Gibson and Repatriation Commission - [2004] AATA 870

CATCHWORDS – VETERANS’ AFFAIRS – whether post traumatic stress disorder war-caused – application of Statement of Principles – whether experienced severe stressor – whether reasonable hypothesis – whether satisfied beyond reasonable doubt that condition not war-caused – decision set aside.

Veterans’ Entitlements Act 1986 ss. 5AB, 8, 9, 120, 120A and 196B

Repatriation Commission v Cooke (1998) 90 FCR 307
Benjamin v Repatriation Commission [2001] FCA 522
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 116 ALR 210
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 27 AAR 144
McLean v Repatriation Commission [2001] FCA 1505
Re Slattery and Repatriation Commission [1998] AATA 427
Woodward v Repatriation Commission [2003] FCAFC 160
Stoddart v Repatriation Commission (2003) 197 ALR 283
Law v Repatriation Commission (1980) 29 ALR 64

DECISION AND REASONS FOR DECISION [2004] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/149-150
VETERANS’   APPEALS   DIVISION                )

Re BRUCE WARWICK GIBSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  18 August, 2004
Place:  Adelaide

Decision:The Tribunal

1.set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claim for Post Traumatic Stress Disorder;
2.substitute for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s. 9 of the Veterans’ Entitlements Act 1986; and
3.adjourn further consideration of the decisions of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claims for hypertension and ischaemic heart disease.

S A FORGIE
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2001/149-150

GENERAL ADMINISTRATIVE DIVISION )

Re:BRUCE WARWICK GIBSON

Applicant

And:REPATRIATION COMMISSION

Respondent

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 30 September 2004

CORRIGENDUM TO DECISION [2004] AATA 870

The Tribunal amends its decision and reasons for decision published on 18 August 2004 as follows:

Cover Page
heading
delete “S2001/149-150”
insert “S2001/149”

S A FORGIE
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2001/149

GENERAL ADMINISTRATIVE DIVISION )

Re:BRUCE WARWICK GIBSON

Applicant

And:REPATRIATION COMMISSION

Respondent

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 7 September, 2004

CORRIGENDUM TO DECISION [2004] AATA 870

The Tribunal amends its decision and reasons for decision published on 18 August, 2004 as follows:

Decision
Delete the contents of Decision.
Substitute the following words:
“1. set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans; Review Board on 5 February, 2001 regarding the applicant’s claim for Post Traumatic Stress Disorder; and
2. substitute for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s.9 of the Veterans’ Entitlements Act 1986.”

Reasons for decision
Paragraph 3
Delete the words “The decisions regarding hypertension and ischaemic heart disease were not focused upon by either party. I have adjourned further consideration of them lest that be an oversight.”
Insert the words “The decision regarding ischaemic heart disease was affirmed by a decision made by the Tribunal with the consent of the parties on 9 September, 2002. On the same day the application regarding hypertension was dismissed.”
Paragraph 107
Delete the contents of paragraph 107.
Substitute the following words:
“For the reasons I have given, I:
1. set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans; Review Board on 5 February, 2001 regarding the applicant’s claim for Post Traumatic Stress Disorder; and

2. substitute for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s.9 of the Veterans’ Entitlements Act 1986.”

S A FORGIE
Deputy President

REASONS FOR DECISION

On 30 April, 2001, the applicant, Mr Bruce Warwick Gibson, applied for review of decisions of the respondent, the Repatriation Commission (“Commission”) dated 22 March, 2000 and affirmed by the Veterans’ Review Board (“VRB”) on 5 February, 2001. The Commission’s decisions had been to refuse Mr Gibson’s claim that hypertension, post traumatic stress disorder (“PTSD”) and ischaemic heart disease should be accepted as war-caused diseases within the meaning of the Veterans’ Entitlements Act 1986 (“VE Act”). At the hearing, I indicated that Mr Gibson would be successful in his application. He has since died.

At the hearing, Mr Gibson was represented by his solicitor, Mr Kernahan and the Commission by its Advocate, Mr Crowe. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence. Also admitted were page 21 from Volume 1 of “Naval Marine Engineering Practice”, Mr Gibson’s record of service, a list of medications taken by Mr Gibson, a birth certificate in the name of Leslie Francis Frederic Gibson, a letter from Ms Frances Gibson to Mr Doube of the Department of Veterans’ Affairs (“Department”) dated 20 May, 2002, a transcript of the proceedings at the VRB and a letter dated 12 May, 1997 from Ms Rachel England to Mr Gibson. Mr Gibson gave oral evidence in support of his case together with Dr Van Dissel. Captain John Hugh Stevenson, research agent, and Dr Frances Gibson gave evidence in support of the Commission’s case.

THE ISSUE

The issue in this case is whether Mr Gibson’s PTSD was war-caused within the meaning of s. 9 of the VE Act. The decisions regarding hypertension and ischaemic heart disease were not focused upon by either party. I have adjourned further consideration of them lest that be an oversight.

BACKGROUND

A number of facts were not in dispute between the parties. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs. On many aspects, Mr Gibson’s evidence was not contradicted and on those aspects I accept it in this section of my reasons.

Conditions accepted as war-caused

The Commission has accepted that the conditions of Tinnitus, Bilateral Sensorineural Hearing Loss, Diabetes Mellitus and Atherosclerotic Peripheral Vascular Disease Affecting Both Legs have been accepted as war-caused under the VE Act.

Enlistment and postings

I find that Mr Gibson was born on 4 May, 1944 in Sydney. He undertook part of a trade course and underwent on the job training with the company for which he worked to become a driver/mechanic. He enlisted in the Royal Australian Navy (“Navy”) on 10 April, 1965 (Exhibit B). He joined as a basic recruit for a nine year term but was discharged on 23 April, 1969. First, he underwent a 90 day basic training course at HMAS Cerberus (“Cerberus”). This was followed by an eighteen month stint at sea where he was rotated through various facets of shipboard activities including those of cook, steward and stoker. Mr Gibson then joined HMAS Yarra (“Yarra”). After a month when he was regarded as a qualified marine engineer, Mr Gibson spent four months on general duties. On 22 June, 1966, Mr Gibson obtained his helmsman’s certificate. He gained experience in lookout duties in any weather, gun weaponry, turret operation and fuel transfers at sea. During this time, Mr Gibson had two periods of operational service in Vietnam: 25 April, 1966 to 9 May, 1966 (15 days with none in Vung Tau) and 26 May, 1966 to 9 June, 1966 (16 days with none in Vung Tau).

At the conclusion of his time on the Yarra, Mr Gibson returned to Cerberus to train as a stoker. He did not complete the course at that time but was posted instead to HMAS Sydney (“Sydney”) as a Marine Engineer Second Class or, as it is more commonly known, as a stoker. A stoker is responsible for all machinery that is not electronic. Mr Gibson was later promoted to Marine Engineer First Class and obtained further qualifications relating to the maintenance of such matters as motor cutters, landing barges and refrigeration.

As a stoker, Mr Gibson had eight further trips to Vietnam but this time on the Sydney:
8 April, 1967 to 22 April, 1967  15 days (1 in Vung Tau)
28 April, 1967 to 12 May, 1967  15 days (1 in Vung Tau)
19 May, 1967 to 14 June, 1967  26 days (1 in Vung Tau)
17 January, 1968 to 16 February, 1968          30 days (1 in Vung Tau)
27 March, 1968 to 26 April, 1968                  30 days (1 in Vung Tau)
21 May, 1968 to 13 June, 1968  24 days (1 in Vung Tau)
13 November, 1968 to 28 November, 1968    16 days (1 in Vung Tau)
8 February, 1969 to 25 February, 1969          18 days (1 in Vung Tau)

Each of these periods is regarded as operational service for the purposes of the VE Act.

The boiler room on the Sydney

There are two boilers in the Sydney with one forward and one aft. Between them is the Chief Stoker who is responsible for operating the valves and maintaining pressure. Also located in the boiler room were turbines, a high speed steam generator and an evaporator. The room was 13 decks high with each deck equating to 6 feet. It was as wide as the ship. The conditions in the boiler room were hot and noisy. It was quite cluttered and dimly lit by four 40 watt globes.

On the basis of the evidence of Mr Gibson and Captain Stevenson, I find that each boiler had air registers which might be either open or closed. The boilers on the Sydney had open air registers, known as Admiralty open registers. That meant that air entered directly from the boiler room. An Admiralty open register consisted of:
“… a rectangular light steel box secured centrally in line with a circular, brick-lined hole in the boiler front. The sprayer carriage is secured to the front of the register which has four lightly balanced air doors as shown. A steel ‘combustion tube’ is supported on four legs secured to the inside of the register front, so that the combustion tube surrounds the sprayer cap. Air from the closed boiler room, under pressure, enters the register through the four doors and is deflected by a shield fitted inside the front of the register. Most of the air passes over the combustion tube, mixes with the hollow cone of oil from the sprayer and passes on from the brick-lined throat into the furnace where it burns as an envelope of flame. Some of the air passes over the edge of the deflector shield to the inside of the combustion tube, where it reaches and causes a primary flame or ‘drawback’ of flame within the register.
The air doors are arranged to close automatically …” (Exhibit A, Naval Marine Engineering Practice, Volume 1, page 21)

The boilers on the Sydney had three registers on the top and four on the bottom. The fire was started inside the boiler starting with the register on the bottom left hand side. It is lit and then flapped so that there could be a flame. The pressure was built up to keep the fire inside. It was built up to 350 lbs per square inch but no higher or otherwise it would lift the safety valves.

Discharge from the Navy

Mr Gibson was discharged from the Navy on 23 April, 1969. During his service, he was required to undertake additional duties for seven days for a breach of the dress code. He was also given seven days’ detention for having a bottle of alcohol on board ship but the detention was remitted.

Mr Gibson’s medication

At the time of the hearing, Mr Gibson took the following medication:
Deralin3 x day (40mg) (Propranolol Hydrochloride)
Cardizem Cap  1 (morning) (Diltiazem Hydrochloride)
Dexamphetamine tablet   2 (morning) and 2 (lunch)
Nitroingual Spray Sublingual            400mg (spray one dose under tongue as required
Capotem2mg daily
Dothiepin25mg (2 tablets daily in evening)
Stemetil5mg tablet when required
Cipramil1 tablet in morning
Kapanol20mg morning and 50mg in evening
Baclofen10mg (3mg three times a day)
Diazepam5mg three times a day
Neo Cytamen  Injection daily (B12)
Tenopteye drops when needed (Exhibit C)

THE EVIDENCE

Alcohol

Mr Gibson said that he had not consumed very much alcohol before he joined the Navy. He would be “lucky enough” to have had more than two cans in a fortnight. There was “no need for it”.

The midshipman

Mr Gibson said that he was on the bottom plate one afternoon when on the Sydney. He saw a man whom he thought was a midshipman enter the boiler room. He thought that he was a midshipman because he had a black epaulette on his shoulder but no gold braid. The man wore denim pants and a denim shirt with his name. He said in cross-examination that he never knew the man’s name and never heard of him again. At the VRB hearing, Mr Gibson had said that the midshipman is alive and that he had married (Exhibit 3, page 52). Mr Gibson said at the hearing in the Tribunal that he did not know for sure. He had been told by friends who had been gossiping and it was thought that the midshipman was in South Australia.

Mr Gibson said that he saw the man move from the upper plates where he had been talking to the officer on the watch to the lower plates where he spoke to the Chief Petty Officer. The man, Mr Gibson said, picked up one of the sprayers and said that he would do this. He put the sprayer in the register and knocked the pipe up. He unscrewed the brackets and let the pipe go up. The air flaps had been opened at 35⁰ but were then opened fully. The midshipman, Mr Gibson said, stood in front of the register and made no attempt to close the flap. The hot oil hit the back wall and went back to the flaps if they were open.

The fire wall went around and wrapped the midshipman. He said that he “charged over” and flapped the boiler. By flapping it, he prevented the air from entering the boiler and allowing ignition. Mr Gibson said that he then turned to the midshipman whose skin, he said, was red. He could not distinguish the man’s eyes. Mr Gibson said that the man was “dripping”. A couple of bits dropped on Mr Gibson’s arm, he said and he still carried the marks of it 30 years later. The midshipman was “dripping like wax off a candle” is how Mr Gibson described it. The man’s mouth was partly open. Mr Gibson said that he grabbed the midshipman, put ice in a rag and lowered him down. The midshipman was not bleeding but his skin was “bubbling”, he said. He then said that he put a hessian bag down, poured ice water over it and put the midshipman on it. Later in his evidence, Mr Gibson said that he helped to put the midshipman on the stretcher and carry him up the ladders. The midshipman screamed and it was not very nice. Mr Gibson said that he was very scared of hurting the man. As a result of the events, there was a fluctuation in the boiler. That was settled and the sick bay called. Mr Gibson then went back to the boilers because they were “playing up a treat”. He stayed to try to stop the pulsating of the boilers. When the crude oil that is used for fuel becomes too hot in the boiler and the pressure too low in the boiler room, the “flame wants to come out and cook you”. Usually, the flame is 105 to 110⁰F but quickly climbs 10 to 25⁰F in 30 to 40 seconds.

At the VRB hearing, Mr Gibson had said that he did not think that the midshipman would ever see again (Exhibit 3, page 52). At the hearing in the Tribunal, Mr Gibson said that he did not look at the midshipman much at the time. The light was not bright but he did not distinguish his flesh and his eyes. He did not know whether the midshipman ever saw again.

Mr Gibson said that it was the most horrific thing you would want to see. Mr Gibson said that he and the Chief Petty Officer both vomited after this incident. Only one person in the boiler room was not affected by the incident but he was remote from it and only heard about it after the end of the watch. The remainder of those on the watch talked about it and talked about it to take it off their minds. In cross-examination, Mr Gibson said that he did not sleep but stayed talking to the other men about it.

In cross-examination, Mr Gibson said that he had to go back on watch after the incident. The situation never got back to normal because the incident was in the back of his head. It always stayed with him as if he had seen a terrible car crash. He experienced a different feeling after the incident. Before the incident, he had been told that it could happen but, after the incident, he had seen that it could happen and seen the result. He became more cautious and even over cautious.

Mr Gibson said that he had “still not got rid of it”. He still had nightmares about the incident and it remained very vivid for him. Mr Gibson said that he woke up sweating and very agitated. If he thought about it in the afternoon, he would be up all night. He would take medication to calm down but it does not have that effect. If it was on his mind, he could not get rid of it. He would see the face that seemed to be melting away like candle wax. He would see a mouth that was partly open, bubbling and trying to say something. Mr Gibson said that he was trying to put words in the midshipman’s mouth.

Mr Gibson said that anything could bring the memories back to him. If something upset him a bit, he would sit down and start thinking. Things added up and that would come up. He would write out what he saw. Mr Gibson said that he lived it. He would be focused on what he was doing but the other half of his head was in the boiler room. The visions of the events did not start immediately but he started to sit up at nights. A lot of old friends would start talking about it. The visions began near the end of 1968.

In reply to a question regarding an investigation into the incident, Mr Gibson said that he was told not to say anything about it. He was told to get on with his duties. There was no investigation that he could recall. At the VRB hearing, Mr Gibson had said that he could not recall whether there was a Court of Inquiry or not. He and other witnesses were asked informal questions but nothing more formal.

Mr Gibson had referred to the midshipman incident in a letter dated 20 April, 2000 to his then Advocate, Mr Ron Coxon (T documents, pages 318-319). He said that Lieutenant Payne had told him “good job”. He was told that he would be commended on that and two other occasions. He could not find out whether Lieutenant Payne was still alive. With his multiple sclerosis (“MS”) and this PTSD, Mr Gibson told Mr Crowe, he was not always able to have a clear memory all the time. He could not always be a 100% spot on. Machinery he knew about because he had spent the 30 years after he left the Navy with machinery.

Captain Stevenson said that he had 35 years’ service in the Navy followed by the time since then as a manager in the construction industry, a consultant and a research agent. He had never served on the Yarra but he had been on it when he was the flotilla engineer of the First Frigate Squadron and the Engineer on the HMAS Parramatta.

Both the Yarra and the Sydney had sick bays. There was a four bed sick bay, a small operating theatre and other facilities. The staff varied but a surgeon was in charge. Captain Stevenson said that he would not have expected there to be any record in the report of proceedings of the Sydney if a midshipman suffered third degree burns. Possibly, there would have been a record in the medical officer’s journal but he was not sure whether those journals were still kept at that time. He thought they had been stopped in approximately 1965. If such an event occurred one day out from Sydney, the midshipman would have been treated on board ship and then airlifted to shore. An evacuation would almost certainly be recorded. A record of proceedings is usually completed by the second officer of the watch and records upper deck activities. Captain Stevenson had checked the logs for 9 April, 1967 and found an entry that boiler pressure had been lost. That had occurred at 7.35 am and there was no entry that explained the loss of power. There was no entry to the effect that any evacuation had taken place but he agreed with Mr Kernahan in cross-examination that there was no way of having any certainty that a medical evacuation made it to being recorded in the ship’s log.

If any person were improperly dressed in the boiler room, Captain Stevenson said, he would have been sent out of the engine room. A Non Commissioned Officer (“NCO”) would have been in charge of the boiler room and would have been directing the fire power in the boiler. That NCO, in this case the Chief Petty Officer, would have directed which sprays went on and which were turned off. If the Chief Petty Officer were there, it was a most unlikely event to have happened. There would have been time to stop him because it takes time to do it. That time is less than a minute but there was still time for someone to see what was going on and to stop it. Theoretically, a midshipman outranks a Chief Petty Officer but a Chief Petty Officer is God in the boiler room and he would not be intimidated by a midshipman, who is an officer in training.

Captain Stevenson had tried to find the midshipman but, while he was able to track some of the Naval College graduates down, none was able to recollect the incident. Those graduates would have served with any midshipman who was on the Sydney at the time. He could not tell whether he had interviewed any who were on the Sydney at the time. In cross-examination, he said that he had tried to contact 17 people but he was not sure if he had covered all of the midshipmen. He could not get hold of some of them and he could not say whether they had been on the Sydney on the trip on which Mr Gibson said this incident occurred.

Captain Stevenson said that he could not disagree with the proposition that, if there were a flashback in the boiler and if a person were in the way, that person could possibly be burned. Whether or not the incident caused a loss of power depends on how quickly it was sorted out.

As to whether there would be an official enquiry of any sort into the burning of a midshipman, Captain Stevenson said that the engineer officer would have an enquiry in the first instance. He would ask questions and it would be a relatively informal enquiry. Whether or not it went any further would depend on his report and the Captain’s decision. That first level of enquiry would probably not be recorded in the engineer’s report. The matter might never go on to be a formal matter, Captain Stevenson said.

The pulsating boiler

Mr Gibson said that he looked after boiler B1 on the Sydney. The temperature in the engine room was about 110^oF in the tropics and could go up to about 120^oF. The Sydney was transporting troops and equipment to Vietnam when his boiler started to pulsate. Tubes carried super heated steam to the boiler. The boiler was starved for air because the two 12 foot fans above it were not pulling enough air. As a result, the fire sought air. The boiler started to pulsate. Mr Gibson said that he put on auxiliary tubes but that six of them had been blocked on the Sydney’s previous trip to Garden Island. It was like a car backfiring. There was a miniature explosion in the fire box. Mr Gibson said that he was standing in front of the boiler when it started to pulsate. The Chief Petty Officer told him to shut the boiler down. That meant that he had to shut all valves and flaps. That kept the heat inside the boiler and maintained the pressure. It could then be re-started. The pressure in the boiler room on the Sydney was normally 40 to 50 lbs/sq inch but it increased when the boilers pulsated. There was also a lot of unburnt sulphur in the air at the time and that hurt his eyes. Mr Gibson said that he was concerned that the boilers would explode and that they would all be swimming.

In cross-examination, Mr Gibson described the incident as starting with his hearing a high pitched whistle that seemed to go on. What appeared to be dust came out of the bottom register on the boiler and he smelt sulphur. By this time, the fire in the boiler was glowing orangey red. He could see it through the flap where it was inside the brickwork. It was hot. The fire then started to come out of the boiler and the whole front of the boiler looked as if it would be coming out, he said. Mr Gibson said that he was standing to one side of the boiler watching the front come out. The Chief Petty Officer was with him but Mr Gibson felt a “bit uneasy”. Four sprayers would have been on and one out. He had forgotten the exact pressure at the time. It was open to get the air in because it was working and the front was pulsating. The Chief Petty Officer was frantically trying to correct the problem that had caused the pulsation by getting more air into the boiler room. He was trying to switch on the auxiliary pump. The situation was getting worse. It was getting very hot and difficult to breathe. The young chap on boiler B2 had disappeared. The Chief Petty Officer told them to shut down the boilers. Mr Gibson obeyed . If it had gone on too long, they would “all go bang”.

In giving evidence, Mr Gibson said that the Chief Petty Officer then ordered all 13 members of the watch to leave the boiler room. As soon as he had carried out his tasks, Mr Gibson said that he headed for the ladder and one of the two exits from the boiler room. In cross-examination, Mr Gibson said that he was the last of the 13 crew members to leave and he was following orders.

In giving evidence, Mr Gibson said that the handrail of the ladder was red hot. He got up on the aluminium top plates. Some six to eight feet above the plates was a porch type structure outside the hatch and with a port hole above. The escape hatch was a double door. He later said that the door was raised from the deck by about 18 to 24 inches so that it had to be stepped over. One door, he said in evidence, had to be shut before the other one was opened. There was a red light and a green light. The light on the door was green and that meant that he could get in. He said that he pulled the door open to go inside and realised that the outside door was not properly shut. Somebody was leaning against it so that the light was green but it was not in fact shut. When he pulled open the door on his side, the change in air pressure was so great that he felt a great pressure on his head. Initially, he did not feel the change as the pressure in the boiler room had caused pain in his ears and the sulphur was causing a burning sensation. He then noticed the pain in his head which was like somebody trying to drive something through his ears. His breathing was not very good and he just wanted to get out, he said. He went straight out into the passage cursing and trying to get his breath.

Lieutenant Payne told him that there was blood coming out of his ears and to go to the sick bay, Mr Gibson recalled. He did that and recalled being told something about perforated eardrums and sulphur in his lungs. Mr Gibson said that he was told to go on the deck for some fresh air and given Aspro. He was excused from duties for, at the most, two days and then transferred to another piece of machinery. In cross-examination, Mr Gibson confirmed that he had not been kept in the sick bay. He said that the Sydney did not carry full medical and surgical gear. Some cream was put in his ears. The boilers were fired up by the engineer officers and Mr Gibson said that he stayed outside until he was told to go back. One of the boilers was still working but not enough to run a propeller. The Sydney lost power.

Captain Stevenson said that he had not served on the Sydney but had seen the boiler room and recalled its layout. The boilers, he recalled, were open fronted. The room in which they sat was pressurised but nowhere near 40 to 50 lbs per square inch. It was approximately 40 to 45 feet high. People would enter and leave the room through an air lock. Two or three men could be fitted in the air lock at a time. Normally, both doors to the air lock would be shut. To leave the boiler room, the door on the boiler room side of the airlock would be opened. It was secured with two clips that were released by the operation of a single handle. The handle also opens a small panel in the door and that panel opens first and balances the pressure. Once inside, the door would be closed. The door to the passage operated in the same way and they would then open that door. In cross-examination, Mr Gibson said that he could not recall a red light or a green light. He did recall a light switch and a light that was not coloured. It was a possibility that the light enabled a person to look through the panel into the airlock.

If one door were not shut, anybody attempting to open the other door would have a job of it because the air pressure would force its shut. If a person were very strong, he would be able to open the door in that situation. If both were open at the same time, there would be a rush of air out from the boiler room. That was caused by the change in air pressure.

Captain Stevenson said in cross-examination that he had tried to locate the engineer’s logs but they were gone. So too were the quarterly letters between engineers that began as a chatty letter exchanging ideas and ended as an official quarterly return.

The MIG aeroplane incident

Mr Gibson wrote in a letter dated 18 January, 2001 to the Department that:
“ I still remember the Mig’s that would fly over Sydney, playing with us, course all we had to shoot back with was ‘I love this’ Six pre-war Thompson Machine gun’s, with 6 (six) round’s one 1916 – 303 and one clip!.
And 8 (eight) 40mm A.A. Pom Pom’s, sitting on extremely rust damaged Sponson’s – our escort (in most cases) wouldn’t be insight!.” (T documents, page 449)

In cross-examination, Mr Gibson said that he had first seen the MIG when he had been on the flight deck. It flew over and kept going. He had recognised the plane as a MIG because he had been an Air Cadet for four years before joining the Navy. The plane had a red star on it and it was about 500 feet above them. It was not a major thing in his mind and he was not relying on it, he said.

Captain Stevenson said that a MIG is a Russian aeroplane and, to his knowledge, it was not operating in the area of Vung Tau. He thought that if it had flown over the Sydney in Vung Tau Harbour, it would have been worthy of note. Captain Stevenson was not aware that there had been any record of it in the Sydney’s logs but he had not been asked to search for it. He would not change his view if the MIG were said to have been seen 10 to 15 kilometres from Vung Tau Harbour. Had it happened, he would have expected there to be a reference to it in the ship’s log and record of proceedings. Captain Stevenson had been through the records of proceedings.

Life in the Navy after the midshipman and the pulsating boiler incidents

After the two events, Mr Gibson said, he started to feel scared and wrong about going into the boiler room. If anything were to go wrong, there was only four feet of oil between him and the bottom of the ship. There was no hope for him to get out alive and he feared for his life if anything went wrong. He started to get snappy with people.

If anything “goes bang” and he does not see the cause beforehand, Mr Gibson said that it “frightens hell” out of him. A bang would make him start to shake and to start thinking about things. He was so affected, he said, that he would have nothing to do with the RSL or with his mates. They would start talking and one subject would lead to another; he did not like it.

When the Sydney would be in port, his mates did not want to go ashore with him for a few beers. They told him that he got drunk too quickly. Mr Gibson said that he felt concerned for himself. He was drinking too much, got into fights and got “upset over the most crappiest little thing”.

Life after the Navy

After he left the Navy, Mr Gibson said that he felt that he did not fit in. He tried working in motor mechanics and then tried long haul driving just to be alone. He found that he could not keep to the schedules and was walking on everyone else’s toes. He suffered “chronic, acute alcoholism”. Mr Gibson said that he sought medical attention from a family doctor possibly in 1972. That doctor put him on tranquillisers. They should not have been mixed with beer but he did mix them.

Mr Gibson married in 1976 for the first time. When that failed after nine years, he went to Alice Springs where he married again in approximately 1989. He lived in his motor home at that time and continued to do so as he was able to park it close to where he obtained work. Mr Gibson and his second wife separated after a year. Over the next ten years, his second wife would return for a short time and then leave, he said. Monica, who is his full-time carer, he said, lived with him in the motor home. She does the cooking and cleaning and looks after him. She gives him his medication, he said, and gives him his injection every day.

Truck accidents

Mr Gibson said that he was involved in an accident in 1983 when a truck he was jacking up fell off its jack. He said that he “came out as fast as a bullet” and was not physically hurt. He has not been under a truck since, though. In a report by his Medical Officer, Dr Farmer, dated 3 February, 2000, it was said that Mr Gibson ceased work in October, 1983 when he was “… trapped under a vehicle when jack collapsed. …” (T documents, page 278). Mr Gibson was sacked and three weeks after the accident had a nervous breakdown caused by the loss of his job, marriage breakdown and loss of gear (T documents, page 278). Mr Gibson had not worked since 1983 and cited constant illness as the reason for his not working.

Mr Gibson said that he had a second truck accident when he blew a front tyre on a prime mover in the Tanami Desert. The prime mover was towing a half a house and it slipped forward. He was trapped in the cabin and he was left dehydrated and with damaged L4 and L5 discs in his back. (T documents, page 350) In cross-examination, Mr Gibson said that he was not trapped in the prime mover.
He was dehydrated because he only had beer and no water.

The bravery medals

In a letter signed by Mr Gibson and received by the Department on 12 October, 2000, Mr Gibson had said that he had received two bravery awards and two or three citations (T documents, page 417). In cross-examination, he said that, although it was his signature, he did not even know when he wrote the letter. He had received two service medals but he did not know about bravery awards. He was no braver than anyone else. When asked why he had said it, Mr Gibson replied that he had mental problems, being PTSD and MS.

Mr Gibson’s health

Mr Gibson said that he suffered from multiple sclerosis. Sometimes he is able to walk but sometimes he cannot. He takes medication for MS. Mr Gibson said that he was referred to Dr Lloyd by his general practitioner at Smithfield because he was suffering from nightmares.

In cross-examination, Mr Gibson said that he took an interest in his medication as best he can. He could not answer whether some were to do with psychiatric problems but he knew that his medication helped him get on with the rest of the day. He gets angry and it helps him but he could not say to what level he would get angry.

In cross-examination, Mr Gibson said that Dr Lloyd’s summary of his alcohol consumption in the past was incorrect. That summary was:
“Mr Gibson reported that he drank until seven years ago, and in the past drunk one carton of beer, plus one bottle of whisky or rum daily. He reported that he began drinking at the age of ten, and by nineteen was a heavy drinker. He reports numerous difficulties secondary to alcohol consumption.” (T documents, page 253)

Mr Gibson said that his heavy consumption began after he left the Navy. For 12 or 13 years, the beer flowed freely and that occurred when he was working in road transport. That was after service. Mr Gibson said that he began drinking more than two bottles of beer a fortnight in approximately 1968. There had been a lot of things that had happened in between but the midshipman and the pulsating boiler were the major stressors.

Dr Ewer had reported on 16 November, 1999 that Mr Gibson had told him that he drank three cans of beer a day before the two incidents occurred (T documents, page 261). He wrote:
“… He said ‘I became an alcoholic to relieve myself from the stress I was under. I’d go ashore and go straight to the pub and get drunk.’ Mr Gibson continued to abuse alcohol after returning to Australia. He often drank a bottle of spirits a day as well as beer. His alcohol abuse has been complicated by a range of problems. He told that he was locked up whilst in the Navy for a lengthy period of time. He has had one motor vehicle accident under the influence of alcohol. He has been violent under the influence of alcohol on many occasions. His alcohol abuse has been complicated by falls, vomiting and short term memory loss.” (T documents, page 261)

Mr Gibson said that he had told Dr Ewer that he consumed two bottles (i.e. stubbies) each fortnight and not two cans. Dr Ewer had incorrectly reported three cans a day before the incidents.

Dr Truman

In his report, Dr Truman, who is a consultant psychiatrist, had reported of Mr Gibson’s time on the Sydney that “… no events in the ten trips produced any emotional distress …” (T documents, page 195). Mr Gibson said that he did not recall indicating that to Dr Truman. He had a problem with Dr Truman whom he said had made him wait for an hour beyond the appointed time. Mr Gibson said that he had travelled from Hamley Bridge to Port Adelaide and it was time for his lunch time medication. If he were late, it would cause him a problem so he took tranquillisers on an empty stomach. He did not know what he said to Dr Truman and he was very confused. Had he been in his right mind, he would never have said that there were no events on the Sydney that caused him emotional distress. Dr Truman had only asked his name, address and date of birth before he went straight into question time. Dr Truman told him six or seven times that he was late for a fishing trip and seemed more interested in fishing.

At the VRB hearing, Mr Gibson agreed, he had said that nothing had happened on the Sydney. He had done so just to end the questioning (Exhibit 3, page 24). Earlier, he had said of Dr Truman that he:
“… put me right offside and I just found it was – well there is nothing to look at on the walls or anything, I just tried to be sociable and ride the interview out, you know.
…
His mannerisms, his attitude, the way he was putting – what do you call it – presenting himself to me ---
…
I would’ve been – preferably I would’ve liked to have terminated the conversation and gone elsewhere – outside would be better, or – violence solves nothing, does it, so it was really better for me just to him the basics name, rank and serial number and just kind of leave it alone …” (Exhibit 3, pages 23 and 24)

Mr Gibson said that he could not recall all that had been said at the VRB and did not remember what he had said to Dr Truman. He was sure that he had told him about the boiler room and the midshipman incidents. Dr Truman reported that Mr Gibson had told him about an incident when he had fallen into a furnace fuel oil tank and hospitalised but Mr Gibson could not recall telling him about that. It was an incident that happened. Two fell in and, although they could stand up, they kept falling over trying to get out and the other man pulled him over in trying to get out. That happened on the dormitory ship, HMAS Quickmatch. He was hospitalised because he swallowed oil.

Mr Gibson also recalled falling when a bosun’s chair collapsed under him. He fell in the water. This incident was referred to by Dr Truman. Mr Gibson said that he recalled the salt water stinging his hands from which the skin had been torn. He did not find it stressful. Dr Truman referred to Mr Gibson’s falling in snake infested waters but Mr Gibson said that he had not thought about the risk of snake bite. The Chief Petty Officer only told him about that risk later.

Dr Lloyd

In his report dated 14 October, 1999, Dr Lloyd had written:
“Mr Gibson informed me that he served aboard the HMAS Sydney which was he said ‘a heap’. He informed me that he performed eleven tours on the Sydney, each one of which was one month or more out of Sydney. He informed me that he was working in the engine room, thirteen decks below sea level. He informed me that he was often in that environment for twelve to fourteen hours per day, and he was one of fourteen men on the watch. He described the time down below as ‘nerves on edge all the time’. He informed me that the ship was in a state of disrepair, and that there were a large number of copper pipes, some wrapped with asbestos stripping which carried superheated steam. At times these pipes would leak with the consequent exit of superheated steam, which creates a knife like affect and was invisible. Consequently moving around the area, all the men carried a piece of paper held in their hand in front of them, so that if invisible superheated steam was present, it would cut the paper rather than their body. …” (T documents, pages 253-254)

In cross-examination, Mr Gibson said that men only carried the paper on the lower plates where the pipes were rusted. The ship was a training ship that had been taken into service for the conflict. The pipes did not blow all the time but they did blow in the aft hold. An officer would not walk in there. The men who checked the thermostats would carry the paper if they heard a very high pitched whistle. He was one of those men. Those men on the evaporator and the generator would not move anywhere. When asked whether Dr Lloyd had misquoted him, Mr Gibson said that he had not used those words but he had explained what happened to him.

Dr Van Dissel

Dr Van Dissel is a general practitioner with qualifications in obstetrics. He has undertaken courses in the treatment of mental health and has treated a number of Vietnam Veterans in the course of his practise as a general practitioner. Dr Van Dissel first treated Mr Gibson between 1990 and 1992 and again from 2000. The eight year gap occurred because Mr Gibson had moved away from the area.

Dr Van Dissel said that he had prescribed Diazepanol (5mg up to 3 times a day) for his agitation and anxiety and Cipramil once a day as a depressant. The diagnosis of MS had been made by Dr Bill Jeffreys at the Lyell McEwin Hospital following a CAT Scan showing demyelination of his cerebrum. Mr Gibson said that it had been made on 10 May, 1998. The diagnosis was still contentious, Dr Van Dissel said, because it had not responded to treatment. At the time of the hearing, Mr Gibson had not been prescribed medication for MS. He did take vitamin B (Neo‑Cytamen) which some authorities believed useful in the circumstances but he was not generally being treated for it.

Dr Van Dissel said that he had prescribed Dexamphetamine for Mr Gibson’s attention deficit disorder. Deralin, Cardizem and Gopten are prescribed for hypertension. Kapanol is a slow release morphine and treated Mr Gibson for peripheral vascular disease. Deralin treated migraines from which Mr Gibson suffered. Baclofen is a muscle spasm agent. It is prescribed for MS but Mr Gibson gained more benefit from it for his cardio vascular disease.

Dr Van Dissel said that Mr Gibson had told him about the boiler incident when one of his colleagues was severely burnt and another incident when his eardrums were damaged. He agreed with the history set out by Dr Truman in his report dated 26 May, 1997 when he said:
“… he was initially treated by his general practitioner, in Sydney, with antidepressant medication. In 1972 he went to Alice Springs, where he was based until approximately 1988. In Alice Springs he was treated with tranquilliser, Valium, an antidepressant, Laroxyl, and Sinequan, the latter dosage of 200 mgs. a day.
Some eight years ago he was diagnosed as having Attention Deficit Disorder, and has been on Dexamphetamine 7.5 mgs. bd since, (prescribed by Dr Butfield, Mile End ), and he is also on antidepressant medication, namely, Aurorix 300 mgs. bd. I understand he sees a psychiatrist every three months for a general check up, but the psychiatrist does not prescribe medication.
He also receives 2.5 mgs. of Diazepam by injection, together with B12 1000 units, both daily from his general practitioner.” (T documents, page 194)

Dr Truman had concluded that Mr Gibson suffered from Attention Deficit Disorder and had been, and was continuing to be, treated for a Major Depressive Disorder. Dr Van Dissel agreed that Mr Gibson suffered from Attention Deficit Disorder but would substitute an Anxiety State for the Major Depressive Disorder.

Dr Van Dissel said that Mr Gibson had told him a history similar to that set out in Dr Ewer’s report dated 16 November, 1999:
“Mr. Gibson first saw a Psychiatrist whilst in the Navy in 1970. He was diagnosed as suffering from Attention Deficit Disorder by Dr. Buttfield. In 1971 he went to see his General Practitioner because of his emotional problems. He was prescribed psychotropic medication in 1972. He had a ‘nervous breakdown’ in 1984. As I have already mentioned, he was subsequently referred to Psychiatrist, Dr. Christopher Lloyd. I have access to a recent letter written by Dr. Lloyd and I note that he is of the opinion that Mr. Gibson suffers from Attention Deficit Disorder, Post-Traumatic Stress Disorder secondary to his Naval experiences and Major Depressive Disorder. He does not think Mr. Gibson is suffering from a Personality Disorder. Mr. Gibson has attended the Vietnam Veteran’s Counselling Service on many occasions. He has had a range of medications over the years. In 1971 he was prescribed an antidepressant. In 1972 he has prescribed Valium and a different antidepressant. At one stage he was on Sinequan 200 mg a day. He has also been prescribed Dexamphetamine and the antidepressant, Moclobemide.” (T documents, page 261 and see paragraph 52 above)

Dr Van Dissel agreed that Dr Ewer had set out Mr Gibson’s symptoms in his report when he said that:
“… He has continued to re-experience the traumatic events in the form of nightmares, intrusive recollections and flashbacks. He has demonstrated persistent avoidant behaviour. He experiences emotional numbing and he feels detached from others. He has persistent symptoms of increased arousal indicated by insomnia, irritability, poor concentration, anxiety, hypervigilance and an exaggerated startle reaction.” (T documents, page 264)

He also agreed that Dr Ewer had set out Mr Gibson’s disabilities in his report (T documents, pages 265-267).

Finally, he agreed with Dr Lloyd’s summary of Mr Gibson’s past psychiatric and medical history in his report of 14 October, 1999:
“PAST PSYCHIATRIC HISTORY
Mr Gibson reports a history of chronic depression, and fatigue which he dates back to the early 1980’s. He also describes learning difficulties since childhood. There is a past history of a head injury, where he informed me he has knocked down by a bus, and has had a titanium plate in his head. He was unable to tell me which year this occurred. Post traumatic stress disorder secondary to war service experience.
PAST MEDICAL HISTORY
Mr Gibson reported the following:
1Right renal colic with reduced functioning in his right kidney.
2Alcoholism and Hepatitis since his late teens.
3Numerous fractures dating from the time that he was a ‘ex-street fighter’, several of these fractures resulted from major assaults, as well as, when he was hit by a taxi. He reports that he has got arthritis secondary to this.
4Migraine which was confirmed by Dr Bill Jeffries in his recent letter.
5Multiple sclerosis which was diagnosed I believe, by MRI Scan in 1998, and since treated with Betaferon injections.” (T documents, page 252)

Dr Van Dissel said that he had never closely questioned Mr Gibson about his past alcohol abuse. He said that he drank heavily in the Navy and spent some time in detention. When asked whether Mr Gibson drank heavily, Dr Van Dissel said that he was consistent. Mr Gibson never relayed feelings that he had found his service in the Navy enjoyable. He said that he could not comment upon why Mr Gibson had appeared not to give all information to Dr Truman. He could say, however, that sometimes people with PTSD suffer memory loss and insomnia and may not be feeling their best on the day that they attend those medical practitioners. He did note that three medical practitioners who saw Mr Gibson after Dr Truman did diagnose PTSD. Memory varies from time to time but what is important is the consistency of the recollection of events and particularly traumatic events. Mr Gibson, Dr Van Dissel said, also maintained that there was another incident in which he believed that the enemy were putting mines on the boat. Mr Gibson had been quite clear about it. He has only mentioned it since 2000.

Dr Van Dissel said that past alcohol excess can lead to lapse of memory and can also have an impact on certain cognitive activities. Memory loss can also be a symptom of PTSD but a person may or may not have it. As to whether it is unusual to tell a general practitioner about all incidents in service, Dr Van Dissel said that it takes time to develop a relationship. Mr Gibson only started telling him about incidents in the last five years of their professional relationship. That was not surprising. He had been treating physical problems and did not see Mr Gibson between 1992 and 2000. He would have come to the diagnosis of PTSD. Diazepam, which was prescribed because of Mr Gibson’s anxiety, can cause confusion and dizziness.

Dr Ewer

In his report dated 16 November, 1999, Dr Ewer reported five experiences about which Mr Gibson spoke. Two of them were:
“4. On another occasion a super heater tube exploded. Mr. Gibson explained to me that this caused a sudden change in air pressure which damaged his eardrums. He explained how there were seals on the various cabins and that the breaking of a super heater allowed steam to penetrate a room in a way that it could not be seen. He had heard of men being ‘cooked’ when this had occurred previously. Mr. Gibson said ‘I was s..t scared that I was going to be cooked alive’.
5.Mr. Gibson told me of another experience where super heated steam had escaped as a result of some problem in the boiler room. A sailor had sustained severe burns to his chest. Mr. Gibson rendered the man assistance and he recalls the sailor’s skin coming off on his hands. Mr. Gibson felt both frightened and horrified.” (T documents, page 259)

The letter with a signature block “Doctor Frances L. Gibson”

A letter bearing the signature block “Doctor Frances L. Gibson” was sent to the then Minister for Veterans' Affairs. It showed Mr Gibson’s Hamley Bridge postal address and Mr Gibson said that he signed it “per F Gibson”. Mr Gibson said that he wrote it after discussing the contents with his sister. He wrote the letter as best he could. At the time, he was getting no help and no satisfaction from anyone. As he was totally in a jam, he telephoned his sister and talked to her. He put her name on the letter so that the Minister would know that it was from her and put his postal address on it so that he would know that it was care of him. Another resident of the caravan park typed it out for him from a piece of paper on which he had written it. He was not forging the letter. His sister was not the author of the letter but he wrote down what she said on the phone.

Dr Gibson is a Psychologist. She had been sent a copy of the letter when she asked the Department for a copy. Of that letter, she said that she had offered to write a letter for her brother as she knew that there were issues that were concerning him about his claim. Her brother was feeling stressed. She did not discuss with him the specifics of what she would write. Her letter would be as a relative about some of his concerns and frustrations. Of the letter that her brother signed per her name, Dr Gibson said that she would have expressed it differently. She had not read enough material to draw conclusions but knew that her brother felt duped and neglected. She would not have offered a view on matters that are for the Tribunal to decide. Had she written a letter, Dr Gibson said that she would have expressed it in the third person and would have commented on the length of time that the matter was taking. She would have commented that he was having difficulties in gathering evidence to support his case because of his health and where he lived. While she did not think that the letter was particularly useful, Dr Gibson said that she did not object to its having been written.

Other aspects of Mr Gibson’s life

Dr Gibson said that she is eight years younger than her brother. Due to that age gap, she felt that they had different experiences growing up even though they were in the same family. Her father was quite stern with her brother regarding his homework. Her brother had a significant learning disability. It is her understanding that he learned to read and write as an adult rather than as a child. Until the early 1990s, she had not had much contact with him. Since resuming contact, she telephones him approximately three times a week if she is not planning to travel to Adelaide or once a week if she is. She travels to Adelaide every 18 months and sees him then. Dr Gibson said that she had noticed that her brother’s ability to process information had slowed down over the previous four or five years.

The Surgeon Commander, JH Mitchell, arranged for an appointment with Dr John McGeorge, consultant psychiatrist, as a result of Mr Gibson’s father’s asking that he arrange a further psychiatric assessment. That note was dated 17 March, 1969 and the appointment arranged for the following day, 18 March, 1969. The Surgeon Commander then set out the following report
“18.3.69. Says he is really fed up. Feels has ‘had’ it & wants to get out & lead his own life & be someone. His record indicates a tendency to over indulgence in alcohol & a basic instability which will probably always be with him.
For the past 3 years the only enjoyment he has had has been to go ‘into a pub. & get plastered.’ There seems to be little wrong with him psychiatrically & his main trouble is discontent with the Service.” (T documents, page 25)

On 5 November, 1969, the Surgeon Commander addressed a further note to Dr McGeorge. The sailor was named as “Bruce William Gibson” rather than Bruce Warwick Gibson but the service number matched that of Mr Gibson. He noted that Dr McGeorge had seen Mr Gibson on 28 January, 1969 and also told Dr McGeorge that Mr Gibson’s parents were anxious to see him. Dr McGeorge’s note was written below that request. It read:

“Parents: Since aet 10 has been a problem. Mother says local doctor says he is ‘a bit schizo’. She apparently does not agree with opinions expressed by those competent to give them. No doubt here lies the instability which he has revealed in his undisciplined actions.
I have nothing to add to my previous opinions that he is a disciplinary problem and should be dealt with accordingly.” (T documents, page 26)

LEGISLATIVE FRAMEWORK

Provisions relevant to a consideration of whether a person has a disease or injury

The first step to consider is whether the veteran has the injury or disease he or she claims before consideration is given to whether any such injury or disease is war-caused (Repatriation Commission v Cooke (1998) 90 FCR 307, French, Drummond and Carr JJ). A “disease” is defined for the purposes of the VE Act as:

“(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).” (s. 5D(1))

An “injury” is defined to mean:

“… any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.” (s. 5D)

In Benjamin v Repatriation Commission ([2001] FCA 522) Whitlam J underlined the need to consider whether the disease or injury is that claimed. This was approved by the Full Court of the Federal Court in Repatriation Commission v Budworth ([2001] FCA 1421, unreported, Ryan, Marshall and Conti JJ). That court went on to observe that the consideration means that:

“… the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. …” (paragraph 19)

The existence of the injury or disease from which the veteran claims to suffer must be established to the reasonable satisfaction of the decision-maker pursuant to s. 120(4). That is to say, it must be established on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17, Northrop, Beaumont and Spender JJ). This was determined by the Full Court in Repatriation Commission v Cooke which was approved by a differently constituted Full Court in Repatriation Commission v Budworth.

Provisions relevant to a consideration of whether the injury or disease is war-caused

The next issue to consider is whether the claimed injury or disease is war-caused. A veteran’s injury or disease is taken to have been “war-caused” if it meets one of the criteria specified in s. 9. In so far as this case is concerned, only s. 9(1)(b) is relevant. It provides that:

“… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)…
(b)the injury suffered, or disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”

The standard of proof which must be used in determining whether or not a veteran’s injury or disease is taken to be war-caused is set out in s. 120. That section sets out two standards and which of those two is applicable depends upon whether the injury or disease is said to relate to a veteran’s operational service or otherwise. As Mr Gibson relies only on operational service, the standard set out in s. 120(1) is relevant.

Section 120(1) provides:

“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.”

Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the disease was war-caused. It provides:

“In applying subsection (1) ... 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.”

Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:

“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) ...;
(b)...
that upholds the hypothesis.” (s. 120A(3))

Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority (“RMA”) has neither determined a Statement of Principles (“SoP”) under s. 196B(2) nor declared that it does not propose to make such a SoP in respect of the particular death or injury in issue.

The RMA must prepare a SoP in situations prescribed in the Act. In respect of cases to which s. 120(1) and (3) apply, it has the following role:

“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;

(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.” (s. 196B(2))

Section 196B(14) defines the concept of “related to service” in terms consistent with those used in s. 9 for the definitions of “war-caused injury” and “war‑caused disease” and of “war-caused death” in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:

“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b)it arose out of, or was attributable to, that service;”

“Sound medical evidence” has the meaning given in s. 5AB(2) (s. 5AB(1)):

“Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology.” (s. 5AB(2))

The manner in which the provisions of s. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:

“The position may be summarised as follows:
(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.” (page 215)

In relation to the first step, their Honours had earlier said:

“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:
… a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature.” [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’. [East v Repatriation Commission (1987) 16 FCR 517 at 532; 74 ALR 518, at 533]

In some cases, the hypothesis may assume the occurrence or existence of a ‘fact’. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered.” (page 214)

The SoPs were introduced after the High Court’s judgement had been handed down. The manner in which s. 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O’Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:

“ Therefore when s 196B(2) says a factor ‘must ... exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran’s intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran’s intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee’s in the face of the Baume committee’s recommendations [in its report entitled “A Fair Go: Report on Compensation for Veterans and War Widows”]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis.” (page 275)

In its judgement on appeal, the Full Court of the Federal Court summarised the course that must be followed in cases involving a SoP. It said:

“… we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. 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 s 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.” (pages 159-160)

The Full Court in Deledio divided the consideration of whether the material points to a hypothesis from whether that hypothesis is reasonable. As a later Full Court observed in McLean v Repatriation Commission [2001] FCA 1505, (Whitlam, Madgwick and Dowsett JJ):

“It will be seen that in Deledio the Full Court effectively broke into three steps, the two steps postulated by the High Court in Byrnes, by distinguishing between formulation of the relevant hypothesis and consideration of its reasonableness. However the Court did not suggest that there was any test to be applied to the identified hypothesis other than that of reasonableness.” (paragraph 26)

Statement of Principle No. 3 of 1999 – Post Traumatic Stress Disorder

At all relevant times, the SoP that the RMA had prepared in relation to PTSD and that was in force was No. 3 of 1999 as amended by No. 54 of 1999. I will refer to the SoP as amended as SoP 3. The RMA began SoP 3 with an explanation of what is meant by post traumatic stress disorder “For the purposes of this Statement of Principles” (SoP 3, cl. 2(b)). It is defined to mean:
“... a psychiatric condition meeting the following description (derived from DSM-IV):
(A)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b),(c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
attracting ICD-9-CM code 309.81” (cl. 2)

The RMA goes on to state that it is of the view that there is sound scientific-medical evidence that indicates that PTSD can be related to relevant service rendered by, among others, veterans. Subject to cl. 6, one of the factors that the RMA sets out in cl. 5 of SoP 3 must be related to any of the relevant service rendered by the person (cl. 4). Clause 5 states that, before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the person’s relevant service, there must exist as a minimum the person’s:

“(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.”

Clauses 5(b) and (c) apply only to material contribution to, or aggravation of, PTSD where the person’s PTSD was suffered or contracted before or during (but not arising out of) the person’s relevant service (see, among others, s. 9(1)(e)).

The expression “experiencing a severe stressor” is defined to mean that:
“… 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 another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as 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.” (cl. 8)

CONSIDERATION

At the conclusion of the evidence, Mr Crowe conceded that Mr Gibson suffers from PTSD. I am satisfied that Mr Crowe’s concession accords with the weight of medical evidence in the case. Given the substance of Mr Crowe’s submissions, I have assumed that his concession means that the Commission has accepted that Mr Gibson suffered from PTSD as that condition is defined in SoP 3. As a consequence, I have considered the matter in light of SoP 3. If it were otherwise, there would be a question whether the matter should be considered outside the SoP regime and according to the principles discussed by the Tribunal, of which I was a member, in Re Slattery and Repatriation Commission [1998] AATA 427 at 65-82. It is not, however, relevant to do so in this case. Even if I were to consider it by reference to those principles, my decision would be the same for the only difference would be that the hypothesis would not need to be measured against the template of SoP 3.

In making that concession that Mr Gibson suffered from PTSD, it is apparent that Mr Crowe was not going so far as to say that its onset, or its worsening, was preceded by a stressor that was connected with Mr Gibson’s operational service. Indeed, he did not go so far as to point to any stressor and yet the concession that Mr Gibson suffered from PTSD necessarily carries with it a concession that Mr Gibson met all of the criteria set out in the definition of the condition in cl. 2 of SoP 3. That means that it is accepted that Mr Gibson “… experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others” and that his “response involved intense fear, helplessness, or horror” as required by cl. 2(b)(A) of SoP 3. Mr Crowe did not point to any stressor or stressors that could have had this effect upon Mr Gibson. Instead, he sought to satisfy the “reverse burden of proof” to show that the stressors relied upon by Mr Gibson could not have done so.

The essence of the hypothesis put forward on behalf of Mr Gibson to link his PTSD with his operational service is that Mr Gibson experienced two severe stressors during his operational service on the Sydney. Their combined effect led him to have “… experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others”. One of those stressors was what I have referred to as the midshipman incident and the other was the pulsating boiler incident. I do not have to find as a matter of fact that either occurred or that Mr Gibson had the required response. All that I have to decide is that there is material pointing to their having occurred and to his having the required response.

I will consider first the hypothesis without reference to SoP 3. When I do that, I conclude that there is material pointing to there being a connection between the onset of Mr Gibson’s PTSD and the circumstances of his service. The material is in the form of his own evidence. He describes the incidents and his responses to them. I refer to this aspect further below (see paragraphs 100 and 101) but I consider that there is material pointing to the incidents having occurred. In addition, there is material pointing to his having continuing nightmares and thoughts about the midshipman after the incident had occurred. He felt that he never got back to normal after that incident. He also spoke of these things to Dr Van Dissel, Dr Lloyd and Dr Ewer. Dr Ewer referred to Mr Gibson’s telling him that he had denied being angry or violent prior to these incidents. Dr Lloyd does report violence in Mr Gibson’s previous history but, like Dr Ewer and Dr Van Dissel, he is also of the view that incidents in Mr Gibson’s operational service led to his PTSD. Dr Lloyd refers only to the pulsating boiler incident but Dr Ewer and Dr Van Dissel refer to both. There is, therefore, material pointing to the hypothesis advanced on behalf of Mr Gibson.

As SoP 3 is in existence, the next question is whether the hypothesis is consistent with it. This raises a preliminary question as to the meaning of the words “… experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others”? They have been considered by the Full Court of the Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160 after it had considered the judgement of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283. There the Court said:
“Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SOP's by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the events said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.” (at [142])

I do decide that there is material pointing to the two incidents’ having occurred. That material lies in the evidence of Mr Gibson itself. It does not matter at this stage that there are inconsistencies at times in his oral evidence or that there are inconsistencies at times between some of his oral evidence and his letters to the Department. I also note that there is further material pointing to them in the evidence of Dr Van Dissel. He gave evidence that Mr Gibson had referred to both incidents in speaking with him. Dr Ewer set out those two incidents among five that he reported upon. Dr Lloyd reported on the pulsating boiler incident among others.

I have also decided that there is material pointing to Mr Gibson’s having a response involving intense fear, helplessness or horror. Again, it is in his own evidence. Of the midshipman incident, Mr Gibson did not use the words “fear, helplessness, or horror” to describe his reaction. Rather, he described his reaction as vomiting after the incident was over, his feelings that the midshipman would never see again and his reaction to the midshipman’s skin bubbling and the midshipman’s mouth and eyes in a face that seemed to be melting away like candle wax. Taken with his evidence that he never got back to normal after this incident, I consider that his evidence points to his having a response of horror at the time of the incident if not helplessness. So too does Dr Ewer’s report in which he noted that Mr Gibson had been both frightened and horrified.

Of the pulsating boiler, Mr Gibson gave evidence that he was concerned that the boilers would explode and that they would all be swimming and that if it went on too long they would “all go bang”. Dr Lloyd reported that Mr Gibson’s reaction was one of extreme fear and helplessness. Dr Ewer reported that Mr Gibson was “… s..t scared” that he was going to be cooked alive. This is material that points to Mr Gibson’s having the response of intense fear and helplessness at the time of the incident.

Viewing the two incidents objectively, I consider that the material points to their being capable of conveying to a reasonable person in Mr Gibson’s position that there was a risk of death or serious injury. In the case of the midshipman incident, the risk was to the midshipman. In the pulsating boiler incident, the risk was to himself and others. It is not a fanciful hypothesis that is put forward on his behalf and it is not contrary to proved or known scientific facts. The hypothesis is reasonable.

The final question that I must ask is whether I am satisfied beyond reasonable doubt that Mr Gibson’s PTSD did not arise from those two stressors so that the hypothesis is similarly disproved. It is now appropriate to find facts. Mr Crowe painted a picture of inconsistent evidence and statements by Mr Gibson. That cannot be gainsaid. He was inconsistent and has been inconsistent over the years. He did not tell Dr Truman anything of the stressors, told Dr Lloyd of one and Dr Van Dissel and Dr Ewer of two. I note that Dr Truman saw him two years before the other medical practitioners. Even in his oral evidence, he was either inconsistent or did not provide the whole of the evidence at the one time. It is difficult to determine.

Inconsistency, though, does not mean that his story should be rejected out of hand or, more accurately, that I should find that it is beyond reasonable doubt that there is no connection between his incident and his operational service. It should not be rejected on the basis that he is making it up. I am satisfied on the basis of Mr Gibson’s evidence and of Dr Van Dissel in particular that he was being treated for a range of conditions including what had been diagnosed as MS as well as PTSD and cardio vascular conditions. On the basis of Dr Van Dissel’s evidence, I find that Diazepam, which had been prescribed for Mr Gibson, can cause confusion. I am also satisfied on the same basis that memory loss can be a symptom of PTSD and past alcohol excess can have an impact on certain cognitive activities. This, I find, may explain why he did not tell Dr Truman about the incidents. As well as complaining about Dr Truman’s approach in general, Mr Gibson said that he had taken tranquillisers on an empty stomach and that is consistent with Dr Van Dissel’s evidence of the effect of the medication. He did not seem to experience the same difficulties with the other medical practitioners he saw.

Having rejected the possibility that Mr Gibson was deliberately not telling the truth, is it the case that the incidents did not happen at all; that they are a figment of his imagination? Captain Stevenson cast doubt on both incidents and gave rational reasons for doing so. Captain Stevenson had checked the logs for 9 April, 1967 and found an entry that boiler pressure had been lost. At the same time, he noted that the Sydney’s logs for 9 April, 1967 had noted that boiler pressure had been lost. That had occurred at 7.35 am and there was no entry that explained the loss of power. He also noted that the engineer’s logs for the Sydney and the quarterly letters that might have mentioned the pulsating boiler incident could not be located.

The “burden of disproof” imposed by s. 120(1) is, as Toohey J said in Law v RepatriationCommission (1980) 29 ALR 64 at 74, indeed heavy. I do not consider that it has been met in this case. Mr Gibson has related various incidents at different times and various parts of incidents at various times but, putting aside Dr Truman, there has been a consistent thread through his evidence and what he has told others that there were two such incidents. Other events to which reference was made may or may not have happened precisely as he described. Based on Captain Stevenson’s evidence, I am satisfied that it is unlikely that the MIG incident occurred precisely as Mr Gibson relayed. I am not, however, satisfied of that beyond reasonable doubt. Looking at the evidence overall, I am not satisfied that the burden has been met.

Finally, I note that the whole case focused on PTSD and that no reference was made to the decisions regarding hypertension and ischaemic heart disease. Lest this be an oversight, I have adjourned further consideration on those aspects. For the reasons I have given, I:
1.set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claim for Post Traumatic Stress Disorder;
2.substitute for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s. 9 of the Veterans’ Entitlements Act 1986; and
3.adjourn further consideration of the decisions of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claims for hypertension and ischaemic heart disease

I certify that the one hundred and seven preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed: (sgd. R. Crook).......................................

R. Crook Associate

Date of Hearing  1, 2 and 3 December, 2003
Date of Decision  18 August, 2004
Solicitor for the Applicant            Mr N. Kernahan
  Johnston Withers
For the Respondent  Mr Crowe, Advocate