John Lightowlers and Repatriation Commission

[2014] AATA 80

[2014] AATA  80

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4183
Re	John Lightowlers
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey Dr Michael Couch, Member
Date	21 February 2014
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – VETERAN’S ENTITLEMENTS – operational service – whether alcohol dependence war-caused – Vung Tau – scare charges – applicant witness to assault – whether category 1A or category 1B stressor – whether reasonable hypothesis raised – decision under review affirmed

Legislation

Veterans Entitlements Act 1986 ss s 120A, 120(1), 120(3), 120(4)

Cases

Repatriation Commission v Deledio (1998) 83 FCR 82

Kaluza v Repatriation Commission [2011] FCAFC 97

Bushell v Repatriation Commission [1992] HCA 47

Byrnes v Repatriation Commission [1993] HCA 51

Border v Repatriation Commission (No 2) [2010] FCA 1430

Hunter and Repatriation Commission [2011] AATA 514

Button and Repatriation Commission [2010] AATA 860

REASONS FOR DECISION

Senior Member J F Toohey
Dr Michael Couch, Member

Background

1. Mr John Lightowlers joined the Royal Australian Navy in July 1969 when he was 15.  He was discharged in October 1972.  He was on board the HMAS Sydney when it travelled to Vung Tau in Vietnam in February and March 1971.  In that time he had 17 days of operational service for the purposes of the Veterans Entitlements Act 1986 (the Act). 

2. Mr Lightowlers is now aged 59.  He suffers from bilateral sensorineural hearing loss, lumbar spondylosis and osteoarthritis of the right knee, all of which the respondent has accepted are related to his service. 

3. When these proceedings commenced, Mr Lightowlers sought review of a decision of the Veterans Review Board (VRB) which included the decision that he did not suffer from service-related post-traumatic stress disorder (PTSD), depressive disorder or alcohol abuse.

4. It is now agreed that Mr Lightowlers suffers from alcohol dependence which had its clinical onset on 20 October 1972, being the date of his discharge from the Royal Australian Navy.  It is agreed that he does not suffer from PTSD or depressive disorder. 

5. The issue before us is whether Mr Lightowlers’ alcohol dependence is related to his service.  He claims it is, because of two incidents in which he was involved while in Vung Tau harbour.

   Legislation

6. In determining whether an injury or disease is related to a veteran’s operational service, the standard of reasonable hypothesis applies.  By that standard, we must determine a condition to be war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1) of the Act.  We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting the condition with the veteran’s service: s 120(3).    

7. In all other matters, including the diagnosis of any medical condition, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).

8. Whether a hypothesis is reasonable is assessed in accordance with any relevant Statements of Principles (SOPs), or determinations or declarations under the Act: s 120A.  Each SOP sets out factors, at least one of which must exist as a minimum before we can be satisfied that a reasonable hypothesis is raised.

9. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court described the process to be followed in making the determination. In Kaluza v Repatriation Commission [2011] FCAFC 97, the Full Federal Court, following Deledio, described the Tribunal’s task in applying ss 120(1), 120(3) and 120A as follows:

   3.… the Tribunal was to consider all the material and determine whether:

   (i)it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and

   (ii)that hypothesis can be regarded as reasonable, if the ‘raised facts’ are true.

   (Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 (at 414)).

   4.If the ‘raised facts’ pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the ‘kind of disease’ from which the veteran suffers (Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCA Trans 302)).

   5.If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is ‘upheld’ by the SoP in the sense of being ‘consistent with the “template” to be found in the SoP’ (Deledio step three (at 97G)).

   6.If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.

   Statement of Principles

10. The relevant SoP is No 1 of 2009 Alcohol Dependence and Alcohol Abuse.   Mr Lightowlers relies on the following factors in clause 6:

    …

    (b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

    (c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; 

    …

11. A “category 1A stressor" in the SoP means one or more of the following severe traumatic events:

    (a)experiencing a life-threatening event;

    (b)being subject to a serious physical attack or assault including rape and sexual molestation; or

    (c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;

12. A “category 1B stressor" means one of the following severe traumatic events:

    (a)being an eyewitness to a person being killed or critically injured;

    (b)viewing corpses or critically injured casualties as an eyewitness;

    (c)being an eyewitness to atrocities inflicted on another person or persons;

    (d)killing or maiming a person; or

    (e)being an eyewitness to or participating in, the clearance of critically injured casualties

13. Mr Lightowlers says he experienced both category 1A and 1B stressors while on board HMAS Sydney in Vung Tau harbour.  Although he does not place the incidents on a particular date, Navy records show that the only day that HMAS Sydney was in Vung Tau harbour during the period of Mr Lightowlers’ operational service was 25 February 1971.

14. There is no dispute, assuming both events occurred and were stressors for the purposes of the SoP, that they occurred within the five years before the onset of Mr Lightowlers’ alcohol dependence.

    The scare charge incident

    Mr Lightowlers’ evidence

15. Mr Lightowlers gave evidence that he was in the boiler room between about 8am and 11am cleaning the boiler plates.  He recalled it was the morning because cleaning the plates was the first job of the day.  The ship was parked at the time.  Towards the end of cleaning the plates, he heard “an almighty bang” on the ship’s starboard side and felt the whole ship move.  There was no public address system in the boiler room and he had no warning of any impending event. 

16. In a written statement on 19 December 2012, Mr Lightowlers said he was alone in the boiler room.  Giving oral evidence he said there was no one else on the floor with him at the time.  When pressed about this, Mr Lightowlers said he did not know if there was anyone else on the mezzanine (by which we understand him to mean the upper floor of the boiler room); as far as he knew he was alone; someone else could have been present checking gauges but, if so, he did not see them.

17. The transcript of the Veteran’s Review Board (VRB) hearing in March 2012 shows that Mr Lightowlers said “there were others there but not specifically exactly where I was.  They were up on the – there’s another level in the boiler room with gauges and --- They were doing other activities”.

18. Mr Lightowlers says he did not know whether there had been an explosion on board, an attack or a collision.  He did not call out to anyone.   He felt an “instant reaction of overwhelming fear” and “flew out” of the boiler room.  He climbed a series of ladders and through two air vents, and came out on the port side of the main deck.  He experienced “intense catastrophic fear for [his] life” and as he climbed the ladders, suffered a bowel movement.

19. Once on deck, Mr Lightowlers said, he could not see anything that could have caused the explosion and there were no emergency calls.  While on the deck, he witnessed an incident on a passing boat.  That incident, which he says constitutes the category B stressor, is described below. 

20. After witnessing the incident on the boat, Mr Lightowlers went back below deck, cleaned himself up in the bathroom, and returned to duty.  On his way down, he asked a more senior sailor about the explosion.  The sailor said it was scare charges, and he then realised there was no collision and they were not under attack.  Asked again about this, Mr Lightowlers said it was probably later that day; it was not long after; he could not be 100 per cent sure; somebody said that scare charges were going off.

    The Writeway Research report

21. Retired naval Captain Wally Rothwell prepared a report dated 14 June 2013 for Writeway Research Services in connection with Mr Lightowlers’ claims and gave oral evidence.

22. Captain Rothwell confirms that HMAS Sydney arrived in Vung Tau harbour “early on the morning” of 25 February and got under way again for the return voyage to Australia at 1456 hours.  His report plots the ship’s routes in and out of the harbour and its point of anchor according to information in its log.  The nearest point of land to the anchorage was “some 3,350 yards away” and the closest the ship came to land was about 2000 yards.

23. The report describes the use of scare charges as a deterrent to enemy divers in Vung Tau harbour.  Depending on the circumstances, they were thrown from the ship or from patrolling motor cutters.  If thrown from the ship, instructions were that they be thrown 20 feet clear of the ship, from where they would explode at a depth of six to seven metres, causing death or serious injury to enemy divers nearby, and disorientation at a much greater range. 

24. Captain Rothwell interviewed the then Executive Officer of HMAS Sydney, now Rear Admiral Neil Ralph, who said scare charges were thrown from HMAS Sydney’s motor cutters during this visit but they would have been patrolling, mostly upstream, about 150 to 200 yards from the ship.  Scare charges were not thrown from the ship while at anchor and would only have been thrown from the ship if under actual attack. 

25. The sound of the explosion varied with factors such as distance from the ship, depth of the water, depth of the explosion, characteristics of the seabed, and one’s position on the ship.  At a distance of 100 metres or more, the noise was muffled and generally heard as “a loud thud” in compartments below the waterline.  Nearer explosions were much louder and sharper in those compartments and could be “frighteningly loud” if close alongside, especially if personnel had no prior warning.  A close explosion might rattle the boiler plates but would not shake the ship.

26. Captain Rothwell considered it “reasonable to assume” that HMAS Sydney’s diving team would have made sweeps of the hull and the anchor cable during slack water, that is half an hour either side of high or low tide, and information provided by RADM Ralph supported this conclusion.  Standard procedures were in place to ensure charges were not thrown from patrolling cutters while the divers were at work.   Records show that low and high tides on 25 February 1971 were at 0738 and 1430 respectively.  

27. Based on his own experience and an interview with Captain John Perrett, an Engineering Officer who served on HMAS Sydney shortly after these events, Captain Rothwell disagreed with Mr Lightowlers’ claim that that there was no public address system in the boiler room.  He reported that, except for in a very remote part of the ship, “pipes” were audible everywhere including in the boiler room, even though that room could be quite noisy.

28. Captain Rothwell also reported that all of the ship’s company were expected to read notices posted daily of events including the use of scare charges, but he conceded that “some junior sailors had difficulty remembering to read them”.

29. The ship’s log shows that scare charges were thrown from the quarterdeck of HMAS Sydney at 1736, at which time the ship was underway and doing 19 knots.  According to Captain Rothwell, this would have been to dispose of unexploded charges left over from Operation Awkward, either from the motor cutters or from on board; they would have exploded 40 to 50 metres astern and a “reasonably loud” explosion may have been heard in the boiler room.  No other incidents of scare charges being thrown from the ship are recorded in the log for that day.   

    The Writeway Research report – the boiler room

30. Captain Rothwell noted that, whereas in his written statement Mr Lightowlers had claimed to be alone in the boiler room at the time of the explosion, his evidence to the VRB was that “there were others there” but “not specifically” where he was; they were up on another level in the boiler room.

31. The ship’s log showed that, shortly after anchoring, HMAS Sydney came to “15 mins notice for steam” and remained so throughout its stay in the harbour, meaning all four boilers would have been “flashed up and steaming” with a “full watch of engineering personnel” in the boiler room.

32. Captain Perrett told Captain Rothwell that there would be “at least a Chief or Petty Officer in charge”, two “Sprayer Dodgers”, two water tenders and probably a Leading Stoker on the evaporators and an engine room artificer (ERA) on the bottom level where Mr Lightowlers says he was, and the Engineering Officer of the watch, the Chief of the Watch, the throttle watchkeeper, an ERA and a turbo generator watch keeping Stoker on the upper level. 

33. In these circumstances, Captain Rothwell said, it was very difficult to credit that an Ordinary Seaman Stoker would have been allowed to desert his post while on watch, to brush past the upper level team without being stopped or questioned, and to have stayed away from his post for some 30 to 45 minutes without someone being sent to find him.

    Statement of Daniel Kennedy

34. In a statutory declaration on 15 October 2011, Daniel Kennedy stated that he was on board the HMAS Sydney on 25 February 1971; the ship was on constant alert and ready to sail; there was threat of attack from enemy swimmers and, to counter this threat, the ship had its own divers over the side checking; when they were not in the water, scare charges were dropped from “work boats and the like” all around the ship; the explosions were very loud and frightening to personnel below decks; he was an upper deck sentry and witnessed many occasions where US Navy gun boats would blow up suspicious looking debris floating close to the ship.

    The boat incident

    Mr Lightowlers’ evidence

35. Mr Lightowlers says that, while he was up on deck following the explosion, a small boat came into view from the stern of the HMAS Sydney which was facing north at the time.  What appeared to be Vietnamese prisoners with their hands bound were seated in the centre of the boat guarded by American soldiers. 

36. In a written statement on 19 December 2012, Mr Lightowlers wrote that an American work boat came into view from the stern roughly 50 yards off the port side.  Four to six Vietnamese were seated in the centre of the boat which was crewed by a driver and an armed guard.   The VRB’s written reasons show that Mr Lightowlers said he was about 500 yards from the work boat when he witnessed the assault and, on another occasion, 40 yards at most.  Asked about this at the Tribunal hearing, Mr Lightowlers said 50 metres was correct, and he was thinking about how far the shore was when he told the VRB it was 500 metres.

37. Giving evidence before the Tribunal, Mr Lightowlers recalled there were three Vietnamese men in the boat, no more than 50 metres from him.  When one of the men rose to his feet, the guard “began to strike him several times to the head” with the butt of his rifle causing the head of the Vietnamese to begin to bleed heavily, fall down and slump motionless across the laps of the other Vietnamese prisoners.  He did not see the man move again as the boat cruised away.  

38. A report from Dr Graham Altman, consultant psychiatrist, shows that Mr Lightowlers told him in February 2011 that he saw American soldiers beating North Vietnamese prisoners with rifle butts; “it made me sick to see this - these guys were defenceless.  The first guy, the side of his head just exploded with blood – it was disgusting” and he was “horrified”.

39. Mr Lightowlers gave evidence he did not understand what was happening with all the commotion of air traffic and the sound of missile fire from the land approximately 500 yards away.   Witnessing the incident, he felt immediately disgusted; he wanted to shout out but could not speak; it “sent him into another place”.  The rest of that day and night was “a bit cloudy”.

40. According to Captain Rothwell, the nearest land to port side, where Mr Lightowlers says he came up on deck was 2000 yards away, and to starboard 3350 yards.  He said Mr Lightowlers’ recollection that the ship was anchored facing north could not be correct because of the incoming tide and because it had no stern anchor; it had to be facing south in which case, Mr Lightowlers’ estimate of the distance to the nearest land was also incorrect.

41. According to Captain Rothwell, intelligence reports for the area encompassed all incidents, enemy contacts and security and were shared by the allied intelligence sections.  The Intelligence Summary (INTSUM) for the day showed that three prisoners were taken on Long Sun island at 1600 but, he said, if they were transported anywhere, it would have been to Ba Ria to the east, “well north” of where HMAS Sydney was anchored.  He could not exclude the possibility that Vietnamese were being escorted somewhere but, if so, he could make no sense of where they might have been going.  He found no record in the INTSUM of missiles being fired in the vicinity that day. 

    Is Mr Lightowlers’ alcohol dependence related to his operational service?

42. The answer to this question depends ultimately on whether Mr Lightowlers experienced a category 1A or 1B stressor while in Vung Tau harbour.

43. The third step in the Deledio test does not require proof of the facts; it requires us to determine whether the material before us “points to some fact or facts (‘the raised facts’) which support the hypothesis”: Bushell v Repatriation Commission [1992] HCA 47; Byrnes vRepatriation Commission [1993] HCA 51.

    Did Mr Lightowlers experience a category 1A stressor?

44. Whether a person experiences a life-threatening event requires consideration of both subjective and objective elements.  It is the effect of the event and not the threat itself that has to be assessed, and a person’s perception is critical; if the perception that an event is life-threatening is reasonable, it will be so for the purposes of the SoP: Border v Repatriation Commission (No 2) [2010] FCA 1430; Hunter and Repatriation Commission [2011] AATA 514.

45. The use of scare charges within range of HMAS Sydney while in Vung Tau harbour on 25 February 1971 is clearly raised by the material before us.  There is evidence that Mr Lightowlers suffered from claustrophobia as a young man including while serving on HMAS Sydney which undoubtedly would have affected his perception of events including any loud noise near to the ship.  There is material pointing to the fact that the boiler room was below the waterline where the noise of an explosion could be very loud.  The material points to an incident which might give rise to the perception that his life was at risk.

1. We find that a reasonable hypothesis connecting Mr Lightowlers’ alcohol dependence with the events in Vung Tau harbour is raised by the material before us.

2. Turning to the fourth Deledio step, we are now required to determine whether we are satisfied, beyond reasonable doubt, that Mr Lightowlers did not experience a life-threatening event.  For the following reasons we are so satisfied.

3. Mr Lightowlers’ evidence that a scare charge exploded close enough to the ship to cause the kind of explosion he says he heard is not supported by any other evidence before us, and is at odds with what is before us.

4. The extensive detail in Captain Rothwell’s report and oral evidence makes it highly unlikely that scare charges were thrown from the HMAS Sydney during the time it was anchored in the harbour.  Around the time, during the morning, that Mr Lightowlers says he heard the explosion, the evidence is that the ship was anchored and its divers likely to have been sweeping the hull and anchor cables in which case scare charges would not have been thrown from the ship.  The ship’s log shows clearly that only one charge was thrown from the ship, and that was much later in the day, when it was underway and leaving the harbour.

5. It is possible that a scare charge was thrown from a motor cutter within the vicinity of the HMAS Sydney while Mr Lightowlers was in the boiler room but, if so, the evidence is that the cutter would have been at a distance of 150 to 200 yards and the noise would have been “muffled”, unlike the loud explosion that may well have been very frightening to a young sailor who suffers from claustrophobia.  Nor do we accept Mr Lightowlers’ claim that no announcements over the pipes were made, or were audible, in the boiler room.

6. Mr Lightowlers’ evidence about the presence of others in the boiler room was inconsistent and at odds with Captain Rothwell’s evidence about the number of others who would have been present in those circumstances.  We do not accept that Mr Lightowlers was able to leave the boiler room without anyone else seeing him, or him them.  We find it implausible that he could have returned to duty some 45 minutes later, when there would have been the same contingent of personnel in the boiler room, without being asked where he had been.  We also find it implausible, if he had in fact experienced what he perceived to be a life-threatening incident (and having witnessed an atrocity while on deck), that he simply returned to his duties without any apparent effect other than that the rest of the day was something of a blur.

7. Taking all of these matters into account, we are satisfied, beyond reasonable doubt, that Mr Lightowlers did not experience a life-threatening event while in Vung Tau harbour. 

   Did Mr Lightowlers experience a category 1B stressor?

8. Mr Lightowlers relies on “being an eyewitness to atrocities inflicted on another person or persons”.  For the respondent it is submitted that more than one atrocity must be committed for this definition to be made out.  We do not agree.  As counsel for Mr Lightowlers points out, it would be a curious result if a single atrocity on a person were insufficient to make out a category 1B stressor.

9. An atrocity is “an extremely wicked or cruel event, esp. one involving physical violence or injury”: The Australian Oxford Dictionary.  In Button and Repatriation Commission [2010] AATA 860, it was described as “some heinous cruel or horrible act perpetrated on another person”.

10. Mr Lightowlers claims to have seen a prisoner hit about the head and fall down unconscious.  We accept the respondent’s submission that, at most, the material before us could give rise to the hypothesis that Mr Lightowlers saw a person bleeding and unconscious after being struck by another.  While undoubtedly distressing, it does not point an incident of the kind encompassed by the description “atrocity”.

11. We are not satisfied that a reasonable hypothesis linking Mr Lightowlers’ alcohol dependence to a category 1B stressor is raised by the material before us.  However, if we are wrong about that, we are satisfied, beyond reasonable doubt, that he was not witness to such an event.

12. Mr Lightowlers’ evidence about the distance of the work boat from the HMAS Sydney and the number of prisoners in it was inconsistent.  His description of what he saw perpetrated against the prisoner has also varied.  Dr Altman recorded his description of the man’s head “exploding” with blood but nowhere else had he described the incident in such graphic way.  We find that, at most, Mr Lightowlers witnessed a serious assault on a prisoner. 

13. Estimates of distance may well become unreliable in time but we do not accept that Mr Lightowlers could mistake the number of prisoners he saw in the work boat.  There is no record of prisoners being taken on that day and we accept Captain Rothwell’s evidence that, even if some Vietnamese persons had been apprehended and were being escorted, there was nowhere for them to go that would have taken them on a route passing the HMAS Sydney.  Mr Lightowlers’ claim that he was some 500 yards from shore is contradicted by Captain Rothwell’s evidence, based on the ship’s log, of where the HMAS Sydney was anchored, and his claim that he could see missiles being fired from the shore is not supported by the records.

14. We are satisfied beyond reasonable doubt that Mr Lightowlers’ alcohol dependence is not related to his witnessing a category 1B stressor as he claims.

15. We affirm the decision under review.

61.       I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr Michael Couch, Member. 

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Associate

Dated 21 February 2014