Galpin and Repatriation Commission
[2005] AATA 397
•4 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 397
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/351, S2002/352 &
VETERANS' APPEALS DIVISION ) S2004/169 Re GEOFFREY MILTON GALPIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date4 May 2005
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – war-caused conditions of anxiety disorder, hypertension and alcohol dependence – severe psychosocial stressor or severe stressor experienced during operational service – applicant suffering a psychiatric condition at the time of onset of alcohol dependence, or a severe stressor within two years of the clinical onset – hypertension caused by alcohol dependence – reasonable hypothesis – decisions affirmed
Veterans’ Entitlements Act 1986 ss 120, 120A
Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 31 of 2001
Statement of Principles Instrument No 76 of 1998REASONS FOR DECISION
4 May 2005 Senior Member WJF Purcell 1. This is an application for review of two decisions of the Repatriation Commission (the Commission) which rejected the applicant’s claims for payment of Disability Pension. The first, dated 14 November 2001, was in relation to the applicant’s conditions of anxiety disorder and hypertension; and the second, dated 23 October 2003, was in relation to his condition of alcohol dependence or alcohol abuse. The Veterans’ Review Board (VRB) affirmed the decisions on 6 June 2002 and 23 April 2004 respectively.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties. Mr Ower was counsel for applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Doube represented the Commission, which called Commodore P Mulcare, Historian, Commander P Burn, Ex Senior Engineer, HMAS Sydney, and Lieutenant Commander Fitzgerald, former Diving Officer, HMAS Sydney, as witnesses. The Commission’s witnesses all gave their evidence by way of telephone link-up.
3. The applicant, who is 51 years of age, joined the Royal Australian Navy (the Navy) on 27 June 1970, when he was 17. He was discharged on 2 January 1974. He has the following eligible operational service aboard HMAS Sydney (the Sydney) in Vietnam:
20 September 1971 to 16 October 1971 (26 days) – 17 hours 20 minutes*
26 October 1971 to 18 November 1971 (23 days) – 17 hours*
24 November 1971 to 17 December 1971 (23 days) – 17 hours 30 minutes *
14 February 1972 to 9 March 1972 (24 days) – 15 hours 30 minutes on 28
February 1972 and 10 hours on 29 February 1972 *
1 November 1972 to 30 November 1972 (29 days) – 12 hours on 23
November 1972 and 8 hours on 24 November 1972 *
* time spent in Vung Tau Harbour
4. The applicant asserts that his conditions relate to his operational service, and the appropriate standard of proof is that of reasonable hypothesis, in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…”
5. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The applicant propounds the hypotheses that his conditions of anxiety disorder, alcohol dependence, and hypertension relate to his operational service, in that, on the whole of the material, the “severe stressors” and “severe psychosocial stressors” he experienced within the two years immediately before the clinical onset of the conditions, connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to hypotheses that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles, at least one of the factors set out in clause 5 of the respective Statement of Principles must as a minimum exist, before it can be said that a reasonable hypothesis has been raised.
7. The appropriate Statement of Principles for the condition of generalised anxiety disorder, is Instrument No 1 of 2000 (the Anxiety Disorder SoP). The applicant contends that factor 5(a)(ii) of the Statement of Principles is satisfied:
“(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;”
“Severe psychosocial stressor” is defined in the Anxiety Disorder SoP as:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
8. The appropriate Statement of Principles for the condition of hypertension, is Instrument No 31 of 2001 (the Hypertension SoP). The applicant contends that factor 5(b) of the Statement of Principles is satisfied:
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension;”
9. The appropriate Statement of Principles for the condition of alcohol dependence, is Instrument No 76 of 1998 (the Alcohol Dependence SoP). The applicant contends that factor 5(a) or 5(b) of the Statement of Principles is satisfied:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
In relation to factor 5(a), the psychiatric disorder, he asserts, is “generalised anxiety disorder”. “Experiencing a severe stressor” is defined in the Alcohol Dependence SoP as:
“… 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.”
10. In his opening address Mr Ower submitted that four incidents, which occurred during the applicant’s operational service, constitute “severe psychosocial stressors” or “severe stressors”.
boiler room explosion incident
11. The applicant recalls an incident in the boiler room where the sight glass on a boiler exploded. He was standing in the boiler room at the time, directly below the sight glass. It was a very loud explosion, and he thought that the ship had been hit by the enemy. He did not know what was happening. Super heated steam proceeded to bellow out. He had been told that being burnt by super heated steam could result in death. He thought the boiler was going to explode and recalls running away, and cowering behind some machinery in fear for his life. He had no idea how to correct this dangerous problem, as he had not received any training on what to do. Eventually the problem was isolated, probably by a Petty Officer, in the engine room. The applicant says he recalls being overwhelmed by the noise, pressure and heat and feared he was about to die. He recalls, from memory, that the Sydney was anchored in Vung Tau Harbour at the time of this incident. This added further to the stress.
scare charge incident
12. The applicant recalls hearing a loud explosion when he was below the water line in the engine room. The Sydney was anchored in Vung Tau Harbour. Earlier he had been speaking with a group of seaman and a Petty Officer on one of the outer decks. The Petty Officer had made mention that the Americans had informed the Sydney that there were enemy divers in the area. After this discussion the applicant went down to his duties in the engine room. Shortly after he arrived he heard a very loud explosion, and thought immediately that the Sydney was under attack. He thought it was a mine or some sort of explosion, and was trying to work out how to get out of there. He knew they were well below the waterline and thought he might drown.
gun fire on mainland incident
13. The applicant stated that on another occasion whilst on the Sydney in Vung Tau Harbour, he was on the flight deck and he observed gunfire and explosions on the mainland. Some of this firing was coming from helicopters. It appeared that tracer bullets were being fired, and artillery shells were exploding. At the time, it did not appear that this activity was occurring very far from the Sydney, and he thought the Sydney could easily be attacked. He cannot recall exactly which trip this incident occurred on, but does recall that it was dark at the time.
flashback incident
14. The applicant recalls observing a fellow seaman being burnt by flashback whilst working in the engine room. He said that the other stoker was engulfed in flames. He was burnt badly enough to be taken out of the Boiler Room and to the sick bay. The applicant, who was near the stoker, thought that the other sailor was going to be burnt alive; and the applicant with him. He cowered over the other side of the Boiler Room, scared and terrified.
15. In the course of his closing address, Mr Ower conceded that the applicant’s evidence in relation to his subjective reaction to the “gun fire on mainland incident”, and the “flashback incident” was not sufficient to meet the criteria in the relevant SoP; and in addition Dr Ewer himself did not regard these events as being sufficiently frightening, now, to evoke feelings of substantial distress, or intense fear, helplessness or horror, in accordance with the relevant SoP. The applicant however, asserted in his oral evidence that each of these four events was of equal severity in terms of its effect upon him.
16. The applicant undertook his basic training at HMAS Cerberus (Cerberus), which was conducted in a classroom environment. He was then posted to the Stalwart, a diesel ship, where he was still under training. His duties included working on rusted parts of the ship, cleaning areas of the ship, and other general duties. In about February 1971 he left the ship without authority to do so. He states that he was under continual pressure from a Petty Officer on board the ship and “had had enough”. He was absent without leave for about three weeks or so, and was eventually detained in the Northern Territory. As a result, he was charged, received punishment duties, and was confined to the ship for several weeks. He then went absent without leave again, and was detained by police at Whyalla. He was charged again, and had to serve time in cells at HMAS Penguin (Penguin).
17. Around April 1971 the applicant went back to Cerberus to undertake training as a stoker, still under punishment duties. He says this was the first time he had received some training, as a stoker, to work on a steam ship. This was also classroom based training. During this course he was absent for a number of days, as he was receiving treatment in hospital. His medical records indicate that he was absent, or in hospital, from about 28 April 1971 to 8 May 1971; 8 May 1971 to 19 May 1971; 21, 25 May 1971; and 5-6 July 1971. He does not recall during this training, having information given to him about the likelihood or probability, and what to do if a sight glass exploded or over boiled. He states that the training may have taken place whilst he was absent.
18. In September 1971, the applicant was posted to the Sydney as an Able Seaman stoker, and two days later undertook his first trip to Vietnam. He says that he had no practical experience on a steam ship prior to this trip, and did not know what to expect. He was told there was a very real threat of attack, that the Sydney was a tempting target for the enemy, and that he was to expect, and be ready, for attack in Vietnam.
19. After the applicant left the Navy in 1974 he obtained work in Port Pirie at the Pasminco Mine. He has been in continuous employment, and is a Power Plant Operator, at the Port Pirie Smelters.
20. The applicant submits that the “boiler room explosion incident” and the “scare charge incident” are severe stressors, or severe psychosocial stressors, for the purpose of the relevant SoPs, and that the onset of his anxiety disorder and alcohol dependence occurred within two years of the occurrence of these events. He argues also, that he was suffering from alcohol dependence at the time of the clinical onset of hypertension.
21. The Commission contends that the applicant did not, at any time during his operational service, experience a “severe psychosocial stressor” as defined in the Anxiety Disorder SoP; and even if he did, the clinical onset of his anxiety disorder was not within the two years immediately following any part of his operational service. The Commission contends therefore that factor 5(a)(ii) of the Anxiety Disorder SoP is not met.
22. The Commission maintains that the applicant did not, at any time during his operational service, experience a “severe stressor” as defined in the Alcohol Dependence SoP, and that neither factor 5(a) nor 5(b) of the Alcohol Dependence SoP is met. The Commission contends also, that the applicant was not suffering from alcohol dependence involving the consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) which could not be reduced to below that level, for at least six months immediately before the clinical onset of hypertension, or at the time of the clinical onset of hypertension; and factor 5(b) of the Hypertension SoP is not met.
23. The applicant gave lengthy evidence. His cross-examination was fair, but searching. It must have been difficult for him to recall events which occurred more than 30 years ago, but the contradictions in his evidence were legion. This does not mean that I reject the whole of his evidence, but that I prefer to rely on the evidence of Commodore Mulcare, Commander Burn and Lieutenant Commander Fitzgerald in any area of dispute in the evidence. I accept them as witnesses of truth. Dr Ewer relied on the veracity of the applicant’s statements when forming his opinions, and I have taken this into account when deciding upon the weight to be given to his evidence and opinions.
24. Turning to the alleged severe stressors or severe psychosocial stressors.
boiler room explosion incident
25. On the applicant’s evidence, he undertook a five month training course as a boiler room stoker, but at no time did he learn anything about a sight glass. He had never seen a diagram, or a description, to show what a sight glass was. He said in evidence that this was the first time he had been obliged to work in the boiler room. He was standing in front of the boiler – the sight glass exploded – the noise was overwhelming – as loud as one could expect an explosion to be – he thought the ship had been hit – he did not know what had happened – he was terrified – worried whether he would ever see his father and mother again, and cowered around the corner until another sailor came to him, and told him that it was a sight glass explosion. The applicant said that he returned to the front of the boiler, and watched another sailor turn off the valves. They got it under control. One of the sailors turned the steam off. He said that within minutes he knew it was not a threat to him or to the Sydney. He said that he carried on with his duties, and spoke to another sailor about the explosion, and told him of his thoughts that he was doing to die. The other sailor did not seem so concerned. Dr Ewer said in evidence, that in the light of the applicant’s description of the incident, it was an identifiable event which he described as causing substantial distress. The applicant was extremely frightened – his “brain went crazy”.
26. Commander Burn was Senior Watchkeeper Engineer on the Sydney during the applicant’s voyage. He was responsible for both machinery rooms and boiler rooms. He said in evidence that the sight glass fitted to the boiler is an essential tool – it is monitored constantly by the Petty Officer – it becomes second nature. It is a predictable, and not uncommon, experience for the glass to explode. The design of the sight glass is such that it has a reinforced protective cover over the front of it. The first time it happens it can give one “a bit of a scare”. He said that whenever the Petty Officer comes on duty, his first action is to “blow down” the boiler, to ensure that he is obtaining the correct reading. The noise factor during this “blow down” would be about the same as if the sight glass broke. In practice it would take less than 30 seconds to isolate it completely. The safety glass is designed to prevent the steam and glass escaping.
27. Commander Burn gave evidence that he was an instructor in the boiler course in 1963 and 1964; and there was a “mock-up” of a sight glass in the lecture room. He said that he found it impossible to accept that the applicant had no instruction in relation to the sight glass. There were mock-ups of the boilers in the lecture room, and in the course of the instruction all boiler mountings were described verbally, and illustrated in the manuals. I accept Commander Burn’s evidence.
28. The applicant’s description of his subjective reaction to the explosion has become more vivid in each retelling. On the three occasions he outlined the incident to Dr Ewer, and when he attended the VRB Hearing, he did not mention that he was “cowering” behind machinery as outlined at the Hearing. He told Dr Ewer on the first occasion that a soot line burst, super heated steam escaped, and the explosion scared him. I do not intend to outline the other inconsistencies in his evidence. Suffice it to say that am satisfied on the evidence, beyond reasonable doubt, that the alleged “boiler room explosion incident” did not occur in the manner in which it was described by the applicant. I do not consider it reasonable that someone with the applicant’s level of training and experience would interpret this event as involving “actual or threat of death or serious injury” in accordance with the definition of a “severe stressor” in the Alcohol Dependence SoP, or a “severe psychosocial stressor” as defined in the Anxiety Disorder SoP.
scare charge incident
29. The applicant said in evidence that he was aware that scare charges would be used in Vietnam. Dr Ewer reported that the applicant told him that on a couple of occasions he was below the water line in the engine room when he heard a loud explosion. He was startled and frightened by this, and thought that the ship might have been attacked. He soon realised the explosions were caused by scare charges [T8/77].
30. The applicant told the VRB that he did not expect the explosions to be so loud or so explosive; that he overheard a Petty Officer telling other sailors that enemy divers were suspected to be in the Harbour, and this worried him; that when, without warning a charge exploded, “His mind went into survival mode and it was about 30 seconds before he realised it was not a bomb” [T2/6].
31. The applicant said in his examination-in-chief however, that he heard a loud explosion, or a thud. He felt the side of the ship move and shudder, and he could hear the explosion over the sounds in the engine room. Things not securely attached moved. He felt the vibration through the ship, and thought the ship had been bombed. He did not move. He was relieved to realise soon after, that it was a scare charge. In the course of his cross-examination, he said that he knew that scare charges were to fend off enemy divers. When he heard the dull thud, he could feel the thing exploding outside the ship. He ran away, and “cowered” behind the equipment. He said that this was the first time he had mentioned “cowering” on this occasion. He said that perhaps he was dramatising today, and on other occasions, such as when he saw Dr Ewer, he did not. He attributed this to being ill at ease with Dr Ewer, and that he did not want to appear as a “scaredy cat”. He said that there was no warning that the scare charge would go off, it was a surprise; subsequently, he was startled occasionally, but knew what the explosions were, and was reassured.
32. Commodore Mulcare said in evidence that the scare charges were dropped 50-100 metres from the Sydney. The boiler room is a hot, steamy, noisy place with tanks full of water between the boiler room and the outside of the ship. He could not imagine a vibration, as the scare charges were not dropped alongside the Sydney. Commodore Mulcare was not cross-examined by the applicant’s counsel.
33. Commander Burn said in evidence that on the applicant’s three trips to Vietnam, he was responsible for both machinery and boiler rooms. He said that whilst in the boiler room he had never heard a scare charge explode – both machinery rooms have full fresh feeder tanks, and the sound of screaming engines insulates the boiler room from outside sound. Commander Burn was not cross-examined by the applicant’s counsel.
34. Lieutenant Commander Fitzgerald, who was Diving Officer on each of the applicant’s visits to Vietnam, said that the coxon of the cutters received clearance from the Sydney’s Operation room – the crew of the Sydney was told then that scare charges would be dropping. The scare charges were dropped from the boats which towed obstructions across the tide – they were not dropped from the Sydney. Lieutenant Fitzgerald was not cross-examined by the applicant’s counsel.
35. As I stated earlier in these Reasons for Decision, I prefer the evidence of Commodore Mulcare, Commander Burn and Lieutenant Commander Fitzgerald in any area of conflict in the evidence. But in any event, as none of these witnesses was cross-examined, I am entitled to assume that their oral evidence was not challenged. On my view of the applicant, and on an examination of the whole of the evidence, I am satisfied, beyond reasonable doubt, that the “scare charge incident” did not occur in the manner in which it was described by the applicant. It could not be regarded as an event involving “actual or threat of death or serious injury …” in accordance with the definition of a “severe stressor” in the Alcohol Dependence SoP, nor an “identifiable occurrence that evokes feelings of substantial distress …” in accordance with the definition of a “severe psychosocial stressor” in the Anxiety Disorder SoP.
36. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe psychosocial stressor” during his operational service, and that factor 5(a)(ii) of the Anxiety Disorder Statement of Principles is not satisfied.
37. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe stressor” during his operational service, and that factor 5(b) of the Alcohol Dependence Statement of Principles is not satisfied. In relation to the applicant’s alternate submission that factor 5(a) of the Alcohol Dependence Statement of Principles is satisfied, the applicant’s psychiatric disorder, “generalised anxiety disorder” is not war-caused, and factor 5(a) of the Alcohol Dependence Statement of Principles is not satisfied.
38. In relation to the applicant’s condition of hypertension, his alcohol dependence is not war-caused, and factor 5(b) of the Hypertension Statement of Principles is not satisfied.
39. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions of anxiety disorder, hypertension and alcohol dependence, with the circumstances of the particular service rendered by the applicant. I am satisfied on the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions were war-caused.
40. For these reasons, the Tribunal affirms the decisions under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 8/9 November 2004
Date of Decision 4 May 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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