Gibbs and Repatriation Commission
[2005] AATA 516
•3 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 516
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/892
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT OWEN GIBBS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. John Handley, Senior Member Date3 June 2005
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED the applicant suffers from war-caused Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse. The application is remitted to the respondent for assessment of pension in accordance with these reasons. (Sgd) John Handley
Senior Member
VETERANS’ ENTITLEMENTS – service in Malaya in 1956 and 1957 – applicant fired upon in an ambush near Port Sweetenham and exposed to civil unrest at Penang – incidents not reported in Record of Proceedings – witnesses supported the applicant’s evidence of civil unrest in Penang and also being ambushed – differences in opinions of doctors of diagnosis – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s120(1), s120(3) and s120A
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
3 June 2005 Mr John Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 9 May 2003. The VRB then reviewed a decision made by the Repatriation Commission (“respondent”) on 18 July 2000 which refused a claim then made for acceptance of the conditions depressive disorder and alcohol dependence or alcohol abuse.
2. The VRB decided to vary the decision of the respondent by “removing” the diagnosis of alcohol dependence or alcohol abuse and found another diagnosis of post-traumatic stress disorder (“PSTD”).
3. The VRB concluded that the decision under review as varied in relation to PSTD and depressive disorder should be affirmed. The VRB findings, at paragraph 29 of its reasons indicate that the word “removing” was referrable to its finding that the applicant did not suffer from alcohol dependence or abuse.
4. At the hearing of the application, Mr Gibbs was represented by Mr Larkin and the respondent was represented by Mr Purcell, both of counsel.
5. The T‑documents comprised 476 pages and the exhibits exceeded 500 in number. There was extensive reference to these documents throughout the hearing together with a number of medical reports. All of these documents will be referred to in these reasons.
6. Mr Gibbs was born on 19 April 1937 and he is presently 68 years of age. He was engaged in operational service with the Royal Australian Navy (“the Navy”) and relied principally on three events in service in support of his claim.
7. Mr Larkin submitted at the outset that there would be a significant issue emerging as to diagnosis. He submitted that all of the psychiatric witnesses agreed that the applicant had a psychiatric disorder of some type but there was diverging opinion as to diagnosis. The divergence in opinion ranged between either PTSD, major depressive disorder, dysthymic disorder or depressive disorder.
8. It was submitted that in the event that there was a finding that the applicant suffers from PTSD it would be submitted that the events in service caused the applicant to experience a severe stressor, as that language is found in the applicable Statement of Principles (“SOPs”).
9. In the event that a finding was made that the applicant suffered a depressive disorder it would be submitted that he was exposed to severe psychosocial stressors as defined within applicable SOPs.
10. It was also submitted that the applicant does suffer from alcohol abuse or dependence and it should be found as service related, despite differing views between the doctors who provided reports.
11. Mr Gibbs presently receives pension at 90 per cent of the general rate with respect to the accepted disabilities of right carpal tunnel syndrome, solar keratosis, lumbar spondylosis, cervical spondylosis, headaches, chronic sinusitis, sensorineural hearing loss, bilateral tinnitus and osteoarthritis of left knee.
12. Mr Gibbs had completed two detailed statements prior to the commencement of the hearing dated 3 August 2003 and 11 August 2003. Both were received into evidence as Exhibits A and B respectively.
13. Mr Gibbs relied on his second statement as being his evidence. He explained in cross-examination that despite both statements being dated and completed eight days apart, the first statement was prepared for his VRB Advocate in Brisbane whereas his second statement was prepared at the request of his solicitor. Mr Gibbs explained that parts of his first statement were “silly” and were a manifestation of a sense of grievance that he then had with Department of Veterans’ Affairs. He said that his second statement was more reliable and further explained that his first statement contained “some irrational comments”. He said the second statement was prepared by his solicitor upon his instructions.
14. The statement of 11 August 2003 upon which Mr Gibbs relies is reproduced as follows:
I was born on 19th April 1937.
I served in the RAN from July 1954 to 18th April 1961. During that period I had operational war service in Malaya as follows:
7th March 1956 to 10th April 1956
21 September 1956 to 8th October 1956
21 December 1956 to 6th February 1957
6th March 1957 to 7th May 1957
7th June 1957 to 29th June 1957
I also served in the RAAF from 6th March 1962 to 7th June 1976.
I suffered no emotional problems of which Iwas aware prior to an incident which occurred inland from Port Swettenham (in Malaya) on 1st January 1957. I was serving in HMAS Quickmatch at the time and have had access to its records detailing its movements. I had taken shore leave with other sailors and travelled in an organised bus trip to the British Army base which was well over 1 hour’s drive from the port. I had undertaken the trip to the base on 31st December. I was aware that there was a guerrilla war taking place within Malaya and it was for that reason that my vessel had been allotted to the region. I recall that on the bus which took us to the British Army base there was a rack with rifles and I understood that this was a precaution against the risk of coming across guerrilla forces. I was consequently apprehensive in travelling through the Malayan countryside to the British base. On the return journey (on 1st January) I travelled in a truck. During the journey I heard what appeared to me to be a number of bullets striking the truck. The driver accelerated at this time. Prior to my enlistment I enjoyed shooting and hunting and was therefore an experienced gun user. I was in no doubt that we were being fired upon at the time. I also observed a hole at the side of the tray truck immediately after the gunfire. After we had arrived back at the port I examined the damage to the truck. This revealed a number of holes towards the rear of the truck cabin and one bullet hole in the side of the tray of the truck.
The aforementioned incident occurred towards the late morning. At the time that I was inspecting the bullet holes there was some banter with the British driver and his offsider. I recall that one of my fellow sailors sarcastically thanked him for taking us through an ambush and that the British soldier replied to the effect that “you fish heads are weak bastards” and that that sort of incident “happens to us all the time”. I recall being shaken up by the experience at that time but there was no way I was going to convey my fear to the others. Therefore I (like the other sailors) made light of the incident and cracked jokes about it.
2 days later (on 3rd January 1957) I went ashore at Georgetown, Penang Island. I visited the Garrison Club at Penang with a group of fellow sailors. I consumed 1 or perhaps 2 glasses of beer. Whilst at the club another sailor reported that a Chinese civilian had apparently been killed by a mob and he and his bicycle had been thrown into the sea. I recall that the barman at the club was noticeably agitated.
My fellow sailors and I left the Garrison Club and travelled by Rickshaw to the RAAF Married Quarters in order to visit the friend of one of my companions. When we got to those quarters we were refused entry by guards who had rifles at the ready. We were told that a civilian riot was taking place and that we were not to enter the quarters.
The Rickshaw drivers who had brought us to the Married Quarters were unwilling to take us back into town. They were frightened. Eventually (after threat from us) they did take us back. I was on edge during the journey back to town. The streets of the town were generally empty (which was different to when we had left the township for the Married Quarters). All of a sudden shots were fired. I did not know where the. shots were coming from or to whom they were directed. I recall falling to the ground and trying to take cover. Things happened very quickly and the incident remains a bit of a blur to me. I recall a putrid smell. I identified the smell as similar to a punctured bowel (I had experienced the smell during my hunting days and I had also butchered sheep in Australia). I do not recall much after the initial volley of shots. I made my way back to the Garrison Club where I thought I would be safe. I recall running there. I recall being terrified and recall urinating in my pants from fear. I got back to the Garrison Club. There were 2 British Red Caps (MPs) who were there. They immediately bundled my fellow sailors and me into a truck which was at the rear of the Club and we were driven back to the wharf. Soon afterwards we re-boarded HMAS Quickmatch.
I recall someone noticing the stains on my uniform and I told them that I had spilt a beer on myself. I recall then washing my uniform in order to remove the urine stains.
From memory we were anchored at Penang until about 7th January 1957. I did not go ashore again despite the fact that we were given some shore leave. I did not want to go ashore because of my fear.
I started suffering nightmares soon afterwards. I do not recall precisely when the nightmares commenced other than that it is my recollection that it was some time shortly after the incident.
Up until the January 1957 incidents I had been a moderate drinker of alcohol. Prior to enlistment I had consumed alcohol but my consumption was basically confined to social occasions only. Prior to enlistment my habits were that on most weeks I would not drink alcohol at all. When I did drink it would be at the rate of 1 glass of beer only. Prior to January 1957 my alcohol intake had increased. I had commenced drinking with fellow sailors on perhaps 2 occasions per week on average. On those occasions I was tending to drink not more than about 3 glasses per outing. I was drinking beer only.
After 3rd January 1957 I started drinking at a heavy rate when given the opportunity. We were rarely given the opportunity to drink alcohol on board our vessel but after January 1957 I tended to use my shore leave as an opportunity to drink heavily and I came to drink to the point of intoxication on those occasions. I was deliberately taking shore leave in order to drink to the point of intoxication. I had not deliberately set out to become intoxicated previously. I did so because I found that I was anxious and depressed and found that alcohol helped to alleviate these symptoms.
I have been anxious and depressed ever since January 1957. I started suffering nightmares and re-experiencing the events that had taken place in January 1957. A significant part of my nightmares has been the smells of Penang.
I did suffer a 3rd stressful incident during service in the RAAF. At the time I was seconded to the Department of Immigration as an Indonesian linguist (I had undertaken a language course in 1968). The period during which I was seconded to the Department of Immigration was 15th September 1974 to 15th October 1974. Whilst based in the Northern Territory I received information that some Indonesians who were suspected of working in violation of their visas were at Berrimah Timber Yard. On arrival at the timber yard I saw and chased 2 men who were fleeing from me. After the chase they stopped and one of the men pulled out a knife. The man with the knife went to one side of me and his companion the other. I feared that I was to be attacked. A bystander (who was about 50 yards away) yelled out and pointed a rifle in our direction. This caused the two men whom I had been chasing to return peacefully with me. The man with the knife dropped it. After accompanying the two men back to the Immigration car and handing them over to two officers, I then went back to thank the bystander for his intervention. He was drunk and abused me and I then realised that he had been pointing his rifle at me (rather than the two Indonesian men). I had obviously disturbed him. The realisation added to my distress ad I felt my blood running cold. I apologised to him and walked slowly away from him not knowing whether he was going to turn his rifle on me. I was terrified.
Currently my drinking habit is about 8 stubbies of beer and a couple of shots of spirits (either vodka, rum or whiskey) per evening. I had reduced my habit in about 1999 to the aforementioned amount. Previously I was drinking more than 12 small cans of beer in a day as well as spirits and I had been drinking at that rate for about 4 years leading up to 1999. At that stage I started the day by adding brandy to coffee first thing in the morning and basically drank throughout the rest of the day.
In about 1999 my then general practitioner (Dr. W. Hardy of Mount Evelyn) counselled me about my drinking and referred me to a psychiatrist (Dr. A.P. Sheehan of Lilydale Private Hospital Consulting Suite, Anderson Street, Lilydale). I saw Dr. Sheehan on two(2) occasions (although from his report he apparently can only recall one(1) occasion). I was in the process of moving to Tasmania at the time and therefore did not derive much benefit from Dr. Sheehan’ s treatment. I had developed a paranoia about Asians at around this time which I relate to the aforementioned stressors during service. I decided to move to Tasmania as I believed there were less Asians there. I did manage to reduce my drinking habits at around this time to the aforementioned rate.
My current family doctor is Dr. A. Buchan of Main Road, Montrose. My current treating psychiatrist is Dr. W. Lopes of 436 Elizabeth Street, Hobart.
I met my wife in 1955 and we courted until our marriage in 1958. She has recently reminded me that in early 1957 I wrote to her in an endeavour to call off our relationship. I had forgotten about writing to her about this until recently. I now recall that I wanted to end our relationship at the time because I was so depressed. My wife also recalls that I wrote to her advising that I was contemplating jumping ship and deserting. These thoughts were going through my mind shortly after the incidents in 1957.
I am currently in receipt of a disability pension at 90% of the general rate from the Repatriation Commission with respect to the following conditions which have been accepted as war caused:
right carpal tunnel syndrome, cervical spondylosis, lumbar spondylosis, headaches, hearing loss, tinnitus, osteoarthrosis of the left knee and solar keratosis
I ceased work in 1985. Up until then I had operated a picture framing business in partnership with my wife. I undertook the picture framing and she ran the shop which sold picture frames as well as second hand books. The name of our business was “Mooroolbark Framing Gallery”.
I ceased work because of the effects of the carpal tunnel syndrome, back pain, left knee pain and my depression and alcohol consumption.
15. Mr Gibbs adopted the above statement and qualified it only by adding that he did not consume alcohol at all prior to his enlistment at the age of 17 years.
16. Mr Gibbs said that he had been treated by Dr Lopes, a psychiatrist in Hobart upon referral by his general practitioner. Dr Lopes died in the week prior to the hearing commencing and Mr Gibbs said that he last consulted him on the day before he died. He said that he made progress with Dr Lopes, having been attending him fortnightly and more recently every three weeks. He said that Dr Lopes helped to “take away my aggression and he quietened me down considerably”.
17. With respect to the other injuries which have been accepted as war-caused, Mr Gibbs explained that he hurt his back in 1957 when he and another colleague were descending a ladder. He said his colleague fell from the same ladder on top of him and he was “knocked out”. He recalled that he suffered severe back pain for five days but because he was then the watch keeper, he was not taken off duties.
18. With respect to his carpal tunnel syndrome, Mr Gibbs recalled that he suffered a fractured right wrist in 1954 or 1955 and whilst he understood that the fracture healed, he suffered considerable discomfort associated with using a typewriter and with Morse code training whilst enlisted. Later, after he enlisted in the Air Force, Mr Gibbs said that he completed a great deal of clerical work in his position as a staff officer particularly in the last five years prior to discharge in 1976. Mr Gibbs said that he underwent carpal tunnel surgery in 1979 because at that stage he then had no use of his right thumb, index or middle fingers and he had pins and needles in the remaining fingers with poor circulation. He said surgery did not produce relief and the ongoing symptoms were a factor in him ultimately closing his business as a picture framer in Melbourne. As a staff officer, Mr Gibbs estimated that he would have to write manually for approximately four hours daily.
19. In cross-examination Mr Gibbs acknowledged that there were differences between both of his statements. He said the first statement was written by him at the request of the Advocate he engaged at the VRB hearing. He said the second statement was prepared by his solicitor upon his instructions. Mr Gibbs recalled traveling to Melbourne from Tasmania for that purpose.
20. With respect to the differences between both statements, Mr Gibbs acknowledged that his first statement records him traveling to Port Swettenham by truck whereas his latter statement records him as traveling to Port Swettenham by bus. Additionally the first statement refers to the canvas canopy of his truck on the return journey being punctured by bullets whereas the second statement refers to holes in the side of the tray of the truck being punctured by bullets. Mr Gibbs said that these differences were of no significance. Mr Gibbs noted that paragraph 24 of the VRB Reasons for Decision refers to bullets “hitting the truck” and quotes him as having said in evidence that he did not “regard the incident as serious at the time”. Mr Gibbs explained that it appeared that the VRB Members summarized his evidence but placed an interpretation on his evidence. He said that if he did use the work “serious” in evidence it would have been because until he commenced treatment with Dr Lopes, he repressed his memory of events and the significance of them. Having said in evidence that he had lay on the tray of the truck (to avoid the bullets), he felt as if he had been a coward.
21. Mr Gibbs was also asked to explain the reference by him in the second statement of a sense of apprehension during the journey from Port Swettenham but an absence of such feelings being expressed in the first statement. Mr Gibbs explained that his solicitor had questioned him about those events and he then recalled his emotions. He gave a similar response when asked to explain the absence of an emotional description in the first statement as opposed to it being extensively described in the second statement, with respect to the events “in Penang”. Mr Gibbs said that the first statement was completed by him and he had been “pretending to be tough but I felt like a coward”.
22. With respect to the events occurring in Penang, Mr Gibbs agreed that there were differences in emphasis between both statements and did acknowledge that the first statement refers to him having “walked” into race riots yet the second statement refers to him and others being transported by rickshaw. Mr Gibbs explained that his reference to having “walked” into the race riots is a reflection of some macho/bravado intent which was not accurate. Nonetheless he was adamant that his memory of the events in Penang was not affected by alcohol because he had only consumed two glasses of beer.
23. To conclude this part of the examination, Mr Gibbs denied the suggestion put to him that the statement of 11 August differed from the first statement because it was an attempt by him to “improve” his case. Mr Gibbs acknowledged that the second statement differed from the first but said that he had previously repressed memory, he had been assisted by his solicitor in disclosing relevant events and the second statement was designed to “meet the Statement of Principle” whereas the first statement did not have that intention in mind. Additionally Mr Gibbs said that whilst his answers to questions put to him at the VRB were truthful they were not “necessarily the whole truth. Sometimes I avoided answering or withheld”.
24. Mr Gibbs was then taken by Mr Purcell to comments and observations made by him in a number of documents.
25. In the Defence Personnel file (Exhibit 3) Warrant Officer Kersten recorded on 28 August 1962 that Mr Gibbs was “a recent enlistment. Shows good prospects. Mature and conscientious. Should do well in RAAF with more experience”. At page 146 Flight Lieutenant J.C. Williams recorded that from information he had received from the Royal Australian Navy, Mr Gibbs was found to have “character very good. Efficiency superior” during the last three years of his naval service. He was regarded as being “an excellent prospect” with respect to his proposed service in the Air Force. Mr Gibbs acknowledged that these comments were made of him but said that he did not know of them nor had he read them. He was then asked to consider observations made in March 1976 (shortly prior to being discharged from the RAAF) found at page 13 of Exhibit 3 where he is described variously as being “an outstanding intelligence officer with a definite flair for counter intelligence work”; “pleasant personality”; “an enthusiastic and excellent lecturer . . . an outstanding success in his present appointment and will be a sad loss to the intelligence category . . .”. Mr Gibbs again agreed that these comments appear to have been recorded but said whilst it would appear that other persons made those observations of him, it was not a reflection of how he was functioning or feeling in or about 1976, shortly prior to his discharge.
26. The Service Medical Records at 18 March 1975 record the applicant’s back injury as “not much of a problem now”. Mr Gibbs said that he would have “played down the back symptoms . . . to get anywhere in the service”.
27. Whilst the respondent accepted that the applicant had a serious right hand and wrist injury associated with his carpal tunnel syndrome, medical records (Exhibit 1) were put to Mr Gibbs by way of suggestion that there was little interference or affect on social and working activities. The records at page 3 completed by Mr Gibbs record him reporting that the right hand injury affected his control of small handled tools and brushes only and the history taken by an examining medical officer at page 31 records his general health as “excellent”.
28. With respect to the applicant’s inability to obtain work he was taken to documents within Exhibit 1 where at pages 41, 54, 63 and 73, Mr Gibbs recorded that he was unable to find work. By way of comment upon those documents, Mr Gibbs said that on the occasions that those forms were completed he “didn’t care much” because he was not coping and had lost interest by reason of the Commonwealth Employment Service from whom he had sought work suggesting to him that he might obtain employment “putting papers in letter boxes”.
29. Mr Gibbs was then taken to reports completed by Dr Lopes, his treating psychiatrist.
30. In a report found at T5, page 469 of the T‑documents, Dr Lopes refers to his first consultation with Mr Gibbs on 22 May 2002 and some documents supplied to him by Mr Gibbs, being a history of service events. One of those documents is found at page 473 and in it Mr Gibbs refers to the incident on return from Port Swettenham in the following terms:
That ambush has never really bothered me it was so brief, the enemy was invisible there were just the sounds and signs of bullets the British army driver had accelerated through the ambush and the people in the cabin of the truck did not appear concerned. That’s life who cares.
Mr Gibbs agreed that he did offer that explanation and said that “this is the way I carried it for years”. He said it was not an accurate description of how he felt at the time and it was a pretense. He said he preferred to rely on the report of Dr Lopes of 21 July 2003 where Dr Lopes recorded that Mr Gibbs “felt it was weakness to show hurt or anger as that would give his peers or superiors something to hold over him”, that “the second event in Malaya two days after the first evoked feelings of helplessness and extreme distress in Mr Gibbs” and following an interview with Mrs Gibbs, Dr Lopes reported that her husband had written to her in 1957 stating that “he wanted to jump ship and desert”.
31. It was suggested to Mr Gibbs that his description of the events in Malaya were of recent origin, because such details were absent in a report completed by Dr Gidley (a medico-legal psychiatrist who examined the applicant at the request of the respondent on 7 March 2002). Mr Gibbs said that he had refused to “cooperate” with Dr Gidley and he was “cranky” at the appointment. He said that he had “no respect for naval doctors and I don’t care about whether or what his qualifications are”. He said that Dr Gidley had not properly assessed him. It was noted that the appointment with Dr Gidley was on 7 March 2002 yet the first consultation with Dr Lopes was on 22 May 2002. Mr Gibbs explained that he was more comfortable with Dr Lopes and was prepared to talk about his service particularly in Malaya. He therefore cooperated with Dr Lopes although he could not recall whether he prepared the documents appended to Dr Lopes’ reports. At this stage of the proceedings Mr Gibbs broke down, was visibly and obviously distressed and walked out of the hearing room.
32. When the hearing resumed Mr Gibbs was taken to a report of Dr Anthony Sheehan of 15 May 2000 (T‑documents pages 156-157) who reported upon a consultation of 19 October 1999. Dr Sheehan said that he only consulted with the applicant on that occasion. He obtained a history of the applicant having served in Malaya in 1956 and reported that Mr Gibbs “stated that on several occasions he was shot at during an ambush and at other times saw people shot during the riot”. Mr Gibbs said that he did not give this history. He said that he was ambushed on one occasion only being the return journey from Port Swettenham and he did not see people who were shot during the riot.
33. Mr Gibbs acknowledged that he was aware that the respondent had obtained two reports from Writeway Research Services of June 2000 and March 2001 found respectively at pages 231 and 331 of the T‑documents. Mr Gibbs prepared a written response to the first report (page 221) and said that he continued to maintain the opinions that he then expressed. He said he did not respond to the second report because “it attempts to justify the errors of the first report”. He said the articles from the Straits Times newspaper annexed to the second report (refer later) support his case that there were several riots as opposed to opinions expressed in the first Writeway report. Nonetheless Mr Gibbs acknowledged that the Record of Proceedings annexed to both reports would suggest that the episode of being fired upon did not occur. However Mr Gibbs said that the reports were incomplete. He said that he and his comrades did not tell officers of the event in fear that they may be “punished”. He said they were at risk of punishment because it may be found that they should not have been in the location where the ambush occurred. He said the Record of Proceedings contains language which is diplomatic in nature and only contains information that “the bureaucrats want to hear”.
34. In conclusion of the examination Mr Gibbs said that he did not resile from the derogatory comments that he had previously made about Dr Gidley and Dr Sale. Nonetheless Mr Gibbs did say that other comments he made in his first statement contained language and sentiments that he would not now use and opinions that he would not now express.
terrence gidley
35. Dr Gidley is a consultant psychiatrist who examined the applicant at the request of the respondent on 17 March 2002. He prepared a report of the same date found at page 430-434 of the T‑documents.
36. Dr Gidley said that he had previously been engaged as a medical officer in the Navy and with the Army Reserve and had recently been a member of a working party preparing a manual for the treatment of stress disorders. He said that he has been a psychiatrist for 32 years.
37. Dr Gidley said the history he obtained was provided by the applicant personally and recounted to him verbally. He said that he also consulted other documents but there was no reference (in the documents) to episodes in Malaya as relied upon by Mr Gibbs.
38. Dr Gidley said that he diagnosed the applicant as suffering from “major depressive disorder recurrent” and did not believe that a diagnosis of PTSD was appropriate. He said that he was satisfied that the criteria for a diagnosis of PTSD would not have been met. He was of the view that the clinical onset of major depressive disorder was in 1985 when the applicant closed his picture framing business.
39. In cross-examination Dr Gidley said that the applicant was guarded during interview but was less hostile than some other veterans he had interviewed. He recalled that Mr Gibbs had asked him whether a “Chapman’s structured interview” would be undertaken (a process designed to determine whether a person suffers from PTSD). However because it was apparent to Dr Gidley that a diagnosis of PTSD was not appropriate, an interview of that type was not conducted.
40. Dr Gidley acknowledged, having read the report of Dr Sheehan and despite being unsure whether he was a treating doctor or a medico-legal consultant, that in his view, treating doctors tend to take a greater or more comprehensive history during the course of treatment and are more likely to provide an accurate diagnosis.
41. Dr Gidley said that Mr Gibbs did not show any reluctance in describing the events occurring in Malaya and he accepted that if the events did occur it would have been reasonable to expect it to have been a frightening experience.
42. Dr Gidley said it was a characteristic of males to down play frightening events and he obtained a “clear picture of his subjective experience” when the second incident involving the “riots” occurred.
43. Dr Gidley said that Mr Gibbs had not indicated to him that his experiences of the events in service had been suppressed but he did acknowledge that avoidance type behavior and or techniques is a characteristic symptom of PTSD, together with the reluctance of a person to discuss events and symptoms. However he was of the opinion that the incidents in Malaya – if true – were not “severe enough to constitute PTSD”. He also noted that Mr Gibbs remained a member of the Navy for another seven years and he was not satisfied that Mr Gibbs continued to labor under a “psychiatric disadvantage”. He acknowledged that the applicant’s dreams could be a manifestation of PTSD but he preferred the opinion that the dreams were a manifestation of a major depressive disorder.
44. Dr Gidley was of the view that the applicant “functioned well” until 1985 when his business failed and it was at this time the major depressive disorder had its clinical onset. He said that the closing of the business was a precipitant for the depressive disorder and he also noted that at that time the applicant was drinking heavily.
45. The witness was aware of a report written by Dr Lopes of 21 July 2003 (Exhibit C) where at paragraph 1, page 2, Dr Lopes recorded the following opinion.
Mr. Gibbs has built up a very strong defence mechanism and has possibly repressed and suppresses some of those events in Malaya and has never, in fact, come to terms with the fact that it is a ‘mental condition’. His abuse of alcohol is partly to help him sleep and stop having the recurring nightmares.
Dr Gidley said that the opinion then expressed was by the applicant’s treating psychiatrist who was in a position to obtain a “greater picture” based on a “more in depth relationship”.
46. Other opinions expressed in the report of Dr Lopes of the applicant being distressed in Malaya by the events described earlier were dismissed by Dr Gidley. He said that it was not his opinion that the applicant had been distressed and did not believe that the events – if they had occurred – would have, or could have, caused distress.
47. In re-examination, Dr Gidley acknowledged that Dr Pargeter completed a report offering a diagnosis of dysthymic disorder. Dr Gidley said that condition is virtually the same as major depressive disorder but the former condition manifests symptoms of a lower grade. That is to say, major depressive disorder is a diagnosis given to persons with symptoms more severe than that of persons with dysthymic disorder.
stuart clempson
48. Mr Clempson completed a Statutory Declaration on 23 December 1998 and it is found at page 247 of the T‑documents. It is reproduced as follows:
That I served aboard HMAS Quckmatch as a Mechanical Engineer Grade 2, my official number being R50876, in Malayan waters during 1956-57.
On 31 December 1956 my ship pulled into Port Swettenham and the following day several of us hitched a ride on a Malayan Army truck to Kuala Lumpur.
On the way the truck was ambushed by rifle fire from a rubber plantation.
Returning to Port Swettenham by train that evening the conductor instructed us to remain seated at all times as terrorists were active in the area and would shoot at any uniforms they saw on the train.
Two days later we arrived in Penang and went ashore to play football against the RAAF at Butterworth Air Base. Unfortunately a riot broke out in Penang and at three quarter time we were bundled onto a bus and returned to the ship.
49. In evidence Mr Clempson said that Mr Gibbs was not with him on board the truck that was traveling to Kuala Lumpur as described in his declaration. He said that he recalled the truck pulling over to the side of the road during the journey and the driver parked in shade and obtained some cold drinks. It was at that time that he heard rifle shots and saw the canvas canopy of the truck being punctured by bullets. He said that his truck had an armed escort who returned fire. He said that he and other persons returned immediately to the truck and it departed. Mr Clempson said that he was then 18 years of age and he was petrified. He said the event continues to “stick in my mind”.
50. On the return journey to Port Swettenham by train he said that he and others were told by the conductor to keep seated and if possible below the level of the windows because there was a risk of being shot.
51. Mr Clempson said that these events were reported to Chief Petty Officer Nick Carter. He said that he also told other shipmates of the events. He said that he thought that Mr Carter would have reported the events to the divisional head who would have made a record. Mr Clempson said that he was aware that he had been in a hostile area and had previously been warned to travel only as a member of a group and never to travel alone.
52. At Penang he went ashore to play football in an organized game against the RAAF at their air base. He said at three quarter time, being three or four o’clock in the afternoon, he and others were told to collect their gear quickly and return to a neighbouring truck which would transport them back to port to board HMAS Quickmatch off shore. He said that he and others could hear gunfire and when he returned to his ship he noted that the main armament of Quickmatch was pointed towards the shore.
53. In cross-examination Mr Clempson said that he prepared the declaration to assist Mr Gibbs in a claim that he was making upon the respondent.
54. The witness said that he did not record in his declaration that the canvas canopy of his truck had been punctured by bullets because he did not believe that it was necessary to give detail of that type. He said it was the only occasion where he had been ambushed, that it was known on board his ship and it was “around the ship like wildfire”. He said he assumed that officers would have known about it. He also said that he was surprised that it was not recorded in the Record of Proceedings.
55. He agreed that 1st of January 1957 was the same day that Mr Gibbs alleged that he had been ambushed on the way back to Kuala Lumpur. He said that he thought that he could remember hearing of other incidents but he had been “very preoccupied with what I saw because it put the fear of God into me”.
56. When it was suggested to him that extracts from newspapers within the T‑documents suggested that the disturbance in Penang occurred on 2nd January and not 3rd January, Mr Clempson said that he could not now be sure whether his vessel arrived in Penang two days later or by a shorter duration. He apologized for any inaccuracies in his recollection.
norman best
57. Mr Best completed a Statutory Declaration on 5 September 2000 found at page 253 of the T‑documents. It relevantly is reproduced as follows:
THAT during January 1957 I was serving on HMAS Quickmatch as a member of the Royal Australian Navy. My Official Number was R50840. During this month Quickmatch anchored off Penang, Malaya and I, together with other crew, had day leave ashore in Penang. All crew ashore were dressed in uniform. One afternoon, whilst I was ashore, civil unrest broke out among the native population with rampaging groups in the streets and shots being fired. I and other crew were directed by police to assemble at the Garrison Club from where we, as a group, later moved on foot to the wharf for transportation back to the Quickmatch. As we moved across a park I saw a gang of about 15 persons (possibly Malayans) on foot chasing one man (possibly Indian) who reached a large wrought-iron set of gates on the waterfront. As the persued man was climbing the gates, one of the gang, with what appeared to be a bicycle or motor-cycle chain, struck the climber on the skull with the chain splitting the skull open. The climber fell from the gates dead. The gang cheered and then they ran off. About this time civil rioting was widespread in Malaya and was generally referred to as the ‘Mederka riots’.
58. Mr Best said that HMAS Quickmatch arrived in Penang on the 3rd of January 1957 and the incident in the township occurred either on that day or the following day. He could not recall whether Mr Gibbs was with him on that occasion. He said that he assumed that the episode would have been recorded on board the ship but he did not know the practice of recording incidents of this type.
59. In cross-examination Mr Best said that he completed his declaration at the request of Mr Gibbs. He said that he had been on board Quickmatch when it was at Port Swettenham some days earlier and he could recall hearing about some members being fired upon but he could not recall details.
60. With respect to the episode in Penang he said that he was a member of a group of about 15 people but he could not recall whether Mr Gibbs was part of his group. He thought the episode in Penang occurred during mid afternoon after his group had been ashore for one or two hours. He recalled that there was a large park between the Garrison Club and the port when Quickmatch was berthed. He recalled that the incidents occurring in the streets around Penang “exploded” into the park as he and others were walking back towards the ship. He said the episode inside the park lasted for about a minute before local persons moved off somewhere else. He said that he could recall shots from some distance but no gunshots were fired in the park. He said that as a junior sailor on board Quickmatch he did not think that he would be required to make a report of that event but did recall that there was talk about it on board the vessel. He said that he “imagined” that it “would have spread like wildfire throughout the ship”.
brian shoobert
61. Mr Shoobert completed a Statutory Declaration in December 2000 found at page 255 of the T‑documents. Relevantly it is reproduced as follows:
THAT I Served the Royal Australian Navy Communications Branch between the 6th March, 1952 and 18th July, 1958.
On the 28th August 1956 I was drafted from the HMAS SWAN for duty onboard the HMAS QUEENBOROUGH and departed this ship on the 28 August, 1957.
During my service onboard the HMAS QUEENBOROUGH I was present in Penang, Malaya in the early part of 1957 and that during this stay I was granted shore leave. I cannot remember the exact day or month but I clearly remember the events which affected my shore-leave at that time. I was in the vicinity of the Botanical Gardens, Penang, in the area I believe was know [sic] as Georgetown. At that time I notice a large group of Asians coming in my direction – I noticed that many had large sticks and parangs in the hands and I sensed a fear that this group were intent upon assaulting to [sic] any person in their path. I immediately tried to run away back towards the shopping area however I was encircled by another group who began to attack the first group. At the time I received many blows to my body but managed to escape down a side alley. I was intercepted by four members of the British Military Police (known as “Redcaps”) they placed me in the secured back cage of their vehicle. I was asked if I had seen any other service personnel in the vicinity at this time – I stated that I had seen several small groups of sailors (size of about 2 or 3 together) in the gardens feeding bananas to the local monkeys. The Military Police went to the rear of the melee taking place in the gardens and collected a further two sailors from my ship. I cannot remember their names.
Whilst sitting in the rear of the Military Police vehicle I heard quite clearly many firearm shots. It was at this time the other two sailors and myself were then transported back to our ship. I remember that shore leave had been cancelled for all ship’s company.
The following day I heard on the local radio that the so-called melee was classified by Police as being a “Communist inspired riot” and that many participants had been killed.
I suffered no permanent injuries as a consequence of my experience.
I am prepared to give evidence to any Enquiry to state that the above events were a matter of fact and true in every detail.
62. In evidence Mr Shoobert said that he recalled that a British Military Police (a “Redcap”) had notified the officer on the day on board HMAS Queenborough of the assault and he also recalled having reported it to his divisional chief CPO Smith.
63. In cross-examination, Mr Shoobert said that he was a member of the crew of HMAS Queenborough and Mr Gibbs was a member of the crew of HMAS Quickmatch. He said that he and Mr Gibbs had been friends since they both trained at Cerberus in Victoria. He said both ships sailed together and he saw him and socialized with him from time to time.
64. Mr Shoobert could not recall whether he had ever been told by Mr Gibbs that he (Gibbs) had come under attack during an ambush and if he had told him he had forgotten. He said that those events occurred “too long ago”.
65. Mr Shoobert said that the event that he was exposed to in Penang remained “quite vivid”. He said that he had been assaulted but had not been injured. He recalled that he had been struck with fists about his head, back and arms and he recalled that he was bruised. He did not undergo treatment. He described the event as being a melee of between 300 and 400 people and he had been caught up as those persons came together. He recalled that he was then in a state of fear and later he heard gunfire and was then in a state of shock.
ian sale
66. Dr Sale is a psychiatrist in practice in Hobart who consulted with Mr Gibbs on 2 and 21 October 2003 at the request of the respondent. He provided a report dated 24 October 2003 which was received into evidence as Exhibit 6.
67. Dr Sale diagnosed the applicant as having suffered from dysthymic disorder with the clinical onset being in 1985 at or about the time Mr Gibbs ceased his picture framing business. In the application of SOPs, Dr Sale was of the opinion that the applicant suffered depressive disorder. By reference to Instrument No. 58 of 1998, he made this diagnosis upon the basis of chronic pain suffered by the applicant with respect to his accepted disabilities of back and wrist injuries.
68. Dr Sale was of the opinion that the applicant suffered dysthymic disorder on the basis that he found Mr Gibbs to be subject to depression, reduced effectiveness, loss of interest and reduced animation. He did not think the applicant’s symptoms were of a degree sufficient to permit a diagnosis of major depressive disorder or PTSD.
69. In cross-examination Dr Sale said that the applicant was cooperative during both interviews but was guarded. He did not recall the applicant having suppressed memories of the events in service but he did have a note of the applicant experiencing dreams of service incidents. He recalled that the applicant became fearful of Asian persons who he associated with the events in Malaya and it was for that reason that he decided to move to Tasmania where there are fewer Asian persons residing. He agreed that with shots being fired at the applicant’s vehicle in Malaya and being exposed to the riots in Penang there was a potential for attack upon him and there was a threat to his personal integrity. He agreed that those events could reasonably cause apprehension. He also agreed that there were multiple stressful events, that there were intrusive recollections and that Mr Gibbs employed avoidance techniques. Nonetheless, and despite being aware that Doctors Lopes and Sheehan had diagnosed PTSD, Dr Sale said that such a diagnosis was not appropriate. He said the applicant’s mental state was not typical of a person with PTSD because he did not have a high level of agitation but his symptoms were more in keeping with a person who was depressed. He said this view was reinforced after having spoken to the applicant’s wife.
70. In re-examination Dr Sale said that the clinical onset of the dysthymic disorder was in 1985, consistent with the opinion expressed in a report by Dr Gidley with whom he agreed.
71. Dr Sale thought that the applicant was more likely to become depressed due to his inability to obtain employment.
72. With respect to the discrepancies in his report of the occasions when the applicant was ambushed, Dr Sale noted that in his report he recorded that the applicant was fired upon on the way to the British base. However, upon his second interview he recalled the applicant had told him that he was shot at on the return journey. He noted the applicant’s statements recorded being shot at on the return journey and on balance Dr Sale said that he preferred to rely on his handwritten notes and accepted that the applicant was shot at upon the return journey.
commodore mulcare
73. Commodore Mulcare completed a report at the request of Writeway Research Services on 27 March 2001. The report is found at pages 331 to 337 of the T‑documents. Annexed to the report are a number of documents including copies of Records Of Proceedings of the vessels HMAS Quickmatch and Queenborough and copies of pages from the Straits Times newspaper published in Malaya.
74. Commodore Mulcare said that he was aware that a report had been written by another research officer under the Writeway banner on 6 June 2000 (T‑documents, page 231) to which the applicant responded by letter of 18 September 2000 (page 221).
75. In his report Commodore Mulcare summarized the events in service as he understood them (having regard to the report of Mr Gibbs of 18 September 2000). He also discussed the annexures to his report being extracts from Records of Proceedings prepared on board HMAS Quickmatch and Queenborough and expressed opinions as to practice on board vessels with respect to reporting of events and recording in Record of Proceedings.
76. In evidence Commodore Mulcare said that in his experience, if events such as alleged by Mr Gibbs had been reported, they would have been recorded in the Record of Proceedings. He said that an ambush of personnel would have been regarded as serious and responsible persons on board Quickmatch would need to have been informed.
77. Commodore Mulcare said that he could not locate any documented evidence in either Record of Proceedings, any other contemporary documents or from newspapers that the applicant or others were ambushed as Mr Gibbs alleged.
78. With respect to the “riots” in Penang, Commodore Mulcare said that there were some incidents reported in newspapers (which he annexed to his report) but there was no report or record in a Record of Proceedings or otherwise of naval personnel being involved in those civilian episodes. He noted that a Record of Proceedings issued by Quickmatch (page 333) refers to civil disturbances and a Record of Proceedings issued by Queenborough refers to a curfew imposed and the engagement of “riot squads” of police (page 334), but none of those records refer to members of either Queenborough or Quickmatch being involved or at risk.
79. Additionally Commodore Mulcare said that he could find no reference at all to the football match referred to by Mr Clempson being called off at three quarter time because of the sound of gun shots. Additionally he disputed the evidence of Mr Clempson that the main armament of Quickmatch was pointed towards shore when he eventually arrived on board it because that would have amounted to an Australian vessel offering aid to a civil power which would have been regarded as a very serious event and would have undoubtedly been reported in Record of Proceedings.
80. In cross-examination, Commodore Mulcare said that he was asked to provide a report by Writeway after the first Writeway report (completed by another person) had been criticized by Mr Gibbs. Commodore Mulcare acknowledged that the first report by Writeway was “inadequate” and he thought that it would be preferable to prepare his report by reference to the applicant’s allegations and independently investigate them.
81. The witness acknowledged that Mr Gibbs had reported that he was a passenger in a British vehicle at the time he was ambushed. He said that he did not attempt to locate any documents from British forces to ascertain whether there were any reports of such an ambush. He said that he was satisfied that the event did not occur because it was not reported in the local newspapers and it was not recorded in any Record of Proceedings of Australian vessels.
82. With respect to the civil disturbance within Penang, Commodore Mulcare acknowledged that extracts from the Straits Times newspaper reported that on 3 January 1957 (page 356) one person was shot dead and five others were injured when police opened fire. The report in the newspaper refers to a “police riot squad” being engaged. It followed that a report of proceedings found at page 348 was inaccurate. Whilst its report of a curfew being imposed on 4 January 1957 was accurate to the extent that it was consistent with a newspaper report found at page 363, it was inaccurate to the extent that it reported “up until this time there was no real evidence of any riots”.
83. Commodore Mulcare said that the riots on shore did not affect either Quickmatch or Queenborough (which were located approximately 100 metres off shore). He said that he would have expected the Record of Proceedings to record any personnel who had been fired upon or who had been engaged or caught up in the riots. He said that the events as alleged by Mr Gibbs and Mr Clempson should have been reported in the Record of Proceedings.
84. Commodore Mulcare surmised that those events – if they had occurred – were not reported either because the author of the Record of Proceedings did not think it necessary, or the events were not reported to the relevant persons, or the events did not occur.
85. In re-examination, Commodore Mulcare said that Record of Proceedings are completed by the navigation officer in draft and submitted to the Captain of the ship for completion. Mr David Thomson, who was the navigator on board Quickmatch, wrote a letter to Commodore Mulcare (page 375) confirming that he drafted monthly Record of Proceedings. In his letter he recorded his recollection of the visit by Quickmatch to Port Swettenham and Penang in December 1957 to January 1958 (which appears to be an error because the events alleged by Mr Gibbs occurred in December 1956 to January 1957).
dr wilfred lopes
86. Dr Lopes was the treating psychiatrist of Mr Gibbs but he died in the week prior to the hearing commencing. He provided two reports dated 13 April 2003 (T5, page 469 to 475) and a report of 21 July 2003 received as Exhibit C.
87. By reason of the unfortunate death of Dr Lopes, evidence was received by way of his report of 21 July 2003 which is reproduced as follows:
I was quite surprised that the Veterans’ Review Board did not accept that the stressors, which Mr. Gibbs experienced in Malaya, were severe enough to satisfy the diagnosis of PTSD but at the same time accepted that he has PTSD as stated by Dr. Sheehan and myself.
Secondly, I am not surprised that the Board was not able to pinpoint that the depression was within two years after the stressors in Malaya, as Mr. Gibbs himself did not elaborate this when he was interviewed by the Board. There are several reasons why Mr. Gibbs perhaps is not able to ‘defend’ himself:
1. He was brought up as a child to be stoic, you don’t show it or cry when in pain – he gave several examples of this.
2. He felt it was weakness to show hurt or anger, as that would give his peers or superiors something to hold over him.
3. There is ample evidence that he suffered paranoid delusions, which understandably responded to Olanzapine, and these have not reappeared in spite of his continuing to drink more than is good for him.
4. Mr. Gibbs does not trust people, his doctor and not even his wife. It is only after a lot of psychosocial education that he has let his guard down and agreed to take medication.
5. I have interviewed Mrs. Gibbs and she reported that about the time of the incidents in Malaya, circa 1957, Mr. Gibbs wrote a letter to her stating that he wanted to jump ship and desert. It is difficult to state categorically in retrospect whether he was substantially depressed at the time but I believe there is enough evidence from my interviews with Mr. Gibbs and his wife to confirm that he was quite depressed soon after the incidents.
Mr. Gibbs has build [sic] up a very strong defence mechanism and has possibly repressed and suppresses some of those events in Malaya and has never, in fact, come to terms with the fact that it is a ‘mental condition’. His abuse of alcohol is partly to help him sleep and stop having the recurring nightmares.
When the Board interviewed Mr. Gibbs, it appears that, instead of focusing on the questions asked he was preoccupied with the thought that ‘There is nothing wrong with me’ which has been a life-long trait.
In Summary
1. After extensive interviews with Mr. and Mrs. Gibbs there is no doubt that the genesis of the psychiatric conditions, Depressive Disorder, Anxiety Disorder and PTSD, was the incident, or incidents, in Malaya circa 1957.
2. Mr. Gibbs alcohol abuse commenced about the same time. Something which he managed to conceal for many years.
3. Due to his training and upbringing Mr. Gibbs avoided any reference or discussion regarding the incidents in Malaya. He saw these as suggestive of a weakness, and would not admit that to anyone.
4. Mr. Gibbs still finds it difficult to discuss the incidents in Malaya and it has taken many consultations to bring this out. I doubt he will dwell on them with many other people at all. This is classic avoidance syndrome, which often accompanies psychiatric disorders involving stressors.
5. It is my opinion that the second event in Malaya, two days after the first, evoked feelings of helplessness and extreme distress in Mr. Gibbs. His condition was further aggravated by the incident in Darwin when he was again severely distressed when his life was threatened. Although he passes these incidents off as being of little consequence they are the cause of his problems.
I hope this explains somewhat his behaviour and attitude at the Review Board.
submissions
88. Both representatives of the parties provided comprehensive written submissions subsequent to the hearing concluding.
89. Mr Purcell submitted, having regard to the divergence of medical opinion, that there should be a finding that the applicant suffered from a form of depressive disorder. It follows that there should not be a finding that the applicant suffers from PTSD. It was noted that whilst Doctors Sheehan and Lopes made the diagnosis of PTSD, Dr Sheehan consulted the applicant on one occasion only in October 1999 and an examination of the reports of Dr Lopes indicates that his level of detail was inferior to the investigations and assessments particularly of Doctors Gidley and Sale. Whilst it was noted that the applicant alleged that he did not cooperate with or give a comprehensive history to Doctors Gidley, Sale and Pargeter, that allegation was inconsistent with the history that he had provided to Doctors Sheehan and Hardy (his treating doctor in Mt Evelyn) and to his advocate at the VRB in Brisbane, Mr Payne.
90. With respect to the clinical onset of depressive disorder it was noted that the applicant alleged in his claim form that he became aware of the “disability” in approximately 1976. Doctors Gidley and Sale reported that the clinical onset of the depressive disorder was more likely to be in approximately 1985 when the applicant closed his picture framing business. It was submitted that there should be a finding, having regard to the totality of the evidence and the capacity of the applicant to function well after discharge from both the Navy and the RAAF that the clinical onset of a depressive disorder was many years after the cessation of service and more than likely not before the mid 1980’s. It therefore followed that the applicant could not satisfy the SOPs Instrument Nos. 58 and 59 of 1998 with respect to depressive disorder because he did not experience a severe psychosocial stressor within one year (in the case of defence service) or two years (in the case of operational service) of the clinical onset.
91. As to the events in service as alleged, it was submitted that the material “does not point to” any event which would amount to a “severe psychosocial stressor”. Indeed it was submitted that the evidence does not point to the applicant having been ambushed or his truck ever having been fired upon. Similar submissions were made with respect to the events in Penang where the applicant alleged that he was exposed to civil unrest. Whilst little focus was given during the hearing to the events in Darwin as alleged by the applicant in his written statement, the documents completed by the applicant in 2003 and provided to Dr Lopes were inconsistent with the description of the event alleged by the applicant when he first claimed in 1999. It was submitted in the circumstances that the latter documents had “less evidentiary value than the original statements” and should be discounted.
92. In conclusion it was submitted that in the event that a reasonable hypothesis was found connecting injury with service there should be a finding that the hypothesis had been disproved beyond reasonable doubt. It was submitted that there were inconsistencies in the account of events as alleged which gave rise to the depressive disorder, inconsistencies in the histories given to doctors and to the VRB and indeed between the two statements completed by the applicant on 3 and 11 August 2003. Additionally the applicant’s demeanor, the observations by him of Doctors Sale, Gidley and Pageter and his criticism of Doctors Gidley and Sale, suggest that the hypothesis has either been disproved beyond reasonable doubt or the truth of the material is inconsistent with the hypothesis and has been disproved beyond reasonable doubt.
93. Mr Larkin on behalf of the applicant acknowledged the divergence in opinions between the Doctors as to diagnosis. He submitted on balance that the evidence of the treating psychiatrists should be preferred and a finding should be made that the applicant suffers from PTSD.
94. Mr Larkin submitted that the events in service alleged by Mr Gibbs occurred 48 years prior to the commencement of the hearing and it would be expected in the circumstances that there would be some degree of difference between the witnesses as to the nature of the events. It was submitted that since January 1957 these events had remained “in the veteran’s consciousness” and there should be a finding that the events in service as alleged did as a fact occur.
95. It was acknowledged that the record of proceedings did not contain a reference to these events but that was to be expected when upon the evidence the applicant did not report them. Additionally the applicant was ambushed whilst he was a passenger in a British vehicle and there was no evidence of any attempt to secure records from British personnel. Additionally there was evidence from the witnesses Shoobert, Best and Clempson that they had endured similar experiences to the applicant and had made reports but there was no reference of those events in the Record of Proceedings. Additionally the newspaper articles were clear in the description of the events occurring in Penang yet there was either a failure to record those events in the Record of Proceedings or there was an understatement of the severity of those events.
96. On balance it was submitted that the PTSD from which the applicant suffered arose out of his exposure to the events in service.
97. In the alternative it was submitted that there should be a finding of depressive disorder as a diagnosis with its clinical onset having occurred within two years of either a “severe psychosocial stressor” or “a clinically significant psychiatric condition” or a “major illness or injury” as those concepts are found within the applicable SOP.
98. Additionally it was submitted that there should be a finding of the applicant having suffered alcohol dependence or abuse. It was submitted that this finding is permissible because under the applicable SOP the applicant was “suffering from a psychiatric disorder at the time of clinical onset of alcohol dependence or alcohol abuse”.
conclusion and reasons for decision
99. The first issue for consideration is diagnosis. In order for the hypothesis to be articulated and for a SOP to be identified, the injury, illness or disease must be known. The finding as to diagnosis is upon the balance of probabilities and not by reference to a SOP.
100. The VRB reviewed a decision by the Commission to reject (in part) a claim for alcohol abuse or dependence. The VRB decided that such a diagnosis was not applicable. At paragraph 28 of its reasons – having before it reports of Doctors Sheehan, Gidley and Lopes, it found that only Dr Sheehan diagnosed alcohol abuse whereas the other two doctors – in its interpretation of the reports – made no such diagnosis. The VRB decided that it was not reasonably satisfied that the diagnosis “was applicable”.
101. Dr Gidley reported that a diagnosis of “alcohol abuse disorder” required “clear evidence of a maladaptive pattern of alcohol leading to a failure to fulfil major social roles”. He said that criteria was not apparent to him at interview and that mood disturbance suffered by the applicant was associated with “heavy drinking” (T‑documents page 433). Dr Sale reported that the extent of the applicant’s alcohol consumption was “unwise” but not “of a degree where a diagnosis of alcohol abuse or dependence can be made”.
102. In his first report of 13 April 2003 Dr Lopes referred to the applicant as having a “problem with drinking of several years duration” and a history that “he drinks fairly heavily but only in the evenings (6‑8 stubbies)”. One of his diagnoses of the applicant was of a delusional disorder which in his opinion could be “explained by his adverse experiences in the service possibly aggravated by alcohol abuse” (T‑documents page 469 and 471). In his second report of 21 July 2003 Dr Lopes reported that the applicant suffered alcohol abuse commencing in Malaya in 1957 and “his abuse of alcohol is partly to help him sleep and stop having the recurring nightmares”.
103. Dr Sheehan reported the applicant suffered from alcohol abuse which he found as a fact (page 156). Dr Sheehan also completed a questionnaire at the request of the respondent where he reported Mr Gibbs engaged in “excessive drinking” (page 197) and – contrary to the opinions of other doctors in this application – he did find that the effects of the alcohol dependence did cause impaired memory and concentration, periods of emotional instability and social withdrawal (page 202).
104. Dr Hardy, the applicant’s former general practitioner, reported in 1999 that Mr Gibbs did suffer from alcohol dependence or alcohol abuse which was first noticed in 1958.
105. In the statement completed by Mr Gibbs which was received into evidence, he referred to a modest consumption of alcohol prior to January 1957 but thereafter his habit escalated to frequent periods of deliberate intoxication continuing for many years until a reduction in alcohol consumption to a level of approximately eight stubbies of beer and some spirits daily from about 1999. Prior to 1999 the applicant recorded in his statement that in addition to drinking during the evening he also added brandy to coffee each morning and then drank throughout the day.
106. Despite the opinions of Doctors Gidley and Sale, I am satisfied on the balance of probabilities that the applicant does suffer from alcohol abuse or dependence. Admittedly the quantity of alcohol consumed in recent years had reduced but he continues to remain dependent and abuses alcohol, to the extent that the consumption causes the applicant to become intoxicated.
107. All of the doctors were agreed that the applicant did have an emotional or psychiatric disorder. The dispute concerned diagnosis. The differing opinions range between dysthymic disorder, major depressive disorder, depressive disorder or PTSD.
108. Dr Pageter diagnosed dysthymic disorder as did Dr Sale.
109. Dr Gidley was satisfied that the applicant suffered from major depressive disorder recurrent but dismissed PTSD as a diagnosis because he was of the opinion that the applicant was “not exposed to trauma of a kind during his service justifying this diagnosis”.
110. Dr Sheehan was satisfied that the applicant suffered from PTSD as did Dr Lopes.
111. Doctors Sheehan and Gidley saw the applicant on one occasion and Dr Sale saw the applicant on two occasions. Dr Lopes has treated the applicant for some years. Upon the applicant’s evidence, he became more trusting and forthright in the giving of a history and description of symptoms. He also became more trusting of Dr Lopes compared to his attitude towards the other doctors particularly those engaged by the respondent.
112. It is my view that Dr Lopes was in a better position to assess and to diagnose the applicant and I am satisfied on balance that his diagnosis of PTSD is to be preferred. Additionally, and for reasons I express later, I am satisfied that the events to which the applicant was exposed, were of such a profound nature that the basis for Dr Gidley excluding PTSD as a diagnosis cannot be maintained.
113. During the assessment period, the only SOP applicable for alcohol dependence of abuse was Instrument No. 76 of 1998.
114. The applicable factor within this Instrument is either 5(a) or (b) but for the purposes of these reasons – and for reasons which will follow – I am satisfied that 5(b) is more applicable and it is reproduced in the following terms.
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
115. The expression “experiencing a severe stressor” is defined at paragraph 8 of the Instrument as follows:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
116. As to the condition of PTSD there were two applicable Instruments during the assessment period being Nos. 3 and 54 of 1999. The only applicable factor is 5(a) which is reproduced in the following terms.
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
117. The definition of “experiencing a severe stressor” as appearing in the PTSD Instrument is identical to the definition within the alcohol dependence Instrument save that the words “which event or events might evoke intense fear, helplessness or horror” do not appear within the definition in the PTSD Instrument. (Instruments Nos. 3 and 54 are identical save that the plural “Entitlements” in Instrument No. 54 replaces the singular “Entitlement” in Instrument No. 3).
118. Section 120(1) and (3) and 120A of the Veterans’ Entitlements Act 1986 (“the Act”) concern the standard of proof with respect to claims arising out of operational service and the reasonableness of a hypothesis.
119. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Court of the Federal Court described the way s120 of the Act is to be applied 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.”
120. With respect to the applicant’s operational service, the hypothesis advanced was to connect the events at or about Port Swettenham and at Penang with service. There are SOPs in force. The facts as raised, point to the hypotheses as being reasonable. The hypothesis is consistent with the template of the SOP and each hypotheses contains a factor which exists as a minimum and upon the facts, as raised, is related to the applicant’s service. Findings of fact are not required at this stage. It follows that the first three stages of the Deledio summary have been achieved.
121. It is only at the fourth stage of the Deledio analysis that findings of fact are required.
122. It was the applicant’s case that he was on board a truck which was returning from a British base to Port Swettenham when he heard bullet or rifle fire. In his first statement he described a canvas canopy being punctured. In his second statement he referred to an observation of bullet holes in the side of the tray of the truck. His recollection of that detail might be unclear or confused but there is no confusion as to his description and recollection of being fired upon. Clearly the puncturing of the canvas canopy or the presence of bullet holes in the tray of a truck indicates the truck being struck by bullets.
123. Guerilla activity was well known on shore from Port Swettenham. Upon the applicant’s description of events he was exposed to it. The witness, Mr Clempson, referred to the truck in which he was a passenger being subjected to gunfire on 31 December 1956 as did Mr Hassall in a statement at page 237. Mr Masson (page 235) did not give evidence but in a declaration he completed in October 1998, he described being ambushed also on either 31 December 1956 or 1 January 1957.
124. I am satisfied as a fact that persons traveling away from or on the way to Port Swettenham, were at risk of ambush. I make this finding not only by reference to the evidence of the applicant but also the statements of other witnesses who, not necessarily present at the ambush to which the applicant was exposed, were themselves also ambushed. It was known by Australian Forces that there was risk, indeed the British Forces notified the Australian Forces of the need to be alert when traveling on roads by a Memorandum found at page 373 of the T‑documents describing an event of 26 December 1956 where persons were shot, one of which was killed and others were wounded. It would appear that episode is the same episode reported in the Straits Times newspaper found at page 350 of the T‑documents.
125. I am satisfied and find as a fact that the event alleged by the applicant when he was ambushed whilst a passenger in a British vehicle did in fact occur. I am satisfied having been exposed to gunfire and having either observed bullet holes in a canvas canopy or bullet holes in the side of the tray of a vehicle upon which he was a passenger was evidence of the gunfire. It is obvious that being exposed to gunfire constitutes the “experiencing or confronting of an event that involved the threat of death or serious injury” (and in the case of the Instrument with respect to alcohol abuse it was an “event that might evoke intense fear, helplessness or horror”).
126. As to the events in Penang I am also satisfied that the applicant was exposed to an event variously described in these proceedings as either civil unrest or riots or civil disturbance.
127. The extracts from the newspapers annexed to the report of Commodore Mulcare clearly demonstrate that in the first few days of 1957 the Penang township was exposed to a great deal of civil unrest. Some reports in fact refer to the unrest as being a “riot” and there are many references to the enlistment and engagement of “riot police”. The newspaper reports describe extreme acts of violence including serious assaults and death. The witnesses who provided statements or who gave evidence all refer to hearing gunfire and having observed persons assaulted and or injured and or being escorted back to their respective vessels.
128. There were discrepancies in the evidence of the witnesses concerning finer points of detail such as dates upon which incidents were alleged to have occurred. Indeed one witness felt compelled to apologise when the events that he described were suggested as having occurred on the 3rd of January when it would appear from other documents that they occurred on the 2nd of January. The discrepancies in the evidence might be readily explained by the passage of 48 years between the occurrence of the events and the giving of evidence, which is to be expected in the circumstances. On balance I am satisfied that the applicant and the witnesses were persons of truth who described the events in Penang as they observed them and as they experienced them. The applicant and the witnesses were all young men being barely 18 or 19 years of age who were in a foreign country and who were exposed to the threat of violence and injury from persons who were clearly engaged in civil unrest of such a level that riot police were engaged. The conduct on shore was known to Australian authorities and was reported in one of the Record of Proceedings (page 348) and in a Memorandum from the Australian High Commissioner (page 376). The daily reports in the Straits Times newspaper of the civil unrest also bears testament to the extent and duration of the civil unrest on shore.
129. Commodore Mulcare offered three possible reasons for the absence of a report in the Record of Proceedings of the ambush and the applicant’s exposure to unrest at Penang. One suggestion was that the events did not occur. As a fact I am satisfied that the events as described did occur.
130. Another suggestion was that the events were not reported and therefore did not find their way into the Record of Proceedings. Certainly on the applicant’s evidence he did not report either episode and that may explain the absence of a report. Other witnesses explained that they understood that reports had been made and they understood that responsible officers would record the events in the Record of Proceedings. One witness spoke about the events at Penang being circulated around the ship like “wildfire”.
131. The third possibility speculated by Commodore Mulcare was that reports were made but responsible officers did not consider it necessary to record the reports as received. He suggested this appears to be unlikely because events involving the threat to Australian personnel would have been taken seriously.
132. The value of the evidence of Commodore Mulcare is to describe and explain military procedure and process. He was not however, an eyewitness in that he was not present when these events occurred. His assistance is useful but is limited because if reports are not made or if they are made but are not recorded, the Record of Proceedings of vessels will not have any reference to these events having occurred. The absence of a report does not amount to evidence of the events not having occurred. At best, evidence of the absence of a report amounts to no more than the absence of a report.
133. The Record of Proceedings do express knowledge of the disturbances on shore in Penang. The letter from Mr Thomson (refer paragraph 85 earlier) is clear testament of his knowledge and his continuing memory. The Record of Proceedings at page 348 expresses disappointment that a Military Tattoo was not observed by many persons because of an imposed curfew. A party on board Queenborough was also cancelled because another curfew prevented persons leaving the Penang township (page 349). These events, the newspaper reports and other documents comprising a report from the Australian High Commissioner and Malay Government Press Releases (pages 376 to 380) lodged by the respondent all suggest a high degree of civil unrest. The volatile events on shore explain the reaction of fear expressed by the applicant and his witnesses and their concern for their safety.
134. For reasons given above I am satisfied that the events as alleged did occur and in so far as the episode in Penang is concerned, I am satisfied that event upon the description of the applicant would have caused him to “experience, witness or confront an event” that involved either “actual or threat of death or serious injury” to either him or another person (and in so far as the alcohol abuse SOP is concerned the event in Penang did “evoke intense fear, helplessness or horror”. Indeed on the applicant’s own description (refer statement of 11th August 2003 at page 2) he reported “I recall being terrified and recall urinating into my pants from fear”).
135. On the applicant’s description of the increase in his consumption of alcohol, I am satisfied that the clinical onset of alcohol dependence or abuse did occur within two years of experiencing the severe stressor.
136. On balance I am therefore satisfied that the injuries of PTSD and alcohol abuse and dependence are war-caused. The decision under review must therefore be set aside.
137. Little attention was given during the hearing to the events in Darwin as described by the applicant during the period of defence service. That episode need not be considered having regard to these findings.
138. In the circumstances, the application should be remitted to the respondent for assessment of pension in accordance with these reasons.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Alice Beattie
AssociateDates of Hearing 28 and 29 October 2004
Date of Decision 3 June 2005
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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