Finney and Repatriation Commission
[2005] AATA 619
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 619
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/266
VETERANS' APPEALS DIVISION )
Re RICHARD JOSEPH FINNEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date29 June 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder and alcohol abuse disorder are war caused with effect from 20 September 1999. The Tribunal remits to the respondent the assessment of rate of pension payable.
.................[Sgd]........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – depressive disorder and alcohol abuse – clinical onset – clinical worsening – severe psychosocial stressor – whether conditions related to service
Veterans’ Entitlements Act 1986 s 9, 120, 120A, 196B
White v Repatriation Commission [2004] FCA 633
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Repatriation Commission v Deledio (1998) 83 FCR 82
Hatherall and Repatriation Commission [2002] AATA 77
Delahunty V Repatriation Commission [2004] FCA 309
Repatriation Commission v Stoddart [2003] FCAFC 300Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION
29 June 2005 Ms M J Carstairs, Member 1. This is an application by Richard Joseph Finney (the applicant) for review of that part of a decision made by a delegate of the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (the VRB) that refused claims for depressive disorder and continued disability pension at 30% of the general rate.
2. At the hearing the applicant was represented by Mr A Harding of Counsel instructed by Gilshenan and Luton, Solicitors. The respondent was represented on the first day of hearing by its advocate Mr J Stoner and on the second day by its advocate Mr M Smith.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A11 for the applicant and R1 – R4 for the respondent.
BACKGROUND
4. The applicant is aged sixty nine. He served in the Australian Army (the army) for over thirty years, enlisting in 1953 at the age of seventeen. The applicant trained as a fitter and turner, specialising as a gun fitter.
5. The applicant had two periods of eligible war service in Malaya, as part of the Far Eastern Strategic Reserve, and in Vietnam in the period 18 September 1966 to 11 June 1967. He relies only on the period of Vietnam service in relation to his claim. His Vietnam service, along with his service in Malaya, is operational service under the legislation.
6. During his Vietnam service the applicant was attached to 101 Field Battery (Fd Bty) as Battery Artificer holding the rank of Sergeant and having responsibility for technical inspection of gun sights and other aspects of gun maintenance. He was then aged thirty years.
7. The applicant took discharge from the army in 1984, having risen to the rank of Warrant Officer Class 1. Since then the applicant has been a self employed farmer growing tropical fruit in North Queensland.
8. On 6 July 1998 the applicant lodged a claim with the respondent for anxiety- stress- nervousness, citing his stress and anxiety when he was in charge of troops on active service in Malaya and Vietnam. The claim was treated as one for depression on the basis of two psychiatrists’ reports, but was rejected and the applicant now brings that matter to the Tribunal, by application dated 20 March 2000.
9. The parties agree that although the applicant made no separate claim for alcohol abuse or dependence and neither the respondent’s delegate nor the VRB dealt with such a claim, that condition comes within the original claim which could encompass a range of psychiatric conditions. Both parties agreed that it is appropriate for the Tribunal to deal with the condition of alcohol abuse or dependence as well as depressive disorder.
10. The issues are whether the applicant suffers the conditions of alcohol abuse and depressive disorder, the date of clinical onset of these conditions and whether there is a connection between these conditions and his operational service in Vietnam.
EVIDENCE
11. The applicant in written statements and in oral evidence referred to two incidents that were stressful to him during his war service (a third, mentioned in written materials was not pressed in evidence).
· During an engagement with the enemy (identified by Mr J Tilbrook, military historian, as Operation Bribie which took place on 17 and 18 February 1966) when rounds from a gun that the applicant was responsible for maintaining fell short, resulting in casualties to Australian troops (the short fall incident). The applicant was told when he returned to base that two Australians were killed as a result of the short fall incident. He believed that others attributed the error to faulty maintenance by him, though he said that in later testing of the gun, no fault was revealed.
· When an Australian soldier, Gunner Cuskelly, who was well known to the applicant, was rendered paraplegic as a result of injuries sustained from shrapnel from an exploding shell when a gun ‘fired prematurely’ (the premature firing incident). Other Australian soldiers also sustained shrapnel injuries in this incident. The applicant stated that he was horrified at the wounding of people who were his friends by a gun for which he was responsible.
12. The applicant described the short fall incident to Ms S Daniels, clinical psychologist (exhibit A10), in the following terms:
He recalls an incident…when 101 Battery was called out to support 5 RAR who were pinned down. They were transported by helicopter. There was firing all day and all night. Packing up was interrupted by a call back to resume firing. There was constant firing and he had “trouble seeing the guns at night…there was no aiming point. The Forward Operations Officer called for fire of #1 gun, almost upon themselves. The gun fire dropped at 150 meters and killed two soldiers from B Coy. I considered I was responsible. I was told it could be my fault, or the gun crews fault, by the…battery commander. We returned to the base. The platoon sergeant from 5 RAR came to our mess, and Gun Sergeant Bob Booth was crying. The platoon sergeant tried to reassume (sic) us. But Bob and I were upset about it.
…………….
“Department of Veterans’ Affairs said this never happened and called me a liar. There was no official investigation into why this event occurred. So they said it wasn’t my fault. I was cleared of responsibility three or four days after the event. I still worry about whether or not I was guilty. I’ve felt personally responsible ever since. I still don’t know if I sight tested that gun, that night or not. I lay awake at night thinking about that night. I’ve thought about it for 30 years, and whenever I hear the word artillery my conscience comes into play”.
13. In his oral evidence the applicant said that he was sent alone at short notice to service the guns in Operation Bribie though normally he would be accompanied by a corporal to assist in servicing guns in the field. He was flown in by helicopter during the morning (16 February 1966) to assist the forces. He said they had been about to pack up and return to base in the afternoon when the counter attack occurred, and the fighting then continued through the night. He said that four of the six guns under his charge broke down and it was very difficult for him to service them in the dark. When the short fall incident occurred, a cease firing of all guns was called. The applicant said that he knew then that something was wrong. In his statement at exhibit A3 the applicant said that he had requested that the gun be tested after they returned to base.
14. The applicant said in oral evidence that he was not aware until the 1990’s that he was suffering from depression, diagnosed by his general practitioner when the applicant consulted him in regard to another medical issue. The applicant said that he then realised that he had felt this way from the time he served in Vietnam. He also noticed that after Vietnam he had more problems with alcohol than he had before. His evidence of alcohol consumption was that when he returned in 1961 from his service in Malaya he was drinking about eight standard drinks per night, but reduced this when he met his wife in 1964.
15. In his written statements dated 12 November 2002 (exhibit A2) and 9 March 2004 (exhibit A3) the applicant elaborated on his pattern of alcohol consumption, essentially stating that while he was unable to state precise amounts of alcohol consumed, or detail accurately the variations in consumption over the years, he had begun drinking heavily during his service in Malaya but increased during his service in Vietnam. The increase he attributed to the fear and stress he was experiencing, particularly after the short fall incident. He stated that he was deeply troubled by that incident; felt that he was never cleared of responsibility for it and was blamed by others. In his oral evidence the applicant said that he had not stated to Dr Regano, consultant psychiatrist, that he was not responsible for the short fall incident and had not stated to Dr Rose, psychiatrist, that he thought the incident had been blown out of all proportion.
16. The applicant stated that his level of drinking increased after the premature firing incident and by the time he returned from Vietnam his drinking was out of control. He stated that he would get into fights after drinking in the mess and would be thrown out. In his oral evidence he said that he was drinking heavily every night when he was posted to Innisfail in 1969. He drank at the mess and because home was 16 miles distant he would either stay on at the mess or go to a hotel on the way home. He stated that he consumes less alcohol now because he is conscious of the adverse effects upon his current medication and drinks three or four beers a night and between half a bottle and a bottle of red wine.
17. The applicant stated (exhibit A3) that shortly after he returned from Vietnam he began to experience headaches, nausea, disturbed sleep and nightmares about his experiences in Vietnam, though he cannot recall the content of the nightmares. He said he became anti-social and had problems working with others and was unduly aggressive. He said that he could not exactly recall when the symptoms began but said that they worsened over the twelve months after he returned.
18. In a written statement dated 12 November 2002 (exhibit A4) Mrs Gloria Finney, the applicant’s wife, stated that she met the applicant in about 1964 or 1965 before his Vietnam service and they married in 1967 on his return from Vietnam. She said that they went out together regularly before he went to Vietnam and they would often attend the mess drinks together on a Friday or Saturday night:
I thought he was ok then. He was always pleasant to me. He did used to drink on most days like all of the other army guys. He drank a fair bit but at no stage did I think that he was an alcoholic or that he was out of control…He had a few beers each day and drank heavier on the weekends.
He arrived back from Vietnam in June 1967 and we were married in August 1967. Within the next 12 months I noticed he became moody, drank more, stayed back at the mess after work most nights, had regular fights, and seemed to be so angry.
Over the next five years his drinking went from bad to worse. He seemed to spend most of his time either at work, the mess or the local pub, turning up home late at night or early mornings…..
I couldn’t rely on him so lived my own life and when he was home and sober; to me it was a real bonus….I told him what was happening to me. I know he tried very hard to modify his drinking for my sake.
19. Mrs Finney said that in the years immediately after his return from Vietnam the applicant’s drinking was out of control and he would often return from the mess in the early hours of the morning. Mrs Finney stated that he was drinking more, was more moody and was regularly involved in physical fighting and there were times when he was formally reprimanded. She recalled that they lived at a flat at Redbank Plains in late 1967 and he would frequently go on benders, and recalled one occasion when his boss called in at their home to see why he had not reported for duty. In early 1968 she said that they were renting a flat while waiting for an army house and it was around this time that she really noticed his moodiness and drinking and she wondered if he disliked being married. He would not talk with her about her concerns, but said only its not you.
20. Mrs Finney that he was having nightmares and calling out in his sleep and his aggressive behaviour to her when he was drunk was affecting their marriage. She described their period when the applicant was posted to Innisfail when his drinking and behaviour worsened.
21. Mrs Finney stated that the applicant modified his drinking when she discussed the detrimental effects his drinking was having on her own health, and on their marriage with him and she said that when they were posted to Papua New Guinea in 1976 he moderated his drinking.
22. Mrs Finney said that after the applicant left the army in 1984 he concentrated on the farm and socialised little. Although he was physically unwell, doctors could not find anything wrong with him until their general practitioner, Dr Huag, diagnosed his depression in the 1990’s. She said the applicant’s alcohol consumption now is not at the levels that he has sustained in the past. He limits himself to two to four beers a night and half a bottle of red wine, though she said he forgets sometimes and consumes the whole bottle of wine. In her oral evidence she said she is fearful about what harm he might cause to himself, or cause others, as he does not always behave rationally.
23. In written statements dated 10 March 2003, Mr T Madeley (exhibit A7) who was present at Operation Bribie and at the wounding of Gnr Cuskelly, referred to the short fall incident and stated his belief that two or four Australian soldiers from 6 RAR had been killed as a result of the short firing. In a statement dated 13 March 2003 (exhibit A8) Mr A Grice, who was also present during Operation Bribie, referred to the deaths of two Australian soldiers in the short fall incident and stated that the applicant was responsible for setting the sights on the gun involved.
24. Mr J Tilbrook, researcher with WriteWay Research Services, had prepared a report dated 22 September 1999 (T4) prior to the VRB hearing in this matter, and in it he researched two stressors, one of which was the short fall incident. As it became apparent from the applicant’s evidence at the first day of hearing, and from Mr Madeley’s, Mr King’s (exhibit A6), and Mr Grice’s statements that there may have been confusion of an earlier occurring incident with the short fall incident, Mr Tilbrook updated his earlier report, taking into account the additional evidence before this Tribunal.
25. In his supplementary reports dated 25 April 2005 and 1 May 2005 (exhibits R3 and R4) Mr Tilbrook confirmed that ex-sergeant Finney had served with 101 Fd Bty as gun sergeant responsible for maintenance of guns and assessing gun sights. He stated that in his original investigation of the applicant’s claim he had concentrated upon an enemy encounter which bore descriptive similarities with the short fall incident but which had occurred earlier, on 6 February 1967. The incident was Operation Tambourine which met the description of being a friendly fire accident, like the short fall incident; it had involved 6 RAR; and had occurred about the time that the applicant described the short fall incident as occurring. However that operation largely involved New Zealand forces, and the applicant and his unit were not involved in that encounter.
26. Operation Bribie took place some ten days after Operation Tambourine. In his second report (exhibit R3), Mr Tilbrook’s research focused on Operation Bribie. Mr Tilbrook consulted army records, log sheets, and the After Action Report for Operation Bribie and confirmed that, during Operation Bribie, a hectic fire mission took place from 101 Fd Bty in support of a company from 6 RAR, during which there was a drop short of two rounds from one gun which resulted in two infantry soldiers being wounded by shrapnel.
27. Mr Tilbrook reported that there were six Australians killed-in-action and twenty-one wounded in action in Operation Bribie. He said that the reports suggested that the Australian dead were thought to be the result of enemy action, not friendly fire, and suggested that this may explain why no formal investigation of the short fall incident was undertaken.
28. As a result of his further investigations, Mr Tilbrook confirmed that the applicant was one of the armourers involved in Operation Bribie and that he would have had the responsibility of supervising the artillery gun crew in conducting inspections and tests, including on gun sights to ensure the serviceability of the guns. Part of his research included discussions and written communications with the Battery Captain of 101 Fd Bty, Major B Johnson. Major Johnson confirmed that the applicant would have been called to the gun position on the gun line when deployed on operations. Mr Tilbrook quoted Major Johnson as follows:
It is understandable that Richard Finney has been ruminating over past years since the Vietnam war not knowing if he was, or was not, responsible for not detecting the faulty sight on a 101 Fd Bty gun that caused friendly casualties.
29. Mr Tilbrook made the general comment in his second report (exhibit R3) that Operation Tambourine occurring ten days earlier than Operation Bribie:
did bring home the deadly message to the artillery fraternity of the dire consequences which could arise if unacceptable margins of error are tolerated at the gun line.
30. In regard to the premature firing incident, Mr Tilbrook confirmed (exhibit R3) that a tragic artillery accident had resulted in the serious wounding of Gnr Cuskelly on 7 December 1966. Once again, Major Johnson as the Battery Captain at the time, was able to assist Mr Tilbrook with his researches and he confirmed that the applicant as artificer would have known Gnr Cuskelly from daily visits to the gun positions over a period of three months leading up to the premature firing incident. In oral evidence Mr Tilbrook noted that the applicant and Gnr Cuskelly would have worked closely as a team in that time.
31. Mr Tilbrook said that although the applicant was not an eye witness he would have been required to attend the site in the immediate aftermath of the accident to provide technical advice, as armourer, about the serviceability of the gun involved. Mr Tilbrook noted that Gnr Cuskelly was unconscious for eight days after the incident and was too critically ill to be moved and that it would have been a difficult time for all involved.
32. Mr Tilbrook included other information about the premature firing incident, researched for another veteran’s case and concluded that the applicant correctly described facts surrounding the incident. Mr Tilbrook said that reports at the time reveal that the premature detonation was caused by the projectile hitting a communications cable in the line of fire of the gun and was not a failure of the gun itself.
33. The applicant‘s general practitioner, Dr C Haug, prepared a report dated 22 January 1999 (T4) in which he stated that he had treated the applicant for anxiety and depression over a number of years and for an acute agitated state in 1997 when the applicant was troubled with bad dreams relating to his service, and was suffering panic attacks, blurred vision, palpitations and headaches. Dr Haug said that the applicant responded well to anti-depressant medication and counselling. Elsewhere in the documents (T4) Dr Haug referred to the applicant’s inability to communicate effectively with others and his loss of reasoning ability.
34. The medical reports included that of Dr J Regano, consultant psychiatrist, dated 20 August 1998 (T4) who diagnosed the applicant with psychotic depression. He stated that the applicant in the past had fulfilled the criteria for major depressive disorder, but had, in addition, delusional beliefs, though his report does not state what these were. Dr Regano noted from the applicant’s history that while his experience in Malaya was uneventful, he found his Vietnam experience terrifying and the applicant told Dr Regano that he was emotionally affected by the short fall incident.
35. In a report date 25 July 2002 (exhibit A10) Ms S Daniels, clinical psychologist, stated that the applicant suffered from dysthymic disorder and alcohol abuse. The applicant had told her that he had felt depressed after the premature firing incident. He had also described in detail the short fall incident. Ms Daniels stated that in assessing the applicant’s claims it was necessary to take account of the applicant’s inability to accurately recall the time, place and exact nature of events as she said his thinking is muddled, he quickly becomes confused and distressed under pressure, and his poor memory prevents him being a reliable historian.
36. Ms Daniels stated that the applicant suffered from alcohol abuse prior to his Vietnam service (exhibit A11), but in her view the severe stressor in Vietnam exacerbated his alcohol abuse and he experienced increased episodes of drunkenness and alcoholic amnesia. She said that after Vietnam his maladaptive behaviour caused multiple problems at work, at home, and socially. She agreed in her oral evidence that the consumption of alcohol can be associated with depressive episodes but she maintained that it was appropriate to diagnose two separate medical conditions here because of the presence of psychosocial stressors.
37. In a report dated 22 April 1999 (T4) Dr M Likely, consultant psychiatrist, diagnosed the applicant as suffering depressive disorder. He said that the condition was complicated by alcohol abuse and the depression may have arisen from use of alcohol. Dr Likely commented that it was significant that the applicant’s wife said that prior to going to Vietnam, he would include her when he went to the mess to drink after work, but that after he came back he was increasingly drinking late into the night and coming home so intoxicated he could not find his way into the house.
38. Dr Likely considered that the applicant now suffers cognitive impairment and was at risk of developing an alcohol-induced amnestic disorder or dementia.
39. When the applicant consulted Dr Likely, he told Dr Likely about the short fall incident and said that his unit was called out at short notice; errors were made, resulting in the death of two Australian soldiers. He told Dr Likely that he constantly ruminated about the short fall incident. The applicant told Dr Likely that he noted problems with his mental health from the early 1970’s. He said he was aware of his irritable mood, was experiencing broken and unrefreshing sleep, gloomy preoccupations, and escalated alcohol intake.
40. In oral evidence Dr Likely said that it is difficult to address issues of clinical onset retrospectively but said that based upon the detailed statements given by the applicant and his wife he believed that the applicant was experiencing depressive symptoms while serving in Vietnam and that after the short fall incident the applicant became moody and depressed. He said that the applicant was aware of experiencing such symptoms as broken and unrefreshing sleep by 1968. He said that the onset of depression is typically not acute but evolves insidiously and it is common that people are not aware of it developing.
41. In a report dated 20 March 2001 (exhibit R1) Dr N Rose stated that the applicant told him he was not relying on any particular incident in his Vietnam service but on his general experience of terror while he was serving there. Dr Rose referred only to the short fall incident and the applicant had told him that he was 10 to 20 metres away from the gun. The applicant told him that he only learned the following day that two Australian soldiers were killed. The applicant also told Dr Rose that despite the later testing of the gun, there was no formal enquiry and he still felt to blame.
42. Dr Rose diagnosed the applicant with alcohol abuse and major depressive disorder. Dr Rose said that the major depression probably commenced in the early 1970’s, developing in relation to the applicant’s alcohol abuse. Dr Rose referred to the applicant’s history of violent aggression, episodes of moodiness and poor sleep after the Vietnam War. However he took into account Mrs Finney’s evidence that the applicant was drinking heavily prior to his Vietnam service and concluded that the applicant’s alcohol abuse was not related to his war service.
CONSIDERATION OF THE ISSUES
43. Section 9 of the Veterans’ Entitlements Act 1986 prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:
9(1)Subject to this section, 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…
44. There was no dispute between the parties that the applicant had rendered operational service, and that subsections 120(1) and 120(3) of the Act apply.
45. Section 120(1) dictates that the Tribunal must determine that a medical condition is war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the applicant.
46. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
47. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the medical condition or conditions with the circumstances of the particular service rendered by the veteran. That step is met here in relation to the conditions of depression and alcohol abuse.
48. As a preliminary step the Tribunal must be satisfied on matters of diagnosis. The medical evidence was in agreement about the diagnosis of conditions from which the applicant suffers, and so the Tribunal is satisfied that the applicant suffers from a depressive condition (the minor differences of description between the medical practitioners do not matter as all are covered within one SoP for the various kinds of depressive disorder) and from alcohol abuse.
49. The second step outlined as Step 2 of Deledio requires the Tribunal to ascertain whether there is a relevant SoP in force. The relevant SoPs for the applicant’s conditions are:
§ Depressive disorder – Instrument No 58 of 1988
§ Alcohol abuse – Instrument No 76 of 1998
50. The parties agreed that two incidents raised hypotheses that reflect the following factors in the SoP for depressive disorder:
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
where severe psychosocial stressor is defined in the SoP as meaning an identifiable occurrence that evokes feelings of substantial distress in an individual. From the SoP for alcohol abuse, the Tribunal considered the following in Factor 5 of the SoP:
(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
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of… alcohol abuse….
Experiencing a severe stressor is defined within the SoP for alcohol abuse as meaning:
….. 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….
51. The Tribunal noted that the original decision was made on 11 December 1998, two days after the earlier SoP for alcohol abuse, then titled psychoactive substance abuse, was revoked and replaced by the current SoP. The Tribunal cannot consider the application of SoPs in place at the date of the claim (the SoPs for both claimed conditions were repealed between the claim and the delegate’s decision) but not in force at the time of the delegate’s decision: Stoddart v Repatriation Commission [2003] FCA 334.
Third Step In Deledio
52. Under the third step, if a SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one, which requires that the hypothesis matches the template to be found in a SoP: s120A(3) of the Act. It is necessary that the material raising the hypothesis contains all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
53. Mr Smith submitted that the applicant’s claim failed at the third step of the test for a number of reasons. He said that the incidents relied upon by the applicant do not reach the threshold of being severe: White v Repatriation Commission [2004] FCA 633.
54. Mr Smith submitted that after the short fall incident the applicant might have felt guilty for a short while but was later exonerated and that the incident was less serious than the applicant depicted because it resulted in injuries not deaths. In written submissions he stated the short fall incident might pass muster if he really had been responsible for the soldiers’ death, but commonsense would indicate that any depression would be replaced by relief and elation when he learned that he was not to blame.
55. Mr Smith submitted that the claim for alcohol abuse or dependence as related to service must fail because the evidence that the applicant had an entrenched pattern of heavy drinking before his Vietnam service meant he could not show that his alcohol abuse clinically worsened after experiencing a severe stressor. Mr Smith submitted that the Tribunal should accept the evidence of Ms Daniels that Mr Finney suffered from alcohol abuse prior to his Vietnam deployment, with an onset about 1953 or 1954. He said, relying on Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, that an aggravation during eligible service is not necessarily evidenced by an increase in alcohol consumption.
56. Mr Smith additionally submitted that the incidents relied upon could not be both severe psychosocial stressors and severe stressors because each term differs qualitatively from the other. The Tribunal does not accept that submission. There is substantial overlap in the language used and the concepts encompassed within the two definitions in the SoPs. Some support for this view is gained from the Federal Court decision in White’s case.
57. Mr Harding submitted that the applicant’s claim succeeds because the stressors have been proven and the medical evidence supports the claim. He submitted that the incidents must be understood in the context of other circumstances in Vietnam, brought out more clearly by the evidence of Mr Tilbrook, including that the applicant and his colleagues would have been hyper-vigilant after the casualties sustained in Operation Tambourine occurring only days before Operation Bribie took place. He noted that there was no incident more stressful than where a soldier feels responsible for casualties amongst his own men.
58. Mr Harding said that other matters to be taken into account included the evidence of Mr Tilbrook that Operation Bribie was a very desperate situation for the Australian troops and the combat scene at times would have been pandemonium. In relation to the premature firing incident Mr Harding said that the incident itself was tragic but added to it was the fact that Gnr Cuskelly was well known to the applicant as he had visited the gunline over a period of three months and they would have worked closely. All involved would have been badly affected by the uncertainty for eight days after the mishap about whether Gnr Cuskelly would live or die.
59. The issues of clinical onset and clinical worsening were raised on the evidence particularly in regard to alcohol abuse. It was apparent from the medical evidence that the psychiatrists and psychologist take different views about whether the applicant suffered from alcohol abuse prior to his Vietnam service and also about the inter-relationship between depression and alcohol abuse, though it is fair to state that they acknowledge that there is an inter-relationship between these whereby it may be difficult to discern which is cause and which is consequence.
60. However the question of whether the applicant already suffered from alcohol abuse prior to his Vietnam service or whether his pattern of alcohol consumption changed from normal to maladaptive during his Vietnam service (so that clinical onset was during Vietnam service) is not a critical matter at the third stage of the Deledio tests, in a case such as this, where some of the medical evidence points to the condition being present prior to Vietnam service and some points to it commencing on service. In those circumstances it means that two hypotheses survive the third step as outlined in Deledio, as there is evidence that points to each of them. This is not a stage at which facts are determined and the applicant has the advantage of consideration of these as alternate hypotheses raised by the evidence.
61. Clinical onset of depressive disorder during the applicant’s Vietnam service was pointed to by the evidence of Dr Likely and Ms Daniels, as well as by the applicant’s evidence that he felt depressed after the short fall incident and that he has anguished ever since that he may have been responsible for it. Dr Rose put the onset of depressive symptoms a little later, dating them from the early 1970’s.
62. Turning to the elements of the SoPs that require a severe stressor or severe psychosocial stressor, both subjective and objective considerations are relevant in applying the definitions of these terms: White’s case, Woodward v Repatriation Commission [2003] FCAC 160 and Stoddart’s case. There is no requirement that there be an actual threat: see Stoddart at paragraph 30-31 and Woodward at 131-142. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Full Federal Court said:
The definition extended to a person experiencing or being confronted with an event involving a threat of death of 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 partial subjective connotation.
In Delahunty v Repatriation Commission [2004] FCA 309 the Court said:
When the question ultimately in issue involves the effect of an objectively stressful event upon a person’s mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of reality should be determinative.
63. In White’s case the Court agreed that both subjective and objective aspects must be present for the definition of severe psychosocial stressor to be met.
64. The material supports the applicant having witnessed or been confronted with two incidents that involved actual injuries of a serious nature. The Tribunal does not accept the respondent’s submission that the short fall incident and the premature firing incident do not meet any reasonable meaning of severe especially when both incidents took place during engagements with the enemy.
65. There is no suggestion that the applicant suffered from depression prior to his Vietnam service and therefore, there is material which points to the satisfaction of factor 5(b) in the SoP for depressive disorder, experiencing a severe psychosocial stressor prior to the clinical onset of depressive disorder. There is evidence pointing to the appearance of symptoms of depression within two years of the stressor. The material before the Tribunal raises a reasonable hypothesis of a relevant relationship between the applicant’s depressive disorder and his service.
66. In regard to the applicant’s alcohol abuse disorder there is evidence that the applicant suffered alcohol abuse prior to his Vietnam service. As set out above, the material provides support for each of factors 5(b) and 5(d) of the SoP for alcohol abuse, but, as set out below the Tribunal ultimately decided the matter applying factor 5(c) of that SoP.
Deledio Step 4: Is the condition war-caused?
67. Through the application of step 4 of Deledio, the conditions will be war-caused unless the Tribunal is satisfied beyond reasonable doubt that this is not established by the evidence. The account given by the applicant has been reasonably consistent over time. The applicant’s case is one, where, due to the diligent researches of Mr Tilbrook, much greater material was available to this Tribunal than to the decision-makers below, enabling the occurrence of the incidents to be confirmed in the terms stated by the applicant. At earlier stages of review the historical research suggested otherwise. The occurrence of the two incidents is not in dispute after the comprehensive research of Mr Tilbrook confirmed the applicant’s descriptions of what occurred and his presence during each incident where casualties were sustained.
68. The Tribunal agrees with the respondent that the applicant’s oral evidence was not the model of clarity (written submissions para 21) but the Tribunal was satisfied that the applicant was doing his best to recall events and experiences that happened a long time ago, and were, on his evidence, deeply distressing to him to recall. The Tribunal took into account the evidence of Ms Daniels, Dr Regano and Dr Likely, that the applicant has some cognitive impairment, which may itself be the result of alcohol abuse. The applicant’s clearest evidence was given in his written statements and the content of these has not been seriously disputed.
69. The Tribunal also took into account the operation of s119 of the Act which provides that decision-makers must act in accordance with the substantial merits of the case, taking into account the difficulties that lie in the way of ascertaining the existence of any fact. It cannot be the case that if, as a result of a war-caused alcohol disorder, an applicant’s faculties are impaired, his inability to recall detail cannot be taken into account. Clearly these matters must be taken into account in assessing the evidence, though the decision-maker may seek supporting evidence. In this case much of the supporting evidence was provided by Mrs Finney.
70. Mr Smith’s submission that the applicant’s mood should have changed from guilt to elation when he found out that he was not responsible, misrepresents the applicant’s evidence and misrepresents how these provisions in the Act are applied. It misrepresents the applicant’s evidence because the applicant (along with others it seems) never learned that Australian soldiers were not killed as a result of the short fall incident. Secondly, the applicant’s evidence was that because there was no enquiry he was left with doubt about whether he might have been responsible for mistakes on the night of the short fall incident, given the difficult circumstances under which they laboured. The result is that he has had to live with an oppressive sense of doubt and guilt. The applicant’s evidence is uncontradicted.
71. Mr Smith’s submission also misunderstands the law, which looks to the person’s experiences and reactions (White; Stoddart), not what they should have felt, or how they should have reacted.
72. The Tribunal notes that the applicant referred mostly to the short fall incident and his reactions to it in the course of his evidence and in his discussions with medical practitioners. The Tribunal focused on that incident in applying the fourth Deledio step. The Tribunal notes the submissions made about the premature firing incident, but when addressing the question of substantial distress, it is the short fall incident that the applicant returned to, both when he spoke of depressive symptoms he experienced in Vietnam and also as the point when he increased his alcohol consumption.
73. In regard to clinical onset of depressive disorder, the Tribunal accepts the evidence of Dr Likely (exhibit A9) that the clinical onset of depression was during the applicant’s Vietnam service. His evidence was that the increase in alcohol intake during the applicant’s Vietnam service was a pointer to the presence of a depressive illness after the stressors occurred. The Tribunal accepts the evidence of the applicant that he felt depressed at this time and that he increased his drinking to cope with his symptoms. It needs to be borne in mind that he was thirty years of age when he was in Vietnam and in a senior position carrying important responsibilities. One could well understand that any uncertainty about his capabilities, or doubts about his involvement in causing injury to other Australians, would have been a burden for him. The evidence of Major Johnson on this point gives a greater appreciation of this.
74. On the question of clinical onset of alcohol abuse the Tribunal prefers the evidence of Dr Rose and Ms Daniels to that of Dr Likely. Dr Rose’s evidence that the applicant was suffering from alcohol abuse before his Vietnam service better reflects the evidence about the amount of alcohol that the applicant was regularly taking; the increase made during his service in Malaya that predated his Vietnam service; and the evidence (exhibit A10) that before he went to Vietnam he had been arrested for being drunk and disorderly, and in 1965 was in an alcoholic coma and reprimanded by the army for a failure to report for duty. Again taking into account that the applicant was thirty when he served in Vietnam and had joined the army at the age of seventeen, his pattern of drinking was probably an established one. The Tribunal does not accept the evidence of Dr Likely that his drinking was not maladaptive prior to Vietnam. Unfortunately there were no service medical records provided that predated 1968, which might have shed further light on this aspect.
75. The Tribunal accepted the applicant’s evidence that he significantly increased his alcohol intake in Vietnam in reaction to the distress he experienced in the short fall incident. His evidence was supported by Mrs Finney who noticed how his pattern of drinking and the amount he was drinking changed markedly after his Vietnam service. Her evidence was that by 1967 the applicant was suffering the effects of alcohol abuse, pervasive mood disorder and nightmares. Her evidence goes both to the conditions of depression and alcohol abuse.
76. The Tribunal accepts that the increase in Vietnam was a clinical worsening of alcohol abuse. After his Vietnam service the applicant did drink daily and to excess. There were modifications in his consumption subsequently, including a period when he was able to reduce his intake but he continues to drink on a daily basis and the medical evidence suggests substantial incapacity arising from alcohol abuse. As pointed out in Hatherall and Repatriation Commission [2002] AATA 77, the term clinical worsening is not defined in the SoPs or in the legislation, but is defined medically as pertaining to the symptoms and cause of the disease as observed by the physician, in opposition to anatomic changes found by the pathology. The Tribunal in that case said that the definition covers the worsening of existing symptoms. The evidence points to this in the applicant’s case, particularly on the evidence of Mrs Finney.
77. On the evidence, the Tribunal cannot be satisfied beyond reasonable doubt that the factual basis relating to the incidents described did not happen in the way the applicant described or in a manner which had an effect upon him sufficiently to meet the definition of depressive disorder and the clinical worsening of alcohol abuse disorder.
78. Thus the Tribunal finds that the applicant suffered depressive symptoms during his Vietnam service after the short fall incident. He increased his alcohol intake substantially at the time that he experienced psychiatric symptoms in Vietnam and this was clinical worsening of a pre-existing alcohol abuse disorder (reflecting an hypothesis provided for in factor 5(c) of the SoP for alcohol abuse). Accordingly the Tribunal was not satisfied beyond reasonable doubt that the applicant’s depressive disorder and alcohol abuse are not war-caused.
79. The Tribunal notes that the applicant lodged his application with the Tribunal more than three months after he would have received notice of the VRB decision (despatched on 10 December 1999) and the earliest date of effect that this Tribunal can set is 20 September 1999.
DECISION
80. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder and alcohol abuse disorder are war caused with effect from 20 September 1999. The Tribunal remits to the respondent the assessment of rate of pension payable.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 6 August 2004, 3 May 2005
Date of Decision 29 June 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and LutonFor the Respondent Mr J Stoner, Departmental Advocate - 6.8.04
Mr M Smith, Departmental Advocate – 3.5.05
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