Greenough and Repatriation Commission
[2005] AATA 191
•8 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 191
ADMINISTRATIVE APPEALS TRIBUNAL ) No S2001/210 &
) S2001/211
VETERANS' APPEALS DIVISION ) Re JEFFREY GREENOUGH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Mr J G Short, Member Date8 March 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – claim that generalised anxiety disorder, alcohol dependence and irritable bowel syndrome were war-caused – conflict of opinion as to diagnosis – consideration of Statements of Principles – consideration of stressors – observing artillery fire – observing helicopter gunship firing – observing wounded soldier while hospitalised – experiencing armalite rifle backfire – meaning of “clinical onset” – clinical onset did not occur within two years of stressor – decision under review affirmed.
Veterans’ Entitlements Act, ss 9, 13(1), 120(1), 120(3) and 120A
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission [2004] FCA 633
Byrnes v Repatriation Commission (1993) 116 ALR 210
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
8 March 2005 Deputy President D G Jarvis and Mr J G Short, Member 1. On 6 October 1998 the applicant, Mr Jeffrey Greenough, lodged a claim for pension for incapacity due to “personality change”. By a decision made on 1 December 1998 a delegate of the Repatriation Commission (the “Commission”) formed the view that a diagnosis could not be confirmed and refused the claim. On 1 November 1999 Mr Greenough lodged a claim for “lymphoma, PTSD/anxiety, alcohol dependence, breathing problems, impotence, irritable bowel problems, hearing problems”. On 24 August 2000 the Commission refused the claims for alcohol dependence or alcohol abuse and irritable bowel syndrome. The claim for “PTSD/anxiety” was also refused because the diagnosis of the condition could not be confirmed. Similarly, a claim for “breathing problems” was refused because a diagnosis of this condition could not be confirmed. By this same decision, the Commission accepted Mr Greenough’s claim for non-Hodgkin’s lymphoma, impotence and bilateral sensorineural hearing loss. The decision took effect from 1 August 1999 and the entitlement to payment of 60% of the general rate commenced on 12 August 1999. On 4 April 2001 the Veterans’ Review Board (“VRB”) affirmed the decisions in relation to personality change, generalised anxiety disorder, alcohol dependence or alcohol abuse and irritable bowel syndrome.
2. On 13 June 2001 Mr Greenough lodged an application to the Administrative Appeals Tribunal for review of the VRB’s decision. A preliminary issue was decided by Deputy President Forgie on 6 September 2002 when she determined that Mr Greenough’s claim for generalised anxiety disorder is to be reviewed by reference to the Statement of Principles (“SoP”) in Instrument No. 1 of 2000.
Issues Before the Tribunal
3. The issues before the Tribunal are as follows:
3.1whether Mr Greenough suffers from alcohol abuse and/or dependence and/or generalised anxiety disorder; and
3.2whether any of Mr Greenough’s conditions were war-caused pursuant to s 9 of the VE Act.
The Commission accepts that Mr Greenough is suffering from irritable bowel syndrome. It is common ground that if Mr Greenough is found to suffer from war-caused conditions of alcohol dependence or abuse and/or generalised anxiety disorder, then his claim for irritable bowel syndrome would also succeed. It is also common ground that if Mr Greenough is successful in his claim for acceptance of alcohol abuse or dependence, generalised anxiety disorder, and/or irritable bowel syndrome then the date of effect would be 1 August 1999.
Background
4. Mr Greenough was born on 16 January 1948. He served in the Australian Army from 2 October 1968 to 1 October 1970. His eligible war service (which is also operational service) was from 16 February 1970 to 20 August 1970 in South Vietnam. It is agreed that for the purposes of the VE Act, Mr Greenough was engaged in operational service. Although trained as an infantryman, Mr Greenough served as a steward/laundry worker during his operational service. We will later refer to evidence that Mr Greenough experienced certain stressful events which he asserts should lead us to determine that his claimed conditions are war-caused.
Legislative Framework
5. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; ….”
6. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
7. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. The Commission has not accepted that Mr Greenough is suffering from generalised anxiety disorder and/or alcohol dependence and/or abuse. In these circumstances, we must first determine whether Mr Greenough is suffering from any or all of these conditions. The appropriate standard of proof in relation to the diagnosis of a disease or injury is prescribed in s 120(4) of the VE Act which is to the effect that the issue must be determined to the reasonable satisfaction of the decision-maker. The Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at [50] to [54] confirmed that the appropriate standard of proof in relation to diagnosis is satisfaction on the balance of probabilities.
9. Once a condition or injury has been found to exist, the standard of proof to be applied in determining whether that condition is war-caused is that described in s 120(1) of the Act which reads as follows:
“120(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
10. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.”
11. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and 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 the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Evidence Before the Tribunal
12. We will now narrate a summary of the evidence before us, but we will not at this stage make any findings on matters relevant to the issue of whether Mr Greenough’s claimed conditions were war-caused.
Evidence of the Applicant
13. Mr Greenough gave evidence that he joined the Army at age 20 in October 1968. He said that prior to joining the Army he had been “easy going, not really a party-goer and not really a drinker”. Mr Greenough said that he trained as an infantryman at Puckapunyal for about three months and did his corps training with 7 RAR at Holsworthy from January 1969 to February 1970. He said that this was an extremely busy period during which he, along with others, would be away in the bush five days a week, returning to barracks on a Friday evening. He said that he generally went home on weekends, could not afford to drink anyway and only had a very occasional drink on special occasions.
14. After being shown a passage from Dr Dowd’s report (T14, page 120) where Mr Greenough is recorded as having told Dr Dowd that “his consumption increased dramatically upon transfer to Holsworthy for corps training”, Mr Greenough said that there was confusion because he was not usually at the Holsworthy base during the week and because he returned home on weekends. He did say, however, that his alcohol consumption would have increased from a drink a night to three or four drinks. He said of three occasions he does recall drinking, that it would have made him “a bit tipsy”.
15. Mr Greenough said that in South Vietnam a pre-existing leg condition prevented him serving as an infantryman, and consequently he performed laundry and steward duties. He said that laundry duty was performed at SAS Hill and that his duties as a steward were performed at the officers’ and sergeants’ mess. He also said that he went out on two or three TAOR patrols around the perimeter of the Australian base. He said that not serving as a rifleman made him feel “very small”.
16. Mr Greenough’s counsel said that Mr Greenough would rely on four incidents which he suggested would qualify as stressors sufficient to raise an hypothesis linking his claimed conditions to his operational service. He referred to:
· witnessing, from SAS Hill, helicopter gunships firing mini-guns (the “gunship incident”);
· being frightened and experiencing powder burns from an armalite rifle backfire (the “armalite incident”);
· witnessing heavy artillery fire from Horseshoe Range (the “artillery fire”); and
· seeing a soldier with a severe mouth or jaw injury while Mr Greenough was in hospital (the “hospital admission”).
17. In relation to the gunship incident, Mr Greenough gave evidence that he and others had been in the mess recreation room at SAS Hill. He said that they were called out to watch helicopter gunships fire rapid rounds towards a small mountain range which lay between Nui Dat and the Long Hai mountains. Mr Greenough said there were two or three helicopter gunships and that he had hoped that there were no civilians involved. He said that it was “terrifying to think that military action can get out of hand to the point where civilians could be involved”. Mr Greenough said that after about 30 minutes they returned to the bar and discussed what they had seen. Mr Greenough said that he could not tell if the helicopter gunships were Australian or American because they were too far away for the markings to be seen. In answer to questions put to him in cross-examination, Mr Greenough said that at no stage did he inquire as to where the firing had been directed. Mr Greenough said that there could have been 10 to 25 people watching the helicopter gunships.
18. The next incident described by Mr Greenough was the armalite incident. He said that he and two or three others had climbed the eastern side of Horseshoe Range to a makeshift firing range. Mr Greenough said that the armalite rifle had been set on automatic and that he was the last to fire it. He said that he loaded a fresh magazine, cocked the rifle and then went to fire it. At that point he felt an explosion in his face. He said that he was not sure what had happened. Mr Greenough said that he held his face and went down on one knee. He said that on inspection by other soldiers, he discovered that he was not seriously injured but did have some powder burns. He was taken to a medic who applied cream to the affected area. Mr Greenough said that they were not serious burns but he thought at the time that they may have been. He said that for a “fraction of a second” he had not known whether he had been hit by a sniper. He said “I was momentarily scared”.
19. In cross-examination Mr Greenough said that it had been “a fraction of a second” before he realised what had happened and that he was not seriously injured. The other soldiers had looked at him and told him that it was not as bad as he thought it was and there was no broken skin. He said that one of the men had suggested that Mr Greenough see a medic “just in case”. Mr Greenough agreed that he had received a minor burn and that cream had been applied to the affected area.
20. Mr Greenough next described witnessing the artillery fire from Horseshoe Range. He said that he went to Horseshoe Range three or four times. He said that firing of heavy artillery occurred at Horseshoe Range every day. He said that he recalls seeing the guns fired and then waiting some time for the shells to hit the mountain range in the distance. He said that he recalls thinking that these massive guns must be causing some devastation. He said that it saddened him because it could have been anyone on the receiving end of these shells.
21. In cross-examination Mr Greenough explained that he and others were sitting at the rear of the horseshoe which was a more elevated position. He said that he had moved up there to get away from the sound of the big guns. He said “you couldn’t see it but you could see the smoke of the artillery shells landing”. He said the “fascinating” part that made him watch was that it seemed to take such a long time for the shells to land. He explained the use of the word fascinating by saying that the word referred to the might of the weapons and the time which elapsed between firing and seeing the smoke. He also said that he knew that the Long Hui mountains were enemy territory and that he was pleased that the shells were going in the appropriate direction. He said that they were up against a very clever enemy and was glad that they had at least this much on their side.
22. The final incident relied on by Mr Greenough occurred during his hospital admission with prickly heat when he saw a soldier who had been shot through the jaw. Mr Greenough said the soldier’s mouth had been wired up for weeks. He said that this was his first sight of what bullets could do. Mr Greenough said that during the same hospital stay he had seen a chap who had lost a leg after standing on a mine. It was these incidents which Mr Greenough said made him realise “what it’s all about”; they made him realise what they were there for. He said that when he saw the injured soldiers in hospital he considered he was fortunate, and that it gave him a new respect. He said that it was a wake-up call. Mr Greenough said that although he expected to see injured people in hospital, when he saw them, it put a new light on the situation he was in.
23. Mr Greenough said that while in hospital he felt humbled because he was only in the air-conditioned hospital for prickly heat, whereas others had severe injuries. Mr Greenough said that witnessing these injuries heightened his fear of TAOR patrols. He said “we knew it, but seeing it gave a respectful fear for life when outside the taskforce area”.
24. Mr Greenough agreed that most of his service, except for three or four TAOR patrols, was performed inside the taskforce base, and that he considered himself safer than others who regularly served outside the base.
Drinking
25. Mr Greenough said that it was after the hospital admission with prickly heat that he started drinking more heavily than he had when first posted. He said that when he was first posted he had only continued to drink at about the same minimal rate as when training. He said that he was friendly with the serving staff and could drink in the bar after evening meals. He said that after he had worked at the sergeants’ mess he would usually have a quick meal and then drink beer. Mr Greenough said that at a minimum, he drank 48 cans of beer a week, and on his return to Australia he also drank wine. He said that he found drinking a good way of getting to sleep in South Vietnam. He explained that the only recreational activities in South Vietnam were darts and drinking. After his return to Australia Mr Greenough said that he did not think that there was too much wrong. He did not see his drinking as a problem until later.
26. Mr Greenough gave evidence that after his return to Australia he would drink at a hotel owned by a friend’s father. He said that he had to watch his drinking as he would pick up his father from work and drive him home. He was living with his parents at that time. He said that he would continue drinking at home until about 7.00pm and frequently later. He said that over the next couple of years his drinking pattern got heavier and he got drunk every weekend.
27. Mr Greenough said that after his Army discharge he did not want to work indoors and consequently took a job driving trucks. He said that interstate truck driving required him to have to hold back from drinking; he found that rather hard to do, but generally his drinking did not interfere with his work. He said that it was only on the odd occasion that he drove after consuming some alcohol. He recalled one occasion in 1973 or 1974 when he drank at the Eagle on the Hill hotel leaving Adelaide, and another occasion on the Melbourne side of Ararat when he had a few beers before driving. Mr Greenough then recalled another occasion in 1976 or 1977 when he had some alcohol and his load had tipped over, but he added that the accident had nothing to do with the alcohol he had consumed.
28. Mr Greenough said that after driving other people’s trucks for a short time he purchased a truck to work as a subcontractor driver and then quickly bought a second truck.
29. In reference to his mental state on return from South Vietnam, Mr Greenough said that he did not seek any help as he did not think that he was “too bad” until later, when his wife and parents pointed his drinking out to him.
30. Mr Greenough was referred to his original claim in 1988 for “personality change” (T5, page 62). He confirmed that it was his signature which appeared on the claim form but that it was not his writing, and that he could not now recall whose writing it was. He was referred to the date 1971 as being an indication of when he first became aware of the condition. He said “that’s when it really started to be noticeable to me”. Mr Greenough was then referred to his second application for compensation which was lodged in 1999 (T6, page 69). He agreed that he had also signed this application, but said that he did not complete it. The claim related to PTSD/anxiety and recorded 1975 as the first year he was aware of the condition. Mr Greenough explained that he has now become more aware of himself over the last five years. He said that he could not explain the discrepancy in the dates listed. Mr Greenough was again referred to his second application for compensation (T6, page 75) in which the year 1969 is recorded as the year when Mr Greenough first became aware of his alcohol dependence. Mr Greenough said “this was another mistake”.
31. In respect of his present drinking pattern Mr Greenough said that he drinks three casks of wine a week and also brews his own beer. He said that on weekends, if his sons visit, he also purchases a container of beer. Mr Greenough said that he would drink 12 to 15 standard drinks at night between 4.00pm and 7.30 or 8.30pm, depending on when dinner was served. He would not normally drink after dinner. Mr Greenough said that he is not currently seeking any treatment for his alcohol consumption. He said that his local medical officer had advised him not to leave it too long before he started to slow down. Mr Greenough said that he thought that when things settled down he would like to slow down. He referred to now having a grandson and currently experiencing the worries relating to the outcome of his application, the subject of these proceedings.
32. Mr Greenough said that his wife wanted him to have alcohol-free days, as she does. He said that he weakens and has a drink. Mr Greenough said that he still feels anxious and uptight. He said that he does not blow up as much but still gets frustrated in the city. He said that where he lives at Port Germein he has ideal conditions. Mr Greenough said that he loses concentration while reading or watching television.
33. Mr Greenough referred to having undertaken a six week PTSD course at the Repatriation General Hospital. He said that he had been prescribed anti-depressant medication by Dr Ewer and that he now does not blow up as much or argue as much at home. He said that he is unemployed and has been in receipt of a service pension since 1999. In cross-examination Mr Greenough was referred to a list of positions he has held since 1970 (T6, pages 81 - 84). Mr Greenough said that this list was prepared by his wife and was generally an accurate record of his work history. He said that the first job he held after discharge from the Army had resulted in his sacking, but he said that this was because he was the last on board. He said that he had not been at his second job long enough to be sacked.
34. It was put to Mr Greenough that he had advised Dr Blakemore that he had a good work history and could provide good references. In re-examination Mr Greenough said that his reference to work references related to a period before joining the Army. Generally, however, Mr Greenough agreed the accuracy of the information recorded by Dr Blakemore in his report dated 3 November 2003. Mr Greenough marked this report (the marked copy is exhibit R3) at areas where he considered Dr Blakemore’s record of what Mr Greenough had told to him might be inaccurate. We refer in particular to the following passage on page 11 of Dr Blakemore’s report:
“Mr Greenough said that he had never been ill from drinking, he is fortunate that he had never had hangovers, and he said that he never missed work or lost a job because of drinking.”
Mr Greenough amended the word “never” in this passage to “rarely”.
Medical evidence
Dr M Ewer
35. Dr Ewer was called by Mr Greenough. Dr Ewer referred to having seen Mr Greenough on three occasions and to reports arising out of each of those occasions. In Dr Ewer’s first report, dated 8 November 2000 (exhibit A1, T19), he recites a number of stressful experiences which Mr Greenough had described to him. Those experiences were the hospital admission; the gunship incident; the armalite incident; hearing of the death of a fellow solider who had been struck by lightning; and feeling rejected by other infantry soldiers who had treated him as a malingerer. Dr Ewer went on to diagnose generalised anxiety disorder and alcohol abuse and dependence, along with nicotine abuse. In his second report, dated 13 December 2001 (exhibit A5), Dr Ewer says in relation to the armalite incident, that Mr Greenough had told him that he had initially thought he may have lost part of his face and that he would not touch his face as he feared that it was seriously injured. This statement is inconsistent with Mr Greenough’s answer to a question in cross-examination when he said that he immediately dropped to one knee and put his hand to his face. Dr Ewer also referred to the incident where a solider had been killed by a lightning strike and to Mr Greenough having seen a seriously injured solider while Mr Greenough was in hospital. In Dr Ewer’s third report dated 28 May 2003, (exhibit A6), he considers all of the incidents related to him by Mr Greenough and gives examples of stressors which he felt met the definition of “severe psychological stressor”. The examples are of the armalite incident, and when Mr Greenough learned that a soldier known to him had been killed by a lightning strike. Dr Ewer also refers to these last two mentioned incidents as meeting the definition of a “severe stressor” in the SoP for alcohol dependence or alcohol abuse.
36. Dr Ewer also records that Mr Greenough had told him that on more days than not during the first six months after his anxiety symptoms began, he felt restless, easily fatigued, had poor concentration leading to difficulties in the workplace, was irritable, had a fiery temper, and was intolerant of others and physically violent. He also referred to insomnia. At paragraph 6.4 of Dr Ewer’s 2003 report, Dr Ewer records, amongst other things, that:
“As already mentioned his difficulties concentrating led to problems in the workplace. His irritability led him into conflict in the workplace.”
37. In cross-examination Dr Ewer said that Mr Greenough had not told him that he had worked as a casual and then as a self-employed truck driver. Dr Ewer said that Mr Greenough had told him that he had relatively frequent changes in employment because he was impulsive and drank. Dr Ewer said that Mr Greenough had not told him that he made good money driving grain trucks or that he had turned to truck driving because it paid good money. Mr Greenough gave evidence to this effect at the hearing. Dr Ewer said that what Mr Greenough had told him was quite different to what counsel for the respondent had put to him as the reason for Mr Greenough’s frequent changes of employment. Although Mr Greenough had told Dr Ryan that he was the owner/operator of an interstate rig, Dr Ewer said that Mr Greenough had not told him that he owned such a rig. Dr Ewer agreed that an employment history was a relevant consideration in diagnosing generalised anxiety disorder or alcohol dependence/abuse.
38. Dr Ewer said that Mr Greenough had told him that he had three motor vehicle accidents while driving under the influence of alcohol. It was put to Dr Ewer that Mr Greenough had told us in evidence that he had one motor vehicle accident, and that it was unrelated to alcohol. Dr Ewer speculated that perhaps the three accidents Mr Greenough had referred to, included some car accidents rather than truck accidents. Dr Ewer agreed that the history he had recorded would be wrong if Mr Greenough had not had three alcohol-related accidents. Dr Ewer also agreed that he was aware that Mr Greenough had been diagnosed with lymphoma, and that generally persons diagnosed with lymphoma would have some symptoms of a generalised anxiety disorder. Dr Ewer said, however, that when he first saw Mr Greenough, he had said that his lymphoma had been a past problem.
39. Portions of the history recorded as having been given to Dr Blakemore by Mr Greenough were related Dr Ewer. Dr Ewer said that Mr Greenough had not told him that he felt lethargic and wondered if it was due to lymphoma. Dr Ewer said that Mr Greenough had linked his cessation of work with his alcohol consumption rather than his lymphoma or his employer ceasing business. Page 7 of Dr Blakemore’s report dated 3 November 2003 was put to Dr Ewer. The second paragraph reads as follows:
“He last worked in 2000, Mr Greenough said, he stopped three years ago, when the cancer was diagnosed. His local doctor had told him, Mr Greenough said that he would probably be tired with the cancer and not be able to hold a full-time job.”
Dr Ewer repeated that Mr Greenough had told him that he had ceased work because of his alcohol consumption.
40. Dr Ewer confirmed in evidence that although he had recorded six stressful events related to him in his report of 2001, his final report dated 28 May 2003 only referred to two incidents which might meet the relevant definitions of stressors, those incidents being the armalite incident and a friend being killed by a lightning strike. We note that Mr Greenough’s counsel did not submit that the friend being killed by a lightning strike was a relevant stressor in relation to any of the claimed conditions.
Dr W B Blakemore
41. The Commission called Dr Blakemore to give evidence. Dr Blakemore said that he had examined Mr Greenough on three occasions and had concluded that he does not suffer from alcohol dependence or abuse, or from a generalised anxiety disorder. Dr Blakemore’s report of 3 November 2003 was admitted into evidence as exhibit R2.
42. In respect of generalised anxiety disorder, Dr Blakemore said that the history provided to him by Mr Greenough was not one of anxiety as it did not meet the diagnostic criteria. He said the cardinal symptoms of such a condition are anxiety and fearfulness, and that the general presentation is usually one of a palpable fear and anxiety. He also said that this was not a common condition and that with such a condition a person usually would not be able to work, whereas the history provided by Mr Greenough was one of generally feeling pretty well most of the time. He said that it was his view that Mr Greenough did not display a history, or the symptomatology, of generalised anxiety disorder.
43. Dr Blakemore also concluded that Mr Greenough did not meet the diagnostic criteria for alcohol dependence. He said that there was no evidence of tolerance. Mr Greenough had told him that he drank at a constant rate. He said that there was also no evidence of withdrawal affects. For instance, during the period when Mr Greenough undertook a PTSD course he had been able to abstain from alcohol for at least a week. He said that although Mr Greenough said he was a “bit shaky” to start, there was no suggestion of delirium tremors or other significant symptoms of withdrawal. He also said that Mr Greenough had told him that he was not attempting to give up drinking, he was happy drinking at the rate he is and he drank what he wished to drink.
44. Dr Blakemore said that Mr Greenough gave a history of a man who had generally managed to have a productive working life and had maintained his family relationships over many years. In the light of Mr Greenough’s presentation and history, Dr Blakemore concluded that Mr Greenough did not suffer from generalised anxiety disorder, alcohol dependence or alcohol abuse.
Dr S Ryan
45. Exhibit A1 includes a report dated 24 November 1998 from another consultant psychiatrist, Dr Shane Ryan (exhibit A1, T9, page 94). This report was provided to the Department of Veterans’ Affairs (“DVA”). Under the heading of “Alcohol”, Dr Ryan reports:
“Mr Greenough describes a long history of alcohol abuse and dependence. At present he averages twelve standard drinks per day and has made several unsuccessful attempts to reduce it. He states that his wife feels that he drinks too much and considers that he does have a drinking problem. He listed several occasions in his life where his dependence and use of alcohol has (sic) interfered with his occupational functioning.”
Dr Ryan concludes that during his time in Vietnam, Mr Greenough relied excessively on alcohol and this had continued to be a significant problem, and he satisfies the criteria for alcohol dependence and abuse. Dr Ryan reports further that Mr Greenough showed “moderate levels” of anxiety during the interview, and while the doctor accepted that there were personality changes such as increased irritability, a lowered frustration tolerance, increased reliance on alcohol, and a despondent and depressed mood, he did not diagnose a psychiatric illness by references to DSM-IV.
Dr M L Dowd
46. The Commission also called another consultant psychiatrist, Dr M L Dowd, to give evidence. He provided a report dated 25 May 2000 to the DVA (exhibit A1, T14, page 120). After referring to the history he obtained from Mr Greenough, Dr Dowd identified certain psychological symptoms, namely mood disturbance, anxiety, sleep disturbance and alcohol abuse. As to anxiety, Dr Dowd reports:
“Mr Greenough described some feelings of anxiousness when he thinks about this ‘non-participation’ in South Vietnam but otherwise there is little in the way of anxiety symptoms.”
The reference to “non-participation” is a reference to Mr Greenough’s inability to go out on patrol with the rest of his unit because of his shin splints.
47. Dr Dowd concludes that Mr Greenough was suffering from “an alcohol dependence syndrome”. In reaching this conclusion, he refers to Mr Greenough’s consumption having increased during his first year in the Australian Army, and then further increasing during his six months in Vietnam, partly due to the drinking culture of that environment and partly due to his feelings of inadequacy and guilt through his non-participation in combat situations. He considered that this had “a lasting effect on his view of himself” and that “he continued to drink heavily as a means of coping with long-term feelings of inadequacy”.
Consideration
48. In this case the first issue for us to consider is whether Mr Greenough suffers from any or all of the following conditions:
(a) generalised anxiety disorder;
(b) alcohol dependence;
(c) alcohol abuse;
(d) irritable bowel syndrome.
As mentioned above, the Commission has conceded that if Mr Greenough is successful in establishing a relevant nexus between war service and any of the first three abovementioned conditions then his claim for war-caused irritable bowel syndrome would also be successful. It is also common ground that if all of the first three mentioned claims fail, then the claim for irritable bowel syndrome will also fail.
Diagnosis
49. Generalised Anxiety Disorder : In relation to the issue of diagnosis of generalised anxiety disorder we have noted the difference of opinion between Dr Ewer and Dr Blakemore. Dr Ewer makes the diagnosis of generalised anxiety disorder, but Dr Blakemore considers that Mr Greenough does not now and never has suffered from that disorder.
50. Each doctor based his diagnosis on DSM-IV. The diagnostic criteria for generalised anxiety disorder are listed in paragraphs A to F on page 476 of the Text-Revision edition of DSM-IV. Dr Ewer explained in his evidence that there were two essential parts to a diagnosis of generalised anxiety disorder, one being anxiety and inability to control worry, and the other being additional symptoms, many of which are physical. We understand that in referring to the first “part” of the diagnosis, Dr Ewer was referring to paragraph A of the diagnostic criteria, and in referring to the second “part”, he was referring to paragraph C. This requires the existence of at least three or more of the six symptoms listed in that paragraph. Criterion A reads as follows:
“A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).”
We note that this criterion of diagnosis is described at the outset of the section of DSM-IV dealing with generalised anxiety disorder as the “essential feature” of the disorder. After setting out the six criteria, the narrative introduction to the table of criteria continues:
“The intensity, duration or frequency of the anxiety and worry is far out of proportion to the actual likelihood or impact of the feared event. The person finds it difficult to keep worrisome thoughts from interfering with attention to tasks at hand and has difficulty stopping the worry. Adults with Generalized Anxiety Disorder often worry about everyday, routine life circumstances such as possible job responsibilities, finances, the health of family members, misfortune to their children or minor matters (such as household chores, car repairs, or being late for appointments).”
51. Whilst Dr Ewer refers in his reports to a number of the symptoms referred to in paragraph C of the diagnostic criteria, and a number of the symptoms are also referred to by Mr Greenough and Dr Blakemore, there is little evidence before us in relation to criterion A. There is very little suggestion in the evidence given by Mr Greenough that he suffers from symptoms that would fulfil criterion A. Whilst Dr Ewer reports that over the years Mr Greenough has continued to be “anxious, irritable and aggressive”, and that this anxiety is accompanied by various consequential symptoms which comprise associated features or symptoms of the disorder, he provides little or no particulars of the matters about which Mr Greenough felt anxious or worried, or the frequency or duration of the worries. Nor does he provide any information to indicate that Mr Greenough’s worry or anxiety was far out of proportion to the actual likelihood or impact of the feared event (whatever that might have been).
52. On the other hand, Dr Blakemore obtained a careful and detailed history from Mr Greenough which he sets out in full in his report of 3 November 2003 (exhibit R2). In particular, page 12 of Dr Blakemore’s report contains Mr Greenough’s response to his specific questions regarding worries. Mr Greenough’s reported response indicated that his worries were confined to certain specific matters. Mr Greenough was asked in cross-examination whether the history set out in the report was correct. He agreed that it was correct, subject to some matters to which we refer below. Similarly, his response in evidence when asked to describe his worries or anxiety did not indicate symptoms of the kind or frequency contemplated in criterion A, as expounded in the narrative introduction which we have quoted above.
53. There were also inconsistencies between the version of events provided by Mr Greenough to Dr Ewer and that provided to Doctors Blakemore and Ryan in relation to his employment/work history. Mr Greenough confirmed in evidence that he had accurately told Dr Blakemore that he had rarely been ill from drinking, and that he was fortunate that he had rarely had hangovers. His only alteration to the history recorded by Dr Blakemore was that he “rarely” missed work or lost a job because of drinking. Dr Blakemore had recorded the word “never” (see page 11 of exhibit R2). Dr Ewer conceded in cross-examination that he had provided his opinions on the understanding that Mr Greenough had a sporadic and chequered work history due to the effects of excessive alcohol consumption and had been involved in three motor vehicle accidents while under the influence of alcohol. In evidence Mr Greenough denied experiencing three motor vehicle accidents; he referred to only one, and said that this accident had been unrelated to alcohol.
54. Dr Ewer also said that Mr Greenough had given him the impression that he had ceased work in 1999 due to drinking. Dr Ewer gave evidence that Mr Greenough had told him that he had actually fallen over and vomited due to excessive drinking. He said that Mr Greenough had also “made the point that some of the 40 job changes were related to alcohol”. The history which Mr Greenough had provided to him was accordingly significantly different to that provided to Dr Blakemore and recited in Dr Blakemore’s reports. Further, when giving evidence before us, Mr Greenough was given the opportunity to clarify the reasons for the substantial number of changes in his employment since he left his service in the Army. He said that he had only lost one job through drinking (namely his employment with Bunker Freight lines in 1977-1978), and said that he had been warned about drinking at only two other jobs (and we note that he has held a significant number of jobs since he left the Army). This evidence, together with the history obtained by Dr Blakemore, tends to negate diagnostic criteria E for generalised anxiety disorder, insofar as it refers to “clinically significant … impairment in … occupational … functioning.” In any event, we note that this was only one of the six diagnostic criteria for generalised anxiety disorder.
55. We have considered all of the evidence in relation to the issue of whether Mr Greenough is suffering from generalised anxiety disorder. We find Dr Blakemore’s reports and opinion to be more reliable than those of Dr Ewer, particularly as the history recorded by Dr Blakemore was more consistent with the evidence provided by Mr Greenough to us than that recorded by Dr Ewer. We find on the balance of probabilities, that Mr Greenough does not suffer from generalised anxiety disorder.
56. Alcohol Dependency : The diagnostic criteria for alcohol dependence are also set out in DSM-IV, and the relevant extract is included in exhibit R4. We are again faced with a conflict in the expert medical opinions provided by Dr Ewer and Dr Blakemore on the issue of diagnosis. Again, Dr Ewer based his opinion, in part, on the history provided to him by Mr Greenough. Significant particulars of that history as understood and recorded by Dr Ewer are inconsistent with the history Mr Greenough gave to Dr Blakemore and in his evidence. We particularly refer to the inconsistencies relating to Mr Greenough’s work history, the effect of his drinking on his physical wellbeing, and his ability to refrain from drinking alcohol without significant symptoms of withdrawal, when necessary. For instance, he apparently stopped or substantially reduced drinking when it was necessary for him to remain sober and unaffected during interstate driving trips, when he was picking up his father after work, or when he was refraining from alcohol for a week prior to undertaking, and presumably during, a post-traumatic stress disorder course over six days at the Repatriation General Hospital. Of course, the first two situations occurred many years earlier, but may still have some relevance to the current diagnosis, if only as a measure of the adequacy and care taken to obtain a history from Mr Greenough.
57. Dr Ewer had recorded that he considered Mr Greenough to be suffering from alcohol dependence for reasons including the suggestion that he spent a great deal of time looking for or consuming alcohol, and often drank more than he intended. He also referred to an inability to cut back or stop drinking. While Dr Blakemore agreed that Mr Greenough may spend significant time drinking or looking for alcohol and may drink more than he intends, nevertheless the history provided to him was not one of alcohol dependence. In particular, he said that Mr Greenough did not report symptoms consistent with developing a tolerance to alcohol and/or significant symptoms of withdrawal from alcohol. Further, he said that drinking a significant quantity of alcohol does not of itself meet the diagnostic criteria.
58. We are concerned that particularly in his third report, Dr Ewer appears to have narrated the diagnostic criteria of the condition of alcohol dependency, but has not included adequate details of Mr Greenough’s history or circumstances in order to explain the conclusions he reached. This approach is, we think, also evident in relation to his diagnosis of generalised anxiety disorder. His approach is in contra-distinction to that of Dr Blakemore, whose approach appears to have been to obtain as much history as possible from Mr Greenough, and then to carefully compare that history with the relevant diagnostic criteria. Whilst we think there is force in the submission of counsel for Mr Greenough that in some respects, Dr Blakemore referred to extreme examples of other patients who satisfied the relevant diagnostic criteria, we nevertheless found his analysis of Mr Greenough’s position more persuasive then Dr Ewer’s conclusions. We accordingly find, on the balance of probabilities, that Mr Greenough is not suffering from alcohol dependence.
59. In Benjamin v Repatriation Commission (supra), the Full Court of the Federal Court (Moore, Emmett and Allsop JJ) referred to the inquisitorial function of this Tribunal, and said that where the Tribunal had found that the conditions asserted by the applicant did not amount to a disease and were not war-caused, the Tribunal should nevertheless have considered whether particular psychiatric problems which it had identified might be another disease and might be war-caused. In the present matter, as mentioned above, Mr Greenough’s claims were (relevantly) for “personality change” and “PSTD/anxiety”. However, there was no evidence before us that would, in our view, support a claim for PSTD. Counsel for Mr Greenough did not suggest that the evidence before us warranted a diagnosis of PTSD, alcohol abuse or any other psychiatric condition. We have nevertheless considered the diagnostic criteria relevant to other conditions for ourselves. In the context of alcohol abuse, we have referred above to the evidence as to Mr Greenough’s employment history. There was some evidence of difficulties in Mr Greenough’s marriage, with two periods of separation apparently some years ago. However, we are not satisfied that Mr Greenough’s difficulties with his marriage would meet the relevant diagnostic criteria, taking into account also other evidence as to his personal relationships with other family members. The history in Dr Ewer’s reports that there were three alcohol related accidents (and the history of other episodes relevant to the possible abuse of alcohol) was, we find, incorrect. Doctors Ryan and Dowd saw Mr Greenough some years before the hearing. Dr Dowd referred, in the history he recorded, to alcohol abuse, but his diagnosis was “alcohol dependence syndrome” (exhibit A1, T14, page 122). Whilst Dr Ryan reported that Mr Greenough satisfied that criteria for alcohol dependence and abuse, the diagnostic criteria for alcohol abuse expressly requires that the relevant symptoms have never met the criteria for substance dependence for alcohol. For the above reasons we do not attach weight to the views expressed by Doctors Ryan and Dowd. We are not satisfied on all of the evidence before us that Mr Greenough is suffering from alcohol abuse. Further, we found that there is no other relevant disease which calls for our consideration. We accordingly conclude that Mr Greenough’s claims for pension are unsuccessful.
60. However, in case we are wrong in our above conclusion, we will briefly consider the issue of whether, if Mr Greenough is in fact suffering from the conditions of generalised anxiety disorder, alcohol dependence or alcohol abuse, any of those conditions were war-caused. In doing so, we will follow the steps which were described by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at page 97, namely:
“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.”
61. In this case steps 1 and 2 are in our view established, that is we have considered all of the material before us and are satisfied that the material does point to certain hypotheses connecting the conditions of generalised anxiety disorder, alcohol dependence and alcohol abuse with the circumstances of the applicant’s operational service. The hypothesis is that the incidents described in paragraph 16 above occurred while Mr Greenough was on operational service, and caused the clinical onset of the claimed conditions. Further, SoPs have been determined by the RMA pursuant to Schedule 198B(2) of the VE Act. These findings address the first two steps in Deledio.
62. We now turn to the third step described in Deledio. This requires a determination as to whether the relevant hypotheses fit one or more of the factors referred to in the relevant SoPs. Once again, the step involves considering the material before us, but without making any finding of fact at this stage. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose (see Lees v Repatriation Commission (2002) 125 FCR 331).
63. In relation to generalised anxiety disorder, it was determined by Deputy President Forgie that the appropriate SoP in this matter is Instrument No. 1 of 2000 (the “Anxiety SoP”). Under clause 4 of the Anxiety SoP at least one of the factors set out in clause 5 must be related to the applicant’s relevant service. This clause relevantly provides:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder … only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
… .”
In clause 8, the words “severe psychosocial stressor” are defined to mean:
“An identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
64. In relation to alcohol dependence or alcohol abuse, the relevant SoP is Instrument No. 76 of 1998 (the “Alcohol SoP”). Under clause 5, the relevant factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of relevant service include the following:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; ... .”
In clause 8, the words “experiencing a severe stressor” are defined 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 participating in or observation of casualty clearance, atrocities or abusive violence;”.
65. In this case, Mr Greenough has recounted a number of events which are alleged to have occurred during his six months’ service in South Vietnam and which have been recorded by the various psychiatrists who have seen and reported on Mr Greenough. In his opening address however, counsel for Mr Greenough, Mr Ower, indicated that he relied on four incidents as comprising severe stressors or severe psychosocial stressors. He referred to the gunship incident, the hospital admission, the artillery fire and the armalite incident. Counsel noted that other incidents had been referred to by Mr Greenough and had found their way into earlier medical reports, but it was only these four incidents which were said by Mr Ower to form the relevant nexus with the applicant’s claimed conditions. Mr Ower also noted that Dr Ewer only referred to two incidents which he suggested comprised relevant stressors, namely, the armalite incident and an occurrence where a soldier known to Mr Greenough was killed by lightning. Mr Ower confirmed that this last-mentioned incident was not suggested as a relevant stressor. Mr Ower did say, however, that notwithstanding Dr Ewer’s opinion as to relevant stressors, we may find that any or all of the abovementioned stressors referred to by Mr Ower were sufficient to ground the success of the application.
66. We have considered each of the alleged relevant stressors described by Mr Ower in his opening address and by Mr Greenough during his evidence. We have concluded that the gunship incident in which Mr Greenough, along with others, watched as gunships fired mini guns towards unknown targets at night was not the type of occurrence contemplated by Instrument No. 1 of 2000 relating to generalised anxiety disorder. It does not satisfy the definition of a “severe psychosocial stressor”. Such a stressor is defined as an “occurrence that evokes feelings of substantial distress in an individual”. Examples provided are “being shot at, death or serious injury of a close friend or relative, assault, major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”. In White v Repatriation Commission [2004] FCA 633, Spender J examined the language of the definition of “severe psychosocial stressor” in the SoP, and concluded (at [30]) that the definition:
“… concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
67. We are not satisfied that the gunship incident would cause a reasonable person in Mr Greenough’s position to experience the relevant feelings. There is no suggestion that Mr Greenough or others with him could see the target(s) being fired on, or the damage being done as a result of the firing. The persons observing the firing were after all in a war zone, and should have expected to see events such as the gunship incident. For similar reasons, we are not satisfied that this incident would meet the definition of “experiencing a severe stressor” in the Alcohol SoP.
68. As to the artillery fire incident, we note Mr Greenough’s evidence that he, along with others, moved to a vantage point where he could witness the large pieces of artillery being fired and then saw plumes of smoke in the distance where the projectiles landed. Mr Greenough’s described feelings included being “fascinated” by such firing, but also pointed out that he was pleased that the firing was not in his direction. The same comments apply to this incident as applied to the gunship incident, and in our view it does not satisfy the definitions of “a severe psychosocial stressor” or “experiencing a severe stressor” in the relevant SoPs.
69. As to the hospital admission, Mr Greenough’s evidence was that he was admitted to an air-conditioned hospital for four days to recover from an episode of prickly heat, and that during this admission he was distressed to see another solider who had a severe gunshot injury to his mouth or jaw. He said this made him feel “humble” that he was in hospital simply because of prickly heat whereas the wounded soldier had a severe injury. Mr Greenough also said that it brought home to him the fact that they were in a war zone and that, although he did not face the same dangers as others (as he was performing primarily steward and laundry duties), nevertheless he, too, could be injured. In our view the evidence before us as to this incident does not satisfy the requirements of the definition in question.
70. The final incident relied on by Mr Ower, and the only incident which is also supported by the opinion of Dr Ewer contained in his medical report dated 28 May 2003, was the armalite incident. In his evidence before us, Mr Greenough indicated that he was “momentarily” unsure what had happened to him. He suggested that it had run through his mind that he might have been shot by a sniper. He said that he dropped to one knee and placed his hand to his face, but that he soon realised, after being spoken to by his friends, that he had not suffered a severe injury. In fact, his skin was unbroken and he did not require treatment other than with creams. He said that he recovered from the physical injury within a few days, but that the fear continued.
71. In our view, this incident meets the two definitions in question. There was an occurrence, and it was such that it might reasonably produce a reaction of substantial distress in an individual, or it entailed a threat of serious injury and was such that it might evoke intense fear. There was also evidence before us that the incident produced those reactions in Mr Greenough at the time. In view of the very frightening nature of the incident, we do not agree that the evidence that Mr Greenough’s reaction was only momentary or of very short duration meant that the incident was inconsistent with the relevant definitions.
72. We further find that there is material before us which satisfies factor 5(a)(ii) of the Anxiety SoP and factor 5(b) of the Alcohol SoP. This material comprises the opinions expressed in the reports by Dr Ewer of 13 December 2001 and 28 May 2003 (exhibits A5 and A6).
73. We accordingly turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before us, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. In Byrnes v Repatriation Commission (1993) 116 ALR 210, Mason CJ, Gaudron and McHugh JJ (at page 571) said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
74. The relevant SoPs refer to the clinical onset of the conditions in question. The meaning of this expression was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
75. We have carefully reviewed all of the evidence before us, including in particular the evidence given by Mr Greenough. That evidence confirms that he commenced drinking more and more heavily in Vietnam and later, within the two-year period after the stressor, and he described his feelings of guilt and the emotions in that period. However, he did not give evidence of having developed, or become aware, within the two-year period, of symptoms which would have led to a diagnosis of alcohol dependence or alcohol abuse. On the contrary, there is evidence that he was able to control his drinking after he left the Army and commenced work as a driver. We have referred above to the inconsistencies in the history obtained by Dr Ewer compared with that obtained by Dr Blakemore, and to Mr Greenough’s virtual acceptance of the correctness of the history obtained by Dr Blakemore. There was nothing to contradict this in other material before us, including the history provided to Doctors Ryan and Dowd.
76. In all of the circumstances, we are satisfied beyond reasonable doubt that the clinical onset of the conditions of alcohol dependence or alcohol abuse did not occur within two years of the armalite incident. We accordingly conclude beyond reasonable doubt that even if Mr Greenough is suffering from the above conditions, there is no sufficient ground for determining that they were related to Mr Greenough’s operational service.
77. As regards generalised anxiety disorder, we are not satisfied beyond reasonable doubt that the clinical onset of this condition did not occur within two years from the armalite incident. We refer in this regard to the evidence-in-chief of Mr Greenough where he referred to his pattern of drinking when he was still in Vietnam becoming heavier and heavier, and lasting longer as a “form of getting to sleep with things running through my mind” (transcript 20.10.04, page 33, line 43). He also referred to the change in his personality when he came back from Vietnam, when he had become volatile and at times depressed, suffered from disturbed sleep and was easily upset and nervy. We also note that in her written statement (exhibit A3), Mrs Greenough said that after he came back from Vietnam, her husband “drew into himself” and had difficulty concentrating. She also said that he was no longer “open, kept things to himself and bottled them up”. She also referred to his drinking habits and to the cessation of family visits and sport after Mr Greenough came back from Vietnam. On the evidence before us, if our conclusion had been otherwise on the issue of diagnosis, we would have found that the condition of generalised anxiety disorder was war-caused. However, the claim for this condition must fail in view of our earlier findings on diagnosis.
Irritable Bowel Syndrome
78. It follows from the above findings that Mr Greenough’s claim for irritable bowel syndrome pursuant to Instrument No. 103 of 1996 must also fail, as he cannot meet factor 5(b) of that SoP.
Decision
79. For the above reasons the Tribunal affirms the decision under review.
I certify that the 79 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis and Mr J G Short, MemberSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 20 and 21 October, and 3 December 2004
Date of Decision 8 March 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S Maharaj
Solicitor for the Respondent Australian Government Solicitor
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