Freeman; Repatriation Commission - [2000] AATA 727

DECISION AND REASONS FOR DECISION [2000] AATA 727

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/648

VETERANS'     APPEALS     DIVISION     )
           Re      REPATRIATION COMMISSION
  Applicant
           And    TERENCE HENRY FREEMAN
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Date21 August 2000
PlaceMelbourne

Decision      The Tribunal sets aside that part of the decision of the Veterans' Review Board, made on 24 February 1999 that post traumatic stress disorder and substance abuse are war-caused and substitutes therefor the decision that post traumatic stress disorder and psychoactive substance abuse or dependence are not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – Post Traumatic Stress Disorder ("PTSD") – Psychoactive Substance Abuse or Dependence – whether war-caused – whether diagnosis PTSD exists – standard of proof – relevance of Statement of Principles in establishing diagnosis – decision set aside – conditions not war-caused.
Words and Phrases: "traumatic event" – "intense fear, helplessness, horror"
Veterans' Entitlements Act 1986, ss. 9, 120, 190A, 196B
Repatriation Commission v Deledio (FFC 391/98; 22/4/98)
Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999
Repatriation v Cooke (1998) 160 ALR 17
Re Budworth and Repatriation Commission (AAT Unreported N1995/965 and N1997/69 – 23 February 2000)
Repatriation Commission v Gosewinkel (1999) FCA 1273
Statement of Principles Instrument No. 15 of 94 (as amended by Instrument No. 225 of 1995) (Post Traumatic Stress Disorder)
Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

REASONS FOR DECISION

21 August 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Introduction

On 12 August 1997 the Repatriation Commission ("Commission") refused a claim made by Terence Henry Freeman for post traumatic stress disorder ("PTSD") and hyperuricemia. The Commission further refused a claim made by Mr Freeman for substance abuse, breathing and asthma, the reason for refusal being that the diagnosis of these latter conditions could not be confirmed.
On 24 February 1999, after reviewing the decisions of the Commission, the Veterans' Review Board ("VRB") made a decision which was expressed in the following terms:
"a)to affirm the decision under review in relation to breathing, asthma and hyperuricemia. This means that the Repatriation Commission's decision is unchanged in relation to those matters.
b)to set aside the decision under review in relation to post traumatic stress disorder and substance abuse and substitute its decision:
(i)that those conditions were war-caused as defined in section 9 of the Veterans' Entitlements Act (the Act);
(ii)that the Commonwealth of Australia is liable pursuant to section 13 of the Act to pay pension for any incapacity arising from those conditions from and including 28 January 1997 and
(iii)to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid."
On 17 June 1999 the Commission lodged an application with this Tribunal for review of that part of the decision of the VRB concerning PTSD and substance abuse. It is that application which is the subject of these proceedings.
Representation
At the hearing before this Tribunal Mr Ginnane, of Counsel, appeared for the applicant (the Commission) and Mr Croyle, of Counsel, appeared for the respondent (Mr Freeman).
Material
The Tribunal had before it documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was received during the course of the hearing.
Witnesses
The following witnesses gave evidence during the hearing:

The respondent Mr Freeman
Lieutenant Commander D.G. McNaught RAN (Retd)
Mr P.J. Ashman
Associate Professor J.G. Grey

Relevant Service

Mr Freeman served in the Royal Australian Navy from 9 July 1967 to 9 October 1974. His eligible war service (which is also operational service) was from 4 November 1971 to 8 November 1971, in South Vietnam ("SVN"). He also rendered defence service from 7 December 1972 to 9 October 1974.
Date of Claim
Mr Freeman lodged his claim for PTSD and substance abuse on 28 April 1997.
Causation
By virtue of section 9 of the Veterans' Entitlements Act 1986 ("the Act"), a disease or injury is war-caused if it in effect:

resulted from an occurrence on operational service;
arose out of or was attributable to eligible war-service;
resulted from an accident while travelling to or from duty;
was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war-service; or
was contributed to in a material degree or aggravated by eligible war service.

Standard of Proof

The standard of proof to be applied in respect of causation during the periods of operational service rendered by Mr. Freeman is that which is provided in subsections 120(1) and 120(3) of the Act. Those subsections state as follows:
"120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

Application of Subsections 120(1) and 120(3) of the Act – Methodology

In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
In order for the material before the Tribunal to raise a reasonable hypothesis, that material must point to the hypothesis. It is not sufficient that the material raise a mere possibility. The Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in s 120(3) of the Act that "the material raise a reasonable hypothesis." The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Byrnes (supra) and said at p.730:
"This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

Statement of Principles ("SoP's")

Section 120A(1) of the Act, to which reference is made in the Note to section 120(1), provides that it applies to claims made on or after 1 June 1994. As Mr. Freeman's claim was made on 28 April 1997, section 120A applies to his claim. Subsection 120A(3) states as follows:
"(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis."
Pursuant to subsection 196B(2) of the Act, where the Repatriation Medical Authority ("RMA") is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service, the RMA must determine a Statement of Principles ("SoP") in respect of that kind of injury, disease or death, setting out:
(c)the factors that must as a minimum exist; and
(d)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Relevant SoP's

It was common ground between the parties, and the Tribunal agrees, that having regard for the decision of the Full Federal Court in Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999, the relevant SoP's in respect of these proceedings are No. 15 of 1994 as amended by No. 225 of 1995 concerning PTSD, and No. 5 of 1994, concerning Psychoactive Substance Abuse or Dependence.
Application of SoP's – Methodology
In Repatriation Commission v Deledio (FFC 391/98; 22/4/98) the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) stated as follows:
"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

Commission's Submissions – Diagnosis of PTSD

It was the Commission's submission that prior to examining the issue of whether PTSD and substance abuse are war-caused the Tribunal should satisfy itself whether or not there is a diagnosis of PTSD and substance abuse.
In making its submission the Commission asserted that the Tribunal is bound by the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 160 ALR 17 in matters of diagnosis. The Full Court held that the issue whether a particular disease existed was to be decided to the Tribunal's reasonable satisfaction.
The Commission submitted that it only becomes necessary for the Tribunal to consider the application of the factors in the relevant SoP's, if the Tribunal is reasonably satisfied that there is a diagnosis of the conditions.
The Commission argued that at this stage the Tribunal is governed by the principles established by the Full Federal Court in Deledio.
The Commission then went on to state that in accordance with the stepped procedure set forth in Deledio:
·     It accepts that the material before the Tribunal points to a hypothesis connecting the respondent's disease with the circumstances of the particular service rendered by the veteran (see: Deledio step 1).
·     It contends that there are applicable SoP's (Deledio step2) namely, No. 15 of 1994 as amended by No. 225 of 1995 for PTSD and No. 5 of 1994 for Psychoactive Substance Abuse or Dependence. These are the applicable SoP's as at the date of the primary decision (see: Repatriation Commission v. Keeley (1999) FCA 1103 : 13 August 1999).
·     It disputes that the hypothesis raised is a reasonable one and contends that the hypothesis does not fit within the template to be found in the applicable SoP's' for the diseases (see: Deledio step 3).
The Commission submitted that it is necessary for the Tribunal to find that Mr Freeman has a diagnosis of PTSD that is war-caused and that, in doing so, the Tribunal must be reasonably satisfied that all the diagnostic criteria (a) through to (f) inclusive in the definitions of PTSD contained in SoP No. 15 of 1994 are met (Cooke, supra).
It was the Commission's assertion that the Tribunal could not be so satisfied. In this connection the Commission's view was that:
"The reasoning of the VRB in relation to PTSD focussed mainly on the symptoms suffered by the respondent as a consequence of exposure to the "traumatic event". The Board's reasoning contained very little examination of the issue whether the respondent satisfied the equivalent to paragraph (a) of the diagnostic criteria contained in the definition of "post traumatic stress disorder" or the equivalent definition of "experiencing a stressor". In concluding that the "veteran experienced a severe stressor when he was confronted with an event that involved death or serious injury to another person" (p. 13 reasons for decision) the VRB advanced no reasons for its conclusions. The applicant contends that there is an absence of such evidence before the Tribunal."
SoP No. 15 of 1994 defines PTSD as meaning a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(b)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(e)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

For the purposes of the SoP, "DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. The SoP defines "experiencing a stressor" as meaning the following (derived from DSM-IV):

(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror.

The Commission submitted that the matters contained in paragraph (a) of the diagnostic criteria set out in SoP No. 15 of 1994 refer to the "traumatic event" that in essence underpins the diagnosis of PTSD. As stated by the Commission, paragraph (a) of the diagnostic criteria describes the nature of the event required, whereas the successive criteria in effect describe the reaction of the person to that event, and of necessity presuppose the existence of that event.
As was observed by the Commission, Mr Freeman relies on an incident that occurred on 6 November 1971, while he was carrying out the duties of Gun Direction Officer (Blind) ("GDO (Blind)"), in HMAS DERWENT while at anchor in Vung Tau harbour, South Vietnam ("SVN").
Respondent's Submissions – Diagnosis of PTSD

In contrast to the Commission's submissions, Mr Croyle submitted on behalf of Mr Freeman that:
·     A SoP only has relevance once you arrive at the point where s. 120/120A are to be applied.
·     The question of diagnosis precedes and is separate from the application of s. 120/120A.
· A SoP is only involved in the application of s. 120A.
·     The question of diagnosis is not dependent upon nor required by the legislation or Cooke's case to conform to the provisions of a SoP.
·     The diagnosis is established by ordinary norms (which may not necessarily require the strict terms to be seen in a definition contained in a SoP, such as in establishing the existence of ischaemia or hypertension or a psychological state using DSM IV).
·     It is only when the question of diagnosis is finalised that a SoP may be relevant.
·     If a SoP is relevant to the issue of causation (i.e. whether the condition is war-caused), the Tribunal (i.e. the decision maker), uses the Deledio steps in applying s. 120/120A to the matter.
·     At this stage, the decision-maker is to identify whether the materials contain "raised facts" supporting the hypothesis. This obligation applies equally to the hypothesis in general as well as to the application of the relevant SoP to the hypothesis.
· Once the "raised facts" support the hypothesis, it is for the Repatriation Commission to engage s. 120(1) and "disprove" an essential matter.
It was Mr Croyle's assertion that in these proceedings, and in others such as in Re Budworth and Repatriation Commission (AAT Unreported N1995/965 and N1997/69 – 23 February 2000), the Commission is seeking to have Mr Freeman establish facts by reference to a SoP (which would only become relevant at a later stage of the process), to the reasonable satisfaction of the decision maker and before the process required by section 120(1) and (3) is relevant.
It was Mr Croyle's submission that these "facts" should only be subject to scrutiny and "disproof" once, that is when the SoP is applied to the hypothesis.
Mr Croyle asserted that diagnosis should be established according to the evidence, but not by reference to the definition in a SoP (Tribunal emphasis). In doing so, the decision maker must consider whether the materials support a finding of a diagnosis (in this case that Mr Freeman has PTSD). Mr Croyle submitted that the decision-maker must act on credible evidence, including medical evidence. The decision maker, he said, is not entitled to substitute its own opinion on a "medical issue" for that of appropriate medical evidence on such medical issues – for example whether or not Mr Freeman has the signs and symptoms comprising the diagnosis of PTSD.
Mr Croyle acknowledged that sometimes there will be a difference of medical opinion, in which case the decision maker must choose between such opinions and give reasons for so doing. It was Mr Croyle's submission that this, however, was not the situation in respect of Mr Freeman, because all medical opinion says that he has PTSD.
Respondent's Submission – Diagnosis of PTSD – Alternative Process
It was Mr Croyle's submission that in the event that the primary submission made on behalf of Mr Freeman is incorrect and that in establishing the diagnosis reference should be made to the definition in the relevant SoP, then:
·     The correct method to establish the diagnosis is to refer to the diagnostic criteria set out in the relevant SoP.
·     The decision-maker must identify basic facts – external to the diagnostic criteria.
·     Once such facts are established the decision-maker must turn to the medical evidence to determine whether the diagnostic criteria have been met.
·     The decision-maker must act on the evidence and not its own opinion on medical issues.
Mr Croyle submitted that so far as Mr Freeman is concerned, the doctors have identified that PTSD exists as a medical diagnosis and that, additionally, that diagnosis is based on the criteria set out in the definition of PTSD in the relevant SoP. This diagnosis, Mr Croyle stated, is based upon the fact that Mr Freeman observed an unidentified aircraft on his radar screen (a fact admitted by the Commission).
It was Mr Croyle's assertion that the risk that the aircraft concerned could have been unfriendly and may have been about to attack or was an American aircraft that may have been about to attack by mistake, were matters of fact established by the materials before the Tribunal. It was Mr Croyle's submission that how Mr Freeman dealt with such information (when deciding whether he suffers from PTSD), is a question for medical assessment and not the opinion of the Tribunal as the decision-maker independent of such medical evidence.
Mr Croyle submitted that it follows that once the necessary factual matters are established, that is that there was an unidentified aircraft and the uncertainty of its intentions existed, the determination of the diagnosis, particularly by reference to paragraph (a) of the relevant SoP definition, was a matter to be assessed by Mr Freeman's perceptions and reaction, not by some "objective" standard such as whether the "reasonable bystander" would or should have perceived the danger or reacted as Mr Freeman did.
According to Mr Croyle, the references in various decisions of the Tribunal, for example in Re Budworth, do not explain how "the stressors" have an "objective existence". It was his assertion that the basic (i.e. non-diagnostic) facts should have an "objective existence", but the way in which they impacted upon Mr Freeman is necessarily to be assessed "subjectively".
Mr Croyle submitted that once the diagnosis is established medically (as a matter of probability), "the Deledio analysis comes into play".
In support of his various submissions Mr Croyle invited the Tribunal's attention to the following case law:

Cooke and Repatriation Commissionv Gosewinckel(1999) FCA 1273 both make it clear that section 120/120A are concerned with causation – that is the relationship between war service and the condition relied upon.
Weinberg J in Gosewinckel (paragraphs 36/37) makes this clear.
Further, the question – Whether or not the condition exists at all as defined in a SoP – is a separate matter to the causation question.
To decide whether a condition exists, the decision maker must look to "the presence of certain designated symptoms" (see paragraph 51 of Gosewinckel) or that "the diagnostic criteria prescribed by the SoP" have existed (see paragraph 56/57 of Gosewinckel) where that was a relevant consideration.
In Cooke, the Full Court of the Federal Court quoted Lee J in Ferriday v Repatriation Commission (1996) 42 ALD 526 with approval. His Honour said:
"Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under section 120(1) are facts to be established to the reasonable satisfaction of the Commission."
This follows on from the comments of Heerey J in Deledio quoted in Gosewinckel at paragraphs 24/25. Heerey J said (and approved of by the Full Court in Deledio)
"But it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under section 120(1) of the particular facts of a veterans case. The SoP's function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent so that the SoP can "uphold" the hypothesis."
In other words, it is not part of the diagnostic step to prove the occurrence of the incident – that is facts external to the medical diagnosis. The diagnostic step involves identifying that the diagnostic criteria exist – for example that the symptoms suffered by the individual and when laid down by a SoP, the medical criteria, exist. It is not part of the diagnostic step to question the facts giving rise to the symptoms.

Mr Croyle submitted that in the case of Mr Freeman the Commission is trying to have a "fact" which is "part of the question of causal connection between a morbid condition and a relevant circumstance of operational service treated in the same way as "facts which may be germane to establishing a right to a pension" – in other words the diagnosis of PTSD.
Mr Croyle submitted that the proposition relied upon by the Commission in these proceedings is novel. He further stated that many cases have been conducted to date without this approach being taken and that examination of preceding cases will show that it is implicit in many cases before the Tribunal and in decided cases before the Federal Court, that the facts external to the diagnostic criteria laid down in a SoP are treated differently to the diagnostic criteria in arriving at the actual diagnosis.
Mr Croyle submitted on behalf of Mr Freeman:

That the diagnosis of PTSD is unequivocally established by the evidence and that all of the diagnostic criteria are in place;
That the next step is to apply the steps set out in Deledio;
That the "raised facts" in this case satisfy the relevant factors in the PTSD SoP, as well as the substance Abuse SoP;
That the hypothesis is a reasonable hypothesis;
That it is then for the Commission to persuade the Tribunal "beyond reasonable doubt" that a factual matter upon which the hypothesis rests as a "raised fact", is negated.

Mr Croyle further stated that the authorities to which he had referred, as well as by implication in many other decided cases, does not require that the substance of paragraph (a) of the definition of PTSD is established objectively:
"The whole concept of PTSD is to identify the magnitude of the incident experienced by the Veteran and his reaction to that incident so that they can be matched in arriving at the diagnosis. Paragraph (a) of the definition of PTSD cannot be measured solely by an objective standard. A threat of death or serious injury or to the physical integrity of one's self or of others is a measure which involves both a character of severity and a subjective understanding of the severity.
It would be wrong to import an analysis of a factual situation based upon hindsight or another person's assessment of whether or not they would view the circumstance in the same light or react in the same way as the Veteran in question."
Mr Croyle submitted that using such an analysis, on any view and in any context involving the application of Cooke's case et alia, Mr Freeman satisfies the definition of PTSD in the relevant SoP.
Commission's Submission In Reply To Respondent's Approach
In response to the approach advocated on behalf of Mr Freeman the Commission asserted that such an approach seeks to draw a distinction between facts relevant to the war-caused issue and facts relevant to the medical issues and the issue of diagnosis which fall within the realm of relevantly qualified medical specialists.
The Commission asserted that Mr Croyle by his submissions invited the Tribunal to limit its findings on the diagnostic issue to the medical opinions obtained to date.
The Commission further asserted that Mr Croyle contended that the examination of PTSD does not involve an examination of whether it occurred or would have occurred but instead is purely a question of medical assessment.
The Commission also stated that the approach argued on behalf of Mr Freeman relies upon a passage of Lee J in Ferriday (supra), referred to in Cooke at 22, line 50:
"Facts which are germane to establishing a right to pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service under s. 120(1) are facts to be established to the reasonable satisfaction of the Commission."

The Commission submitted that Mr Freeman contended by implication from the above passage that facts that are part of the causal connection are not to be determined in accordance with section 120(4) of the Act. Such a contention, the Commission asserted, is misconceived:

"The contention ignores the fact that with conditions such as PTSD, by nature such facts whilst also relevant to the causation issue, are inextricably bound with the diagnostic issue and hence relevant to diagnosis as per the definition. The fact that these facts are relevant to both diagnosis and causation is itself recognised by the stressor factor 1(a) which necessitates an examination of the very same facts again."

It was Mr Ginnane's submission that the Commission does not cavil with the suggestion that Deledio applies at this point and that the matter falls to be determined in accordance with section 120(1) and (3) as modified by the SoP regime of section 120A of the Act.

It was the Commission's view that it is wrong to break down the facts into the above two categories. The diagnosis of PTSD is necessarily predicated on histories taken from the veteran and by nature the diagnosis of PTSD is dependent on the existence of a "traumatic event". If a veteran claims he has PTSD due to stressors experienced on service, those stressors arising from service need to be examined to determine whether they meet the diagnostic criteria.
The Commission argued that it is appropriate that the Tribunal examine these issues as it has the benefit of evidence that puts the respondent's account into context:
"It is appropriate that the AAT examine these issues as it has the benefit of evidence that puts the respondent's account into context. It is understandable that the medical professionals do not critique histories of service provided to them by their patients in a clinical setting. They are usually not in a position to do so. It is appropriate that they report on the disclosed history provided and it would be inappropriate for the Tribunal to simply rely upon the findings re the traumatic events as recorded by those professionals in a clinical setting."
The Commission submitted that Grosewinkel is not in any manner authority in support of the contention made on behalf of Mr Freeman. In that case, the Commission said, Weinberg J found in favour of the Commission in relation to the diagnostic issue (see paragraphs 39 and 40), with his Honour recognising that he was bound by the authoritative decision of the Full Court of the Federal Court in Cooke.
The Commission submitted that Cooke is binding authority in support of the Commission's approach in these proceedings.
It was the Commission's view that counsel for Mr Freeman was endeavouring to agitate the same issues before this Tribunal as he did before the Federal Court in Gosewinkel and which arguments were unsuccessful. Indeed, the Commission took the view that should the Tribunal accept the interpretation approach urged upon it by Mr Croyle, it would be placed in a "straight jacket" and precluded from examining the diagnostic issue and requiring it as a matter of course to make findings only in accordance with psychiatric opinions. In asserting thus, the Commission drew attention to Re Budworth and Repatriation Commission (supra), in which the Tribunal rejected the diagnosis of the psychiatrists. It was the Commission's view that such an approach was sound in the light of the clinical process by which histories are invariably taken.
Finally, it was the Commission's view that if the approach propounded by Mr Croyle was accepted, it would put the handling of the diagnosis of PTSD at variance with the application of section 120(4) of the Act for the diagnosis of other medical conditions.
The proper Approach – Tribunal's Findings
After consideration of the competing submissions extensively set out above, the Tribunal finds as follows:
(a)That before examining the issue whether PTSD and Substance Abuse are war-caused, the Tribunal must satisfy itself whether or not there is a diagnosis of PTSD and Substance Abuse;
(b)That in doing so the Tribunal is bound by the decision of the Full Court of the Federal Court in Repatriation Commission v Cooke, that is to say the issue whether a particular disease existed is to be decided to the Tribunal's reasonable satisfaction;
(c)That consideration by the Tribunal of the factor or factors in the relevant SoP's will only be necessary if the Tribunal is reasonably satisfied that there is a diagnosis of both conditions;
(d)That upon the Tribunal being so satisfied, the principles established by the Full Court of the Federal Court in Deledio are to be applied;
(e)That in determining whether Mr Freeman has a diagnosis of PTSD, the Tribunal must be reasonably satisfied that all the diagnostic criteria (a) through (f) inclusive in the definition of PTSD contained in the relevant SoP, are met.
In view of the alternative process submission made on behalf of Mr Freeman, the Tribunal makes the additional findings:
(a)That a distinction is not to be drawn between facts relevant to the war-caused issue and facts relevant to the medical issues and the issue of diagnosis which fall within the realm of relevantly qualified medical specialists;
(b)That the Tribunal should not limit its findings on the diagnostic issue to the medical opinions obtained to date;
(c)That examination of PTSD involves an examination whether it occurred or would have occurred and is not purely a question of medical assessment;
(d)That facts that are part of the causal connection are to be determined in accordance with section 120(4) of the Act.

It will be apparent that, in considering the submissions made in support of the alternative process, the Tribunal has accepted and agrees with the submissions of the Commission.
Whether there is a Diagnosis of PTSD

As stated earlier, SoP No. 15 of 1994 defines PTSD as meeting a range of criteria derived from DSM-IV.
Also as recorded earlier, in support of his claim Mr Freeman relies on an incident that occurred on 6 November 1971 while he was carrying out the duties of GDO (Blind) in HMAS DERWENT while the ship was at anchor in Vung Tau harbour, in SVN.
The Commission contends that Mr Freeman does not have the psychiatric condition PTSD. Alternatively, if he does have such a condition, it is not war-caused.
It is convenient at this point to further record that, in making his claim, Mr Freeman relies upon the existence of the following factor in order to raise a reasonable hypothesis connecting PTSD with the circumstances of his service:

SoP No. 15 of 1994 paragraph 1(a):
"Experiencing a stressor prior to the clinical onset of post traumatic stress disorder."

Evidence

On 19 July 1999, Mr Freeman signed a statement (Exhibit R1), which reads as follows:
"I was born on 9 November 1951.
I served in the RAN from 9 July 1967 to 9 October 1974. During that period I served in Vietnam from 4 November 1971 to 8 November 1971. I never suffered anxiety, depression, insomnia, flashbacks, alcohol abuse etc prior to my short period in Vietnam.
During my period in Vietnam I was serving on HMAS Derwent. It was anchored in Vung Tau Harbour for only one night in November 1971. During the period that we were at Vung Tau Harbour I was given the duties of Gun Direction Officer Blind. Those duties involved indicating targets to the gunnery system from radar. I was consequently required to operate the gunnery radar. In the course of doing so I noticed an unidentified aeroplane which was closing the ship. Allied planes transmitted an IFF (identification friend or foe) which was a signal which instantly enabled an allied radar operator to identify a plane as friendly (or not). In this instance I had to assume that the plane was an enemy aircraft and I tracked it.
Having located the plane I communicated with the gunnery transmitting station and on my orders it then located and locked its guns onto the plane. At the same time I was attempting to contact the bridge where the Gunnery Officer was supposed to be located. Had I been able to contact the Gunnery Officer then he would have assumed responsibility for the situation. Because I was unable to communicate with the Gunnery Officer it then became my responsibility to decide whether to fire on the closing plane.
I was in a dilemma because in the back of my mind was a thought that the plane might have been allied but with the IFF switched off (perhaps through inadvertence). On the one hand I did not want to be responsible for shooting down an allied plane, but on the other hand, I did not want to risk my safety or that of the ship's company if it was an enemy plane. I froze. I guess it was for only about thirty seconds that I froze although it seemed longer.
The firing range of the ship's guns was 7,000 yards range future. The closing plane got within that range and then operated the plane's transmitter. By the time the signal did eventuate I was virtually at the point of having to give orders to fire. I believe that the only reason the pilot switched on his IFF was because his instrumentation revealed that our guns were locked on him.
After the incident I discovered that the defence status of the ship had been lowered and, with the exception of the operations room and gunners, the remainder of the watch had been stood down. The Gunnery Officer ought to have advised me of this fact and also ought to have stood down the gunnery stations. By failing to do so he created the situation which almost led to tragedy.
I had been trained as a Gun Direction Officer Blind although I had never come across an emergency situation before the one in Vietnam.
Certainly the gunnery crew and the radio room crew were aware of what had transpired but I never reported the incident.
I was shocked by the incident. I was terrified at the time and felt helpless. When I learnt of what had happened in relation to the lowering of the defence status of the ship I also felt angry but was unable to do anything about the Gunnery Officer's failure to advise me of what was going on. I also felt humiliated and ashamed at my reaction to the situation.
I was so affected by the events that I immediately sort comfort in alcohol (in order to settle my nerves). Whereas prior to the incident I was a social drinker only of alcohol after the incident I came to drink heavily. Before the incident I was keen on sport and unwilling to let habits such as alcohol affect my health. After the incident I found that I frequently suffered flashbacks (during which times I imagined the worst which might have happened). My imagination was heightened by the fact that one of my friends had been killed by fire from an allied plane in 1968 whilst he was on board HMAS Hobart and I was aware of this. Furthermore, I came to suffer insomnia and when I was able to get to sleep. I suffered nightmares about the incident. I also had feelings of anxiety, depression and anger. I felt alienated because I was ashamed of my emotional reaction to the situation. I found that alcohol helped to soothe all of these emotions.
I lost interest in activities which I had previously enjoyed (including sport and my career) after the November 1971 incident.
My treating family doctor is Dr S Sneyd of Maude Street Clinic, Shepparton. I have no treating psychiatrist. I have been attending the Post-Traumatic Stress Disorder Clinic at the Austin and Repatriation Medical Centre.
I ceased work in 1997 because of the effects of my post-traumatic stress disorder. Up until then I was a Financial Planner with Colonial Mutual."

It will be observed that in his written statement Mr Freeman recorded that he had been attending the PTSD Clinic at the Austin and Repatriation Medical Centre. However, in oral evidence given at the hearing Mr Freeman said that he is presently an inpatient at the hospital and had been so for a few days.
Mr Freeman added that the reason he is an inpatient is because "the doctors feared for my safety … that I might cause myself some harm". He further added that he has been attending the PTSD Unit at the hospital for "a couple of years now". He has what he termed as "psycho-counselling" twice per week.
In the course of his oral evidence Mr Freeman confirmed that the content of his written statement is true and correct.
In giving evidence about the incident which he claims occurred in the DERWENT on 6 November 1971, Mr Freeman stated that from 0400 the ship was at Defence Stations and that, as recorded in his written statement, he was performing the duties of GDO (Blind) in the ship's Operations Room, which is an enclosed compartment.
Mr Freeman stated that to the best of his recollection there were also some radar operators in the Operations Room, but no senior officer.
Again as recorded in his written statement, Mr Freeman's evidence was that while operating the gunnery radar, he noticed an unidentified aircraft which was closing the ship.
Mr Freeman stated that the radar showed the aircraft "as a normal blip":
"It didn't come up as an IFF which is the identification, friend or foe, which comes up as six letter dots on the radar screen so you can differentiate." (Transcript p. 61)
It was Mr Freeman's evidence that as the aircraft came closer to the ship he called the Bridge and the Gun Direction Platform ("GDP"), to let them know that there was an incoming aircraft. He did this because, given the range indicated on the radar screen, the aircraft would at that time have been out of visual range.
Mr Freeman then went on to state:
"But I got no reply from either the bridge or the GDP. I then, you know, as people have explained, I pressed the button which indicates to the transmitting station the direction of the aircraft, then the director locks on to it. I then gave the order to stand to, to the gunnery system, and that means bringing the turret into align with what the radar is pointing at. It just kept coming in and, as it got closer, I couldn't get any reply from, like I said, the bridge or the GDP where my senior officer was supposed to be. I then felt that it fell upon me as the next in line to do something about it, whether to give the order alarm aircraft as it was approaching and it was still unidentified, or not identified as friendly, and I just couldn't give the order. I just sort of froze and panicked." (Transcript p. 61)
Mr Freeman explained that the order "alarm aircraft" is supposed to come from the Principal Warfare Officer ("PWO") or the Gunnery Officer. However, as he had no response from either of these two authorities:
"I could have given the order and that would have gone to the transmitting station. And the next order is then shoot." (Transcript p. 61)
Mr Freeman stated that it would have been the responsibility of the transmitting station to give the order to shoot. He explained that the order "alarm aircraft" overrides everything else, with the result that as soon as the aircraft comes into range the guns will lock on and fire.
Mr Freeman's evidence was that given the situation he was terrified and froze:
"I didn't know whether – I was between, like, the devil and the deep blue sea: do I try initiate a command to start shooting at it and hope it's an enemy ship, an enemy aircraft, or do I say nothing and let it come closer; and if it is an enemy aircraft and it unloads on us and, you know, it kills me or the rest of the ship's crew, I had all that – I seemed to have all that responsibility on my shoulders – or what. I just didn't know what to do. But as it was getting closer towards the range, it switched on its IFF. The aircraft must have been fitted with some device that tells it when there's a gunnery radar. I think they have a missile scanner type thing in the aircraft that tells them when they've been locked on. And they've initiated that, and then I just told the guns crews I'd like to stand down. I forget the exact nature of the order, I suppose I just panicked." (Transcript p. 62)
Mr Freeman said that after standing down he was "in a daze" and not sure what he should do. He claimed that he then left the Operations Room and went to the Bridge, but found no one there. He said that he then left the Bridge and followed Lieutenant McNaught, who was climbing the ladder up to the GDP.
It appears that Lieutenant McNaught then stood down the GDP and Gun Direction Room ("GDR") positions.
Mr Freeman stated that he said nothing to Lieutenant McNaught about what had happened and indeed he told no one about it for some 23 years:
"Because in my own opinion I'd acted in a cowardly fashion. I was trained to do a job and, regardless of what had happened or the consequences, in the Navy you're trained to do the job first, worry about the consequences later. You carry out orders and then, if you're not happy with them, you put a complaint in about them later." (Transcript p. 63)
According to the oral evidence of Mr Freeman the time span between his sighting of the aircraft on his radar screen and the events that followed, was perhaps 30 to 45 seconds. He said:
"It wasn't very long at all, you know. It was 30, 45 seconds maybe. Because I – I didn't have enough time or to panic, the time just seemed to freeze. It seemed to last hours but it wasn't that long, you know. It was only 30, 45 seconds and then it switched on its IFF. It didn't give me time to try and notify somebody else." (Transcript p. 63)
In cross-examination Mr Freeman was asked whether, by the time the aircraft operated its IFF, it had or had not reached the point of no return (in terms of whether it was going to be fired upon). His response was that this was not so, explaining that once the order "alarm aircraft" is given, there is virtually no point of return because the next order is "shoot", unless "something happens" and then you give the order "check, check, check". However, Mr Freeman said that because the aircraft kept coming he was not able to make a decision to give the order to "check, check, check".
Mr Freeman agreed that he experienced a great sense of relief when the aircraft finally operated its IFF.
When asked whether during the 30 to 45 second time span he was weighing up in his mind competing considerations, that is to say whether if he fired he might be firing on a friendly aircraft or, if he did not fire, he might be allowing an enemy aircraft to attack the ship, Mr Freeman agreed that this was so. He explained, however, that:
"When I say froze, my rationale, my thinking decision froze. I was just looking at the screen and, what do I do? And I just got the shakes and I just froze there." (Transcript p. 65)
Mr Freeman confirmed that he himself would not have had the authority to give the order to fire:
"The only order I could have given was alarm aircraft on the thing that was coming in. And the next order then is given from the transmitting station to shoot, and that is it." (Transcript p. 66)

Nevertheless, Mr Freeman made the point that had he given the order "alarm aircraft", then in the absence of a senior person to either affirm or deny his order, the transmitting station would have had to give the order to fire:

"So it left me virtually in a position where I shouldn't have been." (Transcript p. 68)

Mr Freeman denied that the ship's Operations Room was fully manned at the time in question. While the Operations Room would be fully manned when the ship was at Action Stations, he said this was not so at the time of the incident, the reason being that the ship was then at Defence Stations. The ship was at anchor in Vung Tau harbour; the Bridge was secured, and the ship's routine was being run from the gangway.
Mr Freeman agreed that because he "froze" during the incident in question, he could not in the circumstances have initiated any procedure that would have resulted in the death of the occupants of the aircraft:
"No, I just couldn't do it." (Transcript p. 76)
Mr McNaught, who is a retired naval officer, provided a report dated 22 May 2000, for the purposes of these proceedings. He also gave oral evidence.
Mr McNaught served in the Royal Australian Navy from February 1963 to February 1983, at which time he retired in the rank of Lieutenant Commander.
In November 1971 Mr McNaught held the rank of Lieutenant and was serving as the Gunnery Officer in HMAS DERWENT.
It was Mr McNaught's evidence that at 0400 on 6 November 1991 he went to the ship's GDP, which is situated on the deck above the Bridge and in front of the IKARA Dome.
Mr McNaught stated that although he was unable to recall clearly where he was prior to going to the GDP, nevertheless he could remember that he had required the SEACAT mount be loaded with war missiles but that, after 0300, the Deputy Electrical Officer informed him that all the live shots he put up test-failed.
Mr McNaught confirmed that the ship's Bridge was manned at about 0400 on 6 November 1971, although he could not recall by whom. He was able, however, to recall that he had been relieved on the GDP by Chief Petty Officer Fire Control Ross.
Mr McNaught said that while serving in the DERWENT in or about November 1971 he had no knowledge of the presence of enemy aircraft in the vicinity of Vung Tau harbour. However, he made the point that because the ship at that time was in a war-zone, the likelihood of an aircraft was ever present.
Mr McNaught confirmed that he had also served as a Gunnery Officer in HMAS SYDNEY while that ship was on deployment to SVN. It was his evidence that at no time, either during his time onboard the SYDNEY or during his time onboard the DERWENT, did either ship encounter enemy aircraft.
When it was put to him that Mr Freeman claimed that on the morning of 6 November 1971 he, Mr Freeman, attempted to contact the DERWENT's Bridge but had failed to reach anyone, Mr McNaught responded thus:
"I have no idea what he is talking about there because the bridge was always manned by a communicator, by a bosun's mate, by the duty officer who was on watch. Even though the ship wasn't underway and with weigh on and we were at anchor, we still maintained a full watch on the bridge.""
Likewise when it was put to him that Mr Freeman claimed to have observed an aircraft on radar which was not identifying itself as either friend or foe, Mr McNaught again replied that he had no idea what Mr Freeman was talking about. The first he had heard about such an event was when he read a statement made by Mr Freeman.
Referring to the Ship's Log, Mr McNaught observed that from 0424 to 0730 the ship's Navigating Officer (an officer by the name of George Scown) was the duty officer of the Watch. With him would have been the Second Officer of the Watch, plus two Bridge Lookouts.
It was Mr McNaught's evidence that the DERWENT went to Defence Watches at 0400 on 6 November 1971. It appears the ship remained in Defence Watches until about 2257 that night.
Mr McNaught stated that the Commanding Officer would not be present on the Bridge during the period the ship was in Defence Watches, but rather he would be on immediate voice call from his cabin, which is located adjacent to and opens directly into the Operations Room.
Mr McNaught further explained that when the ship was in Defence Watches the Gunnery Officer's duty station was in the GDP, not on the Bridge.
It was Mr McNaught's evidence that from shortly after 0400 on 6 November 1971 he was on watch in the GDP and that he remained there until relieved by Chief Petty Officer Ross sometime before 0700. Prior to going on watch he was in his cabin.
It was Mr McNaught's evidence that had a report been conveyed to the Bridge that an unidentified aircraft was approaching, this would have resulted in the Action Stations alarm being activated.
Mr McNaught stated that in the performance of his duties as GDO (Blind) Mr Freeman was "purely an advisory man". He then went on to describe what might be termed the "command structure" within which Mr Freeman would have functioned:
"And the fact is that in the GDR or the gun direction room, all he had to do was to acquire the target with a button push from his position in the GDR and that was transmitted to the transmitting station where in fact they then searched in their equipment. They got it for bearing which is all the GDR could give. The GDR couldn't give elevation. It had to be either located by the visual sight on the GDP or the director or electronically by the transmitting station. So I saw the command structure as such in this way. That he had, in the operations room, the captain's representative in a guise of the operations room officer and a full staff, one of whom managed an air intercept radar. All he had to do, if he was going to activate anything with a gunnery system, was to shout "alarm aircraft", starboard or port. And give – he couldn't give an approximate angle of sight. Now what happens then is that the gunnery system, because it is closed up – fully closed up albeit in defence stations, can get the first round away. Given a bearing and given an elevation. But to fire a deliberate fire as he has indicated, he would have to have permission from the command because whenever I …, we were going to fire the weapons, I had to get the captain's permission before we could engage. The man who said "shoot" or "fire" was the man in the transmitting station." (Transcript p. 31)
It was Mr McNaught's strong assertion that at the time of the incident alleged by Mr Freeman, the Duty Operations Room Officer would have been present in the Operations Room, and immediately available to him.
When asked to explain the function of the Duty Operations Room Officer, Mr McNaught responded by stating:
"Well he controls all the radar plot personnel in the operations room. They run the local operations plot, which is the one adjacent to the gun direction room, then there is the general operations plot which gives the overall picture of what is going on. In this case there was no naval gunfire support involved so that section of the operations room wasn't occupied. Then you have got an element of the ship's communications people there because they run the electronic warfare and these are all tied together in the one room by the LRO and we have – just introducing into that thing at that time was a thing called a PWO, a principle warfare officer." (Transcript p. 32)
Mr McNaught also stated that at no time was Mr Freeman in a position to give a verbal order to fire on the incoming aircraft:
"When you deliberately fire at something, you have to get the command's permission to fire. He didn't activate alarm aircraft procedures." (Transcript p. 32)
As indicated earlier, Mr P.J. Ashman gave evidence during the hearing. He also provided a written statement (Exhibit R2), dated 19 October 1999, which reads as follows:
"I served in the RAN on board HMAS Derwent when it sailed in Vietnam waters in November 1971. I was on board the Derwent in November 1971 when it was anchored at Vung Tau Harbour. I was leading hand in charge of the gun turret at the time.
I trained with Terry Freeman and also served with him and we socialised together. We served together from 1967 to 1971 and got to know each other well.
I recall an incident whilst we were anchored at Vung Tau Harbour in November 1971 when I was given an order to arrange for the gun turrets to be in auto mode (i.e. locked onto wherever the radar was locked on). At the time the vessel was in defence watch (i.e. part of the ship's company had been stood down and those remaining were closed up in self defence watch). Terry was running the Gun Direction Blind on the vessel. His duties were to monitor on radar any activity in the area. It was part of his duties to watch out for enemy aircraft. If he saw enemy aircraft then he was the (sic) liaison with the gun turret.
We were required to lock onto any approaching enemy aircraft. Our training was to treat anything hostile unless it was identified as allied. Terry had signalled that he had identified an approaching plane which was not transmitting IFF (identification friend or foe).
The range of our guns was 7,000 yards range future.
I do not know how close the particular plane got after I received the order to stand to. Terry ultimately, however, gave an all clear signal which meant that we then resumed local control of the gun.
As Gun Direction Officer Blind it was Terry's job to give us the order to fire or not fire. I do not doubt that the Gunnery Officer was stood down at the time of the incident. If the subject plane had kept approaching without identifying itself then sooner or later Terry would have had to make the order to fire.
There were a number of instances when allied planes did not have the IFF transmitter operating giving rise to scares.
Terry never spoke to me about his fear during the aforementioned incident. We went our separate ways in late 1971/early 1972 (I was transferred to HMAS Cerberus in about early 1972). The culture in the RAN was not to show one's emotions otherwise you would be subject to ridicule of the ship's company. It was a macho atmosphere. I am therefore not surprised that Terry did not confide to me his fear during this incident. Similarly, there were occasions during service when I also was fearful but did not confide in others about this emotion."
Professor J.G. Grey, who is Associate Professor of Military History at the School of History, Australia Defence Force Academy, gave evidence during the hearing. He also provided a written report dated 28 October 1999 (Exhibit A8), for the purposes of these proceedings. In addition, the Tribunal also had before it written responses which the Professor had earlier provided in respect of certain questions posed by the Department of Defence relevant to this matter (T18/70-72).
In answer to one of the questions posed, Professor Grey stated in part as follows:
"1.There is no mention in the ship's Report of Proceedings of aircraft approaching the ship at any time while in South Vietnamese waters. This by itself is not conclusive. However, there is no mention of any air activity in the area occupied by Derwent in the ship's log. Nor is there any mention of air activity in the vicinity in the log for HMAS Sydney, which Derwent was escorting. The log reports all activities involving the movements of the ship and of its crew.
2.It is possible that the ship's RoP would not mention the presence of aircraft if that presence was benign (i.e., non-hostile/non-threatening). It is very unlikely that the RoP would be silent on the matter in the event that an aircraft was considered potentially hostile and preliminary measures were taken to counter it, even if they were not subsequently executed." (T18/70)
During his oral evidence Professor Grey accepted that while there is no ship's record of aircraft approaching the DERWENT at any time while in SVN waters, there would, however, have been many aircraft operating in the region of Vung Tau.
As to the possibility of enemy aircraft operating in the region of Vung Tau at the time the DERWENT was there in November 1971, the Professor's view was that there is simply no basis for believing that such a possibility existed:
"I don't accept it, in 1971, after 20 approximately of these voyages escorting Sydney back and forth, at this state in the war, I simply don't accept that there would be a – as you just suggested, a generalised concern that enemy aircraft might be operating in the vicinity of VungTau." (Transcript p. 102)

In expressing his view Professor Grey made the point that the Viet Cong had no Air Force, meaning that they had no aircraft, pilots, air crew, air bases or air strips.

Diagnosis of PTSD – Tribunal Findings

As observed in paragraph 54 above, in determining whether Mr Freeman has a diagnosis of PTSD, the Tribunal must be reasonably satisfied that all the diagnostic criteria (a) through (f) inclusive in the definition of PTSD contained in the relevant SoP (No. 15 of 1994), are met.
As was held in Re Budworth, to which reference is made at paragraph 28 above, the criteria set out in paragraph (a) of the SoP definition of PTSD is to be approached objectively, whereas the criteria set out in paragraph (b), being the "response" criteria, permits of subjective analysis.
Approaching the criteria in this manner, the Tribunal is reasonably satisfied that Mr Freeman does not suffer from PTSD within the meaning of that disorder as defined in SoP No. 15 of 1994, and finds accordingly.
Based upon the documentary and oral evidence before the Tribunal it could not be said that Mr Freeman was "confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others".
As has been recorded, the evidence of Mr Freeman was that he was never going to give the order "alarm aircraft". He "froze" and on his own admission could not in the circumstances have initiated any procedure that would have resulted in the death of the occupants of the approaching aircraft.
It is observed that, in his written statement made on 19 July 1999 (see paragraph 60 above), Mr Freeman makes no mention of alarm procedures.
The aircraft in question was not an enemy aircraft and, given Mr Freeman's evidence that he did not give the order "alarm aircraft", the possibility of the DERWENT firing on the aircraft never existed.
The Tribunal accepts and prefers the evidence of Mr McNaught, which was that, contrary to the evidence of Mr Freeman, the Duty Operations Room Officer would have been present in the Operations Room and immediately available to Mr Freeman.
As to the requirement that Mr Freeman's response to the situation concerning the aircraft involved "intense fear, helplessness, or horror", neither his written statement nor his oral evidence reveal a reaction on his part which could be said to be an extremely high level reaction to an extremely traumatic stressor. He did not, in the Tribunal's view, react with intense fear or horror.
As was submitted by the Commission, Mr Freeman's response to the event did not involve helplessness. That is to say he plotted an unidentified aircraft closing the DERWENT; he assumed it to be an enemy aircraft and informed the transmitting station accordingly. Furthermore, according to his evidence he attempted to alert the Bridge and the GDP. It was his assertion that, when he was not able to do so, he considered that he was from that moment placed in a position where he might have to give the order to open fire. It was at this point in time that he asserts he "froze" and that he did so for a period of some 30 to 45 seconds. But at the end of that period, the aircraft identified itself as friendly. It is the Tribunal's view that these actions do not constitute a high level reaction to the event and do not demonstrate the involvement of intense fear, helplessness, or horror.
While the Tribunal finds that a diagnosis of PTSD does not exist within the meaning of SoP No. 15 of 1994, it notes that, as recorded in paragraph 58 above, the Commission's contention is that if Mr Freeman does suffer from PTSD, it is not war-caused. The Tribunal agrees with the contention and finds accordingly.
As stated in paragraph 59 above, in making his claim Mr Freeman relies upon the factor "experiencing a stressor prior to the clinical onset of post traumatic stress disorder".
As already stated in paragraph 24 above, SoP No. 15 of 1994 defines "experiencing a stressor" in essentially the same terms as those set out in paragraph (a)(i) and (ii) of the SoP's definition of "post-traumatic stress disorder".
While the Tribunal finds that, if there is a diagnosis of PTSD within the meaning of the SoP, the material before it points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Freeman, it is in the Tribunal's opinion that the hypothesis, however, is not a reasonable one. It is not reasonable because it is not consistent with the "template" to be found in the SoP. It is not consistent because the hypothesis raised does not contain the factor relied upon, namely "experiencing a stressor prior to the clinical onset of post traumatic stress disorder". The reason the hypothesis does not contain the factor relied upon is precisely the same as the reason or reasons set out above, as to why the Tribunal has determined that a diagnosis of PTSD within the terms of the SoP, does not exist.
Psychoactive Substance Abuse or Dependence
As stated at paragraph 15 above, the relevant SoP in respect of these proceedings concerning Psychoactive Substance Abuse or Dependence is SoP No. 5 of 1994.
In making his claim for this condition Mr Freeman relies upon the factor set out in paragraph 1(a) of the SoP:
"Experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service."
SoP No. 5 of 1994 defines "stressful event" as meaning:
"An incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there are subjective symptoms of increased stress."
While the Tribunal determines that the material before it points to a hypothesis connecting psychoactive substance abuse or dependence with the circumstances of the particular service rendered by Mr Freeman, the Tribunal has formed the opinion that the hypothesis is not a reasonable one. That is to say it does not contain either the factor relied upon, or any one or more of the alternative factors set out in the SoP. That being so, the claim must fail.
It is the Tribunal's finding that the example "such as combat" provided in the definition of "stressful event", is intended to convey the severity of the event comprehended by the definition. Given the event described by Mr Freeman, and taking an objective view of it, the Tribunal has formed the view that this part of the definition is not satisfied.
Decision
The Tribunal will set aside the decision of the VRB that PTSD and Substance Abuse are war-caused, and substitute therefor the Tribunal's decision that those disabilities are not war-caused within the meaning of section 9 of the Act.
I certify that the 127 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  7/6/2000 & 8/6/2000
Date of Decision  21/8/2000
Counsel for the Applicant        Mr Ginnane
Solicitor for the Applicant         Department of Veterans' Affairs
Counsel for the Respondent    Mr Croyle
Solicitor for the Respondent    Williams, Winter & Higgs