Hayler and Repatriation Commission
[2006] AATA 944
•7 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 944
ADMINISTRATIVE APPEALS TRIBUNAL No Q2004/843
VETERANS' APPEALS DIVISION Jon HAYLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date 7 November 2006
Place Brisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision:
that post traumatic stress disorder and alcohol abuse or dependence are war-caused in accordance with subsection 9(1) of the Veterans’ Entitlements Act 1986;
that pension is payable for associated incapacity from and including 28 February 2003; and
that the matter of assessment be remitted to the respondent.............[Sgd]...........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric condition –diagnosis of post traumatic stress disorder and alcohol abuse or dependence – clinical onset of alcohol abuse or dependence - reasonable hypothesis of relevant relationship to service raised – not satisfied beyond reasonable doubt that conditions not attributable to eligible war-service
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 6C, 9, 14, 120, 120A
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392; (2003) 77 ALD 67; (2003) 38 AAR 176
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
7 November 2006 Mr RG Kenny, Member
Background
Jon Hayler (the applicant) undertook a period of service with the Royal Australian Navy (the RAN) from 7 July 1962 until 17 March 1970. On 28 May 2003, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for post traumatic stress disorder, which he contended was related to his RAN service. On 22 October 2003, the respondent accepted that Mr Hayler suffered from post traumatic stress disorder and alcohol dependence but determined that those conditions were not related to his service. The Veterans’ Review Board (the Board) affirmed the decision and Mr Hayler now seeks review of the decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
At the hearing, Mr Hayler was represented by Mr R Clutterbuck of counsel and the respondent was represented by Mr J Kelly. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Issues and Service
Mr Hayler was born on 14 June 1946 and was 16 years of age when he enlisted in the RAN. After 12 months of recruit training he completed a course to qualify him as a sonar operator. Later in his service, he completed a six weeks long course as a ship’s diver. He rendered periods of eligible war service in the form of operational service as provided for in sections 7 and 6C of the Act, respectively. This included trips on HMAS Sydney to and from South Vietnam and, on 3 February 1968, a day in that vessel in Vung Tau Harbour.
The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to issues of causation for operational service is set out in subsection 120(1) of the Act which reads:
“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
The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Submissions
Mr Clutterbuck contended that the appropriate diagnoses for Mr Hayler’s psychiatric conditions were post traumatic stress disorder and alcohol dependence. He submitted that the conditions were related to stressful experiences that Mr Hayler underwent whilst carrying out his duties as a diver when serving on HMAS Sydney. These were:
·participating in a “man overboard” exercise whilst the vessel was on route to South Vietnam;
·participating in a search of the vessel’s hull in Vung Tau Harbour; and
·undertaking a search of the anchor chain of the vessel in Vung Tau Harbour.
Mr Kelly submitted that Mr Hayler does not suffer from post traumatic stress disorder or alcohol dependence and that the appropriate diagnoses were personality disorder and drug dependence. Further, he submitted that Mr Hayler did not suffer from any service-related psychiatric condition.
The Applicant
Mr Hayler said there were about six ship’s divers on HMAS Sydney. One was allocated to be the “swimmer of the watch” and, at times when the ship was at sea, they would practice a man-overboard recovery exercise. This involved the nominated swimmer jumping from the quarterdeck into the ocean. He was dressed in overalls and carried a pair of fins which he would attach to his feet after landing in the water. The diver would then swim to a buoy and activate a flare and wait for the ship’s boat (Zodiac) to be dispatched from HMAS Sydney for his retrieval.
Mr Hayler was able to clearly remember the occasion when he completed the exercise as the nominated swimmer for the man-overboard exercise when the vessel was en route to Vietnam. He saw HMAS Sydney sailing away from him and occasionally lost sight of her because of the waves. He said that he was extremely scared at the time and that lots of things were going through his head. He felt that he was hyperventilating with fear that the zodiac may not be able to find him. He was also fearful that he may be attacked by a shark or by sea snakes although he saw none of these.
Mr Hayler said that, in Vung Tau Harbour, there were other vessels approximately 300 metres from HMAS Sydney. He described the water in the harbour as being pitch black such that it was possible to see only a very short distance. For the hull-sweeping procedure, five or six divers would enter the Zodiac and be taken to the bow of the ship. They would then link themselves together to form a half necklace, enter the water and move along the hull to the stern where they would be picked up by the zodiac after about 10 minutes of looking for any foreign objects attached to the vessel. This was followed by a search of the anchor cable by a diver to detect any floating mines that may have been attached to it. Mr Hayler recalled a particular anchor cable search that he conducted. When he was descending the cable, he heard a “bang” and became petrified with fear. He described it is a loud “clap”. He said that he immediately surfaced and boarded the Zodiac. He felt sick and suffered from vomiting and diarrhoea on return to HMAS Sydney. Mr Hayler didn’t explain his feelings to anybody although he asked the boat crew what had happened. The response was that “nothing” had happened. He didn’t take part in any diving activities thereafter. He said that it was open to any ship’s diver to surrender his diving qualification and thereby withdraw from those activities and he did so while the vessel was returning to Australia.
When he left the RAN, Mr Hayler was a truck driver for some time but was forced out of this business because of his alcohol consumption. He then had his own plant-operating business which failed and he moved to Queensland where he obtained employment as a barman in an RSL club. Mr Hayler has been a taxi driver for the last 10 years in North Queensland. He has had no difficulty with driving and has not been subjected to any random testing by the taxi company.
Mr Hayler said that he had hardly consumed alcohol before the problems on HMAS Sydney because, at that time, it actually made him feel sick. However, on his way back from Vietnam on HMAS Sydney, he found that drinking alcohol was a relaxant. He further increased his alcohol consumption after arriving back in Australia. He felt guilty about surrendering his diving qualification because he felt that he was letting his mates down and alcohol assisted him to cope. He began to drink more because it helped him to sleep better and therefore avoid having nightmares and dreams about the incidents in the water. He then served in various capacities at HMAS Kuttabul on return to Australia. Between then and leaving the RAN, he developed the practice of consuming beer in the local hotel before he went on duty, during his lunch break and after work.
Mr Hayler agreed that he had been on several voyages before the one in which he encountered difficulty as a diver. He said that he had not taken particular notice of a diver’s duties until that trip. He was unable to recall seeing the man-overboard exercise previously. He said that there had been no specific training for the activity except that he was required, during his training in Sydney Harbour, to jump off a ladder into the water. He said that the crew had been advised that there would be no scare charges used while they were doing bottom searches or cable searches and he believed that no such charges were detonated by HMAS Sydney crew while divers were in the water.
Medical Evidence
Dr Zoran Radovic has been Mr Hayler’s treating psychiatrist since September 2005. This included a period of six weeks as an inpatient at the Buderim hospital. Dr Radovic considered that Mr Hayler suffered from post traumatic stress disorder and alcohol abuse or dependence and concluded that these were related to stressful events experienced by Mr Hayler when he was carrying out his duties as a diver in the RAN. He opined that Mr Hayler began to develop those symptoms in the mid-1960s while he was still in the RAN. In his report, dated 12 October 2005, he described Mr Hayler as experiencing “intense fear and feelings of hopelessness while practising man-overboard duties in the sea”. He noted that Mr Hayler said he had been “left behind the ship in heavy seas in order to be retrieved from the water”. He wrote:
Mr Hayler experienced intense fear seeing the ship disappearing from sight while he was waiting, in fear of sea snakes and sharks. He became visibly distressed and anxious before and during practising man-overboard duties. He was ashamed that other crewmates noticed his fears and distress.
Dr Radovic also wrote that Mr Hayler found searches of the hull of HMAS Sydney and her anchor chain to be “extremely stressful, with a strong current, being constantly at risk of being washed away.” He noted that Mr Hayler “could constantly hear loud noises and explosions in the water in the near proximity, which were actually metallic thuds of scare charges from the other small boats which patrolled the area”. In cross examination, Dr Radovic agreed that what provided the basis for the diagnosis of post stress disorder was the level of scaredness that Mr Hayler experienced at that time. He described Mr Hayler as having a perception of danger in that he expected to be washed away when examining the hull of the HMAS Sydney and of not being found by the vessel in the heavy seas during the man-overboard exercise.
During the period of hospitalisation in October and November 2005, Dr Radovic was mainly concerned with the treatment of post traumatic stress disorder. However, Mr Hayler was required, during that time, to abstain from consuming alcohol and part of his treatment regimen involved the use of valium. Dr Radovic said Mr Hayler had alcohol withdrawal symptoms in the form of poor sleep, flashbacks and dreams and that one effect of valium was to keep these under control. He described little progress with Mr Hayler’s alcohol problem. He saw him on 2 December 2005 when he was using alcohol on an occasional basis but, when he saw him again on 16 December 2005, he had reverted to his previous high alcohol consumption level.
Dr Radovic was aware of tests which had been conducted on Mr Hayler and referred to in a psychiatric report prepared by Dr Judith Gold. He acknowledged that these did not reflect high alcohol consumption but said that he was unable to comment on those tests, that medication taken at the time may have affected the results and that such tests can sometimes give false positives or false negatives. He also said that he had no reason to believe that Mr Hayler had been untruthful to him in his description of his alcohol consumption levels and accepted that he gradually increased his alcohol consumption after the incidents in Vietnam in order to alleviate anxiety and to distract him from negative memories.
Dr Quentin Mungomery examined Mr Hayler in July 2003 and February 2006 and prepared psychiatric reports, dated 21 August 2003 and 15 February 2006, for the respondent. He diagnosed Mr Hayler as having post traumatic stress disorder and alcohol dependence, as well as major depressive disorder in the later report. He was of the opinion that, prior to his discharge from the RAN, a pattern of alcohol dependence had developed and that this persisted into his post-service years.
Dr Mungomery said that the first significant anxiety reaction by Mr Hayler had occurred during the man-overboard exercises. Mr Hayler told him that he was in “huge swells at times seeing the ship vanish from sight” and “having images of sea snakes and sharks in the water and becoming scared”. He also noted that Mr Hayler had described fear of being ridiculed by his peers if he refused to undertake further diving activities. In relation to the inspections of the hull of the Sydney, he reported that Mr Hayler found it to be very eerie swimming up and down the length of the vessel with a five to seven knot current in dark and dirty water. He said that Mr Hayler described the sounds of scare charges exploding around him. He also noted that Mr Hayler had been required to inspect the anchor cable which he found most distressing because he heard a loud bang close to him, felt frightened and returned to the surface as quickly as possible.
Dr Mungomery was aware of the tests that had been conducted by Dr Gold and said that the test assessed alcohol usage over the previous month.
Dr Judith Gold completed a psychiatric report on 19 December 2005 following her assessment of Mr Hayler on 13 December 2005. In her opinion, Mr Hayler demonstrated the diagnostic criteria for post traumatic stress disorder except for the requisite stressful event and that, therefore, he did not suffer from that condition. She said that what he experienced was a perception of a stressful event which did not actually occur. She also considered that he did not suffer from alcohol dependence or abuse because of clinical findings which didn’t support the presence of the substance. She was of the opinion that he suffered from mixed personality disorder with obsessive, passive-aggressive and schizoid features as well as marijuana dependence.
Dr Gold described Mr Hayler as an unreliable historian with a reluctance to participate in the interview. He told her that he had been a ship’s diver who had “had a fright or two”, that he didn’t think he drank too much alcohol and that, if he didn’t use alcohol, he would use marijuana or valium.
Dr Gold referred to various tests which were conducted on Mr Hayler on the same day as she interviewed him in December 2005. These included urine tests completed by Dr. Nigel Brown from the Queensland Medical Laboratory which revealed an absence of mirtazapine. However, cannabinoids were detected. She noted that Dr. Brown reported that the former indicated that regular daily use of alcohol was improbable. Dr. Brown also reported that the test results revealed a total transferrin level of 1.9% which did not support excessive alcohol intake.
As part of the assessment, Mr Hayler completed the questionnaire for the Minnesota Multiphasic Personality Inventory (MMPI-2), the results of which were interpreted by Dr. Lucille Douglas, psychologist, on 14 December 2005. Dr Douglas reported that Mr Hayler had responded to the test items consistently but had adopted a non-compliant test-taking approach and was most likely exaggerating his claimed level of psychosocial difficulties on the more obvious distress-related items contained in the test. This suggested to her that Mr Hayler had not co-operated fully on the test when it was administered and had “attempted to magnify his symptomatology on items relating to expressed suicidality and fearfulness/dread”.
Dr Gold was referred to treatment notes from the period of Mr Hayler’s hospitalisation in late 2005. She said that there was no specific treatment provided for alcohol withdrawal symptoms. However, she noted that he had been given valium and agreed that this is sometimes used for that purpose. She also said that a person who is suffering from alcohol withdrawal symptoms can demonstrate anxiety symptoms and that valium can be used for treatment of those symptoms.
other evidence
Mr Hayler‘s service medical records reveal that he was seen by a psychiatrist, Dr John McGeorge, in May 1969. At that time, Mr Hayler was seeking to leave the RAN. Dr McGeorge reported that there was no psychiatric justification for recommending his discharge. He concluded that there was “no psychiatric disability” at that time.
Ted O’Rourke, a witness called by the respondent, was a clearance diver on HMAS Sydney during Mr Hayler’s period of service on that vessel. He had the rank of Diving Yeoman. He said that the ship had both clearance divers and the less qualified ship’s divers who assisted in activities such as the sweeping of the hull and checking of the anchor chain. He said that the former took about 10 minutes and was done every 30 minutes or so whilst the ship was in Vung Tau Harbour. He described it as a “half necklace bottom search” which involved a clearance diver being positioned at the keel and with two or more other divers on each side of him within touching distance of the adjacent diver. They were linked to each other and to the zodiac by cable. The divers would progress along the hull of the vessel from one end to the other feeling for foreign objects attached to it. He said that the anchor cable search was conducted regularly, that each diver took his turn and that he was connected to the zodiac by a line.
Writeway Research Service Pty Ltd is, from time to time, engaged by the respondent to prepare reports on contentions raised by veterans. These reports are prepared by retired military personnel after consultation with relevant military records and individuals who were involved in aspects of service relevant to the veteran. Reports in relation to the present matter were obtained on 10 August 2004; 31 August 2004; 7 February 2005 and 28 October 2005. On 10 August 2004, Wally Rothwell, a retired Captain with the RAN, completed a report in relation to man-overboard drills conducted on HMAS Sydney. He spoke with several former RAN divers and they confirmed, in general terms, the accuracy of the description by Mr Hayler of the man overboard exercise although the consensus was that it was not undertaken when there were heavy seas. Michael Shotter provided Mr. Rothwell with a statement which was incorporated into the Writeway report. Mr. Shotter served in the RAN for 34 years, specialising in mine warfare and clearance diving from 1961 to 1978. He retired with the rank of Commander. Mr Shotter read a statement made by Mr Hayler in which he referred to being distressed whilst carrying out the man overboard procedure. Mr Shotter expressed the opinion that he would be highly surprised if anyone undertaking that particular duty was not distressed in doing so. Mr Shotter also stated that, in his experience, the role of a man overboard was usually undertaken by a professional clearance diver rather than a part-time ship’s diver.
Mr O’Rourke was referred to the Writeway report, dated 28 October 2005. It included a statement that “Mr O’Rourke says that he does not recall hearing any underwater explosions while diving in Vung Tau”. In his evidence, Mr O’Rourke denied that he made that comment and could specifically remember hearing many noises such as the sounds of other vessels, of helicopters, especially when close to the water, and underwater explosions. However, he did not know what the source of explosions was or whether they were scare charges.
In a further report, dated 7 February 2005, Mr Rothwell referred to the training undertaken by a ship’s diver. They were required to complete a Compressed Air Breathing Apparatus (CABA) Course. The more highly qualified clearance divers undertook additional training with more sophisticated equipment. Mr Hayler’s service records show that he completed the CABA course on 28 April 1967. His service records also confirm that he relinquished his CABA qualification on 28 March 1968 while he was still serving on HMAS Sydney. In his report of 7 February 2005, Mr. Rothwell provided copies of HMAS Sydney’s records ie the Ship’s Log and Reports of Proceedings for when she was in the harbour. These revealed that the man-overboard exercise was not carried out on a daily basis and that, for example, in the period from 11 December 1967 to 10 January 1968, it was completed on 11 occasions. The state of the sea was also noted and on no occasion was the exercise conducted when the swell was more than 5 feet or with waves in the swell more than 2 feet. No reference is made in the ship’s records to any suspicious or other underwater explosions while in Vung Tao Harbour.
Mr. Rothwell completed another report on 28 October 2005. This related to the activities on HMAS Sydney whilst berthed in Vung Tau Harbour. It detailed the safety precautions in place including that which prevented the use of scare charges whilst the ship’s divers were in the water. Mr. Rothwell spoke with a former RAN clearance diving officer, Commander Bill Willcox, who provided a statement dated 26 October 2005. He said that the sound of an underwater explosion from a scare charge could be heard easily under water even at a distance of half a mile although, from that distance, this would not be accompanied by any pressure wave resulting from the explosion. Mr. Wilcox also said:
If the veteran did hear an explosion, and was not expecting one, I believe that it would give him a considerable fright, particularly given the existing stress of his situation underwater, and his natural reaction would be to surface. Assuming that he had never heard an underwater explosion before, he would probably have no perception of the distance away that the explosion occurred. Once on the surface, I would expect that he would be obliged to report the explosion to his supervisor, as it could be an indication of enemy presence.
Mr Willcox also said that, if a diver surfaced immediately after entering the water, this would mean that the cable search would not have been completed and another diver would need to undertake the task.
In the report of 10 August 2004, Mr Rothwell referred to an interview with Terrence Pitt who served with Mr Hayler, in 1969, on HMAS Perth. Mr Pitt described Mr Hayler as having a drinking problem and as returning to the ship on occasions “rather the worse for wear”.
Diagnosis
For post traumatic stress disorder, the relevant RMA Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria, all of which must be met before a diagnosis of post traumatic stress disorder can be made. These are:
Kind of injury, disease or death
2. (a)…
(b) For the purposes of this Statement of Principle ‘post traumatic stress disorder’ means a psychiatric condition meeting the following description) derived from the DSM-IV)
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
Dr Gold was not able to identify a traumatic event to which Mr Hayler was exposed during his RAN service and which would satisfy the requirements of criterion A(i) in the definition above. Rather, she said that the three occasions described gave rise to a perception by him that something might happen; but nothing did. In his oral evidence, Dr Radovic was also unable to identify such a specific event. He referred to the three occasions noted above and said that it was Mr Hayler’s “level of scaredness” which constituted the criterion A(i) experience. Dr Mungomery noted the three occasions referred to by Mr Hayler and considered that the anchor cable incident was his most distressing.
On that evidence, I am reasonably satisfied that the hull inspection procedure does not constitute a traumatic event in which Mr Hayler experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury or a threat to the physical integrity of himself or anyone else. It would cause some concern to a participant. But, it was a routine procedure completed every 30 minutes or so whilst in Vung Tau Harbour and, although Mr Hayler expressed the fear that he would be washed away, the divers were connected by cable and tethered to the Zodiac making it inherently unlikely that this could happen.
Mr Hayler has not given entirely consistent accounts in respect of the anchor chain incident. Dr Radovic wrote that he became so scared because he was hearing “loud noises and explosions in the water in near proximity”. His evidence to the Tribunal was that he heard one loud bang. His evidence to the Board was that he “swam the length of the cable and back again to check for mines”. In his evidence in chief to the Tribunal, he said that he descended along the anchor chain for 20 to 30 feet. In cross-examination, he was referred to a statement that he made (exhibit 3) and said that he heard the loud noise at the start of his dive at a depth of about 2 metres. He consistently said that he returned quickly to the surface. His evidence was that, once he boarded the zodiac, there was no discussion about the incident except that he asked the yeoman what had happened and was told that nothing had happened. However, in the Board proceedings, he said that he made enquiries about the source of the noise and “was told not to be silly”. In his statement (exhibit 3), Mr Hayler said that, as he descended the anchor chain, he felt "a pressure change" at the time when he heard the loud bang. Given that the crew of the Zodiac were not aware of any explosions in the area, any explosive sound that Mr Hayler heard must have come from a significant distance. In his statement, Bill Willcox said that it was unlikely that a pressure wave would be experienced from a distant explosion. Also, on Mr Hayler’s evidence, surprisingly, there was no discussion about whether or not the anchor chain had been fully and properly inspected before the Zodiac returned to HMAS Sydney. I am reasonably satisfied that this was not an event as required by criterion A(i).
The man overboard procedure was one which would have been of some concern to a participant even though it was a routine exercise in which Mr Hayler was clearly identified by a buoy and marker flare and which was completed without apparent difficulty. Dr Radovic was under the impression that the exercise was conducted in “heavy seas” and Dr Mungomery made reference to “huge swells”. Those descriptions are not consistent with the material contained in the Writeway report to the effect that the exercise is not conducted in heavy seas. However, the ship’s records show that waves could have been up to 7 feet high. Even at half that height there would be periods when HMAS Sydney was not in Mr Hayler’s vision, as he claimed in his evidence. I am satisfied that this would have raised fears in the mind of a lone swimmer in the middle of the open ocean especially when, on Mr Shotter’s evidence, this was a role usually undertaken by a professional clearance diver rather than a part-time ship’s diver. While there were no sharks or sea snakes sightings by Mr Hayler or anyone on HMAS Sydney at that time, I accept his evidence that a person in his position would have had such a prospect in mind and that this would have contributed to his fears.
While there was no actual threat to Mr Hayler in the man-overboard exercise, Dr Gold described him as having a perception that there was. This has been held to be sufficient for the purpose of applying the definition of experiencing a severe stressor as it appears in clause 8 of the Statement of Principles for post traumatic stress disorder: see Woodward v Repatriation Commission (2003) 75 ALD 420 at 445 and Repatriation Commission v Stoddart (2003) 38 AAR 176 at 183. That definition is relevant to the issue of causation. However, matters of causation do not arise unless a condition has been found to be present and, if a perception is sufficient for the definition of experiencing a severe stressor, it must also be sufficient at the earlier stage of analysis when criterion A(i) in clause 2 of the Statement of Principles is considered. On the evidence of Mr Hayler and also that of Mr Shotter, the Tribunal also accepts that he entertained fear and a sense of helplessness, even though it may have been only for a period of about 10 minutes, for the purposes of criterion A(ii) of the Statement of Principles.
The definition of post traumatic stress disorder in the Statement of Principles also requires the remaining criteria from B to F to be met and, based on the material provided by the three psychiatrists, I am reasonably satisfied that those requirements are met and that the diagnosis of post traumatic stress disorder is confirmed. Consideration must now be given to the relationship between that condition and Mr Hayler’s service.
For alcohol dependence, the relevant RMA Statement of Principles is Instrument No. 76 of 1998. Dr Gold relied upon the results of objective testing to reach the conclusion that Mr Hayler did not suffer from alcohol dependence or abuse. Such test results are more reliable than a history given by a patient to a medical practitioner. However, while such results may well reflect the circumstances at the time of and for some time before the tests were conducted, they do not necessarily do so over a longer time-frame. Indeed, Dr Mungomery was of the opinion that they reflected alcohol usage for the previous month. I have noted Dr Radovic’s opinion that test results may be affected by medication and may sometimes give false readings. An absence of alcohol consumption for a period of a month is not consistent with information provided by Mr Hayler to Dr Radovic. Nevertheless, Dr Radovic has treated Mr Hayler for 12 months and I am reasonably satisfied that he has correctly diagnosed Mr Hayler with alcohol dependence or abuse and note that this was also the opinion of Dr Mungomery. Consideration must now be given to the relationship between that condition and Mr Hayler’s service.
I have noted the alternative diagnoses made by Dr Gold of mixed personality disorder with obsessive, passive-aggressive and schizoid features as well as marijuana dependence. No contentions have been raised in relation to these conditions.
Principles of Causation
The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. I have noted the three events described above as having been experienced by Mr Hayler and am satisfied that there are hypotheses of a relationship between Mr Hayler’s operational service and his alcohol abuse or dependence as well as between that service and post traumatic stress disorder.
The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA and this has been above.
The third Deledio step does not involve fact finding but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. For post traumatic stress disorder, these read:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or…
‘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.
For alcohol abuse or dependence, these read
(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…
“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;”
If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
The meaning of the term experiencing a severe stressor is set out above. Both subjective and objective considerations are relevant in applying that definition: see Woodward v Repatriation Commission (2003) 75 ALD 420 at 445 and Repatriation Commission v Stoddart (2003) 38 AAR 176 at 183. In Woodward, the Full Federal Court said:
“The definition extended to a person experiencing or being confronted with an event involving a threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partial subjective connotation.”
Although Mr Hayler’s diving duties were, on the whole, normal duties in his role as a naval diver, this does not preclude them from amounting to a severe stressor: see Repatriation Commissionv Stoddart (2003) 77 ALD 67 at 75. Nonetheless, the material before the Tribunal in relation to the hull and anchor clearing exercises on the HMAS Sydney do not point to the experiencing of a severe stressor in that they are not such events as might evoke intense fear, helplessness or horror in a reasonable person in position of Mr Hayler. That is not the situation with the incident involving the man overboard procedure. As it turned out, there was no actual threat. There were no sea snakes or sharks and the Zodiac did return to retrieve Mr Hayler. However, the situation described by Mr Hayler points to a strong perception by him that he faced a threat of serious injury or death. Such a perception can be sufficient to satisfy the meaning of experiencing a severe stressor as that term is defined in each of the Statements of Principles noted above as there is no requirement that there be an actual threat: see Stoddart at paragraph at 183 and Woodward at 131-142. This means that the material points to and is consistent with the requirements of paragraphs 5(a) and 5(b) of the Statements of Principles for post traumatic stress disorder and alcohol abuse or dependence, respectively. However, paragraph 5(b) for alcohol abuse or dependence, also requires material which points to a clinical onset of the condition within 2 years of experiencing the severe stressor.
The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. It was Mr Hayler’s evidence that he hardly consumed alcohol before the problems on HMAS Sydney but that, on his way back from Vietnam on HMAS Sydney, he used alcohol to relax and increased his alcohol consumption after arriving back in Australia and has continued to drink heavily ever since. Dr Radovic considered that the condition dated back to Mr Hayler’s service which ended within two years of his experiences on HMAS Sydney. Those opinions are based upon information provided to him by Mr Hayler. Nevertheless, it is material which points to the clinical onset of the condition within the time-frame required by the Statement of Principles.
Dr McGeorge made an assessment of Mr Hayler 14 months after the incidents relied on by Mr Hayler and, at that time, he found no psychiatric disability. There is no indication that Dr McGeorge gave any consideration to alcohol consumption and, in any event, an absence of the condition in May 1969 does not point to an absence of it 10 months later.
When all of the material is taken into account, it is consistent with the time-frame requirement of the Statement of Principles for alcohol abuse or dependence in that it points to that requirement being met.
The material before the Tribunal concerning the man-overboard incident fits the template of factor 5(a) for post traumatic stress disorder and of factor 5(b) for alcohol abuse or dependence in their respective Statements of Principles. This means that the hypotheses in relation to that incident is reasonable and it is necessary to consider the fourth of the Deledio steps for each condition.
Deledio Step 4: Is the condition War-caused?
As noted above, there were certain inconsistencies in Mr Hayler’s accounts of the events he outlined. Nevertheless, I cannot be satisfied beyond reasonable doubt that the man-overboard procedure did not occur or that it did not cause him to have the stressful reaction that he described once back on board HMAS Sydney. He was not a fully trained clearance diver and did not have a lot of experience as a shallow water diver. He was not involved in any such open sea exercises after that, although he did undertake at least two dives in Vung Tau Harbour. It was his evidence that, shortly afterwards, he surrendered his qualification on the way back to Australia. His service records confirm that this was the case. There is support from Dr Radovic and Dr Mungomery that post traumatic stress disorder is related to his service and I am not satisfied beyond reasonable doubt that such is not the case. In so finding, I note that there is no time-frame of reference for the clinical onset for that condition. The situation is different with alcohol abuse or dependence. The report of Dr McGeorge does not exclude any level of alcohol consumption in May 1969. Dr Radovic and Dr Mungomery are of the opinion that the clinical onset was within two years of the incident and I am not satisfied beyond reasonable doubt that such is not the case.
On the evidence before me, I am not satisfied beyond reasonable doubt that Mr Hayler’s post traumatic stress disorder and alcohol abuse or dependence are not war-caused within the meaning of subsection 9(1) of the Act. Mr Hayler’s initial claim was lodged on 28 May 2003. It is common ground and I am satisfied that, in accordance with section 177 of the Act, the earliest date of effect of this decision is 18 February 2003. There is insufficient material before the Tribunal to make an assessment of the incapacity in Mr Hayler associated with these conditions.
Decision
The Tribunal sets aside the decision under review and substitutes its decision that post traumatic stress disorder and alcohol abuse or dependence are war-caused in accordance with subsection 9(1) of the Act; that pension is payable to him for associated incapacity from and including 28 February 2003; and that the matter of assessment be remitted to the respondent.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Michelle Brazier
Legal Research Officer
Date/s of Hearing 30 August 2006
Date of Decision 7 November 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Sciaccas Lawyers
Representative for the Respondent Mr J Kelly
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