Hill and Repatriation Commission
[2006] AATA 925
•31 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 925
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2004/19, D2005/13
VETERANS' APPEALS DIVISION ) Re COLIN HILL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Senior Member M J Carstairs Date31 October 2006
PlaceBrisbane (heard in Darwin)
Decision A. In matter D2004/19, the Tribunal affirms the decision under review.
B. In matter D2005/13 the Tribunal:a) sets aside the decision under review (namely a decision of the respondent dated 11 July 2001) as it relates to the applicant’s claim for alcohol dependence; substitutes the decision that alcohol dependence is war caused with effect from 15 March 2000; and remits to the respondent the assessment of the rate of pension payable in respect of the condition;
b) in all other respects affirms the decisions under review.
...............Signed...............
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – invalidity service pension – impairment rating of at least 40 points – medical evidence that conditions suffered were permanent - able to undertake work for periods in excess of eight hours per week – not satisfied permanently incapacitated for work – decision under review affirmed
VETERANS’ AFFAIRS – disability pension – post traumatic stress disorder – alcohol dependence – depressive disorder – pathological gambling – not exposed to traumatic events required for diagnosis of post traumatic stress disorder – not satisfied beyond reasonable doubt that no sufficient ground for determining alcohol dependence was war-caused – depressive disorder hypotheses not reasonable - hypothesis supporting pathological gambling speculative – decision in relation to claims of post traumatic stress disorder, depressive disorder and pathological gambling affirmed – decision relating to alcohol dependence set aside
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 37(1), 119, 120(1)(3)(4), 120A(3),
Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999
Hill v Repatriation Commission (2004) 207 ALR 470
Repatriation Commission v Hill (2005) 142 FCR 88
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1988) 83 FCR 82
Mines v Repatriation Commission [2004] 86 ALD 62
Fenner v Repatriation Commission (2005) 218 ALR 122
Woodward v Repatriation Commission (2003) 131 FCR 473
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 134 FCR 392
Repatriation Commission v Law (1981) 147 CLR 635
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 188 ALR 756
REASONS FOR DECISION
31 October 2006 Deputy President P E Hack SC and Senior Member M J Carstairs Introduction
1.There are two applications before the Tribunal. In the first of them (D2004/19) the applicant, Colin Denis Hill, seeks a review of a decision of the Repatriation Commission made on 4 July 2001 to reject his claim for a service pension based on invalidity grounds. We will call this matter the invalidity service pension matter.
2.In the other application (D2005/13) Mr Hill seeks a review of that part[1] of the decisions of the Commission made on 11 July 2001 and 30 May 2003 that refused his claim for a disability pension for incapacity caused by four conditions - alcohol dependence or alcohol abuse, depressive disorder, pathological gambling[2] and post traumatic stress disorder.[3] We shall call this matter the disability pension matter.
[1]Other conditions – dermatitis and irritable bowel syndrome – were the subject of the initial claims and refusal but these matters were not pursued before us.
[2] Refused on 11 July 2001.
[3] Refused on 30 May 2003.
3.The invalidity service pension matter has already been the subject of a hearing in the Tribunal[4] but the Tribunal’s decision was set aside and the matter remitted to the Tribunal to be reheard.[5]
[4] See [2003] AATA 1114.
[5]See Hill v Repatriation Commission (2004) 207 ALR 470 (Mansfield J.) and Repatriation Commission v Hill (2005) 142 FCR 88 (Wilcox, French & Weinberg JJ.
Factual Background
4.What follows is not in issue. Mr Hill was born in 1945 in Horsham in Western Victoria. He left school at the age of 17 years and worked for a tractor agency in Horsham. On 30 June 1965, when he was aged 20 years, he commenced service in the Australian Army as a conscript. He re-enlisted to serve in Vietnam. Mr Hill extended his service because, at the time that he would usually have been sent to Vietnam in his second year of national service, he was undergoing treatment provided by Army to correct a medical problem. Surgery was carried out in May 1966.
5.Mr Hill then served in Vietnam from 6 June 1967 to 16 April 1968 with 102 Field Workshop, Stores Section, working as a “Clerk Tech” in the Control Office in Vung Tau. His duties were primarily clerical, in connection with the supply of vehicle parts. He was discharged from the Army on 30 June 1968 having completed his service. His service in Vietnam was operational service as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the Act).
6.In October 1968 he married his wife Gloria. At that time he was employed carting hay. Subsequently he gained employment with the State Electricity Commission of Victoria as a meter reader. He was promoted within that organization such that, by 1974, he was running the Commission’s office in Edenhope. In that capacity he stole from his employer, apparently for the purpose of financing an alcohol and gambling habit which he had, by then, developed. He was prosecuted and put on a good behaviour bond. He lost his office job and was demoted to the position of labourer.
7.He continued working for the Commission until November 1990 when he was offered, and accepted, a redundancy package. From then until May 1994 Mr Hill was employed as a sales assistant, and then manager, for a hardware store in Horsham.
8.For some months during 1995 Mr and Mrs Hill lived in Darwin. During part, at least, of this time Mr Hill was employed as a drug and alcohol counsellor. Then in October 1995 Mr and Mrs Hill returned to Horsham where Mr Hill commenced employment as Chief Executive Officer of a retirement village. That employment continued until April 2000 when Mr Hill was forced to resign having made unauthorised use of a patient’s money.
9.In July 2000 Mr and Mrs Hill made application to the Northern Territory Christian School Association for employment as house parents. They were offered the positions on 6 August 2000 pursuant to a written employment contract (Exhibit 18). It is important to note that the contract described them as having been employed “as an Assisted Accommodation House Parent in NTCSA boarding facilities” and gave the following as the “Primary Role”:
In conjunction with the other house parents manage the day to day operation of the house including care of students, provisions of meals, establishing routines, co-ordination homework tutorial programs, liaison with parents and communities, liaison with teachers, …
10.A further employment contract was executed by the parties with effect from 1 January 2001 (Exhibit 19) but its terms are not materially different to those of the earlier agreement.
11.The evidence of Mr and Mrs Hill, which we accept on this point, was that they acted, in effect, in loco parentis, initially in relation to some 10 teenage boys and then from the start of 2002, in relation to a similar number of teenage girls. They were paid, initially, $14,000.00 each for this work albeit that all of the wages were deposited to an account in Mrs Hill’s name. We propose to examine below the evidence of Mr and Mrs Hill about the way in which the tasks of house parents were undertaken.
12.On 25 May 2000 Mr Hill lodged a claim for a service pension based on invalidity grounds. On 4 July 2001 it was rejected on the basis that Mr Hill was not permanently incapacitated within the meaning given to that phrase by s 37 of the Act. That decision was affirmed on internal review, hence the application to the Tribunal made on 26 June 2002.
The Legislation – Invalidity Service Pension
13.Section 37(1) of the Act provides that a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) is permanently incapacitated for work in accordance with a determination under section 37AA.
It is not in issue here that Mr Hill is a veteran and has rendered qualifying service; the issue here is whether he was permanently incapacitated for work in the manner set out in paragraph (c).
14.The respondent has made a written determination pursuant to s 37AA of the Act – the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. Clause 5 of that determination is relevant. It is in these terms:
Circumstances of permanent incapacity
(1) A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:
(a) is permanently blind on both eyes; or
(b) is a veteran to whom s 24 of the Act applies; or
(c) satisfies subsection (2).
(2) A person satisfies this subsection if:
(a) the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pension, would result in a combined rating of 40 or more under Table 18.1 in that Guide; and
(b) solely because of the impairment, the person is permanently unable to do work for periods adding up to more that 8 hours per week; and
(c) the Commission is satisfied that the impairment is permanent.
The Issues - Invalidity Service Pension
15.Mr Hill says that he satisfies s 5(2) of the Determination. Thus the issues that we are called upon to decide are:
· did Mr Hill have a 40 point or more impairment,
·was Mr Hill permanently unable, because of that impairment, to do work for more that 8 hours per week, and,
· was the impairment permanent.
Given that the claim was made in May 2000 it is Mr Hill’s impairment and capacity at that time that is in issue although we note that there is, on the evidence, no discernible difference between Mr Hill’s condition at that time and his condition at the time of the hearing.
A 40 point impairment?
16.In July 2001 the respondent, with the benefit of reports from Dr William Knox (a psychiatrist) and Dr J G Mander (an orthopaedic surgeon) assessed Mr Hill as having a combined impairment rating of 40 points. Dr Knox, who undertook an assessment of Mr Hill in October 2000, gave Mr Hill an “Emotional and Behavioural” assessment of 32 points. Dr Mander appears not to have undertaken the task of assessing the point score for Mr Hill’s orthopaedic injuries however he provided a detailed description of the symptoms in May 2001 that lead the respondent to conclude that Mr Hill had a combined impairment rating of 40 points.
17.Moreover Dr Robert Parker, a psychiatrist, who saw Mr Hill in December 2002, assessed Mr Hill as having a score of 42 points.
18.As a consequence of this evidence there was no issue at the first hearing in the Tribunal in May 2003 about whether Mr Hill satisfied the 40 plus points test.
19.But that concession is not maintained by the respondent in this hearing. It now relies upon an assessment undertaken by Professor Goldney who saw Mr Hill in early January 2006.
20.In our view the evidence leads to the conclusion that Mr Hill had impairments that result in a rating of 40 or more. We consider that the conclusion reached by Dr Knox and Dr Mander are more proximate in time to the period that we are concerned with. That the view adopted by them is confirmed by Dr Parker (whose evidence of the point was not challenged) assists us in reaching that conclusion but does not determine it. Moreover the advantage that the views of Dr Knox and Dr Mander have is that it is possible for us to consider not merely the conclusions that they reached but the details of the matters relied on by them in reaching those views.
21.The view of Dr Goldney (and that of Dr Parker) is presented as an ipse dixit, it is simply not possible for us to know what led Dr Goldney to the conclusions that he drew.
22.In the result we are satisfied that Mr Hill had an impairment rating of at least 40 points.
Permanently unable to do work?
23.In the appeal in this case the Full Court of the Federal Court was called upon to consider the question posed by the second issue. Their Honours concluded[6] that:
… the expression to “do work” in cl 5(2)(b), when read in context, requires the decision-maker to focus upon the applicant, and not some hypothetical person. Consideration must be given to whether a person of the applicant’s background, suffering from his or her condition, is, solely by reason of the impairment, permanently unable to do remunerative work of the type that he or she would otherwise be fitted to undertake. In answering that question, it must be determined whether the applicant can undertake such work for more than eight hours per week. In other words, the test looks at the individual applicant, treats “work” as remunerative activity, and assesses the applicant’s ability to carry out that activity by reference to that person’s qualifications, background and skills.
[6] At (2005) 142 FCR 88, 101 para. [57].
24.We have already considered Mr Hill’s background. His employment history, particularly in the later years, was in the clerical and administrative fields. Whilst he lacked formal qualifications he was obviously an intelligent man. He was demonstrably capable of successfully managing a medium sized nursing home between 1995 and 2000.
25.There is some dispute on the evidence as to his precise condition. The respondent conceded that he suffered from major depressive disorder, alcohol dependence and pathological gambling. That concession was supported by the evidence of Dr Varghese and Dr Goldney. Dr Parker, who treated Mr Hill in the period between December 2002 and September 2005, was of the view that Mr Hill suffered, as well, from post traumatic stress disorder.
26.We set out below in paragraphs 39 to 64 our reasons for concluding that Mr Hill does not, and did not, suffer from post traumatic stress disorder. For the reasons that we give there we are of the view that Mr Hill’s condition was, and is, as conceded by the respondent and that Mr Hill did not, and does not, suffer from post traumatic stress disorder.
27.Thus, in considering Mr Hill’s condition as part of the consideration of whether he was “permanently unable to do work”, we start from the premise that Mr Hill had significant afflictions that impacted upon his ability to do work.
28.It is however necessary to look more closely at the role that Mr Hill and Mrs Hill were playing as house parents from August 2000 onwards. Mr Hill’s evidence was that his role was essentially one of supervision. But he would occasionally mop the floor, he would drive the school bus occasionally, he would mow the lawns and weed the gardens, he would assist with reading and helping his wife with housework. As house parents, both of them needed to be available 24 hours per day and Mr Hill was, as Mrs Hill put it, a “back up” for her. On her evidence he drove the bus three or four times per week. And it is to be remembered that up until April 2000 Mr Hill had been the Chief Executive Officer of a retirement village.
29.The evidence satisfies us that Mr Hill was able to do work for periods in excess of 8 hours per week and was, in fact, in his role as a house parent jointly with Mrs Hill, undertaking work for periods in excess of 8 hours per week.
30.It follows that we conclude that Mr Hill fails on the permanently unable to do work element of the test.
A Permanent Impairment
31.The medical evidence is uniformly to the effect that, whatever conditions were afflicting Mr Hill, they were permanent. Thus we are satisfied that the requirement of paragraph (c) is made out.
Conclusion - Invalidity Service Pension
32.It follows that, as we are not satisfied that Mr Hill was permanently unable to do work for periods adding up to more than 8 hours per week, we are not satisfied that he was permanently incapacitated for work. The decision of the respondent of 4 July 2001 should be affirmed.
Legislation – Disability Pension
33.Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Where a veteran has become incapacitated from a war-caused injury, s 13 of the Act makes the Commonwealth liable to pay a pension by way of compensation to the veteran.
34.The Act imposes different standards of proof on these issues. Where the question is whether a veteran suffers from a particular medical condition, that is, where the question is one of diagnosis, the standard of proof is that set out in s 120(4) of the Act. Matters of diagnosis are to be determined on the balance of probabilities.[7] But where, as is the case here, the veteran has rendered operational service the question of war-causation is addressed by applying the standard of proof in s 120(1) of the Act. That sub-section requires the Commission to determine that an injury or disease was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
[7] Benjamin v Repatriation Commission (2001) 70 ALD 622, at [54] – [55].
35.For claims made after 1 June 1994 there is the additional requirement that any hypothesis advanced must be considered by reference to a Statement of Principles made by the Repatriation Medical Authority.[8] The result is that, once we are satisfied, on the balance of probabilities, of questions of diagnosis we are required to determine the issue of causation by reference to the four step process identified by the Federal Court in Repatriation Commission v Deledio.[9] That process proceeds by reference to factors set out in the Statement relating to the particular claimed condition.
[8] See s 120A(3) of the Act.
[9] (1988) 83 FCR 82, at pp. 97-98.
36.After the hearing concluded we sought assistance from the parties on a legal issue that seemed to us to be important but which had not been addressed in the course of the hearing. What concerned us was the proper approach to the factual issue of the timing of clinical onset, that is, was the question of the point of time of clinical onset to be determined as a matter of diagnosis and thus on the balance of probabilities or was it to be considered within the framework of the Deledio steps.
37.The parties, in their supplementary submissions, are agreed that it is the latter approach, and not the former, which is to be taken and we shall proceed accordingly.
38.We note, at this point, that a Statement of Principles has been determined in respect of three of the conditions claimed by Mr Hill, post traumatic stress disorder,[10] alcohol dependence[11] and depressive disorder.[12] No Statement of Principles has been determined for the condition of pathological gambling.
[10] Instrument No 3 of 1999 (as amended by No 54 of 1999).
[11] Instrument No 76 of 1998.
[12] Instrument No 58 of 1998.
Diagnosis of the medical conditions
39.On this issue we were assisted by the evidence and reports of a number of psychiatrists who have examined Mr Hill since he lodged his claims in 2000
for depression, alcohol abuse and his gambling problem and in 2003 for post traumatic stress disorder. There was substantial agreement amongst the psychiatrists that Mr Hill suffers three psychiatric conditions, namely:
§depressive disorder (dysthymia was the depressive disorder most frequently identified by the practitioners, however Professor Goldney concluded that Mr Hill had a combination of dysthymia and major depression);
§alcohol dependence (despite Mr Hill abstaining from alcohol at the time he was seen by the psychiatrists); and
§pathological gambling.
40.Three consultant psychiatrists - Dr William Knox, Dr Robert Parker, and Professor Robert Goldney - agree on these diagnoses. Associate Professor Frank Varghese confirmed the presence of dysthymia and alcohol dependence, however he did not agree with the description of pathological gambling as a disorder or disease. He agreed that Mr Hill was a pathological gambler but expressed the view that pathological gambling describes behaviour, and was not, of itself, a diagnosis.
41.Whilst respecting the professional opinion of Dr Varghese it is our view that we ought to prefer the opinion expressed by Dr Knox, Dr Parker and Professor Goldney. We note, in that regard, that the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed.) (DSM-IV) at p 674, assigns the term pathological gambling to instances of persistent, recurrent maladaptive gambling behaviour, where the person’s symptoms include at least 5 of 10 identified criteria including preoccupation with gambling; lying to hide the extent of the habit from friends and family; sacrificing relationships, jobs and friends; committing illegal acts to secure money; repeated unsuccessful efforts to control the habit and gambling with increased amounts to secure the desired excitement.
42.The reports of Professor Goldney, Associate Professor Varghese and Dr Parker refer to Mr Hill’s history of gambling and the behavioural problems associated with the condition. We are satisfied that Mr Hill suffers from the condition, albeit under control at present because his wife limits his access to money. We accept the opinion of Dr Knox that:
while Mr Hill is not presently drinking or gambling ... he remains at high risk of resuming these destructive activities.
43.Dr Parker and Professor Goldney confirmed the validity of this as a diagnosis, referring to the listing of the condition amongst the disorders set out in DSM-IV where it is cited as an impulse control disorder, within the Axis I disorders in the classification system used in DSM-IV.
44.On the basis of the medical evidence we conclude that the diagnoses of depressive disorder, alcohol abuse or dependence, and pathological gambling are established to the standard of reasonable satisfaction in Mr Hill’s case.
45.The real controversy is about the diagnosis of post traumatic stress disorder. Only Mr Hill’s treating psychiatrist - Dr Parker – was of the opinion that Mr Hill had post traumatic stress disorder. He diagnosed this condition in his first report dated 9 December 2002.
46.A diagnosis of post traumatic stress disorder requires that there be an event of a particular character that gives rise to particular symptoms. Using words taken from DSM-IV at paragraph 309.81, what is required is that:
The person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(ii) the person’s response involved intense fear, helplessness, or horror…
47.Thus, as a matter of diagnosis, there must be both a traumatic event, which answers the description given, and a response of the required intensity. There is, in this case, controversy about the events claimed and the response to them. It is thus relevant to note the decision of Gray J in Mines v Repatriation Commission[13] where his Honour said:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
[13] (2004) 86 ALD 62 at para. [48].
48.The case for Mr Hill, as outlined in his statement of Facts, Issues and Contentions tendered at the outset of the hearing, was that he experienced five “stressors”, described in these terms:
§Challenged on guard duty
§Witnessed US serviceman throat slashed.
§Witnessed vehicles with bullet holes
§Security scare at camp
§Pervasive threat of danger by reason of proximity to explosions.
Subsequently Mr Piper, the solicitor for Mr Hill, abandoned reliance upon the latter two events, and, in his final submissions (exemplified by Exhibit 22) pressed only the first incident as being a stressor. The respondent accepted, at the outset, that the first three of these events “possibly may have happened” but put in issue whether they were events of a sufficient calibre to satisfy the definition of a “severe stressor” as that term is used in the Statement of Principles. It did not accept that the events did, in fact, occur.
49.Given the nature of the contest we propose to consider this issue first by reference to the accounts given by Mr Hill over the years in material provided to the Tribunal and to the various psychiatrists. In doing so we are conscious of the requirements of s 119 of the Veterans’ Entitlements Act, and especially paragraph (g) of that section. Nonetheless, as Mansfield J pointed out in Fenner v Repatriation Commission:[14]
… while the directions of s 119(1)(f), (g) and (h) are of relevance to the way in which the tribunal proceeded, they cannot remove from it the responsibility of applying ss 120 and 120A and other relevant provisions of the Act according to the proper terms.
[14] (2005) 218 ALR 122 at p. 130, para. [29].
50.The first consultation was with Dr Knox in October 2000. In his report of 31 October 2000 Dr Knox records that:
Mr Hill served as a clerk in Vung Tao [sic], South Vietnam, and was not directly involved in combat. At times there were increased security levels around the base, but he did not experience any military attack.
Next, it would appear that Mr Hill was seen by Dr McLaren, a consultant psychiatrist, who provided a report dated 26 June 2002. That report notes:
There were no untoward events apart from seeing an American stabbed in what sounds like a street brawl six months after he got there. He said “I didn’t place much importance on it, he didn’t die.”
Neither of these psychiatrists was called to give evidence however Mr Hill seemed to accept, when he gave his evidence, that he had not mentioned the guard duty[15] incident to Dr Knox. He said, in relation to Dr McLaren, that he had not had an opportunity to mention it to him. He did say that he could not recall saying to Dr McLaren that he did not place much weight on the event.
[15]This incident came to be described in the hearing as “the picket duty incident”. We shall continue describing it in that way.
51.Dr Parker first saw Mr Hill in late 2002. In his report dated 9 December 2002 Dr Parker gave this description of Mr Hill’s account of traumatic events:
Mr Hill commented that he had a number of traumatic episodes during his service in Vietnam. He reported that he viewed a Land Rover that had been involved in an ambush and was brought back to his workshop at Vung Tau “full of bullet holes”. He also viewed an armoured personnel carrier that had been struck with armour piercing ammunition. Mr Hill said that he “imagined what it was like” inside the carrier when the round exploded. He also reported an incident during leave in Vung Tau where he saw a United States sailor’s throat cut. Mr Hill described being fearful on night picket duty at Vung Tau as he felt inadequately prepared for combat and was unsure whether shadows moving in the dark were Viet Cong about to attack him. This issue came to a head one night when Mr Hill was performing picket duty and was approached in the dark by a person who did not recognise the required password. He was eventually recognised him [sic] as an Australian soldier coming back from leave but prior to this Mr Hill described considerable anxiety that the incident could have been the start of an enemy attack.
52.Next, we note a statement dated 21 February 2003 and provided by Mr Hill for the purposes of the earlier hearing in the Tribunal. On this aspect of the matter the statement says:
Whilst in Vietnam, I was exposed to a number of traumas. Possibly the most serious was on an occasion when I did go to town and was on a footpath only five or so feet away from a US serviceman whose throat was slashed by a person who seemed to come from nowhere, and then take off. There was a lot of blood and the event was horrific, and I did not and still do not know why it happened.
53.This theme was continued in the history recorded by Dr Varghese, who saw Mr Hill on 9 May 2005 and provided a report dated 2 June 2005. That report described the stressful events in these terms:
As to his worst experience during the Vietnam war he states that this occurred when he was on leave and in town and witnessed a US Serviceman having his throat cut. He also recalls being quite anxious while on guard duty and recalls seeing vehicles with blood stains and damage from combat operations. [page 2 – emphasis in original]
He does not describe any significant traumatic events other than witnessing an American soldier having his throat cut while he was on leave. [page 6]
54.Greater, and, in some respects, quite different, detail of the event involving the US serviceman was given by Mr Hill in a statement dated 1 September 2005. That read, relevantly:
16. During my first months, I was exposed to some things that greatly troubled me. These things particularly occurred when I “went to town” with other soldiers, during time off. We were permitted to, and did go to the bars in Vung Tau and spent time relaxing.
17. On one of these occasions, I was with a group of other soldiers (I cannot recall who) a short distance away from some American soldiers. I was looking in their direction when a Viet Cong (presumably) appeared out of nowhere and cut an American soldier in the throat with a knife. There was some turmoil. As other people were attending to the American soldier, myself and my colleagues left the scene. The incident disturbed me greatly.
18. I recall being disturbed on another occasion when, on our way back to the camp from town, we came across an armoured vehicle that had been attacked. It was riddled with bullet holes. I vaguely recall either imagining or seeing body parts through the holes in the walls of the armoured vehicle.
19. After these experiences, I elected not to go into town, and remained inside the camp. I became apprehensive, and did not like being put on guard duty, as we all were from time to time.
20. On one occasion, when I was on guard duty, I was approached by a person in the night who did not give me the appropriate password. Everyone in the camp knew to say the second part of a password when they entered the camp gates, but this person refused to give the appropriate line. I formed a view that the person could be Viet Cong and be about to kill me. I apprehended the person, taking them to a lighted and more populated area of the camp before being persuaded that they were an allied soldier.
55.Professor Goldney saw Mr Hill on 14 January 2006 and provided a report dated 23 January 2006. On the issue of stressful events Professor Parker noted:
Upon enquiry about specific stressors, Mr Hill referred to one night being on guard duty and all had been given two parts of a password. He said that he was with a colleague and a person approached them and either he or his colleague gave the first part of the password and the person coming did not respond with the other part of the password. He said that the other person yelled out that he was an “Aussie”, and “that was petrifying”. He said that “we didn’t shoot him”.
Of other stressors, Mr Hill referred to vehicles coming in “shot full of holes”. He also noted that one night he had been drinking spirits heavily, and, although he had no personal recollection of it, he has been told that he apparently went berserk and patrols had to go and get him, as he “was running around all these other Units … and hiding … I was charged over that and had to front the Major of the Unit … drunk and disorderly ... put on the dry” for a month. …
…
In response to enquiry about any other particularly stressful events, Mr Hill stated “that’s probably about it”.
56.In his evidence before us Mr Hill was taken to some of these accounts in the course of cross-examination. He provided significantly greater detail than had been provided before. He described the picket duty incident as the most serious of the events that he advanced as being stressors. When taken to his earlier description of the incident with the American serviceman as being the worst incident he was, it must be said, unconvincing. There are many other instances where the account given by Mr Hill has varied significantly. We propose to highlight some of them for the purpose of explaining our concern with the evidence of Mr Hill regarding the claimed stressful events.
57.At the start of his evidence in chief Mr Hill was taken to the statement of 1 September 2005. He adopted it as his evidence. It is apparent from the extract set out in paragraph 51 above that the account of the picket duty incident was given on the basis that Mr Hill was alone. Certainly there is nothing in that account that suggests that he was in company with another person. Yet his evidence before us was that he was in company with another soldier although he cannot now recall the name of that person, or of the person who caused the stressful event. Moreover his earlier account of having apprehended the other soldier and taken him to a better lit area is completely at odds with the account given in his oral evidence.
58.The incident involving the American serviceman has, likewise, varied over time. The person has been described by Mr Hill as both a soldier[16] and as a sailor[17]. In his evidence before us he seemed confident that the serviceman was a sailor who “was in uniform”. The incident was described by him to Dr Varghese as the “most serious” incident yet it was seemingly not mentioned by him to Professor Goldney, even when asked about “other particularly stressful events”.
[16] Statement 1 September 2005, para. 17.
[17] Report Dr Parker, 9 December 2002.
59.Finally, and by way of highlighting major points of variance in the account given by Mr Hill, we note some details of the incident involving the vehicle with bullet holes. The account given to Dr Parker suggests that there were two separate vehicles – one involving a Land Rover and another involving an armoured personnel carrier. The statement of 1 September 2005 makes reference to one incident, involving an armoured vehicle, that Mr Hill came across as he came back to the camp from town. In his evidence before us Mr Hill said that both these vehicles had been on the base. The statement “was wrong” in referring to coming across the armoured vehicle on the way back to camp.
60.These matters lead us to conclude that we should place no reliance upon the evidence of Mr Hill in relation to the claimed stressors. It appears to us to be the inescapable conclusion from the changes that Mr Hill has made to the events that Mr Hill is neither truthful nor accurate when recounting what he says were traumatic events.
61.But beyond that we must say that we prefer the evidence of Professor Goldney to that of Dr Parker on the issue of diagnosis. As it seems to us, Dr Parker too readily concluded that Mr Hill had been exposed to traumatic events and, understandably, accepted at face value the matters recounted to him by Mr Hill. We accept the evidence of Professor Goldney that Mr Hill’s inability to recall details of the three events, the changing attribution of seriousness and the differing accounts of how these events took place make a diagnosis of post traumatic stress disorder less likely. As Professor Goldney pointed out, one of the clinical signs of post traumatic stress disorder was that there are recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions. Dr Parker explained these variations away by saying that “memory is not a video tape” but we are unable to accept that such a statement is clinically accurate in the context of a diagnosis of post traumatic stress disorder.
62.We should also note that it seems to us significant, when considering the reliability of Dr Parker’s diagnosis that he regarded Mr Hill as being a truthful individual. That seems to us, with respect, to be not only contrary to our observations but also to Mr Hill’s demonstrated behaviour of dishonest conduct.
63.In his final submissions Mr Piper relied only on the picket duty incident as a stressor in Mr Hill’s Vietnam service. Even were we to accept that Mr Hill experienced anxiety, particularly when engaged in picket duties, and felt unprepared in the event of possible confrontation at those times, a diagnosis of post traumatic stress disorder requires a particular kind of stressor. Even on the account of the picket duty event most favourable to Mr Hill (which we make clear we do not accept) the requisite level of severity is absent from his account. We respectfully agree with Professor Goldney that reasonably innocuous experiences such as those recounted by Mr Hill preclude the diagnosis of post traumatic stress disorder, because criterion A of the diagnostic criteria for the condition is not met.
64.We are, then, satisfied that Mr Hill was not exposed to an event or events that could be described meaningfully as traumatic as is required for a diagnosis of post traumatic stress disorder and conclude that Mr Hill does not, and did not, suffer from post traumatic stress disorder.
The Deledio Steps
65.Having considered these issues it is now necessary to consider the three conditions which we are satisfied that Mr Hill suffers from and to consider whether they are war-caused. That means that in relation to alcohol dependence and depressive disorder we must consider that matter by reference to the Deledio steps. In relation to the condition of pathological gambling there is no Statement of Principles. In line with authority[18] this part of the claim falls to be determined under s 120(1) and 120(3) of the Act, and in accordance with the process in Byrnes v Repatriation Commission.[19]
[18] Woodward v Repatriation Commission (2003) 131 FCR 473 at 483, para. [55].
[19] (1993) 177 CLR 564 at 571.
66.The first step when considering each of Mr Hill’s three psychiatric conditions requires that we consider all the material and determine whether that material points to an hypothesis or hypotheses connecting the conditions with the circumstances of Mr Hill’s particular service. The hypotheses relied upon by Mr Hill were set out in a document prepared by Mr Piper and tendered in the course of the hearing[20] although, as Mr Piper reminded us in his supplementary submissions, we must consider any other hypothesis fairly raised by the evidence.
[20] Exhibit 22.
Alcohol dependence
67.The factors contained in the Statement of Principles for Alcohol Dependence or Alcohol Abuse that were relied upon were these:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse;
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;
68.There were two principal hypotheses in relation to alcohol dependence advanced by Mr Piper in his final submissions in reliance on these factors. One relied on Mr Hill having had a psychiatric disorder, which Mr Piper identified as being alcohol intoxication, while serving in Vietnam. The Statement of Principles defines the term psychiatric disorder as any Axis 1 or 2 disorder attracting a diagnosis under DSM-IV and alcohol intoxication meets that description.
69.Mr Piper posed two alternatives: that alcohol intoxication was a precursor to the onset of alcohol abuse/dependence, or, in the alternative, that Mr Hill suffered a psychiatric disorder before the clinical worsening of his alcohol abuse/dependence.
70.Alcohol intoxication is one kind of substance intoxication the features of which are described in DSM-IV in these terms:
The essential feature of Substance Intoxication is the development of a reversible substance-specific syndrome due to the recent ingestion of (or exposure to) a substance (Criterion A). The clinically significant maladaptive behavioural or psychological changes associated with intoxication (e.g., belligerence, mood lability, cognitive impairment, impaired judgment, impaired social or occupational functioning) are due to the direct psychological effects of the substance on the central nervous system and develop during or shortly after use of the substance (Criterion B). The symptoms are not due to a general medical condition and are not better accounted for by another mental disorder (Criterion C).
71.The diagnostic criteria for alcohol intoxication are:
§ recent ingestion of alcohol;
§ clinically significant maladaptive behaviour;
§one or more of signs of slurred speech; incoordination; unsteady gait; impairment of attention or memory; stupor or coma;
§ the symptoms are not due to a general medical condition and are not better accounted for by another medical condition.
72.There was agreement between Dr Parker and Professor Goldney that Mr Hill probably became alcohol dependant during his service in Vietnam. The contest was more as to the point during that service that he became dependent. Dr Parker said, on this aspect:
… he seems to have been someone who was a light drinker prior to going to Vietnam, started drinking very heavily in a pattern of substance intoxication very early in his service in Vietnam, and probably, by the time he finished his service in Vietnam, had a pattern of alcohol dependence that continued on to civilian life.
When asked to fix a time for this Dr Parker said:
I wouldn’t be able to determine that. … there’s no information in the notes or from the information – in the information given by Mr Hill in respect of that. However, it’s not – given that he had – he appeared to drink heavily from the time he arrived in Vietnam. At some stage he would have developed the physical issues of alcohol dependence where he became – he needed to drink to stop alcohol withdrawal, and I would be unable to determine when that occurred.
73.Dr Parker, though, was of the view that Mr Hill, from his initial time in Vietnam, had the condition of substance intoxication (the substance being alcohol) which pre-dated the onset of alcohol dependence.
74.For his part Professor Goldney was unable to put any precise date upon the clinical onset of alcohol dependence however he regarded it as being “very, very early on in terms of his service in Vietnam.” He placed particular reliance upon the fact that, contrary to what had appeared in the statements by Mr Hill and Mrs Hill, Mr Hill acknowledged in his evidence that there were occasions before his service in Vietnam when he had drunk too much. Professor Goldney considered that the matters referred to by Dr Parker as clinical features of alcohol intoxication were better understood as clinical features of alcohol dependence. He said, citing DSM-IV,[21] that substance intoxication was almost invariably a prominent feature of any substance abuse or dependence. With regard to Mr Hill’s pattern of alcohol consumption in Vietnam, Professor Goldney considered that alcohol dependence was the primary diagnosis, and once that diagnosis was made, intoxication merely described an aspect of Mr Hill’s clinical behaviour as an alcohol dependent person. That is, alcohol intoxication was subsumed within the diagnosis of alcohol dependence.
[21] At p. 207.
75.Professor Goldney took these views with particular reference to the requirement in DSM-IV that the symptoms “are not better accounted for by another mental disorder”. He considered that the matters relied upon by Dr Parker were “better accounted for” by reference to the condition of alcohol dependence.[22]
[22] Transcript 19 June 2006, p. 58.
76.Professor Goldney said that Dr Parker had erroneously diagnosed Mr Hill as having multiple episodes of alcohol intoxication in Vietnam, (these occurring before he became alcohol dependent) and his criticism was that such an approach did not do justice to the severity of Mr Hill’s symptoms which were those of alcohol dependency at that time. But Professor Goldney acknowledged that a person may have episodes of intoxication before moving to alcohol dependency.
77.We have some evidence about the development of Mr Hill’s alcohol dependency. Mr Hill, his wife and his sister told us that Mr Hill was no more than a social drinker prior to enlistment, and despite partaking of alcohol during his two years’ Australian based service prior to Vietnam, was not then a problem drinker. In referring to the escalation of his habit in Vietnam, including adding spirits to his usual consumption of beer, Mr Hill said that alcohol was cheap and readily available to servicemen in Vietnam. The regular practice, he said, was to retire to the canteen when duties were completed and remain there until closing time at 10pm,[23] then continue drinking well into the night after closing time. Mr Hill said he obtained additional supples from the United States servicemen’s canteen and secreted them in his tent, contrary to Army regulations.
[23] Exhibit 3, p33.
78.Mr Hill spoke of one occasion when he was placed on a charge and ordered to observe a month abstention from alcohol after an incident after which he awoke with a patch over his eye. He had no recollection of the incident and says that he was subsequently informed by others that during the previous night he had caused a disturbance in the camp and had attempted to gouge his eyes out on a nail. There was no record of any such charge in Mr Hill’s service records. Mr Bruce Hampson, Mr Hill’s commanding officer in Vietnam, who said he would recall such a penalty if it had been imposed had no recollection of this. There was no medical record of any treatment to Mr Hill’s eye, but two colleagues who were in Vietnam with him recalled Mr Hill wearing a patch but they were unable to recall why.
79.Mr Longue, the Officer Commanding the 102 Field Workshop Stores Section
from 5 February 1968 to 4 February 1969, had the opportunity to observe Mr Hill during the last nine weeks or so[24] of his service. Mr Longue recalled that Mr Hill’s bedding had to be destroyed when he left Vietnam, because it was so badly soiled. Mr Longue commented that Mr Hill “had developed a regular drinking habit for such a young man”.
[24] Mr Hill left Vietnam on 16 April 1968.
80.In addition to this evidence we were mindful of two matters in Mr Hill’s background. His father was an alcoholic, and several of the psychiatrists comment on this aspect of his background. Dr Parker said that Mr Hill had significant vulnerability as a result of his difficult childhood. Dr McLaren seems to have agreed, referring to his poor early life experiences. The other that seems to us to be important is that Mr Hill was born with an imperforated bowel which was treated by a colostomy shortly after birth. The wound did not heal correctly with the result he grew up with an abdominal fistula that periodically discharged purulent material. During his period of National Service the Army provided him with the opportunity for surgical correction of the problem. This took some months and was the reason Mr Hill was not sent to Vietnam as would normally have occurred during the two years’ compulsory service.
81.Mr Hill, who was in many respects, a most taciturn witness, said little about any effects that the leaking colostomy might have had on his personality as he grew up. However Professor Goldney seems to have thought that the issue of the colostomy was significant in a psychiatric sense for Mr Hill, as did Dr Parker, although Dr Parker did not learn of the colostomy until 2005, four years after he commenced as Mr Hill’s treating psychiatrist.
82.It seems to us that the evidence taken as a whole points to hypotheses either that Mr Hill had the condition of alcohol intoxication prior to the clinical onset of alcohol dependence (Dr Parker) or, in the alternative, prior to the clinical worsening of alcohol dependence (Professor Goldney). At Step 3 in the Deledio process we are not called upon to find facts; we are concerned only to determine if the hypothesis presented fits with or is consistent with the template of the Statement of Principles. If it does so, then it will be a reasonable hypothesis.
83.Here we had agreed medical evidence from two psychiatrists that Mr Hill developed alcohol dependence in Vietnam. Clinical onset of an alcohol disorder in Vietnam (diagnosed as alcohol abuse) was confirmed by Professor Varghese. Thus we had medical evidence that was not contradicted, and was consistent with evidence from Mr and Mrs Hill that the claimed condition occurred during service. The areas of medical dispute concerned whether a separate diagnosis of alcohol intoxication was valid, and the question of specifying the date of onset of alcohol dependence within Mr Hill’s eleven month period of Vietnam service.
84.On the latter point, both Dr Parker and Professor Goldney hazarded a guess while acknowledging that it was impossible to say with certainty. It was implicit in the evidence of both specialists that Mr Hill’s pattern of alcohol consumption in Vietnam represented deterioration or worsening of a psychiatric condition.
85.It is hardly surprising, when dealing with events that occurred forty years ago, that neither doctor could identify with certainty the date of onset of either alcohol dependence or alcohol intoxication. Professor Goldney’s preferred view was to diagnose alcohol dependence without separately diagnosing instances of alcohol intoxication as an identifiable disorder. However at one point in his evidence Professor Goldney conceded that an episode that took place while Mr Hill was in Australia, when Mr Hill and another serviceman absented themselves without leave following a drinking session, fitted within the diagnostic description of alcohol intoxication. This seemed to lend support to the notion that alcohol intoxication could be a precursor to alcohol dependence. Professor Goldney seemed to accept that in his evidence. With respect, this accords with a common sense view.
86.There is further support for this view in the report of Professor Varghese where he stated that “alcohol dependency usually develops gradually.”
87.Does the uncertainty about dates defeat the reasonableness of the hypothesis? We note that no serious challenge was made on the grounds of competency of either specialist. We were left on the one hand with evidence from Dr Parker that the behaviour exhibited by Mr Hill was that of a diagnosable condition of alcohol intoxication, which condition at some stage later, but still while he was in Vietnam, developed into dependency. In his view alcohol intoxication pre-dated or co-existed with alcohol dependence; and was the likely precursor to the development of alcohol dependence. On the other we had Professor Goldney’s opinion that Mr Hill developed dependency very early in his Vietnam, with essentially no precursor phase of intoxication, although one instance in Australia might have met the diagnostic description. Neither of them could be said to have ventured opinions outside of their areas of competence as psychiatrists.
88.To prefer one opinion over another in circumstances of conflict of medical opinion would amount, at this juncture, to impermissible fact finding. At this stage we are not concerned with conflicts in the material whether these are conflicts of opinion or fact. Given the state of the evidence we could only conclude that the hypothesis that Mr Hill was suffering from the psychiatric disorder of alcohol intoxication in Vietnam before the clinical onset of alcohol dependence was a reasonable hypothesis, not made unreasonable by the existence of other medical opinions. The hypothesis advanced fits the template.
89.At step 4, we must decide whether we are satisfied beyond reasonable doubt that alcohol dependence was not war-caused within the relevant senses set out in s 9 of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
90.We have outlined sufficiently the considerable evidence supporting a connection between Mr Hill’s Vietnam service and his development of alcohol dependence during that service. We have evidence, which we accept, that Mr Hill was at most a social drinker before Vietnam, but came back as a heavy drinker. Several psychiatrists identify Mr Hill as having a vulnerable personality. We had no doubt that in Vietnam he availed himself of the ready access to cheap supplies of alcohol. Of particular note was the evidence about the need to destroy his soiled bedding, as was the comment of Mr Longue about his level of drinking. That remark has more force given the context of circumstances where many would have been partaking of alcohol.
91.What Mr Hill told us about his alcohol consumption was supported by other lay evidence, and indeed was accepted by the psychiatrists who commented on the development of his alcohol dependence. This is not a case in which there are facts before us that disprove the elements of the hypothesis. Rather it is a case that amounts to differences of medical opinion. As the High Court pointed out in Bushell v Repatriation Commission[25] it will be a rare case that the Tribunal would reject the opinion of a medical practitioner, qualified in their field that there is a causal link, given the standard of proof that applies in these cases.
[25] (1992) 175 CLR 408.
92.We are thus not satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that Mr Hill’s alcohol dependence was war-caused. Accordingly his claim for a disability pension will succeed to that extent.
93.While it is strictly unnecessary for us to consider the alternative hypotheses advanced in relation to this condition we will deal with them briefly against the possibility that we may be held to have fallen into error in our earlier conclusions.
94.The other hypothesis advanced by Mr Piper relied upon the existence of a severe stressor, identified in Exhibit 22 as being the picket duty incident, in the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. Such an hypothesis does not sit easily with the evidence that Mr Hill suffered from alcohol dependence very early in his service in Vietnam and, in all likelihood, prior to the picket duty incident.
95.But, in any event, we do not consider that the hypothesis is reasonable having regard to the requirement that “experiencing a severe stressor” means that:
The person experienced, witnesses 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.
96.This definition substantially mirrors the definition of a traumatic event for post traumatic stress disorder. On the most favourable view of Mr Hill’s evidence the picket duty incident lacked the requisite character of an event that involved a threat of death or serious injury and it was not in the category of events that might evoke intense fear, helplessness or horror. There are both objective and subjective elements in play.[26] What Mansfield J said in Stoddart on this point was endorsed by the Full Court of the Federal Court in an appeal from his Honour’s decision[27] and also in Woodward v Repatriation Commission.[28]
[26] See Stoddart v Repatriation Commission (2003) 197 ALR 283.
[27] Repatriation Commission v Stoddart (2003) 134 FCR 392.
[28] (2003) 131 FCR 473.
97.But even if we were wrong in that view we would be satisfied beyond reasonable doubt, at the Deledio fourth step, that Mr Hill did not experience a severe stressor because we simply do not accept him as a truthful and accurate witness when it comes to his evidence of the picket duty incident.
Depressive disorder
98.The Statement of Principles for depressive disorder lists a number of factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of relevant service. Those relied upon here are:
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;
(h)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder;
99.Three hypotheses were advanced by Mr Piper in relation to depressive disorder based upon these factors. The first hypothesis was that Mr Hill had experienced severe psychological stressors within the two years immediately before the clinical onset of depressive disorder. The stressors relied on were identified as:
(a) the picket duty incident;
(b) being conscripted and removed from home and family;
(c) suffering substantial financial losses through gambling in the latter part of his tour that caused him to be distressed and demoralised.
In the alternative, it was said that these stressors occurred within two years before the clinical worsening of depressive disorder.
100.The second hypothesis was that Mr Hill had a clinically significant psychiatric disorder within two years immediately before the clinical onset of depressive disorder. The disorders relied upon were alcohol dependence or abuse, post traumatic stress disorder, acute stress disorder, substance intoxication and pathological gambling. The same conditions were relied upon in the third hypothesis as occurring within two years before the clinical worsening of depressive disorder.
101.As we understand the application of the first Deledio step we are not required, at this juncture, to find any facts; we are merely required to consider all the material and determine whether that material points to an hypothesis connecting the depressive disorder with Mr Hill’s operational service.
102.In relation to the first hypothesis advanced it is our view that the material before us does not point to the hypothesis. That is so because there is simply no evidence of clinical onset at any time that could conceivably be relevant to the hypothesis advanced.
103.The medical evidence seems to be tolerably clear that Mr Hill did not suffer from a depressive disorder whilst in Vietnam. Dr Parker, in his report of 18 April 2006, says that he was “uncertain as to whether Mr Hill was depressed during his military service at Vung Tau”. Professor Goldney was confident that there had been no clinical evidence, on the history available to him, of dysthymia or depression until about 2000 when Mr Hill acknowledged that he was distressed and sought counselling from Mr O’Connor, the psychologist. In the course of cross-examination by Ms Maharaj QC who appeared for the Commission Dr Parker was asked to comment upon Professor Goldney’s opinion about clinical onset and appeared to suggest, seemingly for the first time, that Mr Hill had had a low grade mood disturbance for “many years in association with alcohol use.”
104.When pressed on this aspect Dr Parker said:
… I mean, I agree with Professor Goldney. I mean, Mr Hill appeared to have what we – dysthymic disorder, which is a low grade mood disturbance for many years. However, he appears to have developed major depression following his forced retirement from his job as a manager with the nursing home in Darwin, or in Victoria in 2000, yes.
105.We take Dr Parker to be agreeing with the thrust of the opinion of Professor Goldney but adding a qualification about the existence of a condition, short of depressive disorder, that may have affected Mr Hill for some, unspecified, period prior to 2000. Even with this evidence it seems to us to be impossible to conclude that there is any evidence that clinical onset of depressive disorder occurred earlier than 2000.
106.If there is no evidence that suggests that Mr Hill had a depressive disorder in the period of two years after his service in Vietnam (and there is none) then, in our view, there is no material pointing to any hypothesis that relies upon events said to have happened during service.
107.The same is true in relation to the alternative hypothesis, that is, that stressors occurred within two years before clinical worsening. There is evidence of clinical worsening, but it relates to the period after 2000 and accordingly cannot be regarded as satisfying the temporal requirement.
108.But even if there was material pointing to this hypothesis (or its alternative formulation) we would not regard the hypothesis as being reasonable.
109.This hypothesis is not consistent with the template in the sense that it seems to us not to be reasonable to regard the three events relied upon as answering the description of “severe psychosocial stressor”. That term is defined in the Statement of Principles as meaning:
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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
110.As it seems to us the matters relied upon by Mr Hill do not come within the definition of severe psychosocial stressors provided for in the Statement of Principles. Absent from his accounts of the events was evidence from Mr Hill that he experienced feelings of substantial distress. Two events or circumstances are quickly disposed of. There was scant evidence that Mr Hill was distressed by being conscripted and taken away from his family. Whatever his attitudes to conscription, Mr Hill voluntarily extended his period of National Service by a year to ensure that he could be sent to Vietnam. Similarly, Mr Hill did not convey that his gambling losses caused him substantial distress. He referred to feeling “pretty awful” because he had aspirations to save money while he was in Vietnam and did not do so. However it does not seem to us that he experienced substantial distress, nor indeed that he had any major financial problems arising from gambling in Vietnam.
111.The remaining event, the picket duty incident, could not, on Mr Hill’s account, be regarded as either one that evoked feelings of substantial distress or as one that answered the descriptions of the examples. On Mr Hill’s account it was over in a very short space of time and it was a situation where he was very much in control.
112.Had it been necessary for us to consider the fourth Deledio step in relation to the first hypothesis we would, in any event, have been satisfied beyond reasonable doubt that the events claimed to be severe psychological stressors did not, in fact, answer the requisite description because we are satisfied that Mr Hill’s evidence is neither truthful nor accurate, for the reasons that we have already discussed.
113.The second and third hypotheses do, we think, satisfy the first Deledio step and there is, as we have noted, a Statement of Principles in relation to depressive disorder.
114.The second hypothesis propounded is that Mr Hill had a clinically significant psychiatric disorder (alcohol dependence or abuse, post traumatic stress disorder, acute stress disorder, and pathological gambling) within two years immediately before the clinical onset of depressive disorder. “Clinically significant” in this context means:
Sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner.
115.As we have said the only evidence of clinical onset of depressive disorder is that it occurred in about 2000. For the purposes of this discussion we will assume (contrary in some respects to our concluded views) that by 1998 Mr Hill was suffering from the psychiatric disorders that are relied upon. There is no evidence that any of those conditions was clinically significant. Mr Hill had not sought treatment for any condition until he saw Mr O’Connor in 2000. To the extent that he suffered from the conditions, or any of them, there is no evidence that they were of sufficient gravity to warrant ongoing management. It seems to us not to be sufficient that a person may, as a matter of diagnosis, have a psychiatric disorder, the psychiatric disorder must be of sufficient gravity to warrant it being described as clinically significant.
116.A person may have a clinically significant psychiatric condition without having active treatment by a psychiatrist or other medical practitioner. Thus the fact that Mr Hill had no psychiatric intervention prior to 2000 does not, of itself, rule out his conditions being considered clinically significant. But without evidence to the effect that during that time, and despite him not seeking treatment, he had a condition that was clinically significant, or evidence of ongoing management, it seems to us that there is no evidence of any clinically significant condition (of any type) in the two year period prior to 2000 when he first consulted a psychologist.
117.But, in any event, there is only one condition that could even be arguably relevant and that is alcohol dependence. Whilst there is evidence that Mr Hill had alcohol dependence in the period prior to 2000 there is no evidence that it was clinically significant. He had not sought treatment nor is there any evidence that, as a matter of diagnosis, he had a condition that was of sufficient gravity that it ought to have been treated.
118.Mr Hill cannot rely on post traumatic stress disorder for the reasons given above or acute stress disorder because both Professor Goldney and Dr Parker concluded that there was no evidence that Mr Hill had acute stress disorder. Any medical condition on which he seeks to rely must also be one for which there is a connection to service. We conclude below that the condition of pathological gambling does not have the necessary connection with service.
119.In our view this hypothesis, and that involving a clinical worsening, is not reasonable because there is no evidence to support it. Thus, in our view, the second and third hypotheses do not satisfy the third Deledio step.
120.We are thus satisfied that Mr Hill’s depressive disorder is not war-caused.
Pathological gambling
121.The argument advanced here is that there are reasonable hypotheses connecting Mr Hill’s pathological gambling with operational service on the basis that:
(a)people who start problematic gambling at a young age continue to experience this pattern of behaviour in later years;
(b)there is a strong connection between pathological gambling, mood disorders, substance abuse, personality disorder and anxiety disorders.
122.Thus, it is said, either or both of these provide the basis of a reasonable hypothesis connecting pathological gambling with operational service. We are unable to agree.
123.Section 9(1)(b) of the Act provides that injury or disease will be taken to be war-caused if it arose out of or was attributable to that service. The term attributable in the subsection is not limited to a single cause, nor need the cause be the sole or dominant cause.[29]
[29] Repatriation Commission v Law (1981) 147 CLR 635.
124.Even allowing for the operation of s 119 of the Act, which requires us to take into account the difficulties that may stand in the way of ascertaining any fact, cause or circumstance, the material taken as a whole does not point to Mr Hill’s pathological gambling having its onset during service or in any other way being linked to his service. The evidence suggests that it was some years after service that Mr Hill developed a serious gambling habit. In view of the criteria for the diagnosis of the condition, set out in DSM-IV and referred to at paragraph 41 of these reasons, it could not be said that Mr Hill suffered the condition during his service. The evidence as to his behaviour with gambling during his Vietnam service shows no more that a pastime activity. Certainly the evidence of Mr Hill was to the effect that he gambled whilst in Vietnam playing a game called “Slippery Sam” but neither the amounts of money that he wagered nor the amount of time spent gambling seem to us to be out of the ordinary considering the conditions that existed at the time. There was little else for soldiers to do in their spare time beyond the limited entertainment of drinking and gambling in the mess.
125.Mr Hill told us that he was gambling two or three nights a week, after 10pm mess closing time, but he said he did not gamble until the last four months of his Vietnam posting. He said he could not recall having many wins and once lost $300, a substantial amount at that time.
126.Dr Parker did not state his opinion concerning the date of clinical onset of Mr Hill’s pathological gambling. However it does not seem from his reports or oral evidence that he considered that Mr Hill had a pathological gambling habit during his Vietnam service. Dr Parker referred only to research studies linking gambling during youth with later gambling habits, and he also referred to other known associations between the condition and the presence of anxiety disorders as well as personality disorders and alcohol-related disorders.
127.Professor Goldney put the clinical onset of pathological gambling as dating from the incident of stealing from the workplace in 1974. Mr Hill said that his gambling became out of control when he moved to Edenhope in the early 1970’s and began betting heavily at TAB’s. Whilst there is evidence that Mr Hill gambled while in Vietnam, the existence of that temporal link does not, in our view, establish a reasonable hypothesis connecting, in the requisite sense, the later development of pathological gambling with Mr Hill’s service in Vietnam.
128.It is necessary for the hypothesis to be reasonable. For a hypothesis to be reasonable it must be more than a mere possibility, not fanciful, and consistent with the known facts.[30] And, as Emmett and Allsop JJ said of East in Bull v Repatriation Commission:[31]
The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.
[30] East v Repatriation Commission (1987) 16 FCR 517, 533.
[31] (2001) 188 ALR 756, 761 at [18].
129.Looking at the evidence as a whole, we accept the respondent’s submission that the hypothesis put forward is speculative. It raises no more than a possibility, some of which was based on some very general research. We do not consider that the hypothesis was pointed to by the facts.
130.It follows that in our view there is no basis to conclude that the condition of pathological gambling is war-caused.
Conclusion – Disability Pension
131.In our view so much of the decisions under review, being the decisions of the respondent made on 11 July 2001 and 30 May 2003, as refused claims for depressive disorder, pathological gambling and post traumatic stress disorder, were correct and should be affirmed. That part that relates to the claim for alcohol abuse or dependence should be set aside.
I certify that the 131 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Senior Member M J Carstairs.
Signed: ..................Signed……..........................................
Lynne Stalley, Administrative AssistantDates of Hearing 3-5 April 2006 and 19 June 2006
Final submissions received 18 October 2006
Date of Decision 31 October 2006
Solicitor for the Applicant Piper Barristers & Solicitors
Counsel for the Respondent Ms S Maharaj QC
Solicitor for the Respondent Australian Government Solicitor
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