Hayward and Repatriation Commission
[2006] AATA 149
•22 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 149
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2004/363
VETERANS' APPEALS DIVISION ) Re WILLIAM CHARLES JOHN
HAYWARDApplicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 February 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and
(a) in place of that decision, decides that Mr Hayward’s conditions of generalised anxiety disorder, alcohol dependence, hypertension and oesophagus reflux disease are war-caused;
(b) remits the matter to the Repatriation Commission for assessment of the applicant’s entitlement to pension in accordance with these reasons for decision; and
(c) reserves liberty to the parties to apply, within 14 days after the publication of this decision, in relation to the date of effect from which any pension payable as a result of this decision should take effect, and in the absence of any such application, directs that the date of effect will be 27 August 2000.
..............................................
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that generalised anxiety disorder, alcohol dependence, hypertension and gastro-oesophageal reflux disease were war-caused – alternative diagnosis of major depression – consideration of Statements of Principles – applicant on duty on sponson close to where Gannet aircraft crashed over side of HMAS Melbourne – observing subsequent search for pilot – accidental dropping of depth charge on to flight deck – whether stressor occurred in operational service – conflict of psychiatric evidence – meaning of “identifiable occurrence” – decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Delahunty v Repatriation Commission 38 AAR 511
Constable v Repatriation Commission [2005] FCA 928
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
22 February 2006 Deputy President D G Jarvis 1. William Charles John Hayward was engaged in operational service on HMAS Melbourne for two periods in 1965 as part of the Far-East Strategic Reserve, and for a third period in 1965 in escorting other ships to Vietnam. On 20 October 2000, he lodged a claim for pension in respect of “anxiety, hypertension, alcohol abuse and gastro problems”. The Commission rejected the claim.
2. Mr Hayward subsequently applied to the Veterans’ Review Board (“VRB”) seeking a review of the Commission’s decision. The VRB confirmed the rejection of his claim. Mr Hayward then applied to this tribunal to review the decision of the Commission. On 4 November 2003 the tribunal (differently constituted) affirmed the Commission’s decision to reject the claim.
3. Mr Hayward appealed against the tribunal’s decision to the Federal Court. The appeal was allowed by consent, and the Court ordered that the tribunal’s decision be set aside and that the matter be remitted to the tribunal for determination according to law.
4. I have heard the application for review de novo. The transcript of the evidence of the witnesses who were called at the first hearing of the tribunal, together with a copy of the exhibits tendered in those proceedings, were tendered by consent in the present proceedings. Further evidence was given by Mr Hayward. The applicant also tendered further medical reports from Dr Ewer, a psychiatrist who had given evidence at the earlier tribunal hearing, and also various statements from shipmates of Mr Hayward who were on board the Melbourne at the time of certain events on which his claim was based. The Commission called two further witnesses at the hearing before me, namely Commodore Mulcare, an historian who had prepared a report (which was also tendered), and Professor Goldney, a consultant psychiatrist who examined Mr Hayward at the request of the Commission after the matter had been remitted by the Federal Court for re-hearing. At the hearing before me both parties also tendered various further other documents. I will refer to the original and new evidence before me as necessary. After the hearing both parties lodged further submissions, which I have taken into account.
5. The parties have agreed that Mr Hayward is suffering from either alcohol abuse or alcohol dependence, hypertension and gastro-oesophageal reflux. Mr Hayward asserts that he is also suffering from a generalised anxiety disorder, but the Commission asserts, on the basis of Professor Goldney’s diagnosis, that Mr Hayward is suffering from a major depressive disorder with melancholia.
Issues before the Tribunal
6. The issues before me are:
(a)whether Mr Hayward is suffering from a generalised anxiety disorder or a major depressive disorder with melancholia; and
(b)whether the relevant conditions from which Mr Hayward is suffering are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”).
This second issue in turn raises a number of other sub-issues, to which I will refer in turn later in these reasons.
7. It appears from the date stamp on the claim form that if Mr Hayward is successful in his claim, the earliest date of effect pursuant to s 20 of the VE Act would be 27 August 2000, being three months before he lodged his claim for disability pension. However, neither party addressed any submissions to me as to the date of effect of any entitlement should the application succeed. For that reason, my decision includes liberty to apply in respect of that issue.
Background
8. Mr Hayward was born on 14 April 1946. He joined the Royal Australian Navy when he was seventeen, and served in the Navy from 6 May 1963 until 7 December 1984.
9. After completing his recruitment training at HMAS Cerberus, Mr Hayward was posted to HMAS Albatross late in 1963, where he did an airmanship course. He and another recruit topped that course, and Mr Hayward chose to be an armourer. He had basic training for two to three months followed by orientation training for about six months. He was posted to HMAS Melbourne in December 1964, and was one of a small team of four or five people on the explosive party on the Melbourne. The party’s job was to maintain the magazines, control the storage of explosives and to deliver and fuse explosives to the flight deck for use on aircraft.
10. Mr Hayward’s operational service on the Melbourne was in Malaysia, Borneo, Brunei and Singapore waters, as part of the Far-East Strategic Reserve, from 24 February to 7 April 1965, and from 21 April to 7 May 1965, and later when the Melbourne was engaged in escorting other ships en route to Vietnam, from 31 May to 22 June 1965.
11. Except for a period of three or four months early in 1966, Mr Hayward continued to serve on the Melbourne until December 1967. He continued his duties as an armourer, and he was later posted to HMAS Albatross, a shore base, to the pilot-less target unit. In 1981 he ceased to serve as an armourer, and took up office duties at the Navy’s Recruitment and Training Centre in Adelaide. He had eligible defence service from 7 December 1972 until the date of his resignation, which was on 7 December 1984.
12. It appears from a computer historical record provided by the Department of Defence (exhibit RXIV) that Mr Hayward was promoted to be a leading seaman in 1970, became a petty officer in 1973, and was promoted to be a chief petty officer in 1978. The record contains particulars of various courses or tests which Mr Hayward carried out successfully during his service with the Navy.
13. After leaving the Navy, Mr Hayward had two comparatively short periods of employment with different employers, and then worked on a contract with Wormald. This company was later taken over by the Tyco Group. Mr Hayward continued to work with the Tyco Group until May 2002, by which time he had become a risk and HR manager for Tyco, with responsibility for the safety of Tyco’s workers in South Australia. He said that he left his employment with Tyco when the company put him off, that he had become increasingly anxious and emotionally distressed in the period prior to then, and that he had reached a point where he felt he was unable to continue to perform his work.
14. Mr Hayward asserts in the present proceedings, in essence, that certain stressful events occurred during his operational service, and caused the conditions on which his claim is based. He relies upon the following events:
(a)being on a sponson on HMAS Melbourne on 24 March 1965 when a Gannet aeroplane failed to land safely and crashed overboard, and observing the ensuing search for the pilot, who (as it transpired) had been killed (the “Gannet event”);
(b)working with Colin Alexander (another member of the ordnance branch of the fleet air arm) on board the Melbourne in about April or May 1965, when a depth charge being loaded on to an aircraft was dropped, struck Mr Alexander and then landed on the deck (the “depth charge event”); and
(c)actively participating in the recovery of explosives and other dangerous items subsequent to 1972, while he was based at HMAS Albatross.
Legislative Background
15. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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; …”
16. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
17. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
18. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether Mr Hayward’s asserted conditions are war-caused. That section provides relevantly as follows:
“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.
…
(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.”
Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
19. Sections 120A and 120B of the VE Act provide relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principle (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis connecting the relevant injury or disease with the veteran’s operational service, or the contended connection between the injury or disease and the veteran’s relevant service on the balance of probabilities (as the case may be), is to be assessed by reference to that SoP. These propositions follow from ss 120A(3) and 120B(3).
20. Section 120A(3) provides relevantly:
“(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
…
that upholds the hypothesis.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
21. Section 120B(3) provides relevantly:
“(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
22. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
Diagnosis
23. The question of whether Mr Hayward is suffering from a generalised anxiety disorder (as he claims) or a major depressive disorder (as claimed by the Commission) must be determined on the balance of probabilities to the reasonable satisfaction of the decision-maker pursuant to s 120(4) of the Act: Benjamin v Repatriation Commission (2001) 70 ALD 622, at [54] to [55].
24. The psychiatrist called by the Commission in the hearing before me, Professor Goldney, saw Mr Hayward on 9 and 25 February 2005 at the request of the Commission for the purposes of providing a medico-legal report. Professor Goldney diagnosed a major depressive disorder with melancholia, and considered that in addition, there were significant features of anxiety. He disagreed with the diagnosis propounded by Mr Hayward, namely that Mr Hayward was suffering from a generalised anxiety disorder.
25. The issue of diagnosis is a separate issue from whether the condition was war-caused, and should ordinarily be addressed before determining the issue of causation. However, under the SoP in respect of depressive disorders, one of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a person’s relevant service is having a clinically significant psychiatric condition within either one or two years immediately before the clinical onset of depressive disorder (see factor 5(c) of Instruments No. 58 and 59 of 1998, being exhibit RXI).
26. It is clear from the evidence before me that Mr Hayward was suffering from alcohol dependence immediately before he was referred to Professor Goldney for a medico-legal assessment. Three other psychiatrists, namely Doctors Dare, Lovell and Ewer, had diagnosed Mr Hayward as suffering also from the condition he asserts, namely a generalised anxiety disorder, when they examined Mr Hayward, and in each case the examinations were within two years prior to the examination by Professor Goldney. A fifth psychiatrist, Dr Synnott, also examined Mr Hayward within the two-year period, and arrived at a differential diagnosis of a generalised anxiety disorder.
27. Although he arrived at a diagnosis of a major depressive disorder with melancholia, Professor Goldney acknowledged in his report of 1 March 2005 that Mr Hayward had significant symptoms of anxiety. He said that probably in the past Mr Hayward had had a generalised anxiety disorder, and that often a person with a history of having significant symptoms of anxiety over a period of years develops symptoms which gradually evolve into a more severe depressive condition (exhibit RVIII, page 14). In his evidence, Professor Goldney said:
“… because very often people do have anxiety disorders which can sometimes merge imperceptibly into major depressive disorders. And very often the symptoms tend to fluctuate over a period of time and so, in stating that, I am not saying my colleagues were wrong in their diagnosis of a generalised anxiety disorder, it is simply that his condition, when I saw him, was that of a major depressive disorder and there were also significant symptoms of anxiety. And that is very often the natural history of the disorder.” (transcript 16.11.2005, page 13, line 5)
28. I find that even if the correct diagnosis of Mr Hayward’s condition is that of a major depressive disorder, he was suffering both alcohol dependence and a generalised anxiety disorder within two years of the clinical onset of the depressive disorder diagnosed by Professor Goldney. As mentioned in paragraph 25 above, under clause 5(c) of the SoPs in respect of depressive disorder, that condition would itself be war-caused if either or both of those other conditions were war-caused. For the reasons set out below I have concluded that the other conditions were war-caused. This makes it unnecessary for me to determine which of the competing diagnoses is correct.
Did the depth charge event occur during operational service?
29. If the claim does not relate to a veteran’s operational service, it is to be determined to the reasonable satisfaction of the decision-maker, pursuant to s 120(4) of the VE Act. The decision-maker is to be so satisfied only if the material before him or her raises a connection between the veteran’s injury, disease or death and the relevant service, and if there is in force a SoP that upholds the contention that the injury, disease or death is, on the balance of probabilities, connected with that service (s 120B(3) of the VE Act).
30. Where the claim relates to the operational service of the applicant, subsections 120(1) and (3) of the VE Act apply, and if a SoP has been determined in respect of the relevant disease or injury, I must apply those subsections in the manner explained by the Full Federal Court (Beaumont, Hill and O’Connor JJ) in Repatriation Commission v Deledio (1998) 83 FCR 82, at 97.
31. In the present matter, the respondent submitted that the depth charge event did not happen in the course of Mr Hayward’s operational service. On the face of it, the allegation by the applicant that his condition arose out of his operational service means that his claim “relates to (his) operational service” within the meaning of subsection 120(1), with the result that subsections 120(1) and (3) apply, and not subsection 120(4). The alternative approach, which I understood the Commission to propound, is that the question of whether the depth charge event happened in the course of operational service should be determined as a preliminary issue pursuant to s 124(1), on the balance of probabilities. Neither party made any submissions on which approach was the correct one. In view of the conclusion I have reached from the evidence as to when the depth charge event occurred, as well as my conclusions as to the claim based on the Gannet event, it is not necessary for me to decide the above question.
32. Mr Hayward gave evidence that according to his recollection, the depth charge event occurred in April or May 1965. His operational service occurred during parts of these months, as well as from 31 May to 22 June 1965 (see paragraph 10 above).
33. The Commission called Commodore P M Mulcare, an historian, and tendered his report dated 12 September 2005 (exhibit RII). He reviewed the Melbourne’s records, and spoke to certain other officers who had been on board the ship during the relevant period. He reported that he could find no evidence to support the contention that a depth charge fell from an aircraft at any time from February to May 1965. He further reported that a log book of one Commodore Farthing shows that he dropped a live depth charge from his aircraft on 18 June 1965, and that one (then Lieutenant) Currie, the air explosive officer, advised that he had a clear recollection of depth charges being armed and dropped from an aircraft into the water on one occasion, but did not remember when this occurred. No-one recalled a depth charge dropping on to the flight deck.
34. Commodore Mulcare’s report also incorporates a statement from a Mr JJ Harrison, who was the chief aircraft mechanic (weapons) on the Melbourne from 17 November 1964 to 2 January 1967. His witness statement says that he recalled hearing about an occurrence when a depth charge fell, and he also recalled fitting depth charges with pistols on one occasion in 1965. He also refers to a photograph which shows him with a beard he had grown on the 1965 trip to the Far-East, but had shaved it off when the ship returned to Australia. The photograph shows Mr Harrison inserting the arming wire in a depth charge pistol, which presumably was a part of the procedure to arm the depth charge. This statement therefore provides some evidence that live depth charges were used during Mr Hayward’s Far-East Strategic Reserve operational service.
35. The sailor most directly involved in the depth charge event was Mr Alexander, the member of the party upon whom the depth charge struck when it fell. In his statement (exhibit AVIII) he said that the event occurred while the Melbourne was in the South China Seas during the Far-East Strategic Reserve service, and he thought that it was in April or May 1965.
36. In the earlier tribunal hearing evidence was given by Captain Hugh Stevenson, who also prepared an historical report. He also said that no official record of the depth charge event had been found, but in cross-examination said that he did not think that such an incident would ordinarily be recorded in the ship’s report of proceedings.
37. In considering the relevance of this evidence, I take into account s 119(1)(h) of the VE Act, which provides in effect that the decision-maker must take into account any difficulties that for any reason lie in the way of ascertaining the existence of any fact, including any reason attributable to:
· the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
· the absence of or deficiency in, relevant official records.
38. If the issue is to be decided as a preliminary issue on the balance of probabilities, then I am satisfied to that standard of proof that the depth charge event happened during operational service. There is evidence to suggest that live depth charges were handled during operational service when the Melbourne was part of the Far-East Strategic Reserve, and during the trip to Vietnam. There is no evidence to directly contradict the recollections of Mr Hayward or Mr Alexander, and I accept Mr Hayward’s evidence that the event occurred, notwithstanding that there is no record of the event.
39. Alternatively, if the question of whether the depth charge event occurred in operational service is to be determined according to s 120(1), then the evidence which I narrated in paragraphs 32 to 36 above raises an hypothesis that the event occurred during the operational service either when the Melbourne was part of the Far-East Strategic Reserve, or during the trip to Vietnam, when live depth charges were used. I find that this hypothesis is not unreasonable, and it follows from my finding in the preceding paragraph, that I am not satisfied beyond reasonable doubt that the event did not happen in operational service.
Effect of legislative provisions as to causation
40. The claimed condition of generalised anxiety disorder and the conditions of alcohol abuse or alcohol dependence, hypertension and gastro-oesophageal reflux are all the subject of SoPs. I will set out the relevant provisions of the SoPs below.
41. In Deledio (supra), the Full Federal Court said:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
42. In considering whether there is an hypothesis connecting Mr Hayward’s conditions with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27, at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433, at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
43. An hypothesis that (after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
44. As regards the first step in Deledio, counsel for the applicant, Mr Jolly, contended that the material before me points to an hypothesis connecting the claimed conditions with Mr Hayward’s operational service. The asserted hypothesis is that one or both of the two events to which I referred in paragraphs 14(a) and (b) above occurred during operational service, and resulted in Mr Hayward suffering a generalised anxiety disorder and alcohol abuse or alcohol dependence, and these conditions in turn caused gastro-oesophageal reflux and hypertension, and accordingly all of the conditions are war-caused.
45. I will consider later in these reasons the material before me in relation to the asserted hypothesis. As regards the third stressor, namely the asserted participation in recovering explosives and other dangerous items while based at HMAS Albatross, counsel conceded that on the medical evidence on which the applicant relies, the conditions of alcohol abuse or dependence and generalised anxiety disorder had developed prior to 1972, when Mr Hayward was posted to HMAS Albatross; accordingly, counsel acknowledged that Mr Hayward did not rely on the third asserted stressor, other than as something which perpetuated the stress and difficulties which he was by then experiencing.
Relevant provisions of Statements of Principles
46. Each of the SoPs in respect of the claimed conditions provides in effect that at least one of the relevant factors set out in the SoP must be related to the relevant service of the veteran who is claiming that the condition in question is war-caused.
47. The SoPs in respect of anxiety disorder are Instrument No. 1 of 2000 for operational service and Instrument No. 2 of 2000 for eligible defence service. Mr Hayward relies on factors 5(a)(ii) and 5(a)(iii) of Instrument No. 1 of 2000 (the Operational Service Anxiety SoP) which provides:
“(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(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 … .”
In relation to Instrument No. 2 of 2000 (the Defence Service Anxiety SoP) he relies on factors 5(a)(i) and 5(a)(ii), which are in the same terms as the above factors in the Operational Service Anxiety SoP, except that the relevant period is one year instead of two years. The expression “severe psychosocial stressor” is defined in both Anxiety SoPs, and I shall refer to this definition below.
48. The appropriate SoPs for alcohol dependence or alcohol abuse are Instruments No. 76 of 1998, and No. 77 of 1998 for operational service and eligible defence service respectively. Mr Hayward relies on factors 5(a) or (b) of Instrument No. 76 of 1998 (the Operational Service Alcohol SoP), which provides:
“(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; … .”
He also relies on factors 5(a) or (b) of Instrument No. 77 of 1998 (the Defence Service Alcohol SoP) which are in the same terms as the above factors in the Operational Service Alcohol SoP, except that the relevant period is one year instead of two years. The expression “experiencing a severe stressor” is defined in both the Alcohol SoPs, and I shall also refer to this definition below.
49. Mr Hayward contends in relation to factor 5(a) of the Alcohol SoPs that the psychiatric disorder from which he was suffering at the time of the clinical onset of his alcohol dependence or alcohol abuse was a generalised anxiety disorder.
50. The appropriate SoPs for hypertension are Instrument No. 31 of 2001 for operational service, and Instrument No. 32 of 2001 for eligible defence service. Mr Hayward relies on factor 5(b) of Instrument No. 31 of 2001 (the Operational Service Hypertension SoP), which provides:
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; …”
He relies on factor 5(b) of Instrument No. 32 of 2001 (the Defence Service Hypertension SoP), which provides:
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; … .”
51. In relation to gastro-oesophageal reflux disease, the SoPs currently in force are Instrument No. 11 of 2005 for operational service, and No. 12 of 2005 for eligible defence service. Earlier versions of these SoPs were in force at the date of the Commission’s original decision in this matter. Those superseded SoPs were Instrument No. 62 of 1999 for operational service (the “Operational Service Reflux SoP”) and Instrument No. 63 of 1999 for defence service (the “Defence Service Reflux SoP”). Mr Hayward relies on factor 5(g) of each of these superseded SoPs, which factor provides in each case:
“(g)suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of clinical onset of gastro-oesophageal reflux disease.”
52. As regards the SoPs in respect of gastro-oesophageal reflux, I should apply the current SoPs notwithstanding that they were not in force at the time when the claim for pension was lodged. However, counsel for Mr Hayward contended that the corresponding factors in the earlier SoPs in force at the time of the original decision by the Commission were more beneficial to Mr Hayward in that they did not entail proving the volume of alcohol being consumed at the time of clinical onset of the disease. I must accordingly also consider the superseded SoPs, if the later SoPs do not support the claim: Repatriation Commission v Gorton (2001) 110 FCR 321.
53. The expression “clinical onset” appears in each of the relevant factors in the SoPs relied upon by Mr Hayward. The meaning of this expression was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
Application of Statements of Principles – Claim for Generalised Anxiety Disorder
54. I now turn to the claim for generalised anxiety disorder and to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step also involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees (supra).
55. It is first necessary to determine whether either of the asserted stressors that occurred in 1965 satisfies the definition of “severe psychosocial stressor”. This expression is defined in each of the SoPs in respect of generalised anxiety disorder as follows:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems; … .”
56. The Gannet event: At the time of the Gannet event, Mr Hayward was on duty with a petty officer adjacent to a sponson on the port side of the Melbourne. The floor of the sponson was only ten to twelve feet below the level of the flight deck. His duties were to reload a last-minute negative pistol, if it were to be fired in order to wave off an aircraft so that it would make another round of the vessel before landing. Mr Hayward gave evidence that he heard the landing Gannet back-throttle (which indicated that it was proceeding to land), and he then took a couple of paces on to the sponson. He then said that he heard a terrific noise, a sort of grating, and then he was aware that there was something over him, but he was not sure what it was.
57. Mr Hayward said that he later realised that this noise was made by the Gannet after the hook of the arrester wire, which should have brought the Gannet to a stop, had broken, and this resulted in the Gannet crashing over the side. After the crash the Melbourne turned back to search for wreckage and survivors, using search lights and with the assistance of helicopters. He went up on to the flight deck, and there learned that an aircraft had crashed overboard. He said he stared at the sea, for what seemed like hours, and that he did this until he went for a late breakfast at 8.00 am (the crash having occurred at 4.30 am). He said that more than an hour after the crash he saw a helmet in the sea, and thought he also saw a shark’s fin. His evidence at the earlier tribunal hearing was that the Gannet crashed over the side of the Melbourne only five or six metres past the sponson where he was standing. In the proceedings before me, he clarified the location of the sponson and its position relative to the flight deck and certain marks left by the Gannet as it scraped along the flight deck or a safety net on the port side of the vessel.
58. The meaning of “occurrence” was considered by the Full Federal Court in Repatriation Commission v Law (1980) 31 ALR 140. In a joint judgment, Bowen CJ, Brennan and Lockhart JJ referred to a section in the Repatriation Act 1920 (Cth) which made the Commonwealth liable to pay a pension to a veteran or his dependants if his incapacity or death had “resulted from any occurrence that happened” during the period of his service. The Court referred to the relevant Oxford English Dictionary definition of “occurrence”, namely “something that occurs, happens or takes place; an event, incident”. Their Honours added that the word “occurrence” in the relevant context referred to the event, incident or mishap which caused incapacity or death, and which was susceptible of differentiation from the course of events which constituted the ordinary course of life (31 ALR 140 at 149.8).
59. In my view, the Gannet event can properly be described as an “identifiable occurrence”. The occurrence commenced when Mr Hayward heard the grating noise. I think that it is taking too narrow a view to regard the occurrence as having ceased when the aircraft went over the side of the Melbourne, as counsel for the respondent, Ms Maharaj QC, contended. I find that the relevant occurrence continued during the time when the Melbourne was turned around, and ceased when Mr Hayward stopped observing the efforts being made to locate and rescue the deceased pilot.
60. In White v Repatriation Commission (2004) 39 AAR 67, Spender J decided that the definition of “severe psychosocial stressor” entailed an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. His Honour held that both aspects are relevant and necessary.
61. It was clear from Mr Hayward’s evidence that the deceased pilot was not a close friend of his. The event therefore does not meet the requirements of the relevant example included in the definition. However, Mr Hayward described the deceased pilot as a man whom he still remembered and a “bright young fellow who just captured everyone’s sort of spirit and imagination … just a tall lovely character. Popular, very, very popular young bloke.” (transcript 14.11.05, page 64, line 28). I find that the Gannet incident meets the objective requirements of the definition. It involved a protracted, fruitless search for the pilot and the ultimate realisation that he had died. In my view these matters would have constituted a very stressful experience for the members of the crew who were involved in the search or who were on duty at the time.
62. Further, as far as Mr Hayward was concerned, there is evidence that he was more directly involved in the event than those other crew members. He said the armourers had a stronger relationship with the pilots because they could “influence” their safety. There was also evidence before me that at the time of the crash, Mr Hayward was in a position of danger; that he was one of the few members of the crew on the port side of the vessel; that he had been told not to be on the sponson when an aircraft was landing; that the Gannet went directly over or very close to him when he was standing on the sponson; and that it went over the side of the Melbourne very close to the sponson. I am satisfied that the evidence as to the event in which Mr Hayward was involved meets the objective requirements of the definition of severe psychosocial stressor.
63. There is evidence before me that the event evoked feelings of substantial distress in Mr Hayward. He said in his evidence before me that after he had heard the noise and was aware that something had passed over him:
“… all I was doing then was absolutely panicking and looking for where to go and looking for escape and I turned to my left. There’s a cage, a wire cage at the end of the catapult. I think I struck that and stumbled back into the passageway.” (transcript 14.11.05, page 36, line 34)
Later in his evidence he also referred to having heard a loud noise which was a shock, and said he was aware that something was “terribly wrong”. He said:
“I thought something was crashing in on top of me and I went back inside in a fairly startled, distressed you know worried state and I think Bob Christie (the petty officer on duty with him) recognised there was something wrong, alright, and sort of calmed me down a little bit.” (transcript 14.11.05, page 54, line 39)
64. Further evidence of Mr Hayward’s subjective reaction is contained in reports from Dr Ewer. In his first report of 20 March 2001, Dr Ewer referred to the Gannet event and said that it “distressed Mr Hayward considerably.” In his next report of 5 November 2001, Dr Ewer said that Mr Hayward was frightened by the crash as he realised that if the pilot had not acted as he did the plane could easily have crashed into the sponson. In his report of 14 July 2005, Dr Ewer reported that Mr Hayward had experienced “intense distress” during the two stressors in 1965. The two stressors he was referring to were the Gannet event and the depth charge event.
65. The depth charge event: The depth charge event occurred when Mr Hayward and two other armourers, including a Mr Alexander, were loading a depth charge into an aircraft on the flight deck of the Melbourne. The depth charge had been fused, and Mr Alexander was placing the depth charge into an aircraft when it unexpectedly dropped to the deck, striking Mr Alexander as it dropped. In his evidence at the first tribunal hearing, Mr Hayward said:
“… everyone sorted of skedaddled, sort of got out of there, just sort of went back in shock.” (transcript 26.02.03, page 11, line 26)
He said that he was about ten metres away when the depth charge struck Mr Alexander, and if the depth charge had gone off he would not have been here. The depth charge was apparently defused and removed by the chief petty officer. He said that he helped to push the depth charge up forward, and was there to assist, and during the defusing he, like everyone else, was concerned that the depth charge was going to explode.
66. In the proceedings before me, Mr Hayward said that the occasion of the incident involving Mr Anderson was the first time he had dealt with depth charges. He agreed that a comment in a report from an historian, Commodore Mulcare, that a short drop of a depth charge from an aircraft onto the flight deck would not arm the weapon, might be correct on a lot of occasions. However, he emphasised that he and the other armourers had been taught differently, and went on to say that the great focus of the information provided during their training was on safety precautions.
Date of Clinical Onset of Anxiety Disorder
67. The expression “anxiety disorder” is defined in clause 2(b) of the SoPs in respect of anxiety disorder in terms which include a generalised anxiety disorder. That expression is defined in turn in clause 8 of the SoPs. The features referred to in that definition mirror the diagnostic criteria in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). This manual is commonly used by psychiatrists in Australia as a tool for arriving at a diagnosis of psychiatric conditions.
68. In his evidence in the earlier tribunal hearing, Mr Hayward said that after the Gannet event and the depth charge event, he thought that the things they were doing were very much life threatening and he became very apprehensive about “things happening”. He said that previously he had thought that it was all very exciting to be on a ship and to be travelling, but after the above events he realised that he was doing quite a dangerous job and he became quite worried, and “used to get a bit agitated and sick in the gut.” (transcript 26.02.03, page 16, line 9). He said he thought about the Gannet event afterwards and realised that any aircraft landing could go almost directly over the sponson where he worked. He said he tried to put on a brave front and to get on with what he had to do, and he never raised his feelings of anxiety with his superiors. He said he would just get on with his job and “if you’re in the Service, that’s what we’re expected to do. I certainly didn’t talk about my personal feelings to anyone, not at that particular time.” (transcript 26.02.03, page 17, line 1).
69. He said further that when the ship was in harbour his behaviour became more erratic and he started to drink more heavily than he had before, and he found that was a good way of managing things. He added that in the second half of 1965 he started to drink quite heavily and did not confine his drinking to beer. He was shore based for a period from June 1965 onwards. He said he was drinking at the rate of twelve to fifteen glasses per day and it was not uncommon for him to have all-night drinking sessions. He said his drinking helped him sleep and made him enjoy things a bit better, and it helped to calm him down and to suppress things.
70. Mr Hayward returned home for leave late in 1965, and in January 1966 caught a train from Adelaide to return to service. However, he got off the train at Ballarat in Victoria. He said he did not want to go back to the ship. He said that as he got closer the worse he got, and he finally got off the train and hitch-hiked back to Adelaide. He said:
“… it just became a bit overwhelming. I started to get really worried. I just couldn’t – just didn’t handle my feelings too well at the time. That’s it. I didn’t look forward to going back onto the ship and that’s all.” (transcript 26.02.03, page 28, line 35)
71. According to his evidence, he then stayed with some friends for a period of ten to fourteen days, but his father persuaded him to go back. He did so and was charged with being absent without leave, and was sent to a combined military corrective establishment at Holsworthy for forty-two days.
72. In the earlier tribunal hearing he was asked about the period heading into 1966, and said that he then started to have some gastro attacks, and at times they would be so severe that he would end up being put into sick bay. He thought that he had a “nervous gut” but his problems became progressively worse. He said he continued to drink heavily. The first reference in his Service records to gastro-enteritis is an entry dated 2 June 1966 (exhibit A1, T4, page 42). There are some further medical records of attacks of gastro-enteritis, but not within two years of the relevant stressors.
73. In his report of 20 March 2001, Dr Ewer refers to having obtained a history that Mr Hayward had experienced considerable anxiety after certain events which he described, and which included the Gannet event. His report of 5 November 2001 refers to a history of the anxiety having begun in 1965, and also refers to a history from Mrs Hayward of her husband’s changed mental state in 1965, involving his seeming to be nervous and to be living on his nerves and being unable to cope with pressure, and starting to drink heavily. Dr Ewer’s report of 24 April 2002 deals specifically with the results of his having questioned Mr Hayward as to when his symptoms of anxiety began, and Mr Hayward’s responses led Dr Ewer to conclude that his condition of a generalised anxiety disorder “clearly occurred within two years of him (sic) experiencing one or more severe psychosocial stressors.” (exhibit AII, page 4, paragraph 7.2). Dr Ewer provides further quite detailed information in support of this conclusion in his last report dated 14 July 2005 (exhibit AIII), and sets out in detail his reasons for reaching his conclusion in paragraphs 8.1 to 8.7 of that report.
74. I find that there is evidence before me to support the hypothesis that Mr Hayward experienced a severe psychosocial stressor, namely the Gannet event, and (if s 120(1) is relevant to the depth charge event) a second such stressor in the form of that event, within the two years immediately before the clinical onset of a generalised anxiety disorder. This hypothesis is therefore consistent with factor 5(a)(ii) of the Operational Service Anxiety SoP.
75. I further find from the matters that I have narrated in paragraphs 62 to 73 above that there is evidence before me that the clinical onset of the generalised anxiety disorder occurred within two years of the two asserted stressors.
Application of Statements of Principles – Claim for Alcohol Dependence
76. In considering whether there is evidence that Mr Hayward experienced a severe stressor within two years before the clinical onset of alcohol dependence (factor 5(b) of the Operational Service Alcohol SoP), it is first necessary to consider the definition of “experiencing a severe stressor”. This is defined as follows:
“… 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; … .”
77. It follows from the judgments of Mansfield J at first instance in Stoddard v Repatriation Commission (2003) 74 ALD 366 and of the Full Federal Court on appeal in Repatriation Commission v Stoddard (2003) 134 FCR 392 that the question of whether an occurrence satisfies the definition must be judged objectively from the point of view of a reasonable person in the position, and with the knowledge, of the person experiencing the occurrence, and not by reference to a person who has full information in relation to the relevant occurrence. According to Mansfield J, the relevant event or events must be such that they are “capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity” (at [55]). The Full Court (Carr, Finn and Sundberg JJ) dismissed an appeal by the Commission against Mansfield J’s judgment.
78. In Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Court (Black CJ, Weinberg, and Selway JJ) approved Mansfield J’s judgment in Stoddart, except for one potential qualification. Their Honours said, at [144]:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
79. In Delahunty v Repatriation Commission 38 AAR 511 Tamberlin J considered the definition of experiencing a severe stressor, and said, at [27], that it was inherent in the nature of “stress” that there is a perception by the individual concerned. His Honour said that the definition incorporates the reaction of a wide range of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. He continued:
“While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
[28] There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.”
80. In Guy v Repatriation Commission [2005] FCA 562 the applicant was at risk of being electrocuted, but was able to escape from inside a boiler before the power supply was cut off, and so did not sustain any physical injury. The tribunal concluded that there had been what could be described as an “anxious moment”, but thought that there was no incident which could be described as an event that might evoke intense fear, helplessness or horror. Tamberlin J held that the tribunal had erred, and that the correct approach was to ask whether the event “might, or could possibly, evoke the relevant emotions” (i.e. intense fear, helplessness or horror), and the focus was “on the type and nature of the danger, namely, whether it can be characterised as being capable of evoking the relevant emotions” (at [20]). His Honour also said, at [19], that the tribunal should have asked whether the incident was of a type which might evoke the relevant emotions (as indeed the tribunal had concluded), and should not have asked whether the incident did evoke the relevant emotions.
81. A similar analysis of the words “which event or events might evoke intense fear, helplessness or horror” appears in the decision of Dowsett J in Constable v Repatriation Commission [2005] FCA 928, where his Honour puts emphasis on the word “might”, and contrasts the subjective requirements of the relevant definitions in the SoP in respect of anxiety disorder with that in the SoP in respect of alcohol dependence or alcohol abuse.
82. The Gannet event: The evidence as to this event indicates that it entailed Mr Hayward experiencing or being confronted with an event that involved the death of the pilot, as well as a threat to his own integrity, and that of the other sailor who was on duty with him. I consider that this evidence satisfies the objective requirements of the definition.
83. For the reasons explained in Guy (supra) and Constable (supra) it is not necessary in my view for Mr Hayward to have suffered a subjective reaction of intense fear, helplessness or horror in order for the event to be consistent with the definition of “experiencing a severe stressor”. I referred in paragraphs 63 and 64 above to the evidence of Mr Hayward’s subjective reaction to the Gannet event. This evidence is consistent with Mr Hayward having experienced or having been confronted with a threat. There is also evidence, to which I have referred above, that the event caused the onset of his alcohol dependence, and was the basis of the asserted hypothesis connecting the event with his operational service. I therefore conclude that the evidence of Mr Hayward’s subjective reaction to the Gannet event is sufficient to meet the subjective requirements of the definition.
84. The depth charge event: It is also necessary to consider whether the evidence as to the depth charge event satisfies the definition of experiencing a severe stressor in respect of alcohol dependence. I have referred above to Mr Hayward’s evidence as to the facts surrounding this event. It is also relevant to refer again to the statement from Mr Harrison, which is annexed to the report by Commodore Mulcare. Mr Harrison says in effect that the depth charge would not have exploded as a result of being dropped from the aircraft onto the deck; that the depth charge was not armed at the time when it was loaded into an aircraft; that arming occurred after a pilot made a switch to replace a safety pin with an arming wire, then dropped the depth charge from the aircraft so as to rotate the arming vein on the depth charge in the slipstream of the aircraft, and that it was then necessary for the depth charge to sink to a predetermined depth at which water pressure completed the arming sequence. The pistol previously fitted to the depth charge would then fire, thus causing the depth charge to explode.
85. It does not appear from the evidence before me whether Mr Hayward was fully aware of the technical information which Mr Harrison provided as to the functioning of depth charges. Mr Hayward did not challenge this information. However, he referred in his evidence to the emphasis during his training on the need for caution in handling depth charges, to his young age and lack of experience at the relevant time, and to his concern that in any event, on occasions, ordnances malfunctioned. Having regard to the principles which emerge from the cases to which I have referred above and to my above analysis of the requirements of the definition of experiencing a severe stressor, I consider that the evidence before me as to the depth charge event is consistent with both the objective and subjective requirements of the definition.
86. The application of the SoPs in respect of alcohol dependence also entails, in accordance with the third step in the Deledio process, examining the evidence before me as to the time of the clinical onset of alcohol dependence. That question is relevant to factors 5(a) and 5(b) of each of the relevant SoPs in respect of alcohol dependence.
87. The expression “alcohol dependence” is defined in clause 2(b) of the Operational Service Alcohol SoP, and the definition includes the proposition that the diagnostic criteria for alcohol dependence are those specified in DSM-IV. The definition then conveniently sets out those criteria.
88. I have referred above to the evidence of Mr Hayward as to his changed behaviour after the two relevant stressors, including in particular his evidence as to his increased consumption of alcohol.
89. In addition to the evidence of Mr Hayward that I have already narrated, I note the evidence that Mr Hayward was engaged in a brawl arising from his use of alcohol on 21 October 1965. His medical records show that he was involved in a brawl ashore after he had had a considerable amount of alcohol, and he was hit in the head and face several times. He was admitted to the Balmoral Naval Hospital but discharged to duty the next day.
90. Counsel for Mr Hayward, Mr Jolly, also relied on another episode when Mr Hayward was disciplined for smuggling beer on board the Melbourne. However, the evidence before me indicates that that incident happened before either of the two stressors relied upon by Mr Hayward, and accordingly it is not relevant to the issue of the date of clinical onset of alcohol dependence.
91. In his second report, dated 5 November 2001, Dr Ewer reports that Mr Hayward gave a history of his alcohol abuse having come on after the asserted stressors (although I note that at that time Dr Ewer had not obtained any history of the depth charge event). He also refers to his having used alcohol to cope with his anxiety. In his latest report of 14 July 2005, Dr Ewer deals very specifically with the criteria for alcohol dependence and sets out the symptoms which according to Mr Hayward’s history to him occurred within two years of the asserted stressors. That history was that the diagnostic criteria occurred within the two-year period.
92. I accordingly find that there is evidence before me that is consistent with factor 5(b) of the two SoPs in respect of alcohol dependence. Having regard to the evidence as to Mr Hayward’s age and experience at the relevant time, I do not think it could be said that the hypothesis arising out of the depth charge event was unreasonable or fanciful.
93. My above conclusion makes it unnecessary for me to consider factor 5(a) of the SoPs in respect of alcohol dependence, which factors would entail determining whether there is evidence before me that raises an hypothesis that Mr Hayward was suffering from a generalised anxiety disorder at the time of the clinical onset of alcohol dependence.
94. For the above reasons, I consider that the hypothesis raised by the material before me in relation to the Gannet event, and also (if s 120(1) is applicable) in relation to the depth charge event, is consistent with factor 5(a)(ii) of the Operational Service Anxiety SoP and factor 5(b) of the Operational Service Alcohol SoP.
95. According to a report dated 5 June 2005 from Dr Owen Watson (exhibit AV), Mr Hayward was diagnosed as suffering from hypertension on 11 September 1990. There is evidence before me that his heavy drinking, which had commenced in the second half of 1965, continued at least until the date of diagnosis of hypertension, at a level which involved the consumption of an average of at least 300 grams per week of alcohol contained within alcoholic drinks. This evidence is consistent with factor 5(b) of the SoPs in respect of hypertension.
96. It further appears from the above report of Dr Watson that Mr Hayward’s oesophageal reflux was diagnosed on 8 July 1987. There is evidence before me that he was suffering from alcohol dependence at that time, and the evidence before me accordingly satisfies factor 5(g) of the superseded SoPs in respect of gastro-oesophageal reflux.
97. As a result of my above conclusions, by virtue of s 120A(3) of the VE Act, the hypothesis connecting Mr Hayward’s generalised anxiety disorder, alcohol dependence, hypertension and gastro-oesophageal reflux with the circumstances of his operational service is reasonable. The disentitling provision of s 120(3) of the VE Act (which would mean that Mr Hayward’s claim would fail if I had concluded that the relevant hypothesis was not reasonable) does not therefore apply.
Findings of Fact
98. I now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the asserted conditions were war-caused. In examining this question, I note that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408, at pages 424.8 to 425.5). I also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.3, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, subs.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
99. Mr Hayward was cross-examined in the earlier tribunal hearing, but not in the hearing before me. However, counsel for the Commission attacked the accuracy of Mr Hayward’s recollections, and submitted that he wrongly attributed his difficulties to the asserted stressors, rather than to other significant events which had occurred during his life. Counsel for the Commission further submitted that I should prefer the evidence of Professor Goldney to that of Dr Ewer, and that I should find beyond reasonable doubt that Mr Hayward’s conditions of alcohol dependence and a generalised anxiety disorder (or a major depressive disorder), as well as the remaining claimed conditions of hypertension and gastro-oesophageal reflux disease, were not war-caused.
100. I have carefully considered the report and evidence of Professor Goldney, as well as the reports of two other psychiatrists relied upon by the Commission, namely Doctors Synnott and Lovell. Those two psychiatrists provided reports to the insurers of the Tyco Group Superannuation Plan, of which Mr Hayward was a member. The reports had apparently been sought in relation to the question of whether Mr Hayward was incapacitated for work following his ceasing work in May 2002. However, they do not relate specifically to the question of whether the psychiatric conditions were war-caused.
101. It is apparent from Professor Goldney’s report and his evidence that he obtained a very careful and detailed history from Mr Hayward, and that the obtaining of an accurate history from a patient is an essential step in arriving at a correct psychiatric diagnosis. Professor Goldney was critical of the history which Dr Ewer had obtained, and said it omitted certain important matters.
102. In comparing the evidence of the two psychiatrists I am mindful that Dr Ewer did not give evidence before me. He gave evidence at the earlier tribunal hearing, and I have read that evidence. He also provided a significant report after the first hearing, namely the report of 14 July 2005. In this report Dr Ewer comments on Professor Goldney’s report of 1 March 2005, and disputes Professor Goldney’s conclusions. Dr Ewer also deals very specifically with the history he obtained of symptoms which led him to his conclusions as to the date of clinical onset of the conditions of alcohol dependence and a generalised anxiety disorder. Because Dr Ewer was not called in the proceedings before me the opinions he expressed in his later report were not tested in cross-examination. Of course, as not infrequently occurs in proceedings in this tribunal, the respondent could have required his attendance for cross-examination, but did not do so.
103. Whilst it would have been potentially helpful for Dr Ewer to have given evidence before me as to the issues that arose from Professor Goldney’s report, I do not think that in the circumstances of this matter, his failure to do so necessarily affects the significance of his opinion, bearing in mind that the issue for determination is whether I am satisfied beyond reasonable doubt that there is no sufficient ground for finding the relevant connection with operational service.
104. There is authority that even if the customary standard of proof, that is proof on the balance of probabilities, were applicable, the weight to be attached to the opinion of an expert witness would not necessarily be diminished because the witness was not called to give oral evidence: see the discussion in Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746, at [24] to [29].
105. Having considered all of the evidence, I am not satisfied beyond reasonable doubt, whether by reference to Professor Goldney’s opinion or otherwise, that there is no sufficient ground for determining that Mr Hayward’s conditions are not war-caused. There are certain aspects of Professor Goldney’s evidence which affect the weight I attach to his opinion, and have led me to conclude that his evidence does not satisfy me beyond reasonable doubt that Mr Hayward’s conditions are not war-caused. I refer to the following matters.
(a) Professor Goldney placed some emphasis on the absence of any contemporaneous medical or other records to the effect that Mr Hayward was suffering from a generalised anxiety disorder or alcohol dependence or abuse during the years after he experienced the Gannet event and the depth charge event. However, there are some records of relevant matters, namely the record of the hospitalisation after the brawl on 21 October 1965, the record of Mr Hayward’s detention following the period he was AWOL in January 1966, and his attack of gastro-enteritis on 2 June 1966. These records are consistent with Mr Hayward’s evidence as to the development of his conditions, and with Dr Ewer’s opinion.
(b) Mr Hayward said that his means of coping with his stress was to substantially increase his use of alcohol, and to get on with his duties, rather than seek medical assistance at that time. At the earlier tribunal hearing, Lieutenant Commander Hayward, the applicant’s younger brother, gave evidence that as a member of the medical branch in the Navy, he was aware that previously there had not been much accessibility to psychiatrists or psychologists for serving members, and that at that time, servicemen did not generally talk with others or with doctors about emotional difficulties they were having (see exhibit AVII). He also said that it was generally known that servicemen did not want to have psychological or psychiatric problems noted in their medical records, and there was a stigma attached with that. Dr Dare, the psychiatrist who is treating Mr Hayward, also comments in a report of 12 December 2003 that “(a) typical male in the Forces in those days could not acknowledge any psychological symptoms.” (exhibit RX, tab 5, page 18). These matters constitute a plausible explanation of why Mr Hayward did not seek treatment for his problems, and why there are no further contemporaneous records of his conditions or symptoms, other than those to which I have referred in paragraph (a).
(c) Professor Goldney also placed emphasis on the history he obtained that when Mr Hayward went on leave late in 1965, he thought his then girlfriend (whom he later married) was pregnant. Professor Goldney pointed out that this aspect of Mr Hayward’s history was not referred to by Dr Ewer. However, Professor Goldney does not point to any contemporaneous evidence that this produced anxiety on the part of Mr Hayward. More significantly, Mr Hayward’s evidence at the earlier tribunal hearing of his reasons for going AWOL is inconsistent with Professor Goldney’s opinion; as mentioned above, Mr Hayward attributed this to his increasing worry about returning to duty. In addition, there was no evidence that Mr Hayward sought to make contact with his then girlfriend after he had got off the train and was AWOL. Indeed, in his evidence before me he stated that “my illness had nothing to do with the knowledge of my girlfriend.” (transcript 16.11.05, page 79, line 15). I accept this evidence. He was not cross-examined about this statement.
(d) Mr Hayward’s evidence is consistent with the history Dr Ewer had obtained from his wife as to his behaviour in 1965. I also note that Lieutenant Commander Hayward commented that after his brother had undertaken his operational service in the Far-East Strategic Reserve and in Vietnam, he noticed changes in his brother in that he was not as relaxed and did not seem himself, and seemed more anxious and did not relate as well to him or to other people (see exhibit AVII).
(e) Professor Goldney also referred to Mr Hayward’s wife’s difficulties, in that in 1977 she had been diagnosed with multiple sclerosis and became progressively worse, but in August 1981 Mr Hayward learned that this diagnosis was incorrect, and that in fact she was suffering from a brain tumour, which was surgically removed. However, it appears that Dr Ewer had also taken into account the relevance of Mr Hayward’s wife’s illness, as he refers to this in his report of 5 November 2001. He then reported that the history he had obtained from Mrs Hayward was that her husband was not interested in what was happening to her and was not involved in her illness because he was so busy with service life and drinking. Other information before me suggests that Mr Hayward was concerned about his wife’s condition in 1981, when he obtained medical treatment for anxiety. However, his condition at that time and what might have precipitated his difficulties then is not necessarily inconsistent with the clinical onset of his anxiety condition having occurred at an earlier time due to the relevant stressors.
(f) A similar comment can be made about the other events referred to by Professor Goldney which occurred after Mr Hayward’s naval service, and which no doubt also had an adverse impact on him.
(g) Finally, both Dr Ewer and Mr Hayward’s treating psychiatrist, Dr Dare, have had considerably more contact with Mr Hayward, and have been in a better position to assess the cause of his conditions. I note that in his report of 12 December 2003, Dr Dare refers to other potential causes of Mr Hayward’s conditions, including his wife’s illness and the events at Tyco which ultimately led to his ceasing work, but he nevertheless places considerable importance on the Gannet event, as well as other experiences in Mr Hayward’s earlier years in the Navy.
106. I should add that I have carefully reviewed the evidence as to whether there was a clinical onset of alcohol dependence (or alcohol abuse) within one or two years of either of the asserted stressors. Mr Hayward’s evidence taken by itself does not indicate that clinical onset occurred within the two-year period. However, the report of Dr Ewer of 14 July 2005 as to this issue does support the conclusion that the clinical onset of alcohol dependence occurred within the relevant period. I not think that there is a sufficient basis to reject Dr Ewer’s evidence on this aspect.
107. I note that in Bushell (supra) Mason CJ, Deane and McHugh JJ said that leaving aside cases where an hypothesis was contrary to proved scientific facts or to the known phenomena of nature, or where it was obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous:
“… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.” (175 CLR 408 at 414)
Having carefully considered the conflicting medical evidence and all other relevant material, I have concluded that the present matter is not such a rare case.
108. I find that Mr Hayward’s evidence as to both the Gannet event and (if this is relevant under s 120(1)) the depth charge event, and the evidence as to the effects of those events on Mr Hayward, have not been disproved beyond reasonable doubt. Further, no other facts which are inconsistent with the hypothesis based on the events have been proved beyond reasonable doubt.
Conclusion
109. For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the conditions claimed by Mr Hayward are war-caused. I am accordingly required, by virtue of s 120(1) of the VE Act, to find that those conditions are war-caused.
110. I add that if, as contended by the Commission, the depth charge event did not happen in operational service, it is accepted that the Gannet event did occur in operational service, and in view of my findings as to that event, it is not necessary for me to determine, insofar as Mr Hayward’s claim is based on the depth charge event, whether the Defence Service Anxiety SoP or the Defence Service Alcohol SoP uphold the contention that his conditions of generalised anxiety disorder and alcohol dependence are, on the balance of probabilities, connected with his defence service.
Decision
111. I set aside the decision under review, and
(a) in place of that decision, decide that Mr Hayward’s conditions of generalised anxiety disorder, alcohol dependence, hypertension and oesophagus reflux disease are war-caused;
(b) remit the matter to the Repatriation Commission for assessment of the applicant’s entitlement to pension in accordance with these reasons for decision; and
(c) reserve liberty to the parties to apply, within 14 days after the publication of this decision, in relation to the date of effect from which any pension payable as a result of this decision should take effect, and in the absence of any such application, direct that the date of effect will be 27 August 2000.
I certify that the 111 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 14, 15 and 16 November 2005
Date of Decision 22 February 2006
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S Maharaj QC
Solicitor for the Respondent Australian Government Solicitor
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