Hackett and Repatriation Commission
[2004] AATA 1347
•17 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1347
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/673
VETERANS' APPEALS DIVISION )
Re THOMAS JAMES HACKETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, Member Date17 December 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
K S Levy
Member
CATCHWORDS
VETERANS' AFFAIRS – Veterans’ Entitlements – application for adjustment of pension – whether conditions of post traumatic stress disorder and alcohol abuse / dependence are war caused – whether evidence raises “reasonable hypothesis” – whether incident a “severe stressor” – Condition of generalised anxiety disorder accepted but not war caused - Decision under review affirmed
Veterans’ Entitlements Act 1986 ss 5D, 6C, 7, 9, 13, 68, 70, 120, 120A, 196B, Schedule 2
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 12 ALD 798
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Mines v Repatriation Commission [2004] FCA 1331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 74 ALD 68White v Repatriation Commission [2004] FCA 663
Re Hillier and Repatriation Commission [2004] AATA 897
Repatriation Commission v Law (1980) 31 ALR 140Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
REASONS FOR DECISION
17 December 2004 Dr K S Levy, Member Introduction
1. The applicant, Thomas James Hackett, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for review of a decision of the Veterans’ Review Board dated 25 June 2002. That decision rejected a claim for adjustment to his pension for conditions of post traumatic stress disorder and alcohol dependence/alcohol abuse, as being war-caused, under the Veterans’ Entitlements Act 1986 (the Act).
2. He has been accepted for, and currently receives, 50% of the general rate of pension from 10 March 1999 as a result of the following conditions having been accepted cumulatively over time and which were regarded as service-related -
§ Bilateral sensori-neural hearing loss
§ Tinnitus
§ Past fracture carpal scaphoid left wrist
§ Osteoarthrosis of left knee
§ Chronic solar skin damage
3. The current application is based on the contentions that the applicant’s claimed disabilities of post traumatic stress disorder (PTSD) and alcohol dependence/alcohol abuse satisfy the relevant Statements of Principles (SoPs) and should be regarded as war-caused. It is also claimed that the applicant could not obtain appropriate clinical management for PTSD and that this aggravated the clinical status of his PTSD during operational service. In support of this claim, he states that he suffered a severe stressor whilst serving on HMAS Perth and that his increase in alcohol intake resulted from this experience. As a consequence, if these claims are accepted, the rate of pension should be adjusted accordingly.
4. The applicant was represented by Mr R J Clutterbuck of Counsel and Ms C Haney of Streeting Haney Lawyers. The respondent was represented by its advocate, Mr M Smith.
5. The following documents were tendered into evidence –
Exhibit 1 “T” Documents filed under s 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Statements of the applicant dated/received 14 February 2003, 27 November 2003 and 13 July 2004
Exhibit 3Report by Dr I Holm, psychiatrist, dated 14 May 2003
Exhibit 4PTSD Day Treatment Program Discharge Summary dated 20 May 2004
Exhibit 5Report by Commodore P M Mulcare (Writeway Research Service) dated 9 January 2004
Exhibit 6Report by Dr W J Kingswell, Consultant Psychiatrist, dated 7 June 2004
6. Oral evidence was also admitted from the applicant, Thomas James Hackett, and from his treating psychiatrist, Dr Ivan Holm.
7. All of the oral evidence and all of the documentary exhibits have been carefully considered in determining this matter.
Issues for Determination
8. The issue for determination in this matter is whether the Applicant’s conditions of PTSD and alcohol abuse are related to operational service and, therefore, war-caused by virtue of section 9 of the Act, or whether an alternative diagnosis of generalised anxiety disorder is relevant and attributable to the applicant’s relevant operational service.
Background
9. The applicant is currently 59 years of age. His date of birth is 9 June 1945.
10. He served in the Royal Australian Navy (RAN) continuously for twenty years from his date of enlistment on 14 January 1965. He was discharged on 13 January 1985. The applicant had service relevantly as follows -
§Operational Service
o31 May 1965 to 22 June 1965 (HMAS Vampire) – 24 days
o14 September 1970 to 8 April 1971 (HMAS Perth) – 207 days
o24 November 1971 to 17 December 1971 (HMAS Sydney) – 23 days
o14 February 1972 to 9 March 1972 (HMAS Sydney) – 24 days
§Eligible Defence Service
o7 December 1972 to 13 January 1985
11. The applicant’s claims for increased rate of pension centre on certain events associated with his service in the RAN. These are -
§HMAS Queensborough
o7 December 1967 – this was a boiler room accident, whereby a sailor was killed by an explosion and exposure to extreme heat and steam. The applicant was in the environs of the accident site and witnessed the dead sailor being brought out of that site.
§HMAS Perth
oIncident 1 – stress of routine of being on watch in the fire room and at action stations.
oIncident 2 – when on watch in the fire room and action stations were called, the hatches were bolted down.
oIncident 3 – when the guns were firing there was stress of being given no information about the vulnerability of the ship. The applicant states that while working in the boiler room he was concerned about what would happen if there was a direct hit on the fire room.
oIncident 4 – the gun turrets would often fire day and night without warning and “my heart would leap into my mouth each time the gun first shell was fired.” Approximately 200 – 300 shells were fired in an engagement.
oIncident 5 – there were times when prisoners were brought on board; and grenades would be dropped either side of the ship to inhibit divers placing mines on the ship’s side.
oIncident 6 – the applicant states that sailors were told that mines could be in the water and consequently, he never knew whether some of the sounds were grenades in the water or whether the ship had hit a mine.
oIncident 7 – in one incident, the crew were told that they were going to the aid of a patrol boat which was being fired upon from shore and that their ship would also need to be close to the shore.
12. Since being discharged from the RAN, the applicant has worked for MSS Security, as a night fill manager for K Mart, and with Incitec for approximately the past fifteen years.
Legislative Framework
13. The relevant legislative provisions of the Act which must be considered in order to determine the applicant’s eligibility for disability pensions are outlined below. Essentially for proof that an injury or disease has been war-caused, section 9 of the Act must be satisfied. It provides:
“9 War-caused injuries or diseases
(1)Subject to this section and section 9A, 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;
(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;
…..
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
14. The reference to “operational service” in section 9 is defined in section 6C, and by further reference to section 5D of the Act and to Schedule 2, areas of overseas deployments of the defence forces which are recognised as “operational service” can be determined. There was no dispute about the applicant’s service or that the ships upon which he served satisfied the requirements of operational service.
15. If a person’s service is shown to be recognised as “operational service”, their application must then prove eligibility for a disability pension under section 13. The applicant must demonstrate that the injury or disease claimed is “war-caused” (section 13(1)(b)). The obligation to pay pension to a veteran, subject to meeting the relevant statutory requirements, is placed on the Commonwealth by virtue of section 13(1)(d) of the Act.
16. In assessing whether an injury or disease meets the required standard of proof, the governing provision of the Act is section 120. This provides:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1:For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).
Note 2: 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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
17. Where a claim is lodged after 1 June 1994, section 120A applies and requires that the reasonableness of an hypothesis be assessed in terms of Statements of Principles (SoPs) issued by the Repatriation Medical Authority (RMA). Section 120A provides as follows:
“120A Reasonableness of hypothesis to be assessed by Reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that also relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1),(2) and (3) are relevant to these claims.
Note 2: For Peacekeeping service, a member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(a)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease or, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contrated by the person; or
(c)the kind of death met by the person;
as the case may be.
18. It is clear that this section applies where the Repatriation Medical Authority has issued SoPs under section 196B(2) or (11) of the Act. In the present case, SoPs have been issued in relation to the following conditions which are relevant to the evidence –
§Instrument No 3 of 1999 and Instrument No 54 of 1999 – Post Traumatic Stress Disorder
§Instrument No 76 of 1998 – Alcohol Dependence and Alcohol Abuse
§Instrument No 1 of 2000 – Anxiety Disorder
19. The standard of proof in relation to claims for operational service is that of a reasonable hypothesis (section 120(1) and (3)). The test to be applied here has been set out by the High Court as:
“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 the disproving beyond reasonable doubt, the hypothesis.” (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571)
20. The standard of proof relevant to all other decisions and to the assessment of pension, is that of “reasonable satisfaction” (section 120(4)). This standard of “reasonable satisfaction” has been held to equate to the civil standard of proof, or proof on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327; Benjamin v Repatriation Commission (2003) 70 ALD 622; Fogarty v Repatriation Commission [2003] FCAFC 136; Repatriation Commission v Hancock [2003] FCA 711.
Evidence
§ HMAS Queensborough – Boiler Room Accident
21. On 7 December 1967, Mr Hackett and five other sailors were undertaking mechanical repairs on a diesel generator on the above ship. At approximately 10.05 am, Petty Officer Donohue, assisted by another sailor, was ordered to shut down No. 1 boiler. At about 10.30 am, Petty Officer Donohue closed a valve on the boiler, following which there was a loud explosion after which the boiler room started to fill with steam and water poured out of the front of the boiler. One of the sailors working with Mr Hackett felt a blast on his back and the area in the boiler room quickly filled with steam. A Leading Seaman ordered the party (including Mr Hackett) out of the boiler room and into an air lock. He then raised the alarm.
22. Petty Officer Donohue told the sailor working with him to remain near the port side of the boiler while he tried to fix the problem. When he could not successfully resolve the situation, he went to find his junior sailor but could not find him where he had been left. The Petty Officer then climbed the ladder to reach the air lock. He was then taken to the sick bay. Another petty officer attempted to enter the boiler room to look for the missing sailor but was forced back by heat. About half an hour later the body of the sailor was found, at which time mouth-to-mouth resuscitation was attempted for several minutes before his body was removed to the sick bay. That sailor was pronounced dead about ten minutes later.
23. At the Board of Inquiry following the death of the sailor, Mr Hackett had provided a one page statement and also gave oral evidence. His evidence to the Board of Inquiry was also approximately one page long. From the report of Writeway Research Service, Mr Hackett’s involvement in this incident is not clear, but he appears to have been present and assisted when the dead sailor was brought from the boiler room.
§ HMAS Perth – The seven incidents referred to above in paragraph 11
24. Mr Hackett served on the above ship on operational service in Vietnam waters from 14 September 1970 to 8 April 1971 as a Leading Engineering Mechanic. He also served on HMAS Sydney as a Petty Officer Engineering Mechanic for two relatively short periods as referred to earlier. However, Mr Hackett only claims to be suffering from disabilities as a result of his service on HMAS Perth.
25. In relation to Incident 1 in paragraph 11, the veteran refers to occasions when the ship was required to engage the enemy and that he would be required to do four hours on watch in the fire room, followed by four hours at action stations, followed by four hours sleep. He states this cycle was repeated day and night on numerous occasions. The report of Writeway Research Service interviewed a former commanding officer of the ship during this period and three other officers who served on HMAS Perth at that time. All of these officers verify that engineering personnel did at times have to close up at damage control stations immediately after coming off watch, as claimed by the veteran. One of those officers recalled it happened reasonably frequently in the early part of his service on the ship whereas the others interviewed did not recall it happening as frequently. However, there were undoubtedly numerous instances when this occurred as claimed by Mr Hackett.
26. In relation to Incident 2, i.e. when action stations were sounded the hatches were bolted down, Commodore Mulcare, author of the report for Writeway Research Service, asserts that the veteran’s claim here implies that sailors were “bolted in” and that they could not escape from the fire rooms. He states that is not correct. Specifically, Commodore Mulcare states:
“All hatches into fire rooms were operable from both sides and there were also ‘Escape Trunks’ on the lower levels of the firerooms.”
27. In relation to the claims made in Incidents 3 and 4, these essentially relate to the situation where the guns on the ship were firing and Mr Hackett was working in the boiler room, an environment which was both noisy and hot. These claims relate to the stress and anxiety of working in these conditions and that he was never told what was going on. He described feeling anxious about what could happen if the ship was hit by enemy fire and describes being startled when the first round was fired in an engagement. He claimed that approximately 200 - 300 shells were fired in each engagement. Commodore Mulcare’s report indicates there are no records of the frequency of briefings to those serving on the ship and certainly one of the officers interviewed stated that insufficient information would have been relayed to remote areas of the ship about the tactical situation. He stated that other personnel may have a different view of that but, nevertheless, he stated that they undoubtedly would not have been warned on each occasion that the ship was about to fire. In any event, he states:
“In 1970/71 PERTH operated off South Vietnam only and did not come under fire at anytime during the deployment.”
28. Incident 5 refers to there being occasions when the ship took prisoners on board and that grenades were dropped either side of the ship to prevent divers placing mines on the ship’s side. No warning was given of this.
29. Likewise, in Incident 6 the veteran refers to being told that mines could be in the water and as a result he never knew whether loud noises were the ship hitting a mine or whether it was staff of the ship throwing grenades into the water. The report by Writeway Research Service verifies that scare charges were often used as a major deterrent to divers in the near vicinity. The report verifies that the sound of a scare charge explosion could be very loud, particularly for those in the lower compartments of the ship.
30. In relation to the “prisoner” incident, Commodore Mulcare states that there was only one such incident, on 1 February 1971. Mr Hackett also seemed to verify this when he gave his oral evidence at the hearing. Official records indicate that the prisoners came from a fishing boat who hailed HMAS Perth and indicated they wished to surrender. The report of Writeway Research Services notes that scare charges were thrown in the vicinity of the ship on that day in order to ensure there was no diver activity associated with the fishing boat. The report also states that:
“In circumstances such as this, it would be normal to warn the ship’s company that scare charges were about to be thrown, but it is not possible to establish whether any warning was given on this occasion.”
31. Incident 7 relates to the Captain advising the ship that it was going to the aid of a patrol boat which was being fired upon from the shore and that HMAS Perth would also be relatively close to the shore. The report of Commodore Mulcare indicates that HMAS Perth altered course to respond to the request for assistance at 1.23 am on 10 October 1970. It indicates that HMAS Perth could not get close to the minesweeper because it was required to remain at least 5,000 yards off shore and also the water was too shallow. HMAS Perth then relayed a message to other friendly forces in the area including airborne forces, and then reversed course at 1.50 am to continue her other missions. The involvement of HMAS Perth in this incident lasted approximately 30 minutes, but the report of Commodore Mulcare has concluded that Mr Hackett must have been on watch if he heard about that incident at the time it occurred.
§ Psychatric Evidence
32. Mr Hackett stated that his anxiety during these experiences was about never seeing his wife and children again. In evidence, he stated that it was in this period on HMAS Perth that he started drinking heavily. He had then been in the RAN for five to six years and stated that he could get more alcohol as he was a leading seaman. He referred to the psychological consequences for him in that he suffered from bad dreams and often had very little sleep. He stated in evidence that he was concerned about being branded a coward and that in the late 1970s, that is, some years after his service in Vietnam, his wife told him that he had changed and had threatened to leave him. This occurred again three times in the 1990s.
33. Following service on HMAS Perth, he sought promotion to get away from the boiler room. He became a technical officer’s writer and then became a petty officer on the bridge. At this time he claimed that his drinking was “pretty good”. He ultimately qualified for, and was promoted to, chief petty officer in the engineering branch.
34. Mr Hackett also described changes in his adaptation into society. He does not like to socialise anymore and even though he has now increased his drinking, he prefers to drink at home. If he is not at home and drinks alcohol, he claims to become aggressive. He stated this was mainly in the form of shouting but did not assault people. Despite this evidence, he acknowledged an occasion at work where he pushed a person into a corner. Because of his reactive moods, he is now required to work by himself.
35. Dr Holm provided two reports dated October 1999 and May 2003. His latest report highlights Mr Hackett’s experience on HMAS Queensborough where he witnessed the recovery of the body of a sailor who died as a result of being scalded to death. He reports that Mr Hackett described to him experiencing anxiety and intrusive memories for the following three years. I note that the applicant would have been 23 years of age at the time of this incident and would have had approximately three years service with the RAN.
36. In relation to his service with HMAS Perth in 1970/71 when that ship served in Vietnamese waters, Dr Holm states that environments in which Mr Hackett worked created a high degree of anxiety and in particular, being confined in the boiler room and concern about whether the ship would be hit by enemy fire. Also, it was a source of anxiety as there was no communication to the boiler room and this created anxiety in relation to the unknown or uncertain circumstances.
37. Dr Holm’s oral evidence and his reports conclude that Mr Hackett has a diagnosis of PTSD and alcohol abuse, and that he satisfies the DSM-IV criteria for PTSD.
38. Dr Holm noted that the original onset of this condition is difficult to pinpoint but he accepts Mr Hackett’s description of his anxiety and intrusive memories and believes it is likely that this is related to his naval service in the year following the boiler room experience in 1967. In the alternative, Dr Holm states that the applicant would also satisfy the criteria for generalised anxiety disorder as a result of the incident in 1967. Even though that was not during operational service, his opinion is that it was nonetheless an existing condition by the time he served in Vietnam on HMAS Perth. He also accepted that the applicant’s service in Vietnamese waters on that ship resulted in a clinical worsening of that anxiety disorder.
39. Dr William Kingswell has also diagnosed Mr Hackett with PTSD which, he states, is “complicated” by a binge pattern of alcohol abuse. He documented his past and present psychiatric states and noted, inter alia, the applicant’s apparent suicide attempt three and a half years ago by jumping in front of a car. On questioning in the hearing, the applicant was not convincing in his response as to whether this was a serious attempt at suicide. Dr Kingswell also noted that the Veterans’ Review Board has not accepted the applicant’s service in the RAN as “experiencing a severe stressor”. He acknowledged that a psychiatrist cannot advance the issue and it is a legal question, not a medical one.
Consideration
40. The periods of “operational service” claimed have not been disputed that they have been post World War 2 service in operational areas (section 6C), nor is there any dispute under sections 68(1) and 70(7) that the applicant has “eligible defence service”. A person who has rendered “operational service” as required under the Act is deemed to have rendered “eligible war service” for that period (section 7).
41. The extent of injury or disease covered by the Act whilst a person is undertaking “operational service”, is provided for by section 9 and allows for an injury or disease contracted while the veteran was rendering operational service; or it must arise out of or be attributable to eligible war service; or while rendering eligible war service, even though it did not arise out of that service; or if suffered or contracted before the last period of eligible war service but was contributed to or aggravated by any war service rendered by the veteran after the injury or disease was contracted.
42. Before making an assessment based on the principles in Repatriation Commission vDeledio (1998) 83 FCR 82, the Tribunal must first be satisfied to its reasonable satisfaction, that is, on the balance of probabilities, as to the kind of disease or injury which has been suffered by the veteran. This was amplified by Selway J in Repatriation Commission v Hancock [2003] FCA 711, where his Honour indicated two pre-conditions must be satisfied. Related to this case, these pre-conditions are –
(i) that Mr Hackett was a veteran; and
(ii)in order to determine whether a SoP applies, the kind of injury or disease which is the basis of the veteran’s claim must be identified (section 120A(2) and (4) of the Act).
43. In this case, there is undisputed evidence of the applicant’s operational service. He is therefore “a veteran”. Equally, there is cogent expert evidence attesting to his conditions of PTSD and alcohol abuse. There is also other evidence of an alternative diagnosis of generalised anxiety disorder. While those pre-conditions were accepted by the Tribunal, it also was satisfied that each of the conditions claimed were a “disease” within the meaning of that term in section 5D(1) of the Act. He therefore has a kind of disease for which a SoP has been determined.
44. In assessing the substantive claims made by the veteran, the standard of proof to be satisfied is set out in section 120(1) and (3) of the Act. The standard required is that if the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for linking the disease to the war service rendered, then it must determine that the diseases were due to war service. To be satisfied that there is no sufficient ground beyond reasonable doubt, the Tribunal must conclude, after considering the whole of the material, that a reasonable hypothesis is not raised which links the disease to the relevant war service.
45. As this application is made after 1 June 1994, section 120A applies. That is, the claims must be assessed against the factors listed in any relevant SoP issued and section 120A(3) of the Act. The process of assessment which is required, was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The steps required, so far as they are relevant, are shown at page 97 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)…….
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.”
46. The claims are evaluated below according to the steps in Deledio.
§ CLAIM FOR PTSD
47. The relevant parts of SoP Instrument No 3 of 1999 (PTSD) are –
“Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means 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 aspectof 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);
…...”
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
…..
Other definitions
8. For the purposes of this Statement of Principles:
‘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 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 severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”.
48. In assessing compliance with the procedures set out in Deledio’s case, on the face of all the material put before the Tribunal, I consider an hypothesis is raised connecting this disease with the veteran’s operational service. Step 1 is therefore satisfied. Likewise, Step 2 is satisfied as SoP Instrument No 3 of 1999 (PTSD) has been issued under section 196B(2) of the Act. It is therefore necessary to now consider Step 3 which centres on the question - is the hypothesis raised in Step 1 a “reasonable hypothesis”? In other words, is the hypothesis consistent with the template provided in that SoP. This can be answered as follows –
§ Service on HMAS Queensborough - Boiler Room Incident – As this incident did not occur on operational service, it is not relevant for compensation under section 120(1) of the Act. However, it may be relevant at a subsequent stage if it can be shown to be an aggravation of a pre-existing condition of PTSD or some other psychiatric disability.
§ Service on HMAS Perth – These incidents occurred on operational service. In evaluating the incidents claimed in terms of Step 3 of Deledio, it is important to be mindful of the judgment of Gray J in the Federal Court decision of Mines v Repatriation Commission [2004] FCA 1331. That case held that at this stage of the analysis, the Tribunal cannot consider or weigh the facts. His Honour made it clear that the purpose of the third step is to examine material in the relevant SoP and to test the reasonableness of the hypothesis raised in Step 1. In other words, it is an evaluation of a connection between the SoP and the hypothesised condition. In relation to factor 5(a) of the SoP on PTSD, Incidents 3, 4 and 6 satisfy the definition of “experiencing a severe stressor” prior to the onset of his diagnosed condition. Incidents 1, 2, 5 and 7 are not incidents of sufficient magnitude which would result in the applicant’s response being to “experiencing intense fear, helplessness or horror”.
49. In relation to factor 5(c) of the SoP, that is, an inability to obtain appropriate clinical management for PTSD, that does not seem to be a reasonable hypothesis as the standard of medical and psychiatric support available to Commonwealth employees, including sailors, is well understood by most people outside of government employment and certainly understood to those within the defence force. To accept that someone of the applicant’s experience, rank and length of service could not at any time have known or obtained appropriate clinical management for that condition would not be a reasonable hypothesis.
50. In relation to the third step therefore, the Tribunal accepts that a reasonable hypothesis is established for Incidents 3, 4 and 6 in relation to PTSD. The Tribunal does not accept that a reasonable hypothesis is raised for Incidents 1, 2, 5 and 7, nor does it accept that a reasonable hypothesis is raised as to an inability to obtain appropriate clinical management.
51. In evaluating the fourth step in Deledio, this involves consideration of the facts contained in the evidence to determine whether the reasonable hypothesis can be accepted under section 120(1), beyond a reasonable doubt in terms of Byrnes v Repatriation Commission (see paragraph 19). In light of the Tribunal’s determination in paragraph 50, this relates to Incidents 3, 4 and 6 only.
52. In assessing this aspect, two further terms need to be amplified: “clinical onset” and “severe stressor”. In relation to the term “clinical onset” this has been considered by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668. At page 670 of that judgment, it was described as:
“….either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
53. That definition was approved in Repatriation Commission v Cornelius [2002] FCA 750. A complementary description was also accepted by the Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 at [16] which stated that the determination of clinical onset is:
“….intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.”
54. The term “severe stressor” is defined in paragraph 8 of the SoP. To satisfy this definition, there is no timeframe as there is for other SoPs involving psychiatric conditions. However, it is intended to cover very serious stressful events such as “actual or threat of death or serious injury, or threats of similar seriousness”. As an indication of the types of stressors, that definition includes the following:
(i) threat of serious injury or death; or
(ii) engagements with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
The severity of these stressors established as indicative of the standard, is clearly of a very high order.
55. Is there evidence of a “severe stressor” as required by paragraph 5 of the SoP and as defined in paragraph 8 of the SoP? In White v Repatriation Commission[2004] FCA 663 Spender J held that a severe psychosocial stressor has both a subjective and objective element. The application of the principles required to arrive at a reasoned decision consistent with the definition and the decision in White was included in Re Hillier and Repatriation Commission [2004] AATA 897. At [65], Deputy President Jarvis set out the considerations to be applied as follows:
“(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
56. The decision in Hillier also underscored at [67] that the objective requirements should be evaluated not by the reasonable person test but should be measured against an objective “member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart)”. The wide variability and experience of servicemen and veterans was noted as affecting the objective assessment of this standard.
57. Considering now the material relevant to the stressors alleged in this case and the authorities of White and Re Hillier (supra), the stressors must firstly be seen to be “an event”. An event is an “incident or mishap” which can be differentiated from the ordinary course of life (Repatriation Commission v Law (1980) 31 ALR 140 at 149). While that case used a similar definition for the word “occurrence”, which was a case involving depressive disorder, I consider the word “event” to be synonymous in meaning with the word “occurrence” in the current context.
58. Applying the amplified definition to the three events outlined above, which have been accepted as satisfying Step 3 of Deledio, I do not consider any of these three incidents to be “severe stressors” on an objective assessment. There was evidence of of the ship’s role being to provide Naval Gunfire Support while it was on the gunline and that firing of the ship’s small to medium artillery weapons would be commonplace. This undoubtedly creates an awareness of the level of activity and that the ship could be identified by sight or radio tracking. There was also evidence that the ship’s company would have had briefings on the tactical situation, but would not have been warned on each occasion that the ship opened fire. This was clearly not anticipated as the standard that sailors came to expect in such circumstances. There was also, apart from evidence of precautionary measures to prevent sabotage from enemy divers, no evidence of any serious risk and certainly no evidence provided by the applicant or Writeway Research Services on behalf of the respondent, that there was any enemy attack on the ship at that time, or indeed at any time during the ship’s tour of duty.
59. Turning now to the subjective aspect of this assessment, the Tribunal does not accept that the applicant would have experienced the degree of fear for the events claimed which would satisfy the standard in the definition “experiencing a severe stressor”. That is not to say that some of those events on some occasions did not create anxiety or fear for the veteran. However, when living on the ship continuously for almost seven months, in the ordinary scheme of existing within a defence force unit, there is an informal chain of communication amongst sailors, even if at times, the briefings by more senior staff did not occur at an ideal frequency. The tactical situation, at least in general terms, would have been known to sailors and the effectiveness of the enemy capability to shell HMAS Perth would have been known. The fact that the ship never came under fire from enemy forces once during the period, as shown in the report by Writeway Research Service, would have been common knowledge to those on board the ship. The applicant also stated that he was stressed “after a while”.
60. It is also evident that despite being in a state of anxiety, the veteran stated that some of the time he was “pretty good”, particularly after he had made a change of occupation within the RAN to become a technical officer’s writer.
61. The Tribunal has also had regard to the degree of dysfunctionality in the veteran’s ability to cope on an ongoing basis whilst in the RAN. For example, he undertook further study for promotion and was in fact promoted to a more senior position. Even if a “severe stressor” had been experienced at some time, it is not accepted that he satisfies paragraphs 2(b)(A), (B) or (C).
62. For the above reasons, and having heard the applicant and respondent and taking into account of all the evidence as a whole, the Tribunal is satisfied beyond reasonable doubt, that there is no sufficient ground for making a determination that the disease is war-caused.
§CLAIM FOR ALCOHOL ABUSE
63. The relevant parts of the SoP Instrument No 76 of 1998 (Alcohol Abuse) are
“Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles,
‘alcohol abuse’ means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12- month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(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; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Other definitions
8. For the purposes of this Statement of Principles:
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
64. In relation to alcohol abuse, the Tribunal was satisfied that the requirements for a diagnosis of alcohol abuse in accordance with the SoP, were satisfied. It also found that an SoP was in place and that there was an hypothesis raised that contained one or more of the factors listed in the SoP. Steps 1 and 2 of Deledio are therefore satisfied. In relation to the third step, consistently with the analysis under PTSD (Supra), it is accepted that incidents 3, 4 and 6 only claimed on relation to service on HMAS Perth only satisfy Factor 5(b). The Tribunal concluded that the hypothesis was reasonable in respect of incidents 3, 4 and 6 in that it was not contrary to or fanciful in relation to known scientific fact. Therefore, the third step is also satisfied. In relation to the fourth step in Deledio, for similar reasons to those outlined in the assessment of Step 4 for PTSD above, the Tribunal also is not satisfied beyond a reasonable doubt that the veteran’s condition in relation to alcohol abuse was war-caused.
65. This assessment particularly relates to not being satisfied that the incidents raised by the veteran in the context of all the material taken as a whole, would generate a response of intense fear, helplessness or horror. To satisfy the SoP, requires “experiencing a severe stressor” identically with the SoP in relation to PTSD. Such a stressor needs to be significant and not just occasional or a general sense of apprehension or anxiety. It must be of sufficient magnitude and be of the standard indicated by the examples provided in the SoP.
66. For similar reasons to those stated under PTSD above, an inability to obtain appropriate clinical management would be untenable.
§CLAIM FOR GENERALISED ANXIETY DISORDER
67. SoP Instrument No 1 of 2000, is concerned with “anxiety disorder” which is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified (see paragraph 2(b)). The SoP also specifies the following factors which must as a minimum exist, and at least one of which must be related to any relevant service.
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) being a prisoner of war before the clinical onset of anxiety disorder; or
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
(vi) having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
…..
(c) inability to obtain appropriate clinical management for anxiety disorder.
Other definitions
8. For the purposes of this Statement of Principles:
‘generalised anxiety disorder’ means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;”
68. Based on the medical evidence provided, the Tribunal was satisfied that a current diagnosis of generalised anxiety disorder is justified, although, the Tribunal was not satisfied that generalised anxiety disorder could be related to the incidents raised by the veteran. Generalised anxiety disorder was also described by Dr Holm in cross-examination as being symptoms which occur within PTSD. In other words, generalised anxiety disorder is a subset of PTSD. It was also noted in the evidence that the veteran demonstrated anxious symptoms when discussing the Queensborough incident but did not exhibit any anxious symptoms when providing evidence about his service with HMAS Perth. DSM-IV also specifies that the symptoms for generalised anxiety disorder should not be included in the features of any other AXIS 1 disorder. When cross-examined about this point, Dr Holm admitted that is the one contentious issue with his diagnosis of generalised anxiety disorder. He stated that Mr Hackett was generally an anxious person and it was not only the PTSD or the traumatic incidents upon which his diagnosis was based. He noted that Mr Hackett’s anxiety is quite broad and he did not believe it was confined to the symptoms of his PTSD.
69. Dr Holm also acknowledged that false alarms do not cause PTSD and that there were a number of incidents that might be regarded as “false alarms” in the evidence provided by the applicant.
70. Mr Smith, for the respondent, noted that the rest of the crew in the boiler room apparently went about their business and there were never any orders from the bridge or anyone else to suggest that there was an emergency or that the ship was in any danger. This was not inconsistent with the applicant’s evidence where he stated he could not get any former sailors to provide evidence on his behalf. He stated that this was that they would be fearful for their own claims. This latter issue does not seem logical or justifiable and neither advances nor detracts from the applicant’s case.
71. In assessing all of the claims of the applicant, The Tribunal also considered White’s Case, where reference was made to the benchmarks which have been defined in the SoPs as being the standards of severity of threat. It would seem that if these examples in the SoPs are not used as the guide to the standard to be applied, then the SoP would be ineffectual as a means of assessing claims under the Veterans’ Entitlements Act. The incidents which Mr Hackett has raised, are not stressors which meet those benchmarks.
72. As stated in paragraph 68 above, the Tribunal has been satisfied that a separate diagnosis of generalised anxiety disorder is justified in this case. However, in assessing all the claims in relation to operational service, the Tribunal considered the case of Stoddart v Repatriation Commission [2003] FCA 334. In that case, the original SoP included the definition of a “stressor”. The current SoP includes an amended definition of a “severe stressor”, and provides a number of examples. It is accepted that the Repatriation Medical Authority changed that definition quite intentionally and that the reason was to set the benchmark to indicate the severity of the stressor which was intended by the definition.
73. Evaluating the applicant’s evidence was also undertaken while being mindful of resolving uncertainty around his beliefs about the reality of the danger in the circumstances. The veteran’s perception, must be assessed on the basis of whether a person with the same level of knowledge and in the circumstances of the particular applicant at the time, would reasonably lead to that person perceiving a threat of death or serious injury. Using that test and the standards shown in the examples, the Tribunal is not satisfied the stressors claimed by Mr Hackett in his Navy service would lead to the perceptions he claims. It is convoluted by other service in the RAN and employment since leaving the Navy where he has been subjected to other stressors and a culture of heavy drinking over a long time. As Dr Kingswell has noted, the binge drinking tends to complicate the PTSD condition. That, and other factors raised above, do not point to sufficient proximity of a link between the conditions claimed and his operational service. Indeed, the Tribunal does not accept the events in question as being sufficient to justify the standard of a “severe stressor”.
74. The Tribunal determines that (1) the applicant suffers from a condition diagnosed as generalised anxiety disorder but that the said condition is not war caused and (2) that the decision under review be affirmed in all other respects.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: Camille Banks
AssociateDate/s of Hearing 13 October 2004
Date of Decision 17 December 2004
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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