Hillier v Repatriation Commission
[2004] AATA 897
•26 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 897
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/193
VETERANS' APPEALS DIVISION ) Re ROYDEN ALBERT HILLIER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date26 August 2004
PlaceAdelaide
Decision The Tribunal varies the decision under review and decides that:
(a) the applicant’s Ischaemic Heart Disease and Acute Myeloid Leukaemia are war-caused diseases;
(b) the matter is remitted to the respondent for assessment of the appropriate rate of pension with effect from 6 August 2001; and
(c) the decision is otherwise affirmed.
D.G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claims that three conditions are war-caused – ischaemic heart disease – acute myeloid leukaemia – depressive disorder – rate of smoking - consideration of stressors – meaning of “clinical onset” – meaning of “occurrence” – meaning of “severe psychosocial stressor” – sentry duty on HMAS Sydney – hearing of atrocities committed against Viet Cong soldiers - decision varied.
Veteran’s Entitlements Act 1986 sections 9, 120(1). 120(3), 120A and 196
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Kattenberg v Repatriation Commission (2002) 73 ALD 365
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
26 August 2004 Deputy President D G Jarvis 1. The applicant, Royden Albert Hillier, is a Vietnam veteran. In a decision made on 2 May 2002, a delegate of the respondent refused the applicant’s claim for medical treatment and a pension for incapacity from conditions diagnosed as depressive disorder, bilateral sensorineural hearing loss, acute myeloid leukaemia (“AML”) and ischaemic heart disease (“IHD”), on the ground that those conditions were not war-caused. On 29 April 2003, the Veterans’ Review Board (“VRB”) set aside the decision in relation to sensorineural hearing loss and in substitution found that the sensorineural hearing loss was war-caused and that the veteran was therefore entitled to a pension in respect of that condition from and including 6 August 2001. The VRB otherwise affirmed the decision of the delegate with respect to depressive disorder, AML and IHD, and it is that aspect of the respondent’s decision which was the subject of the present application for review by this Tribunal.
2. The applicant was represented by Mr C Swan, solicitor, and the respondent was represented by its advocate, Mr A Crowe. The applicant, Mr Peter Clark and Ms Debra Videon gave evidence in support of the applicant’s case, and Commodore Mulcare gave evidence for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of other documents. I will refer to those documents as necessary in the reasons for this decision. I have carefully considered all of the documentary material and evidence before me.
Issues before the Tribunal
3. The issues before the Tribunal are whether the applicant’s conditions of AML, IHD and depressive disorder are war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). The respondent accepts, and correctly so on the evidence before the Tribunal, that the applicant is suffering from these conditions. It is also common ground that if the applicant is successful in his claim, the date of effect would be 6 August 2001.
Background
4. The applicant was born on 3 February 1953. He joined the Royal Australian Navy on 27 June 1970 and was discharged on 20 October 1971. For the purpose of the VE Act, the applicant was engaged in two periods of operational service aboard the HMAS Sydney from 21 October 1970 to 12 November 1970 and from 15 February 1971 to 4 March 1971, being a total of 41 days in South Vietnamese waters.
5. The applicant submits that his IHD and AML are war-caused as a result of a smoking habit that the applicant contends was increased as a result of his operational service. The applicant also contends that certain stressful incidents while on board the HMAS Sydney, to which I will refer later, caused him to suffer from a depressive disorder, with a clinical onset within two years of those stressors.
6. As outlined in paragraph 1 above, pursuant to s 175 of the VE Act, the applicant applied to this Tribunal on 20 May 2003 to review the decision of the respondent dated 2 May 2002, as affirmed by the VRB on 29 April 2003, to reject the conditions of AML, IHD and depressive disorder as war-caused. Apart from these conditions, the applicant suffers from the accepted conditions of bilateral sensorineural hearing loss and has also had claims for acute pro-myelocytic leukaemia and chest condition rejected by the respondent but the claims for those conditions are not before me in the present matter.
7. The applicant informed the Tribunal that, upon reflection, he no longer relied on two events as “stressors” relevant to his depressive disorder. Those events involved an alleged incident in which the applicant had asserted that he fired his weapon into sea flotsam and another alleged incident in which the applicant had asserted that he witnessed a Vietnamese sampan being fired upon by a gunship. I will not address those withdrawn stressors in any detail other than where the circumstances in which they were withdrawn is relevant to other issues in this application.
Legislative Framework
8. Sections 9, 13, 120, 120A and 196B of the VE Act are relevant to this application for review.
9. 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;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
10. 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. Further, s 7 of the VE Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
11. 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.
12. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his conditions of IHD, AML and depressive disorder are war-caused is to be made by applying ss 120(1) and 120(3), as affected by s 120A, of the VE Act. Those sections provide 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.”
13. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
14. Section 196A of the VE Act provides for the establishment of the Repatriation Medical Authority (“RMA”). The functions of the RMA are outlined in s 196B of the VE Act and relevantly include the following:
“196B(2) If the Authority 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:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)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 that service.
…”
The meaning of the requirement to set out the factors which must relate to service (in this case operational service) rendered by a veteran is provided for in s 196B(14). That subsection provides as follows:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i)but for the rendering of that service by the person; or … .”
15. The following SoPs are relevant to this matter: Instrument No. 58 of 1998 in respect of depressive disorder; Instrument No. 169 of 1996 in respect of AML; and Instrument No. 53 of 2003 as amended by Instrument No. 9 of 2004, in respect of IHD. I note that Instrument No. 53 of 2003 was amended by Instrument No. 9 of 2004 some 10 days after the conclusion of the hearing of this matter. In accordance with the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321 the Tribunal must apply the SoP in force at the date of its decision, but I note that the amendment does not impact upon the issues raised by the application before me. I will refer below to the relevant provisions of those SoPs.
Evidence Before the Tribunal Relevant to the Applicant’s Depressive Disorder
16. The applicant was born in Adelaide and commenced an apprenticeship as a French polisher when he completed his schooling. He trained in this position for 12 months and then joined the Navy at 17 years of age.
17. The applicant completed his general entry recruit training and was then posted to the HMAS Sydney. He undertook common sea training as a precursor to specialist training to become a cook (exhibit R2, page1). In the course of his general entry recruit training he attended at a rifle range for firing and while on the way to Vietnamese waters aboard HMAS Sydney, he undertook shooting practice on one occasion. The rifle practice on board HMAS Sydney was the reason that the applicant’s claim for bilateral sensorineural hearing loss was accepted as war-caused by the VRB (exhibit A1, pages 3 to 11).
18. The applicant said that on three occasions, while in Vung Tau Harbour, he was placed on sentry duty on the quarterdeck of the HMAS Sydney. The dates on which this occurred have been unclear and in his statement of 14 May 2003 the applicant states that:
“In 1970 I went to Vung Tau on two occasions aboard Sydney, once in October and once in December and I did a further trip to Vietnam in February 1971 and another in March of 1971.” (exhibit A2, page1).
Commodore Mulcare’s report and attached record of proceedings indicate that HMAS Sydney was in Vung Tau Harbour on 31 October 1970 and 1 November 1970 (with the night spent out of the harbour at sea) and on 25 February 1971 (exhibit R2, page 2). The applicant was on board Sydney during these two visits to Vung Tau Harbour and these visits are part of his operational service. There is therefore evidence that the applicant was in Vung Tau Harbour on 31 October and 1 November 1970 and again on 25 February 1971, and that the applicant’s sentry duty occurred during these times. It may be that the applicant recalls 31 October 1970 and 1 November 1970 as two separate trips to Vung Tau. In view of the time that has elapsed since the applicant’s service it is understandable that the applicant does not recall the exact timing of the Vung Tau trips, however this is not a crucial point and it is not necessary for me to resolve this issue.
19. As for the details of the sentry duty, the applicant stressed that he was only 17 at the time and had undergone a minimal amount of training before he found himself standing sentry duty alone on the quarterdeck of the HMAS Sydney while he was in Vung Tau Harbour. There had been talk of the risks to the HMAS Sydney while in Vung Tau and the applicant recalled a rumour that mortars were found against the ship while it was in the harbour and that was why the ship went out to sea at night. The applicant said that during the first visit to Vung Tau he had been chosen to stand sentry by the Chief Petty Officer, and was shown how to use scare charges by the Dive Master. He was given a self-loading rifle and was told to keep a lookout for anything suspicious. The applicant said that at that time he did not know who the enemy were or what type of attack was likely. He said that he was mostly alone on the quarterdeck, other than being periodically checked by the Quarter Master Gunner who also gave him a box of scare charges, and he stayed on duty for around two hours. While he was standing sentry he could see movement along the shore, boats in the harbour and hear people, helicopters and, at one stage, what he thought could have been either gunfire or thunder in the distance. The applicant disagreed with Commodore Mulcare’s report (see paragraphs 38 to 41) in that he recalled that the sentries were at ready stations with loaded files but with safety catches on. He also said that contrary to the “orders for sentries” as annexed to Commodore Mulcare’s report, he was issued with two magazines of ammunition, he did not have a whistle but had access to a phone and was not told about the form of the challenge to a friendly boat.
20. The applicant said he felt petrified and scared. He likened the feelings he felt when on sentry duty to those he experienced when he was diagnosed with leukaemia. The applicant was concerned about sniper attack and felt vulnerable on the quarterdeck. He felt so scared while on duty that he cried and then felt like a coward for his reaction. He felt he had joined the Navy to be “a man and not a child”; his fears caused him to question his abilities and what he would do in the event of an attack. The applicant’s second and third periods of sentry duty have merged in his recollection with the first period, but he did say he was more petrified on the first sentry duty than the second one. After he was relieved of sentry duty the applicant commenced unloading and loading cargo in the cargo hold.
21. The applicant also said that he had another experience while travelling back from Vung Tau Harbour that caused him distress. Specifically, the Sydney was transporting a group of Australian Army soldiers and those soldiers told the applicant about atrocities that they committed against North Vietnamese soldiers. The applicant first raised this incident with Dr Ewer and it was recorded in Dr Ewer’s report of 22 October 2002 (exhibit A1, page 175), and in the applicant’s statement of 13 November 2003 (exhibit A2). The Australian soldiers told the applicant that two Viet Cong soldiers had been captured; one was killed and the other one was tortured. The applicant was told about the torture in some detail, including one soldier being put in a long drop hole, and when he tried to escape he was shot and covered with lime. The applicant was also told that some American soldiers mutilated the bodies of the Viet Cong soldiers. The applicant said his reaction at hearing this story was absolute horror and shock. He said that he was a naive 17 year old at the time and he may have been told about these events because the soldiers wanted to “have fun with him”. However, at the time, the applicant believed the soldiers’ story.
22. Upon his return to Australia after his first trip to Vietnam, the applicant was so distressed about his feelings of cowardice that he left the Sydney without permission and went to his parents’ house. The applicant’s parents calmed him down and he returned to the ship to take up his duties. Exhibit A1 contains a medical note of the applicant’s treatment by a Navy medical officer on 24 November 1970. The note records that the applicant had been “filled in” (page 25). The applicant explained to the Tribunal that he was involved in a fight in a strip club and was hit with an iron bar. The applicant put the incident down to Australian service personnel being treated like second class people compared to American service personnel, and his own state of agitation and frustration as a result of his inability to deal with his feelings after the first trip to Vung Tau. He also increased his drinking after the first trip to Vung Tau. On 6 September 1971, the applicant applied for a free discharge from the Navy and, although he believed that he had received an honourable discharge, naval records indicate that he was discharged on 27 October 1971 as “unsuitable” (see exhibit R2, attachment 3).
23. After his discharge the applicant moved back in with his parents and recommenced employment as a french polisher. Medical records obtained from the Royal Adelaide Hospital (“RAH”) (exhibit A3) and Eastwood Psychiatric Clinic (exhibit A4) record that on 5 December 1973 the applicant was admitted to the RAH after a suicide attempt involving a drug overdose. The reason for the overdose, as provided by the applicant at that time, was that he had severe depression after the break up of a relationship with his girlfriend, Jacqui, some four months previously. The medical notes also record that the applicant had made a “feeble attempt” at slashing his wrists and had taken an overdose of Aspirin (without effect) prior to the December 1973 admission. According to the notes, the applicant was drinking heavily, had had suicidal thoughts since the break-up, and had lost his job one week previously due to non-attendance.
24. In his evidence to the Tribunal, the applicant said that he had commenced drinking and using opiates while he was in the Navy. The applicant said that he smoked some opium in Singapore during his second trip to Vietnam and when he had returned to Australia he found heroin was easier to obtain. He explained that he used heroin to escape from his guilt over his feelings while on sentry duty. He said he was wrestling with whether Vietnam was right or wrong, and also because he felt he had let himself and other people down by being so scared while on duty. He said he took an overdose of heroin about two months after he got out of the Navy but, due to his high tolerance for narcotics, he did not need hospitalisation. The applicant said he slept off the effects of the heroin over four days. The applicant explained, in cross-examination, that he did not tell the hospital about the earlier heroin overdose because he was ashamed of his addiction.
25. In a report provided by Dr Ewer dated 10 October 2002, Dr Ewer recounts the applicant’s sentry duty experiences and being told about the atrocities by the Australian soldiers. The other two stressors that were withdrawn by the applicant in the course of the hearing were not the subject of Dr Ewer’s report. Dr Ewer records the applicant’s psychiatric history, including the applicant’s assertion that he overdosed on narcotics and was admitted to hospital in 1972 (records show this occurred in 1973), and stated that “Mr Hillier experienced a range of emotions during the above events including fear, anxiety, sadness and feelings of guilt” (exhibit A1, page 175). Dr Ewer also records that:
“Mr Hillier started smoking at the age of thirteen. He told me that he was initially only smoking three cigarettes a day and he though he increased his nicotine consumption during his trip to Vietnam or after he got back. He could not remember any details.”
26. As for the relationship between the applicant’s psychiatric conditions and the eligible service, Dr Ewer reported that:
“On the basis of the history given to me by Mr. Hillier the events he described in Vietnam were responsible for triggering his first episode of Major Depression. In particular Mr. Hillier denied experiencing depression prior to his trip to Vietnam. He states the stressors had a substantial emotional impact upon him. He became depressed soon after his trips to Vietnam and in particular I note that he decompensated and took an overdose in 1972. I note that he became depressed before he injured his back. The key question would appear to be whether or not the stressors meet the Statement of Principles definition of a “severe psychosocial stressor”. There is no doubt that he was exposed to a number of identifiable stressful occurrences in Vietnam. These occurrences evoked feelings of substantial distress in him. The only area of doubt as to whether or not Mr. Hillier meets the definition is comparing the stresses Mr. Hillier described with the examples given in the Statement of Principles relating to depression. I tend to think the events were severe psychosocial stressors and they would therefore meet the definition.” (exhibit A1, page 177 to 178)
27. The applicant conceded that although he told the VRB that he had fired upon debris in the water and that this resulted in his being told off by the Chief Petty Officer, he now believes that it was a “figment of [his] imagination” resulting from his nightmares about Vietnam. The applicant also explained that he has only recently begun to think rationally about his history and has been affected by drugs and alcohol in the past.
Evidence before the Tribunal Relevant to the Applicant’s Smoking History
28. Royal Adelaide Hospital notes dated 20 January 1974 report that the applicant smoked 20 to 30 cigarettes a day at that time (exhibit A3). Flinders Medical Centre notes record that at 17 March 1989 the applicant smoked 30 cigarettes a day (exhibit A1, page 51).
29. A physical examination form completed by Dr Taylor on 6 December 1991 records that the applicant reported the following:
“Cigarettes – 10 per day. Started smoking [at] age 13. Smoked up to 40 per day. Decreased markedly in last 6/12 including stopping for 3 months … .” (exhibit A1, page 62).
In a respiratory system medical examination report completed on the same day, Dr Taylor reports that the applicant smokes “Cigarettes 10 per day” (exhibit A1, page 67).
30. Notes from the Repatriation General Hospital on 10 October 1993 record that, at that time, the applicant smoked one packet of cigarettes a day (exhibit A1, page 105) and on another page it is reported that he smoked 20 cigarettes per day (page 106). A report from Mr Robinson, an oral and maxillofacial surgeon, dated 23 December 1994 reports that the applicant was a “heavy smoker” at that time and that recent dental procedures were likely to require further surgery due to his smoking habit.
31. The decision of the VRB on 30 October 1995 records that the applicant agreed with the smoking history recorded in the decision of the delegate of the respondent on 25 February 1995. That record (which includes certain logical inconsistencies) is reproduced below :
“• 10 cigarettes per day from 3 January 1966 to 26 June 1970 …
• 40 cigarettes per day from 27 June 1970 to 31 May 1991 …
• 20 cigarettes per day from 1 June 1991 to 31 December 1990 …
• no smoking from 1 January 1991 to 30 November 1991;
• 40 cigarettes per day since 1 December 1991 … .” (exhibit A1, page 140).
The VRB decision also refers to the applicant’s statement that he increased his smoking because cigarettes were cheaper in the Navy.
32. In a claimant smoking report dated 6 November 2001, the applicant explained that he smoked 10 cigarettes a day when he first started smoking and then went on to smoke cigarettes in the following amounts:
“Date of Change (month and year)
New amount smoked (number per day/ ounces per week)
Reason for change
20-30 P/D 1970
20 – 30
Serving in Vietnam waters
1971
30 – 40
Coping with stress with serving in Vietnam”
(exhibit A1, pages 48-49)
33. In a letter to the Department of Veterans’ Affairs dated 30 January 2002, the applicant provided a detailed explanation of his history of smoking and depression:
“In my statement to Veteran affairs I was at the time unaware A.M.L..was smoking caused the information I had was because I had A.M.L.and my children had certain types of birth defects I would have my A.M.L. accepted as war coursed [sic] due to exposure to agent orange herberside [sic].I stated I had started to smoke at 13 years of age,while this is correct it was on a very casual basis perhaps 2-3 per week,this stayed the same while I lived with my parents who were fundamentalist Christians and would never allow me to smoke at home.Evan [sic] when I started work at H .W Whitwell and sons ,it was a non smoking factory … I joined the R.A.N. when I was seventeen and my smoking increased to 8-10 per day I never even thought of my smoking history and the answers I gave to D.V.A. were just figures I pulled out of my head , it was only when I sat down and thought about that I realised I was never a heavy smoker until I was put in a position of what I perceived as real danger,that fear changed the way I looked at life.
When I joined H.M.A.S. Sydney I knew its main roll [sic] was logistic support in Vietnam while I was a little worried , I was assured the risk of attack was small and I accepted that as part of my job, my smoking increased to about 15 per day.It wasn’t until we were in Vietnam waters and I was given an S.L.R rifle and a box of percussion grenades and told to keep an eye out for divers or any thing else , suspicious that the fear really got to me … my smoking increased dramatically from that time on, I started to smoke 30-40 per day .Every trip was the same my stress increased on a daily basis … I wasn’t going to let any body know how scared I was and I had become very anti social It was at this time my drinking habits also changed for the worse I was fighting all the time and was arrested on several occasions for drunken behaviour. By the time I transferred of [sic] the Sydney to H.M.A.S.Cerberus I was an emotional reck [sic] I was constantly drinking and fighting and I had met a girl I wanted to marry … .” (exhibit A1, pages 160-161)
In his application for review by the VRB dated 9 May 2002, the applicant asserted that the above smoking history was accurate and should be preferred to his previous statements as to his smoking history because he completed the 30 January 2002 statement when he was “quiet and relaxed” while he was “stressed out and could not think clearly” when providing the other smoking histories (exhibit A1, page 170).
34. In his statement to this Tribunal dated 14 May 2003 (exhibit A2), the applicant explained that he started smoking at 13 years of age and would have smoked 2 cigarettes a day at most. He said that a group of children would have bought a packet of 10 cigarettes for 20 cents. When he joined the Navy he smoked 2 or 3 cigarettes a day. He said he had a limited recollection of how many cigarettes he smoked in the time between joining the Navy and going to Vietnam (a period of around four months), but he reported that he would smoke around 5 cigarettes a day. He then said that the stress he experienced in Vietnam led to an increase in his smoking up to 40 cigarettes a day. By the time he left the Navy he was smoking 60 cigarettes a day. He cut back his smoking after a heart attack in 2000, but continues to smoke 40 cigarettes a day now.
35. In a further written statement dated 13 November 2003 (exhibit A2), the applicant stated that he was smoking 15 to 20 cigarettes per day after he joined HMAS Sydney. His smoking then increased to 60 cigarettes per day after he was in Vietnam. This rate of smoking continued until December 2001 when he was diagnosed with IHD. Upon being diagnosed with IHD he quit smoking for six months and then recommenced smoking 30 cigarettes a day.
36. In his oral evidence to the Tribunal, the applicant said that he started smoking about 2 cigarettes a week at the age of 13 and that a packet of 10 cigarettes would last for two or three days when he joined the Navy. His smoking then increased to 20 cigarettes over three days. After he was put on sentry duty and felt guilt over his reaction and his smoking then increased to 3 packets (60 cigarettes) a day. He said that he found that chain smoking helped him to alleviate the stress and pressure of what he had experienced. He said this level of smoking continued until he had a triple bi-pass and gave up smoking for six months. He confirmed that he smokes 30 cigarettes a day now.
37. In cross-examination, the applicant agreed his memory was “lousy” but he was now positive that his smoking history figures were correct. He said it was only 15 cents a packet for cigarettes on the Sydney, and he became aware of the increase in his consumption of cigarettes when he was half way back from Vung Tau Harbour. The applicant said he gave incorrect smoking numbers in the past, such as 20 a day recorded on 10 October 1993 (see paragraph 28 above), because he was battling with drug addiction at that time. However, I note that he overcame his drug addiction some 12 years ago and some smoking history statements have been made since then. The applicant explained that it has only been since he spoke with an advocate from the Vietnam Veterans’ Association of Australia that he realised how “vital” the smoking history information was and he then carefully thought through the amounts. He said his present testimony was factually correct and that he had told the truth to the Tribunal because he takes the affirmation seriously.
Evidence of Commodore Mulcare
38. Commodore Mulcare gave evidence by telephone and provided a report with annexures admitted as exhibit R2. He told the Tribunal that the applicant would not have been directed to load his SLR unless there was some threat to the ship and he referred to “orders for sentries” at annexure G to his report (exhibit R2). That document is an express directive to sentries.
39. The Commodore explained that, in his experience, the quarterdeck was an open space at the end of the ship that was a “hive of activity”. He said that the applicant would not have been alone and it is inconceivable that an ordinary seaman would be ordered to load the SLR due to the danger that that posed to the diving party. If any such order had been given then it would only have been in extremely serious circumstances and would have been recorded. The Commodore declined to comment on the applicant’s allegation that Australian soldiers told stories about the atrocities they had committed, as Army matters are not within his area of expertise.
40. In the annexures to exhibit R2, Commodore Mulcare has included the order as to security whilst at Vung Tau, which relevantly states:
“1. The risk of an enemy attack on HMAS Sydney whilst at anchor in the Vung Tau area is very real, as this ship, due to its size and role, is considered to be the prime RAN target.” (exhibit R2, attachment 2, annexure E).
The order for sentries says:
“The FX and AX sentries will be armed with SLR rifles and one magazine each. Ten one pound scare charges will be placed on the FX and AX under the supervision of the sentries concerned.
Rifles are only to be loaded and fired if the ship is being directly menaced by an observed swimmer, and on instruction from an officer.
One pound scare charges are only to be fired or thrown when, on sighting a bubble trail or suspicious object, and on direction of the PCO or ORO.” (exhibit R2, attachment 2, annexure G).
41. Lieutenant Commander Ian McConnochie (retired) provided a statement to Commodore Mulcare in which he reported that:
“Clearance Divers were present at all times on the quarterdeck, it being the area from which they operated, and therefore sentries were always under the supervision of the Clearance Diving Officer or Diving Supervisor.” (exhibit R2, attachment 7)
Lieutenant Commander K J Fitzgerald (retired) also provided a statement in which he said that:
“I have no disagreement with the content of para a. The procedures seem logical for a sentry. He would have been instructed to watch out for bubble streams in licating [sic] the presence of enemy divers.” (exhibit R2, attachment 8)
Paragraph “a” refers to a summary of one of the applicant’s alleged stressors that appears in the attached email from Commodore Mulcare in the following terms:
“On his first day in Vung Tau he was issued with an SLR rifle, two magazines of ammunition and percussion grenades, stationed alone on the Quarterdeck and told to look out for enemy soldiers. He thinks he was on duty for about two hours. On the second day he was required to do sentry duty again for two hours (presumably on the quarterdeck but this is not clear). He says that after his two hours he would have been relieved and then have been required to assist unloading of the cargo from the cargo hold.”
Mr Peter Clark
42. Mr Clark gave evidence in person to the Tribunal that was relevant to a stressor that was subsequently withdrawn by the applicant.
Ms Debra Videon
43. Ms Videon is the ex-wife of the applicant and she gave evidence to the Tribunal by telephone. Ms Videon was married to the applicant from August 1982 until their divorce in late 2002. She said she met the applicant in 1981 and he was quite a heavy smoker at that time. Throughout their relationship, the applicant’s smoking was a source of argument due to the money it consumed. Ms Videon said the applicant became a very heavy smoker and it was often Ms Videon who bought the cigarettes for him. She estimated that he smoked a packet and a half of cigarettes (25 to 30 in a packet) as well as tailor made cigarettes. Around the time she first separated from the applicant, in October 1991, Ms Videon said the applicant was smoking “heavier than ever before”. They resumed their relationship in 1998 at which point the applicant was still smoking very heavily; she estimated he smoked at leased 50 cigarettes a day.
Consideration
44. In determining this matter the Tribunal has first considered the approach laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, which is as follows:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). 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.”
IHD and AML
45. I have considered all of the material before me and I am satisfied that the material points to an hypothesis connecting the conditions of IHD and AML with the circumstances of the applicant’s operational service.
46. Furthermore, SoPs have been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of these two conditions. Those SoPs provide relevantly as follows.
“Statement of Principles concerning ISCHAEMIC HEART DISEASE
…
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease … with the circumstances of a person’s relevant service are:
…
(f) where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; …
…
Other definitions
8.For the purpose of this Statement of Principles:
…
“cigarettes per day or the equivalent thereof, in other tobacco products” means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or on gram of cigar, pipe or other smoking tobacco by weight;
…
“pack years of cigarettes or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination; … .”
“Statement of Principles concerning ACUTE MYELOID LEUKAEMIA
…
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting acute myeloid leukaemia … with the circumstances of a person’s relevant service are:
…
(g)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of acute myeloid leukaemia, and, where smoking has ceased, the clinical onset occurred within ten years of cessation;
…
Other definitions
7.For the purposes of this Statement of Principles;
“pack –year” means 7 300 cigarettes, or 1 460 cigars, or 7.3 kg of pipe tobacco; … .”
47. I note that the IHD SoP that was in force at the time of the Commission and VRB decisions was Instrument number 38 of 1999. However, since that time Instrument No. 53 of 2003 has been determined and amended by Instrument 9 of 2004, and has revoked the earlier SoP. In accordance with the decision of the Federal Court in Repatriation Commission v Gorton (supra), the Tribunal is obliged to apply the SoP in force unless the applicant has an accrued right to have the claim assessed by reference to an earlier SoP. The new SoP has not changed in any substantive manner that is relevant to this applicant’s case and thus the new SoP is the appropriate SoP for the purposes of this application.
48. The above findings address the first two steps in Deledio (supra) and I now turn to the third step described in Deledio. This entails determining whether the hypothesis contains one or more of the factors referred to in the SoP. Once again, this step involves considering the material before the Tribunal, but without making any findings of fact at this stage of the process.
49. With regard to IHD, the only relevant factors are those referred to in subparagraphs 5(f)(i) and (ii) of the SoP. Factors 5(e)(i), (ii) and (iii) are not applicable as the applicant did not cease smoking prior to the clinical onset of IHD; at most, according to the applicant’s evidence, he ceased smoking for a period of 6 months after IHD was diagnosed. Factors (5)(f)(i) and (ii) must be read in conjunction with the definitions as set out in paragraph 46 above. As regards AML, the only relevant factor is that which is contained in subparagraph 5(g) of the SoP. That factor must be read in conjunction with the definition of “pack-year” as set out in paragraph 46 above.
50. The factors for both conditions also require the determination of the date of the “clinical onset” of the respective conditions. The meaning of this phrase 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 the Tribunal concluded (at 670) that:
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
51. In Lees the Court explained, at [16], that “clinical onset” is to be determined by reference to the definition of a disease:
“The purpose of the definition [in the SoP] is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.”
The material before the Tribunal points to the clinical onset of IHD in August 2001 (exhibit A3) and AML in October 1990 (exhibit A1, page 69).
52. I will now consider whether the hypothesis raised by the applicant complies with one or more factors in the relevant SoPs. For IHD, this will involve assessing whether the material before me points to the applicant having smoked at least 5 cigarettes a day or the equivalent thereof, for a period of at least 1 year immediately before the clinical onset of IHD, or at least 1 pack year (7,300) or the equivalent thereof before the clinical onset of IHD. The material before me indicates that the applicant’s consumption of cigarettes was at least I pack year (7,300) prior to the clinical onset of this condition in August 2001, thus meeting factor 5(f)(ii) of the IHD SoP.
53. In the AML SoP, the issue is whether the material before me points to the applicant having smoked at least 15 pack years of cigarettes (109,500) or the equivalent thereof before the clinical onset of AML in 1990. Even taking the cigarette figures at their lowest, the material before me also satisfies the AML SoP factor that requires at least 15 pack years or the equivalent of smoking prior to the clinical onset of AML.
54. I note that in recognition of the applicant’s history of a very high smoking rate, the respondent did not contest the amount that the applicant smoked, but rather, whether the smoking rate had a causal connection with the applicant’s operational service. I now turn to this issue. I first refer to the judgment of the Federal Court in the matter of Kattenberg v Repatriation Commission (2002) 73 ALD 365, where Emmett J analysed a SoP that included a factor of 30 pack years of smoking before the clinical onset of invertebral disc prolapse. His Honour said, at [42] - [43]:
“[42] An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that “factors must be related to any relevant service”. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
[43] Thus, smoking at least 30 pack years of cigarettes will be related to relevant service rendered by a veteran … if the smoking of that quantity of cigarettes:
·arose out of, or was attributable to, that service;
·was contributed to in a material degree by, or was aggravated by, that service; or
·would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement … that the relevant factor be related to the veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.”
55. The applicant’s evidence in the present matter is to the effect that he increased his smoking after his experience as a sentry in Vung Tau Harbour, and that he became aware of this increase on his way back from Vietnam. I further note that he said he found comfort in the cigarettes, and he used smoking as a means of managing his stress following his fear reaction while on sentry duty. Even after he joined the Navy, the evidence is that the applicant smoked less until his Vietnam experiences. Whilst the evidence before me does not indicate the exact amount that the applicant smoked prior to being on sentry duty, there is material before me that indicates that the applicant was smoking less than 20 cigarettes per day (the minimum daily amount for 1 pack year or 7,300) prior his sentry experience before his operational service. There is also evidence that his smoking increased to amounts well above 7,300 per year after his service in Vung Tau Harbour, and this points to an increase having been causally related to that service. Whilst I note that being on board HMAS Sydney and consequentially having access to cheaper cigarettes was no doubt a factor in the increase in the applicant’s smoking when compared to his pre-Navy levels, applying the reasoning of the Court in Kattenberg (supra) there is material before the Tribunal that indicates that his experiences while performing operational service contributed in a material degree to an increase in the applicant’s smoking, with a resultant smoking rate that complies with the IHD and AML SoPs. Accordingly, I find that the third test in Deledio has been met in that the hypothesis satisfies the relevant factors in the IHD and AML SoPs, and is therefore a reasonable hypothesis.
56. As for the fourth test in Deledio, this requires me to decide whether any of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or whether another fact that is inconsistent with the hypothesis has been proved beyond reasonable doubt. Unless I so decide, by virtue of s 120(1) of the VE Act, I must determine that the applicant’s conditions are war-caused. The respondent submitted that the applicant’s evidence as to his rate of smoking was so contradictory as to be unreliable, and therefore there is no reliable evidence before the Tribunal as to the rate of the applicant’s smoking, or that there was a war-caused increase in the applicant’s consumption of cigarettes. I am mindful that the smoking history (which according to the 1995 VRB decision was acknowledged by the applicant) is logically implausible in that it entails, from when he was only 13, the applicant smoking 10 cigarettes a day; further, there is a clear contradiction in that history in the year 1991 (see dot points 3 and 4 in paragraph 31 above). That particular smoking history is inconsistent with the applicant’s evidence before me, and I find it highly unreliable. Mr Crowe for the respondent pointed to the inconsistent further evidence as to the applicant’s smoking history recounted in paragraphs 28 to 35 above.
57. Mr Crowe also pointed out that the first time the applicant gave a history which supported his claim was after he had spoken to a veteran’s advocate, a Mr Coxon. He submitted that the Tribunal could not rely on this evidence in view of the applicant’s admitted poor memory and his preparedness to lie when this suited his interests.
58. As against this, Mr Swan for the applicant observed that I did not have before me the transcript of the proceedings of the VRB on 30 October 1994, and submitted that I should hesitate to rely on the reference in the VRB’s reasons for decision to the applicant’s account at that time of his smoking history. Mr Swan referred to the implausibility of the above summary in the VRB’s decision of 23 February 1995 insofar as it related to the applicant’s smoking history at a time when he was only 13 years old. He also submitted that this summary contained an error in the third dot point, and that it was also inherently unlikely that the applicant’s smoking would have quadrupled from 10 cigarettes per day on 26 June 1970 to 40 cigarettes per day from the very next day, 27 June 1970.
He further submitted that the applicant, like many smokers, may have under-estimated the extent of his smoking when giving a history to his doctors, but there was no evidence before me to support this submission.
59. Having regard to the applicant’s evidence before me, I accept that he was drug affected for many years, and this was the explanation for certain of his inaccurate statements. However, I accept that he was truthful in his evidence in recounting the frustration and disappointment he felt following his experiences in Vung Tau and upon hearing of the atrocities committed against the Viet Cong soldiers, and this caused a substantial increase in his consumption of cigarettes.
60. I have referred earlier in these reasons to the applicant’s evidence before me as to his smoking history, and I refer in particular to the comfort which the applicant said he derived from smoking cigarettes following the experience he had when on sentry duty in Vung Tau Harbour and the distress this caused him. The respondent’s contention that the applicant’s evidence is not to be relied upon does not amount to proof beyond reasonable doubt that the applicant’s smoking did not increase as a result of his operational service, and the respondent has not disproved the facts that the applicant relies upon beyond reasonable doubt. After reviewing the evidence before me I am not satisfied beyond reasonable doubt that the applicant’s operational service did not cause his increased smoking, and I accordingly find that the conditions of IDH and AML were war-caused.
Depressive Disorder
61. I have considered all of the material before me and I am satisfied that the material points to an hypothesis connecting the condition of depressive disorder with the circumstances of the applicant’s operational service. Furthermore, a SoP has been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of this condition. These findings meet the first two steps in Deledio. I now turn to the third step in Deledio.
62. The depressive disorder SoP provides relevantly as follows.
“Statement of Principles concerning DEPRESSIVE DISORDER
…
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that 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 are:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
…
(d)having a major illness or injury within two years immediately before the clinical onset of depressive disorder; or
…
(g)having a major illness or injury within the two years immediately before the clinical worsening of depressive disorder; or
…
Other definitions
8.For the purposes of this Statement of Principles:
…
“major illness or injury” means a serious illness or injury, that is life-threatening, or seriously disabling;
…
“severe psychosocial stressor” means 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; … .”
63. The applicant relied on factor 5(b) in the depressive disorder SoP. This factor requires the experiencing of a “severe psychosocial stressor” within the two years immediately before the clinical onset of depressive disorder. For the sake of completeness, I also refer to factor 5(g), relating to clinical worsening of the depressive disorder within two years of a major illness, such as IDH and AML. The applicant did not rely on this factor, and there is no evidence before me that points to a clinical worsening in the applicant’s depressive disorder. Factor 5(b) is therefore the only relevant factor, and this entails determining the meaning of experiencing a “severe psychosocial stressor”, which expression is defined in clause 8 of the SoP (see paragraph 62 above).
64. In White v Repatriation Commission [2004] FCA 633, Spender J decided that the definition of “severe psychosocial stressor” in the Anxiety SoP embodied both objective and subjective elements. His Honour said at [29 – 30]:
“29. The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
65. Having regard to Spender J’s judgment in White (supra) as well as the judgments of Mansfield J and the Full Court in Repatriation Commission vStoddart (2003) 77 ALD 67 and the judgment of the Full Court in Woodward v Repatriation Commission (2003) 75 ALD 420, and the decision of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 I consider that the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “severe psychosocial stressor” in the depressive disorder SoP, and whether the applicant has experienced such a stressor, would include the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).
66. I am mindful that paragraphs (b), (c) and (e) above address issues that are related to a point expressly reserved by the Full Court in Woodward (supra). After quoting from extracts of the judgment of Mansfield J at first instance in Stoddart, the Full Court said that it considered His Honour’s reasoning persuasive and that it should be followed, but added (at [141]):
“… 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.”
67. Whilst noting the Full Court’s reservations as set out in the preceding paragraph, I consider that the summary set out in paragraph 65 above sets out the effect of the present state of the relevant authorities, including White (supra). Of course, the requirement for a decision-maker to determine whether a particular occurrence satisfies the objective requirements of the definition of the stressor raises difficult issues where there is no evidence as to any specialised meaning or usage. In Delahunty (supra), Tamberlin J pointed out that the concept of the man on the Clapham omnibus was inappropriate in the present context. I consider that the objective requirements of the definition should be assessed from the point of view of the perception of a member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart (supra)). Even so, this suggested characterisation is of only limited assistance, because the Armed Forces could include experienced soldiers who have been exposed to combat situations on many occasions, as well as (particularly in the case of veterans who have seen service in Vietnam) young soldiers who have completed their formal training, but have not previously been in a war zone or been involved in combat experience. I further consider that in the absence of evidence as to how to assess the objective requirements of the definition, some guidance is afforded by the examples included in the definition of occurrences that would constitute a “severe psychosocial stressor”.
68. I now examine, in light of the above analysis, all of the material before me with respect to the two alleged stressors.
Standing sentry on the HMAS Sydney in Vung Tau Harbour
69. In considering the issue referred to in paragraph 65(a) above, it is necessary to consider whether being placed on sentry duty amounts to an “occurrence”. I note the judgment of the Full Federal Court in Repatriation Commission v Law (1980) 31 ALR 140 in which their Honours determined that the word “occurrence” refers to an “event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life” (at 149). On the evidence before me, the applicant’s usual work did not involve sentry duty, and his being chosen to stand sentry, provided with a weapon, ammunition and scare charges in circumstances in which he was told to keep an eye out for anything suspicious is, on an objective test, an identifiable event such that it meets the requirements for an occurrence in the course of his operational service.
70. However, having regard to the considerations referred to in paragraph 65(b) and (c) above, I have concluded that the occurrences when the applicant was stationed as a sentry on board the HMAS Sydney do not meet the objective test in the definition of a “severe psychosocial stressor”. I am also, of course, mindful of the considerations referred to in paragraph 65 above. I note that the material before me included evidence by the applicant that he was visited by the Quarter Master Gunner several times during his sentry duty, and even if he felt he was otherwise alone, objectively viewed, this indicates that the sentries were periodically monitored and were generally under the watch of an officer. Being on sentry duty does not, in my opinion, satisfy the objective requirements of the definition of “severe psychosocial stressor”. Accordingly, the hypothesis raised by this stressor does not meet the template of the relevant SoP.
Hearing stories about atrocities committed against Viet Cong soldiers
71. The stories that were conveyed to the applicant about atrocities committed against Viet Cong soldiers is an identifiable occurrence that took place while the applicant was engaged in operational service transporting troops back from Vietnam. However, whilst any such conduct is to be condemned, I consider that a conversation involving the relaying of such conduct does not meet the objective requirements of the depressive disorder SoP, having regard to my above analysis of the considerations to be taken into account in determining the proper interpretation of the definition of severe psychosocial stressor. Accordingly I also find that this alleged stressor does not comply with the relevant SoP. It follows that the hypothesis that the applicant experienced one or more severe psychosocial stressors within two years of the clinical onset of the condition of depressive disorder is not a reasonable one. In light of my above finding that the applicant does not meet the definition of a severe psychosocial stressor, it is not necessary for me to determine the date of clinical onset of the depressive disorder.
72. Factor 5(d) of the depressive disorder SoP would apply if there was material before me that the applicant had a major illness or injury within the two years immediately before the clinical onset of depressive disorder. In any event, on the evidence before me, the clinical onset of the applicant’s depressive disorder occurred no later than his period of hospitalisation in 1973 following his suicide attempt. His depressive disorder therefore predates his IHD and AML and accordingly factor 5(d) is not ultimately relevant.
decision
73. For the reasons provided above, the decision under review is varied and I have decided that:
(a)the applicant’s Ischaemic Heart Disease and Acute Myeloid Leukaemia are war-caused diseases;
(b)the matter is remitted to the respondent for assessment of the appropriate rate of pension with effect from 6 August 2001; and
(c) the decision is otherwise affirmed.
I certify that the 73 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 15 and 16 March 2004
Date of Decision 26 August 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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