Dr Kaplan who noted Mr Farmer’s difficulty abstaining in recent years (T p86). The Tribunal also notes that the agreed criteria for Alcohol Dependence selected by Dr Dinnen and Dr Kaplan were all criteria relating to Mr Farmer’s post-retirement drinking.
87. In the Tribunal’s opinion, the material points to the onset of Mr Farmer’s Alcohol Dependence occurring in the early 1990s when he was unable to reduce his alcohol consumption when advised by a doctor. However, his dependence could also have occurred earlier – during the 30 years when he worked as a poker machine technician spending most of his working time in clubs and pubs. The Tribunal considers that the material does not point to the clinical onset of Alcohol Dependence within two years of the alleged incident on 9 May 1960. While Mr Farmer started drinking in the Navy and was drinking heavily by the time he left the Navy in December 1962 after six years and eight months service, the material before the Tribunal points to his continued heavy drinking over a period of approximately 30 years when he was working in pubs and clubs as a poker machine technician, being the more likely cause of his Alcohol Dependence.
88. In conclusion, with regard to the third step in Deledio (supra), the Tribunal is not reasonably satisfied, first, that the material points to Mr Farmer experiencing a severe stressor on 9 May 1960 and, even if the material did, second, the material does not point to the clinical onset of Mr Farmer’s Alcohol Dependence occurring within two years of 9 May 1960. Thus, although Mr Farmer suffers from Alcohol Dependence, that Alcohol Dependence is not a war-caused injury or disease.
89. Turning to Mr Farmer’s claim in respect of Malignant Neoplasm of the Colorectum and the third step in Deledio (supra), the Tribunal is not satisfied that the hypothesis raised in respect of that condition is a reasonable one. Clause 4 of SoP No 58 requires that “at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person”. The relevant factor in that clause is paragraph (c) “drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum”. In the Tribunal’s view, while the material points to Mr Farmer consuming the required amount of alcohol within the stated period, it does not point to that consumption being related to Mr Farmer’s relevant service.
90. The relevant service is Mr Farmer’s operational service from 7 April 1960 to 28 April 1960, from 6 May 1960 to 20 May 1960, and from 6 June 1960 to 16 June 1960, a total of 48 days. Given the Tribunal’s conclusion in paragraph 79 above that it is not reasonably satisfied that the material before it points to any stressor taking place on 9 May 1960, and since none of the other incidents identified by the Applicant took place during Mr Farmer’s operational service, the Tribunal is not reasonably satisfied that the material points to Mr Farmer’s alcohol consumption being related to his operational service. Indeed, his alcohol consumption is much more likely to have been the result of his working as a poker machine technician in clubs and bars for a period of 30 years. This was recognised by Professor Mattick (R1 paragraph 10.11.1). Dr Kaplan recorded that “with the exception of the alleged ‘traumatic incidents’, Mr Farmer enjoyed his time in the RAN, particularly touring overseas” (T p86).
91. Thus, the Tribunal concludes that the third step in Deledio (supra) is not satisfied and Mr Farmer’s claim in respect of Malignant Neoplasm of the Colorectum also fails because it is not a war-caused injury or disease.
92. The Tribunal therefore varies the decision under review by determining that while the Applicant does not suffer from PTSD or Social Phobia, he does suffer from Alcohol Dependence and Malignant Neoplasm of the Colorectum. However, the Alcohol Dependence and Malignant Neoplasm are not war-caused injuries or diseases and the Respondent is not liable to pay a pension to the Applicant pursuant to s 13(1) of the Veterans’ Entitlement Act 1986.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 16 February 2004, 23 March 2004 and 30 June 2004
Date of Decision 23 July 2004
Counsel for the Applicant Mr N Dawson
Representative for the Applicant Ms A Toliopoulos, Veterans' Legal Service
Representative for the Respondent Mr N Bunn, Advocate, Department of Veterans' Affairs
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