Hodges and Repatriation Commission
[2004] AATA 1348
•16 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/188 and VETERANS' APPEALS DIVISION ) S2004/147
Re RONALD CHARLES HODGES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date16 December 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Hodges’ conditions of depressive disorder, ischaemic heart disease and alcoholic liver damage resulting from alcohol dependence are war-caused. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – whether claimed conditions are war-caused – application of Deledio – depressive disorder – ischaemic heart disease – alcoholic liver damage resulting from alcohol dependence – applicant on HMAS Sydney in confined area below waterline during air-raid alert – meaning of “event” – decision under review set aside.
Veterans' Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A(3), 120A(4) and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Binding and Repatriation Commission (AAT 12886, 15 May 1998)
Repatriation Commission v Binding [1998] FCA 974
Repatriation Commission v Law (1980) 31 ALR 140
Re Hillier and Repatriation Commission [2004] AATA 897
Repatriation Commission v Stoddart (2003) 77 ALD 67
REASONS FOR DECISION
16 December 2004 Deputy President D G Jarvis
1. Ronald Charles Hodges was engaged in operational service in Vietnam on board HMAS Sydney from 27 May 1965 until 26 June 1965. On 13 March 2002, he lodged a claim for pension in respect of emotional disorder, and this was subsequently diagnosed as depressive disorder. His claim was rejected by the Repatriation Commission, and he subsequently sought a review from the Veterans’ Review Board (“VRB”). The VRB confirmed the rejection of his claim. Mr Hodges has applied to this Tribunal to review the decision of the Commission as affirmed by the VRB.
2. On 13 August 2003, Mr Hodges lodged a further claim for pension in respect of heart disease and liver problems. These conditions were subsequently diagnosed by the Commission as ischaemic heart disease and alcoholic liver damage. The Commission also rejected the claim for these conditions, and Mr Hodges applied to the VRB for a review of the Commission’s determination. The VRB affirmed the Commission’s decision. Mr Hodges has also applied to this Tribunal for review of the rejection of his claim in respect of these further conditions.
3. The two applications to this Tribunal for review were heard together. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of both applications were admitted in evidence, and the parties also 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 evidence before me, including the documentary material.
Issues Before the Tribunal
4. The issues before the Tribunal are whether Mr Hodges’ claimed conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”).
5. At the commencement of the hearing the diagnosis of depressive disorder was in issue. However, after hearing the evidence adduced in support of Mr Hodges’ application, the Commission acknowledged that he is suffering depressive disorder, and also agreed that his claim for alcohol liver damage should be treated as a claim for alcohol dependence with alcoholic liver damage, on the basis that his alcohol dependence was in remission, but had resulted in liver damage. Counsel for Mr Hodges accepted this position, as well as this diagnosis of the condition on which this aspect of Mr Hodges’ claim was based. I think that the position arrived at by the parties is appropriate, and I will determine this aspect of Mr Hodges’ claim on the basis of the position arrived at by the parties.
6. It is common ground that if the claim for depressive disorder is successful, the earliest date from which benefits might run is 13 December 2001, and if the claims for ischaemic heart disease and alcohol dependence with alcoholic liver damage are successful, the earliest date from which benefits might run in respect of those conditions is 13 May 2003. Those dates are respectively the dates three months prior to the lodgement of the original claims for those conditions.
Background
7. Mr Hodges was born on 10 April 1947. He joined the Royal Australian Navy when he was 17, and served in the Navy from 17 October 1964 until 17 April 1974.
8. Mr Hodges did recruit training at HMAS Cerberus. He was then posted to HMAS Sydney as an ordinary seaman to continue his training, and he sailed in Australian waters to Hobart, Adelaide and Melbourne. Late in May 1965, when he was on leave in Adelaide, a telegram arrived at his home ordering him to report back on board the Sydney immediately. The ship was then at Garden Island in Sydney.
9. When Mr Hodges arrived back on board, Army vehicles and supplies were being loaded on to the ship. The ship sailed at midnight several days after Mr Hodges had rejoined it, on its first troop carrying voyage to Vietnam.
10. Mr Hodges claims that on 4 June 1965, when the Sydney was en route to Vietnam, a frightening event occurred which caused him to develop the conditions on which his claim is based. He said that this event entailed what he believed was an alert arising from a threat of an air-craft attack on the ship, and led to his fearing for his life. I will refer to the evidence as to this event in further detail below.
Legislative Background
11. 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; …”
12. 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.
13. 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.
14. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
15. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an 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 section.”
16. Subsection (4) of s 120A excludes the operation of subsection (3) in the following circumstances:
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
17. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Evidence Before the Tribunal
18. I will now summarise the evidence before me that is relevant to the issues identified above. My summary of the evidence is a narration of the evidence given by each witness, and I will not at this stage make any findings on matters relevant to the issue of whether Mr Hodges’ asserted conditions were war-caused.
Evidence of the Applicant
19. Mr Hodges gave evidence that before joining the Navy he had worked on a dredge at Whyalla as a deck boy. His father and grandfather had served in the Navy and his family were keen on his joining the Navy. He said it was drummed into recruits during training not to ask questions and to do what they were told, and ordinary seamen were regarded as the “lowest of the low”. He was aware when he started his recruit training of the collision between the Voyager and HMAS Melbourne in February 1964, in which a lot of sailors had died because they could not swim. He also understood that a number of people had been trapped in the Melbourne, and it was not possible to open the hatches because then the ship would have sunk. He understood that survivors could hear the persons trapped singing, and they knew they were going to die. He and the other recruits were told that what they were doing as part of their training was important to them, because following the Voyager disaster they knew what could happen.
20. Soon after Mr Hodges rejoined the Sydney, having been recalled from his leave, the ship set sail for Vietnam. There had been a rumour amongst the junior crew that the ship was going to go to Borneo, but the morning after they sailed the Captain announced that they were going to Vietnam. He told them that they would be escorted by two destroyers, and they would be meeting HMAS Melbourne off Manus Island. Mr Hodges said at that time Australia was “in conflict” with Indonesia, and the crew were not told what route they were going to take to get to Vietnam, how long it would take, or for how long they would remain in Vietnamese waters.
21. Mr Hodges received no training at HMAS Cerberus as to states of readiness or as to the hatches on board ships, but there had been exercises on the Sydney which did not directly involve him. These exercises were announced over the ship’s loud speaker, such as lowering a boat, dropping anchor or fire drills, and the announcements would include the words “for exercise”. He was told on joining the ship that in the event of action stations he was to go the ship’s café, and he was also told to go to a boat station if there was an order to leave the ship. He could not remember any occasion prior to 4 June 1965 when he had to go to the café, but thought he had participated in a leaving ship drill.
22. As far as he was aware, all of the hatches on the Sydney were left open when the ship was under normal sailing conditions. However, as an ordinary seaman he was not allowed into the operational areas, and there were a lot of areas on the ship that he was not allowed to go into. He understood that there were seven decks on the Sydney, with four below the waterline. The café was on 2-Deck, and his accommodation was on 4-Deck.
23. Mr Hodges’ evidence as to the states of readiness on the Sydney was as follows. Under normal sailing conditions, all the hatches were left open. The next degree in closing down the ship was that the main hatches would be left open, they being the hatches that were used frequently. He understood that the next degree of closing down after that was that all hatches were closed and secured, and all water-tight doors were closed and sealed. He said that the hatches were very heavy, and it would take two or three men to lower the hatches. He further believed at that time that it was not possible to get out from inside a closed hatch, although he found out much later, when he was on board HMAS Swan in 1972, that there was a small centre hatch which would be opened from the inside. When the Sydney sailed from Garden Island, it was closed up, in defence watch.
24. According to Mr Hodges’ evidence, late in the afternoon of 4 June 1965 the ship’s siren sounded and, as far as he recalled, the following announcement was made over the ship’s loud speaker: “Action stations, air-raid warning. Yellow alert. Not for exercise,” and this announcement was then repeated. He thought they were being attacked by an aircraft, and he ran to the café. When he got there he was told by an able seaman to follow him, and they descended to the “bowels” of the ship, on 7-Deck, as far as he knew. The lighting turned from white to red when the ship went into action stations. As he and the able seaman descended to the ammunition locker they went through a series of hatches, and the hatches were slammed shut after them from above.
25. When they were in the ammunition locker he thought that they could not get out. He felt “absolutely terrified, worse than terrified”. The air there was foul and it was silent, and they were there for about 20 minutes, during which time there was no further announcement. While he was in the locker he had no sense of time and he thought he was going to die. He said that it was a terrifying experience to realise that if the ship were hit above deck they would not open the hatches to save two people, and they would not have opened hatches below the waterline. He felt at the mercy of the people above him, and if those people had been injured then they might not have been able to free him. He thought that if the ship had been hit that might have buckled the hatches.
26. Mr Hodges further gave evidence that when the able seaman led him below, his face was “white as a ghost”, and he could still see the man’s face even today. He now has dreams of the experience, in which he can still see the seaman’s white face. While they were in the ammunition locker, he asked the ordinary seaman what “yellow” meant and was told to “shut up”. He lost control of his bladder. He was dry retching after the incident, but did not go to the medical bay because of concern that this would have become known around the ship and he would have been regarded as mentally unfit, and this would have been the end of his naval career. He thought also that the medical attendants would laugh at his fear, and he would be teased by other sailors.
27. His first memory after the all clear was sounded was talking to a petty officer about his fear, and being told that his duties would be changed and that he should never have been sent down to the ammunition locker. After that, his duties were changed and he was involved in loading duties on the upper deck.
28. Mr Hodges said that this incident involving the air-raid alert was the talk of people in the mess deck and where he slept for the rest of the trip, but they were never given any explanation as to what had happened, and in addition, no-one knew at the time of the incident what code yellow meant. However, the different codes were explained the following day.
29. There was another air-raid warning about two days later. On this occasion he was on 1-Deck on the outside of the ammunition locker on an outside deck. He could see aircraft taking off from HMAS Melbourne. He felt frightened but excited, and thought it was “very special”. He said that if the ship had sunk he could have gone to a life raft, or otherwise jumped overboard when being ordered to do so. He was a reasonably good swimmer and thought that other ships would have picked him up.
30. After his return from Vietnam Mr Hodges was sent on leave, and he returned home. He told his father what had happened in the ammunition locker, but his father’s response was that the best thing was to forget about it. He felt ashamed as a result of his experience, and still feels ashamed.
31. He also told a close family friend about his experience. This man was a World War II veteran, and he took Mr Hodges to the local hotel apparently as a means of helping him to cope with his concerns, and after that Mr Hodges started drinking. He drank beer and, on occasions, rum. He said his smoking increased with his drinking, and further evidence of this is contained in the smoking questionnaire (exhibit A2, T5, pages 152-153). He still drinks and admits to being an alcoholic.
32. After his period of leave Mr Hodges went to HMAS Cerberus to complete his branch training. He spent more than two years there, from July 1965 until December 1967. His habit was to drink most nights when he was studying and until he completed his branch training over a period of three months. He would drink about 10 glasses of beer every evening. After that his drinking “really started”.
33. In 1967 he received a posting to return to Vietnam, but a Lieutenant Commander Grace (who is now deceased) drew his drinking to his attention, and recommended that he should not go to Vietnam. As a result, he swapped postings with a friend, and went to Darwin in the latter part of 1967. He said that this was a “drinker’s paradise”. He would drink in the wet canteen and he became a member of the Larrakeyah Louts. Admission to this club required an ability to drink 20 glasses of beer in an hour without vomiting, and this took about three months’ practice. The custom was that other persons had to bring drinks to people who were members of this club.
34. According to his evidence, Mr Hodges’ drinking resulted in his being involved in various incidents in Darwin in 1968, including an incident when he was injured at a swimming pool and was taken to hospital unconscious, and another occasion when he was involved in a fight. Indeed, he said he was involved in incidents in most years of his life.
35. After leaving the Navy he continued to drink and to have nightmares. His nightmares have been assisted by medication prescribed by Dr Martyn Ewer, a psychiatrist whom he first consulted in June 2002. He never got fired from any position for being drunk, but during his working life he drank most nights. His drinking had had a huge impact on the rest of his family. It affected his relationship with his wife and sons, and he said he was very bad, very selfish and when drunk would fight and argue, but he said his wife had stayed because of the children, and he was most complimentary about her. He stopped smoking in 1997. He now only drinks about once a week or once a fortnight, whereas before he drank every day.
36. Mr Hodges had not sought treatment for his alcohol problem, but in 1987 he saw Dr Rignanese and found he had a liver problem, and he thought Dr Rignanese guessed that he was drinking.
Evidence of Dr Ewer
37. The Department of Veterans’ Affairs referred Mr Hodges to a psychiatrist, Dr Ewer, in April 2002 to assess his claim for “emotional disorder”. Dr Ewer has provided four medical reports and gave oral evidence at the hearing before me.
38. In his first report, which was dated 27 June 2002 (exhibit A1, page 132), Dr Ewer recorded the history he obtained from Mr Hodges, and this included his account of his experience involving the air-raid warning and his going to the ammunition locker. The history obtained also included reference to alcohol abuse. Dr Ewer made a diagnosis of major depressive disorder caused by his alcohol abuse, and noted that Mr Hodges had abused alcohol for many years prior to developing symptoms of depression. He suggested that Mr Hodges’ alcohol abuse may have been influenced by his lifestyle in the Navy, but reported that his conditions did not seem related to his eligible service.
39. Dr Ewer provided a further report dated 6 November 2002, after reviewing Mr Hodges the day before. In this report, Dr Ewer said he was provided with more information regarding the ammunition locker incident, and confirmed his diagnosis of major depressive disorder. He added:
“It is more likely than not that Mr. Hodges’ Major Depressive Disorder was caused by his excessive alcohol intake for the reasons given in my last report.
It is more likely than not that Mr. Hodges’ symptoms of Post-Traumatic Stress Syndrome are related to the incident I have described above.
On this occasion Mr. Hodges gave a clearer history of starting to abuse alcohol to cope with the distress caused by the subject incident. In particular Mr. Hodges gives a clear history of feeling unsupported and misunderstood by other people in relation to the subject incident. Mr. Hodges clearly states that he thought the HMAS Sydney was under attack. I note that he was very young during the subject incident and in Mr. Hodges’ mind there was a real threat to the HMAS Sydney. Therefore I believe it is reasonable to hypothesize that Mr. Hodges started to abuse alcohol to cope with the distress he experienced as a result of this incident. Therefore, Mr. Hodges’ excess alcohol intake can be considered to be service related. Furthermore, I note the subject incident would meet the definition of a severe stressor given that he thought his life was in danger and that he thought the HMAS Sydney was being attacked by the enemy. I note his alcohol abuse began within two years of this incident.” (exhibit A1, T12, page 151)
40. In a further supplementary report dated 24 September 2003, Dr Ewer said that he had seen Mr Hodges on a number of occasions at the request of his general practitioner. Prior to providing this report, Dr Ewer also considered a number of earlier medical records relating to Mr Hodges. Dr Ewer reported that Mr Hodges fulfilled the criteria for alcohol dependence, and said that he had experienced a severe stressor within two years immediately before the clinical onset of alcohol dependence. He considered that the stressor described by Mr Hodges fulfilled the definition in the SoP in relation to alcohol dependence (and I will refer to this SoP later in these reasons). Dr Ewer also reported that on the basis of the history given to him by Mr Hodges, the clinical onset of his major depressive disorder was in 1987 (exhibit A2, pages 27-32).
41. In a further report dated 5 December 2003 (exhibit A3), Dr Ewer confirmed his opinion as to the date of clinical onset of his major depressive disorder, on the basis of the history given to him by Mr Hodges. He further reported, in the context of the SoP concerning depressive disorder (to which I will also refer later in these reasons) that Mr Hodges had had a major illness or injury within two years immediately before this clinical onset, namely alcohol dependence. Indeed, Dr Ewer said further that on the basis of the history given to him by Mr Hodges and his wife, Mr Hodges was suffering from alcohol dependence at the time of the clinical onset of his major depressive disorder. Dr Ewer proceeded in his report to describe alcohol dependence as a serious condition which could lead to life-threatening physical consequences, and referred to the way in which Mr Hodges’ life had been adversely affected by his alcohol dependence.
Statement of Mr Benyk
42. A witness statement signed by Mr Mike Benyk was tendered by the applicant by consent and was admitted as A6. Mr Benyk says that he recalled HMAS Sydney going into a higher state of readiness on its journey to Vietnam in 1965. He recalled an announcement to the effect that the ship was on condition purple or orange, but was not sure, and did not know what colour pertained to the ship closing up to action stations. He thought the announcement referred to the word “orange”. He recalled that as a result of the announcement the ship went to a higher state of readiness and he was required to join the fire control party. He was fully equipped, wearing overalls, anti flash gear and had a gas mask in a bag he was carrying.
43. He could not recall for how long the ship was closed up but it seemed a long time. He said that at the time he did not know why the ship was going to the higher state of readiness and did not know exactly where the ship was when this occurred. He recalled thinking that the ship may have been under attack, and subsequently he learned that they had gone to the higher state of readiness because of an unidentified aircraft. The next day notices pertaining to the colour code of readiness were posted on the ship’s notice boards.
Evidence of Commodore Phillip Mulcare
44. Commodore Mulcare is a retired Naval officer and historian. He provided a report relating to Mr Hodges’ service with the Royal Australian Navy, and dealing with events on HMAS Sydney’s first trooping voyage to South Vietnam.
45. He explained that at Action Stations a ship was in the first degree of readiness, with all positions fully manned and ready for immediate action, and with the highest degree of watertight integrity. The second degree of readiness was Action Stations Relaxed, where a small proportion of hands would be allowed away for a meal or a break. The third degree of readiness was Defence Stations or Defence Watches, with a lesser degree of watertight integrity, for example, passageway doors could remain open as could hatches to accommodate spaces below deck. He said that Defence Stations was the normal cruising state in war time, and could be modified to suit particular circumstances.
46. According to Commodore Mulcare’s report, there were three air-raid warning states: “‘Red’ indicated an actual or imminent attack, ‘Yellow’ a potential threat, while ‘White’ indicated a benign air threat environment”. Commodore Mulcare further reported that HMAS Melbourne joined the Task Group on 4 June 1965, and would have been responsible for determining the air warning state for the Group. However, this did not stop HMAS Sydney from exercising air-raid warnings internally in that ship. He further reported that the ship’s gunnery officer, Commander Harvey, had told him that these exercises, which primarily affected the gunnery system, would often combine with damage control exercises, but Commander Harvey does not recall an air-raid warning yellow, accompanied by an announcement that this was not for exercise, or similar words. Commodore Mulcare also points out that HMAS Melbourne’s log for 4 to 8 June 1965 does not mention any air-raid warning states.
47. One of the attachments to Commodore Mulcare’s report was the log of HMAS Sydney for the relevant period (exhibit R4). This shows a number of entries on 3 June 1965 which are described as “exercises”. The log for this date includes the entry:
“0900 Exercised Air Raid Warning Yellow’
Significantly, the log for 4 June 1965 includes the following entries:
“1757. Air Raid Warning Yellow. Assume DC State 2Y
1812. Air Raid Warning White. Assume DC State 2X.”
Commodore Mulcare said in his report that the entry in the log on 4 June 1965 appeared to be an exercise, because there was no mention of any incidents in the report of proceedings or log of either the Sydney or the Melbourne that could indicate a “real” air-raid warning “Yellow” (paragraph 13 of exhibit R3).
48. The entries in the log for 4 June 1965 are further explained in a report dated 19 February 2004 from Dr John Carroll, which is included in exhibit A2 (T2, pages 13-15). Dr Carroll provides information regarding damage control states, states of readiness and water-tight conditions. After referring to various entries in the log of HMAS Sydney, he states:
“It may be assumed that there is a real distinction between Damage Control (DC) States, especially when the ship is already closed up at Defence Watches. The following States and Conditions applied, at the time. (1965-1972), and to the best of my knowledge and belief, they still do.
States of Readiness. State 2: Attack possible, or in dangerous waters. War sea-going state; watch system. In peace, passage through mined waters, navigational hazards.
Watertight Conditions.
In Peace: Harbour & normal cruising – Conditions X-ray (X openings shut). Dangerous circumstances, e.g. navigation hazards, mines – Condition Yankee (X & Y openings shut).
In war: Defended harbour, refitting, etc. – condition X-ray (X openings shut). Undefended harbour, cruising – Condition Yankee (X & Y openings shut). Action or relaxed action – Condition Zulu (X, Y & Z openings shut).”
Parties’ Submissions
49. Mr Jolly of counsel for Mr Hodges submitted that Mr Hodges’ alcohol dependence was war-caused, and this in turn meant that his claimed conditions of depressive disorder, ischaemic heart disease and alcoholic liver damage were also war-caused, having regard to the factors referred to in the SoPs relating respectively to those conditions. However, Mr Crowe, the advocate representing the Commission, contended that Mr Hodges’ alcohol dependency was not war-caused, because Mr Hodges’ involvement in the ammunition locker incident, to which I have referred to above, did not amount to his experiencing a severe stressor within the meaning of that expression in the SoP relating to alcohol dependency. I will refer to these arguments in greater detail later in these reasons.
Consideration
50. The claimed conditions of depressive disorder, ischaemic heart disease and alcohol dependence are the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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.”
51. I have considered all of the material before me and I am satisfied that the material points to an hypothesis connecting the claimed conditions of depressive disorder, ischaemic heart disease and alcoholic liver damage with the circumstances of Mr Hodges’ operational service. The hypothesis is that Mr Hodges was requested to descend to the ammunition locker through a number of other decks of HMAS Sydney which were below the waterline, with hatches progressively closed as he descended, and when he reached the ammunition locker he thought that he was unable to escape from that position, and he feared for his life for the reasons he explained in his evidence. As a result of this experience, he began drinking to excess and smoking, and this led to alcohol dependence which in turn led to depression, and his depression and excessive smoking led to ischaemic heart disease and liver damage.
52. SoPs have been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of the conditions in question. Those SoPs are as follows:
(a)Instrument No. 76 of 1998 concerning alcohol dependence or alcohol abuse (the “Alcohol SoP”, being exhibit A2, T22, page 265);
(b)Instrument No. 58 of 1998 concerning depressive disorder (the “Depression SoP”, being exhibit A1, T15, page 160); and
(c)Instrument No. 53 of 2003 concerning ischaemic heart disease, as amended by Instrument No. 9 of 2004 (the “IHD SoP”, being exhibit A2, T22, page 221).
53. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
54. Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 provides relevantly as follows:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; … .”
The expression “experiencing a severe stressor” is defined in clause 8 of the Alcohol SoP as follows:
“‘Experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
55. Under clause 4 of the Depression SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 provides relevantly as follows:
“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 or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
(d)having a major illness or injury within the two years immediately before the clinical onset of depressive disorder; or … .”
Clause 7 of the Depression SoP deals with the eventuality (as is the case in the present matter) where one of the relevant factors in clause 5 includes an injury or disease in respect of which the RMA has made a SoP. This clause provides as follows:
“In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.”
56. The parties agreed that alcohol dependency was a major illness or injury within the meaning of factor 5(d) of the Depression SoP, and that Mr Hodges had this condition within the two years immediately before the clinical onset of his depressive disorder. Factor 5(d) of the Depression SoP was therefore satisfied (subject, however, to alcohol dependence being war-caused, having regard to the provisions of the Alcohol SoP).
57. Under clause 4 of the IHD SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 provides relevantly as follows:
“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 or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
…
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease:
…
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation; or
…
(m)suffering from clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease; or … .”
Clause 7 of the IHD SoP also includes a provision dealing with the situation where a relevant factor applies and that factor includes an injury or disease in respect of which the RMA has made a SoP. This clause is in terms identical with clause 7 of the Depression SoP. On the evidence before me, Mr Hodges had ceased smoking prior to the clinical onset of his ischaemic heart disease, and the Commission conceded that he had smoked the quantity of cigarettes referred to in factor 5(e)(iii) of the IHD SoP, but not that his smoking was connected with his operational service.
58. It was further agreed between the parties that the onset of Mr Hodges’ ischaemic heart disease was 11 April 2002, being the date of his by-pass operation. There is evidence before me that Mr Hodges was suffering from a clinically significant depressive disorder from 1987 onwards, being at least five years before the clinical onset of his ischaemic heart disease. In these circumstances, factor 5(m) in the IHD SoP is satisfied. If therefore Mr Hodges’ condition of depressive disorder was war-caused (because of its connection with his alcohol dependence, on the assumption that that condition was itself war-caused) then his ischaemic heart disease was also war-caused.
59. The issues of whether Mr Hodges’ depressive disorder and his IHD were war-caused accordingly depend on whether his alcohol dependency was war-caused. As already noted, it was also agreed that the clinical onset of alcohol dependence had occurred within two years of the incident involving the ammunition locker. If this incident constituted experiencing a severe stressor, then factor 5(b) of the Alcohol SoP would be met, and so the hypothesis that Mr Hodges’ alcohol dependence was war-caused would be deemed to be reasonable by virtue of the Alcohol SoP.
60. Counsel for Mr Hodges did not suggest that any of the factors in clause 5 of the Alcohol SoP were relevant other than factor 5(b). As mentioned above, Mr Crowe submitted that the circumstances that followed the sounding of the air-raid alert on 4 June 1965 did not satisfy factor 5(b) of the Alcohol SoP. He referred to the definition of the expression “experiencing a severe stressor” in clause 8 of the Alcohol SoP, and submitted in effect that I should not find, from Mr Hodges’ evidence, that the circumstances met the definition. In particular, he submitted that:
(a)having regard to a number of discrepancies in Mr Hodges’ evidence, I should not find that he had been traumatised by an incident on the ship, which left him with intense fear, helplessness or horror;
(b)the main cause of Mr Hodges’ concern was waiting in the ammunition locker for a period in which there was no “event” in the sense of a specific activity or happening; and
(c) Mr Hodges started drinking for reasons unrelated to the asserted stressor.
61. I am mindful that at the third stage of the process explained in Deledio, the Commission (and this Tribunal, standing in the shoes of the Commission) should not make findings of fact, but should consider all of the material before it. However, the particular submission referred to in paragraph 60(b) above can, I think, properly be considered at this stage of the decision-making process. I invited Mr Crowe to send me, following the conclusion of the hearing, a note of any authorities which he might be able to find in support of this submission. He was unable to find any such authorities, but very properly drew my attention to an authority against his submission, namely Re Binding and Repatriation Commission (AAT 12886, 15 May 1998), a decision of Senior Member Hallowes of this Tribunal. In that case the Tribunal accepted a contention that the period of three days during which the Sydney was in Vietnam waters and anchored in Vung Tau Harbour could constitute “an event” within the meaning of a superseded SoP, and that the veteran’s perceived threat to his physical integrity during that period met the template contained in the SoP. An appeal against this decision was dismissed by Marshall J in Repatriation Commission v Binding [1999] FCA 974, and the Tribunal’s treatment of the veteran’s period in Vung Tau Harbor as an event does not appear to have been questioned on the hearing of the appeal.
62. The incident relied upon by Mr Hodges in the present case was, of course, of much shorter duration. In my opinion, there was an “event” within the meaning of the definition of experiencing a severe stressor. This event commenced with the sounding of the air-raid alert; that led to Mr Hodges being requested to follow the able seaman as he descended into the depths of the Sydney, with hatches being progressively closed behind them as they descended; and it continued until the all clear was sounded and the two sailors left the ammunition locker. There is evidence before me that Mr Hodges’ fear commenced as they descended through the lower decks and the hatches were closed behind them, and he referred to the seaman’s white face, his belief that they could not open the hatches from underneath, his fear that the Sydney might be attacked, and he would be drowned.
63. No doubt there may be cases where a continuing state of affairs could not be said to be an “event”. However, even if the relevant event were confined to Mr Hodges’ period within the ammunition locker, I consider that that circumstance constituted an event within the meaning of the definition. The meaning of “event” according to the Revised 3rd Edition of the Macquarie Dictionary includes the following:
“… anything that happens or is regarded as happening; an occurrence, especially one of some importance … .”
The meaning of “occurrence” was considered in Repatriation Commission v Law (1980) 31 ALR 140, where the Full Federal Court decided that this word 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). In Re Hillier and Repatriation Commission [2004] AATA 897 I decided that the applicant’s being placed on sentry duty amounted to an occurrence. This was because the applicant’s usual work did not involve sentry duty, and his being chosen to stand sentry and provided with a weapon, ammunition and scare charges in circumstances in which he was told to keep an eye out for anything suspicious was, on an objective test, an identifiable event such that it met the requirements for an occurrence in the course of his operational service.
64. On the basis of the above authorities, I consider that Mr Hodges’ presence in the locker in the circumstances in question constituted an event, in the sense that it was a happening or occurrence markedly different from his ordinary course of duties, and notwithstanding that no attack on the Sydney or other event of a traumatic character occurred while the two sailors were in the ammunition locker.
65. I have considered all of the material before me and I am satisfied that that material raises a hypothesis which is consistent with factor 5(b) of the Alcohol SoP. There is material before me that:
(a)Mr Hodges experienced or was confronted with an event;
(b)that event involved threat of death or serious injury, or a threat to Mr Hodges’ or the other sailor’s physical integrity, in that Mr Hodges believed that he was trapped well below the waterline of the Sydney and was in a position where he could have been drowned if the Sydney had been attacked by an enemy aircraft; and
(c)the event described by Mr Hodges was such that it might invoke intense fear, helplessness or horror.
66. In my view, the event is to be judged from the point of view of a reasonable person in the position of and with the knowledge of Mr Hodges, and not by reference to a person who has full information in relation to the relevant occurrence (see Repatriation Commission v Stoddart (2003) 77 ALD 67, and my analysis of that decision and other decisions in Re Hillier (supra). There is evidence before me that Mr Hodges was an ordinary seaman still engaged in his recruit training; that he was sailing into a war zone for the first time; and he believed that the Sydney had been put into a high state of alert not pursuant to an exercise; and that he thought the ship was being attacked by an aircraft. I take into account that this was his position and state of knowledge, and having regard to these matters, it does not in my view matter whether the alert was in reality a live alert or merely a drill, or whether or not the Sydney was in fact under threat of an attack by an enemy aircraft.
67. If it is a requirement of the definition of “experiencing a severe stressor” that the veteran must himself or herself experience intense fear, helplessness or horror then there is material before me which satisfies this aspect of the definition, in that Mr Hodges gave evidence that he experienced intense fear and helplessness. However, I express no view as to whether the definition does require the veteran concerned to experience a subjective reaction of intense fear, helplessness or horror, or whether this aspect of the definition merely relates to the objective requirements of the relevant event, as it is not necessary to determine that issue in the present case.
68. For the above reasons, I consider that the hypothesis raised by the material before me is consistent with factor 5(b) of the Alcohol SoP, and so the hypothesis connecting Mr Hodges’ alcohol dependence with the circumstances of his operational service is reasonable by virtue of the provisions of s 120A(3) of the VE Act. Because of the agreed connection between the conditions of alcohol dependence, depressive disorder, ischaemic heart disease and alcoholic liver damager, it also follows from my above conclusion that the hypothesis connecting those conditions with Mr Hodges’ operational service is also reasonable. The disentitling provisions of s 120(3) (which would mean that Mr Hodges’ claim would fail if I had concluded that the hypothesis connecting his alcohol dependence with his operational service was unreasonable) do not therefore apply.
69. I further find on the material before me that the hypothesis connecting Mr Hodges’ ischaemic heart disease with his smoking, and in turn with his operational service, is also reasonable. This is because the hypothesis raised by the material before me as to Mr Hodge’s smoking is consistent with factor 5(e)(iii) of the IHD SoP. There is material before me that Mr Hodges’ smoking was the result of his consumption of alcohol as an incident of his alcohol dependence, and (as I said above) the hypothesis raised by the material before me as to his alcohol dependence is consistent with factor 5(b) of the Alcohol SoP. As a result, by virtue of s 120A(3) of the VE Act, the hypothesis connecting Mr Hodges’ alcohol dependence with his operational service is reasonable. The hypothesis linking Mr Hodges’ ischaemic heart disease with his operational service through its relationship with his smoking history is therefore also reasonable.
70. I accordingly turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused.
71. In support of his contention that I should disbelieve Mr Hodges’ evidence, Mr Crowe pointed out in detail a number of inconsistencies in that evidence. These included the following:
(a)Mr Hodges said in examination-in-chief that his memory from the time he entered the ammunition locker until his return to Garden Island following the trip to Vietnam was only a blur, but in his further evidence, including his cross-examination, he gave clear evidence about a large number of specific events;
(b)there had been a second air-raid warning, and a heightened state of readiness two days after the incident involving the ammunition locker, but this did not cause Mr Hodges undue concern, and on the contrary, he said that he had found this exciting;
(c)following the incident involving the ammunition locker Mr Hodges admitted that he did not ask about or even look at the hatches to see how they could be operated, even though he walked past them frequently in his daily duties;
(d)in any event, Mr Hodges gave evidence that he would not have left the ammunition locker even if he had been able to open the doors, because he had been instructed to stay there;
(e)Mr Hodges paid little attention to the possibility of being caught below deck for the remainder of his naval career, and said he had been willing to serve in an operational area, and this was inconsistent with the profile of a man who had been traumatised by the incident on which he relies; and
(f)on Mr Hodges’ evidence the first time he started drinking was when he had warm Tiger beer in the “Brit Club” in Singapore, and this did not appear to be related to the ammunition locker incident.
72. There is force in Mr Crowe’s criticism of Mr Hodges’ evidence. However, Mr Hodges’ recollection of particular events following the ammunition locker incident was prompted by specific questions relating to particular events, some of which were included in Navy records or evidenced by photographs. Further, some of his memories had apparently been triggered by talking to shipmates at reunions. He explained his lack of concern during the second air-raid alert because at that time he was on the upper deck of the Sydney; the life rafts were accessible to him; and at worst he could have jumped overboard, and he said he was a strong swimmer. I found it surprising that Mr Hodges did not take more notice of the underneath side of the hatches, although there was some suggestion in Commodore Mulcare’s evidence that the design of the hatches on the lower decks was somewhat different from the design on the higher decks, and this issue was left in a state of some uncertainty on the evidence before me. As to Mr Hodges’ acceptance that he had to stay where he was in the ammunition locker, this could be attributed to the emphasis during his training on the importance of obedience to orders, to which he also referred in evidence. Finally, he attributed the commencement of his heavy drinking to his concern that no-one appeared to understand or help him to overcome the effects of his experience as a result of the aircraft alert and its aftermath, and this was confirmed by Dr Ewer’s evidence. In that sense, the commencement of his drinking was connected with his operational service.
73. Mr Crowe also drew attention to the lack of any records, and the lack of any recollection on the part of Commander Harvey, that the air-raid warning was not an exercise, and in addition, pointed out that Mr Hodges had not produced any corroborating evidence to this effect. However, under s 119(1)(h)(i) of the VE Act the decision-maker must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, including any reason attributable to the effects of the passage of time, and the effect of the passage of time on the availability of witnesses. In this matter, the events in question happened nearly 40 years ago, and it is not surprising that Mr Hodges had difficulty in remembering the relevant events with clarity. In any event, as other alerts were described in the Sydney’s log as exercises, the absence of a reference in the log to the incident in question being an exercise could give rise to an implication that it was indeed a live alert. Further, for the reasons referred to in paragraph 66 above, it is important to consider how the event was perceived by Mr Hodges, and whether his perception was reasonable in all of the circumstances, taking into account his then experience and state of knowledge. On the evidence before me, I find that Mr Hodges might well have thought that the alert was a real alert.
74. I find that Mr Hodges’ evidence as to the event on 4 June 1965, and the evidence as to its aftermath, have not been disproved beyond reasonable doubt. Further, no other facts which are inconsistent with the hypothesis based on this incident have been proved beyond reasonable doubt.
Conclusion
75. For the above reasons, I am not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the claimed conditions were war-caused. I must accordingly determine, by virtue of s 120(1) of the VE Act, that those conditions were war-caused.
Decision
76. I set aside the decision under review, and in place of that decision, I determine that Mr Hodges’ conditions of depressive disorder, ischaemic heart disease and alcoholic liver damage resulting from alcohol dependence are war-caused.
I certify that the 76 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 11, 12 and 13 August 2004
Date of Decision 16 December 2004
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
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