Kenneth Morgan and Repatriation Commission
[2012] AATA 326
•31 May 2012
[2012] AATA 326
Division VETERANS' APPEALS DIVISION File Number(s)
2010/5599
Re
Kenneth Morgan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Dr R McRae, MemberDate 31 May 2012 Place Melbourne 1. The decision under review, being the decision of the Repatriation Commission made 10 September 2009, is set aside.
2. In substitution for the decision set aside it is decided that the conditions of Major Depressive Disorder, Anxiety Disorder, Alcohol Dependence, Alcohol Abuse and Hypertension suffered by Mr Morgan are war-caused.
........[sgd J W Constance]..................................
Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – Injury – Australian Army – whether the conditions of depressive disorder, anxiety disorder, alcohol dependence, alcohol abuse and hypertension were war caused – Deledio – Decision under review set aside
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 9(1), 120(1), 120(3), 120(6), 120A(3) and 120A(4)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391 (22 April 1998)
Border v Repatriation Commission (2010) 191 FCR 163; [2010] FCA 1430 (17 December 2010)
SECONDARY MATERIALS
Statement of Principles No. 101 of 2007 concerning Anxiety Disorder
Statement of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statement of Principles No. 27 of 2008 concerning Depressive Disorder
Statement of Principles No. 35 of 2003 concerning HypertensionREASONS FOR DECISION
Tribunal Deputy President J W Constance
Dr R McRae, Member
Date 31 May 2012
INTRODUCTION
On 10 September 2009 the Repatriation Commission decided that the depressive disorder, anxiety disorder, alcohol dependence and abuse and hypertension suffered by Mr Morgan were not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth). Mr Morgan has applied to the Tribunal to review this decision.
For the reasons which follow the decision under review will be set aside and it will be decided that each of these conditions was war-caused.
LEGISLATIVE BACKGROUND
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:
War caused injuries or diseases
(1)Subject to this section and section 9A, 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 the injury or contracted the disease;
but not otherwise.
Standard of proof
Section 120 relevantly provides:
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.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
Subsection 120A(3) provides:
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.
Subsection 120A(4) provides:
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.
MATERIAL BEFORE THE TRIBUNAL
Evidence of Mr Morgan
Mr Morgan served in the Australian Army in South Vietnam from 11 February 1969 until 11 February 1970. Most of the time he was based at Vung Tau. His posting was as a clerk performing administrative duties.
Mr Morgan was involved in six incidents in South Vietnam which caused him to fear for his life or the lives of others. He described each of these incidents as follows.
The Vung Tau Incident
In his statement made 21 December 2010[1] Mr Morgan said:
Three days after arriving in Vung Tau I accompanied two of the soldiers in my hut into the township at Vung Tau. I did so without permission and was effectively absent without leave. As we were returning to the base at about 4.00am I heard the sound of a rifle being cocked. It was dark and we were walking along a laneway. I feared that we were about to be shot. One of my companions ran whilst the other man and I (I do not recall the name of either of these men) turned away from the direction where we thought the noise had come. Fortunately, nothing further eventuated. At the time, however, I was in fear of my life. ...
[1] Exhibit A2.
When he gave evidence Mr Morgan said that when he turned to follow the person immediately in front of him he expected to be killed. He said that after this incident he could not talk about what had happened and he started to “drink a little bit”. He learned later that the incident had occurred outside a local police station.
The sentry duty incident
In his statement Mr Morgan said:
Approximately 3 to 4 months into my tour of Vietnam I undertook sentry duties at the 1 ALSG rubbish tip (which was approximately 3kms north of the Vung Tau base). My job was to guard the tip from intruders such as scavengers. I was by myself having been dropped off at about 10.00am and due to be collected at about 3.00pm. During my sentry duties I observed a group of about 5 to 6 individuals on a sand dune on the other side of the tip. I could not tell whether they were friendly and I did not know what to do. They were walking in the direction of the camp. I froze out of fear that my life might be in danger. They walked out of sight without incident and, apparently, without noticing my presence.
Mr Morgan gave evidence that over many years, possibly commencing when he was in South Vietnam (although he is unsure of this), he suffered nightmares involving this incident. The nightmares ceased when he started medication in 1998.
The first patrol incident
In his statement Mr Morgan said:
Later in my tour I took part in a TAOR patrol. I was in a group of ten men. I was the only sapper in the patrol. We were driven from the base in the late afternoon and were due to return to the base the next morning after sunrise. We were driven to a point about 3 to 4 kms from the Nui Dat base. We then walked through high grass. Whilst taking a rest I adjusted my belt and unwittingly left my four hand grenades behind. I subsequently realised that I had left the hand grenades behind. During the evening I was fearful of ambush from the enemy.
The second patrol incident
In his statement Mr Morgan said:
In the morning after we left our camp we came upon some local wood cutters and I was not sure whether they were friendly. I was not sure whether they might attack us. Fortunately they did not. After I assessed those people as being innocent civilians I became fearul [sic] that other members of my patrol might open fire on them.
The third patrol incident
In his statement Mr Morgan said:
At one point in our patrol I saw what I initially thought was an anti-personnel mine. I immediately feared that we might have walked within a mine field. Furthermore, as the only engineer in the patrol, I feared that I would have to delouse the mines. I soon realised that what I observed was, in fact, a petrol cap and not a mine.
In giving evidence Mr Morgan said that this was the only patrol of this nature in which he was engaged during his tour of duty. When asked how he reacted to this patrol he said that he did not remember as it was too long ago.
The helicopter incident
In his statement Mr Morgan said:
Three guys from my unit, 17 Construction Sq had been given permission to join 9 Sq RAAF on one of their missions. Max Dadd, John Lair and myself were the ones selected and we drove early in the morning to the Military Air Base at Vung Tau to catch a prearranged flight on one of the delivery helicopters to Nui Dat. Upon our arrival at the Nui Dat Air Base, we were ushered into the waiting room just outside the operations room of 9 Sq RAAF where there was one other person already there waiting for the pilots and gunners to come out of the operations room.
After about 1 hour’s wait, the guys from 9 Sq came running out and selected each of the 4 of us to accompany them in the 4 Bushranger Gun Ships that were stationed on the tarmac. There was also a 5th helicopter of smaller size which I was told was called a “Sniffer” which apparently had electronic devices that could detect the presence of human beings below.
We hurriedly boarded each of 4 gun ships and they took off with the Sniffer helicopter in the lead, followed by one of the gun ships, the next two side by side behind the first and the fourth, which I was on board, followed that pair and directly behind the two leaders.
After about 40 minutes the “Sniffer” helicopter seemed to disappear out of sight, the first gun ship rose up and forward, eventually doing a “U” turn and coming back at us. The other two veered side ways in different directions in a large semicircle and we seemed to remain hovering in the one spot.
Then all of a sudden the 4 gunships [sic] started launching their rockets. Each had 4 on each side, 8 each, and making 32 in total. At the same time they were all firing their “Mini” guns which made a hell of a racket. I didn’t have any ear muffs on for either communications or ear protection and thus I did not get any forewarning of what was happening and the noise was deafening. It was terrifying.
After about 4 minutes I got up enough courage to crawl to the left beside one of the gunners who were manning one of the twin barrelled M60 machine guns which were mounted on either side of the gun ship. I yelled out to him “Where are you aiming”, he replied “Down there beside where the smoke is rising”. I released the safety catch on my SLR and pulled and held the trigger down so it was acting like a rapid fire machine gun. I was aiming at a small clearing beside where the smoke was rising and I believe there were 4 or 5 bodies lying there in the grass either dead or alive. I don’t know if I hit any of them as I was having trouble aiming as I was shaking so much and even the vibrations travelling through the helicopter made it even harder.
I think I would have fired somewhere between 7 to 12 rounds off when the gunner yelled back at me “What do you think you are doing”. I yelled back, “Helping out of course”. He replied, “Put that away (my SLR) and get back in your seat. Take some pictures with your camera if you have got the balls.”
I crawled back to my seat and remained there until the shooting eventually ceased. I was petrified and could only manage to get enough guts to take one photo whilst this action was taking place. I kept thinking that the enemy must be firing back at us and what an easy target we made for them and it will not be long before one of their bullets hits me in the arse or hits one of the fuel tanks and that will be made, dead, with only a few weeks left to serve out in Vietnam.
I can’t remember how long this conflict with the enemy lasted, but it seemed like an eternity. We eventually got back to Nui Dat in one piece (no thanks to me as I felt completely helpless and frightened out of my wits). After landing the gunner asked me again what was I doing out there and I replied “For f**k [sic] sake, trying to help.” He yelled at me saying, don’t you realise what amount of fire power we were pumping out and your little toy would have made no difference to the end result.
I met up with John and Max and I could see that they were as upset as me. It was a horrifying experience for all of us and we did not speak much on the journey back to Vung Tau.
When he gave evidence Mr Morgan said before the firing began he regarded the helicopter flight as “going on a swan”. He said that a trip such as this was arranged as a diversion from duty. Mr Morgan produced copies of a number of photographs which he took during this trip, including during the flight.[2]
[2] Exhibit A14.
Mr Morgan said that when he first arrived at the camp in Vung Tau he was issued with a rifle. His recollection is that at the time he was told to be careful as it was an automatic. He said that the rifle had been modified to fire automatically and that a lot of the rifles issued at that time had been similarly modified.
Evidence as to events after Mr Morgan’s return from South Vietnam
Mr Morgan drank heavily on his return from South Vietnam. He had 2 months leave on his return and spent considerable time drinking during this period. His engagement to his fiancée ended when he returned and he avoided social contact. He attempted suicide on two occasions. He described himself as “anxious, upset, edgy and having no self‑esteem,” and said that he did not know what was happening to him at this time. [3]
[3] Transcript 5.3.12.
About 14 months after he returned from South Vietnam Mr Morgan sought medical help in relation to his mental condition. He consulted his general practitioner and then Dr Henry, a psychiatrist.
During his time in South Vietnam Mr Morgan met a woman with whom he became friendly. He corresponded with the woman on his return to Australia for about two years. He wished that he could arrange for her to come to Australia, but he did not have a romantic relationship with her. He did not feel depressed by reason of her inability to come to Australia.
Following his marriage in 1975 his consumption of alcohol decreased and he was better able to control his drinking. In the last 20 years his drinking habits have worsened, although as a result of pressure from his wife he does have some alcohol free days each week.
Evidence of Mr Blair
Mr Blair served in South Vietnam from April 1969 to April 1970.
In a statement dated 27 May 2009[4] he said, in part:
Ken, Max and myself where on separate choppers when all of a sudden all hell broke loose mini guns, M60 machine guns and rockets where being fired from all the choppers, what made it worse was the fact we had no internal communications so we were in the dark as to what was going on.
It was a very nerve racking [sic] situation and scared the daylights out of us, that is how I remember the incident.
Evidence of Mr Fisher[5]
[4] Exhibit A11.
[5] Statement dated 6 June 2011 (exhibit A5) and transcript 5.3.12.
Mr Fisher served in South Vietnam as RAEME attached armourer to 9RAR from November 1968 until June 1969. He often converted SLR’s to automatic weapons mechanically. He did this to avoid danger to soldiers who would otherwise convert the weapons themselves. At a later date he converted the weapons back to standard. He was aware that this practice took place regularly by armourers attached to infantry units in South Vietnam.
Evidence of Mr Wertheimer[6]
[6] Statement dated 12 May 2009 (exhibit A6) and transcript 5.3.12.
Mr Wertheimer was the Commanding Officer of 17 Construction Squadron RAE from 17 February 1969 to 14 February 1970 during which time Mr Morgan was under his command.
Mr Wertheimer stated, in part:
I confirm that his account of the events that occurred whilst he was on a familiarization task during a mission with the 9Sqn RAAF Bushranger gunships, is quite conceivable and likely. Many of the sappers who served under my command went on these missions and it is quite possible that they could have been present during contact with enemy forces.[7]
[7] Exhibit A6.
Mr Wertheimer was not aware of the helicopter incident involving Mr Morgan but, when the events were described to him he said that “this is exactly what happened, every day.” Mr Wertheimer was aware that weapons were modified and was of the opinion that Mr Morgan could have been issued with a modified weapon.
Evidence of Mr Birrell
Mr Birrell served in South Vietnam during some of the time Mr Morgan was serving there. They met prior to serving in the Army.
Mr Birrell met Mr Morgan about eight weeks after Mr Morgan commenced his tour of duty. He observed that there had been a “marked change” in Mr Morgan’s behaviour in that he had started to smoke and drink alcohol heavily.
Mr Birrell met Mr Morgan again about five weeks later. He appeared to be distressed and intoxicated. Mr Morgan told him of the sentry duty incident which he said had occurred two days earlier.
Mr Birrell and Mr Morgan met on a third occasion in South Vietnam. This meeting occurred at Mr Birrell’s unit in Nui Dat. Mr Morgan told him of the three incidents which had occurred while Mr Morgan was on patrol. In the opinion of Mr Birrell the patrol incidents have upset Mr Morgan “very badly”[8] and that thereafter Mr Morgan’s character changed and he commenced drinking very heavily.
[8] Exhibit A7.
Mr Morgan lived with Mr Birrell and his wife in 1972-3.
Evidence of Mr Amos[9]
[9] Transcript 7.3.12 and exhibit A13.
Mr Amos served in South Vietnam as a Corporal Armourer, 3RAR, in 1967-68.
Mr Amos was aware of the practice of servicemen modifying weapons themselves. He considered this to be a dangerous practice and modified a small number of weapons himself by changing the sear. He reversed all modifications before he left South Vietnam.
Writeway Research Service Pty Ltd report dated 3 September 2010[10]
[10] Exhibit R4.
Writeway researched each of the incidents referred to by Mr Morgan.
It concluded that there were four recorded incidents similar to that described by Mr Morgan and referred to in these reasons as the helicopter incident. The incident most resembling the incident described occurred on 23 January 1970. The report quotes from a publication “The RAAF in Vietnam” which reads, in part:
‘Capping off this month was a ‘sniffer’ mission on 23 Jan 70, in which Bushranger 72 engaged the source of enemy ground fire at the sensor aircraft. An enemy defector subsequently disclosed to an interrogator that up to six (6) Viet Cong had been killed or wounded in this incident’.[11]
[11] Exhibit R4 p.11.
None of the records indicate that any of the “Bushranger” aircraft carried passengers. There is no documentary evidence that Mr Morgan, Mr Dadd or Mr Blair were involved in the incident.
The report’s Summary reads in part:
28. Summary. No documentary evidence could be found to support Mr Morgan’s claim. Although it does appear that a ‘sniffer’ mission conducted on 23 Jan 70 most likely resembles that mission described by Mr Morgan. It should be noted that while Mr Morgan has said that there were four (4) gunships on the mission which he flew on, and they all fired in action, the report in “The RAAF in Vietnam: page 176 said that only one aircraft ‘Bushranger 72’ engaged in the enemy. While Mr Morgan has produced a photograph, taken from inside a gunship looking out, as evidence to support his claim, 9 SQN personnel consulted did not support his claim.
29. Mr Morgan could not have held down the trigger of his SLR to fire in an automatic mode, as that particular weapon does not have that capability. The trigger must be activated every time that a round is fired. Therefore, to fire 15 rounds would have required him to squeeze the trigger 15 times.
...
31. According to 9 SQN RAAF personnel, it is highly unlikely that Mr Morgan would have been on a ‘sniffer’ mission. There is some support for this statement in that the ‘Bushranger’ was already 11% over maximum take-off weight when armed and with the crew on board. To take additional personnel on such mission’s would have imposed an even greater stress on the aircraft which would have increased the safety risk of the mission. [12]
[12] Exhibit R4 p.12.
In relation to the sentry duty incident the Writeway report stated that the large tip used by Allied Forces was controlled by the US Army and was located approximately 1.2 kms outside the Australian Base.[13]
[13] Exhibit R4 p.13.
The report states that there is no documentary evidence to support Mr Morgan’s claims of losing hand grenades or that he was on night patrol in Nui Dat.[14]
[14] Exhibit R4 p.15.
The report states in part:
Coming upon woodcutters was a relatively frequent report from patrols operating out of Nui Dat, in the nearby rubber plantations and wooded areas, but not in the vicinity of the ALSG Base at Vung Tau which was not a wooded area. Again, no documentary evidence could be found to support this claim, or any evidence that he did find what he thought was an anti-personnel mine.[15]
[15] Exhibit R4 p.16.
A second report by Writeway Research Services Pty Ltd dated 27 February 2012[16] states in relation to the helicopter incident:
[16] Exhibit R3.
13.In summary, the Researcher has a number of concerns with the Veteran’s account:
(a)he claims his weapon was loaded while in the aircraft, contrary to training and SOPs;
(b)he claims he wore his hat in flight, that is impossible;
(c)he claims he was not on Intercom yet spoke to a door gunner who was firing twin M60 machine guns at the time.
14. The Researcher considers that it is most unlikely that an unrestrained ‘joy flight’ passenger, not trained or practiced in RAAF rules of engagement for air to ground fire support, would be allowed to fire his weapon from inside the helicopter without the consent of the aircraft captain (the pilot).
Writeway Research Service Pty Ltd report dated 6 March 2012[17]
[17] Exhibit A1 (supplementary s.37 documents).
The author of this report, Mr Tilbrook, examined the RAE Master Plan Drawing for the Base in Vung Tau and a map and an aerial photograph of the Base. He is of the opinion that none of these documents shows a rubbish tip within the Base.
Report of Dr New, Psychiatrist
In April 1971 Mr Morgan was assessed by Dr New on behalf of the Repatriation Department following his making a claim for a nervous complaint. Dr New diagnosed Mr Morgan as suffering a Reactive Depressive State (mild).
On 23 April 1971 Dr New reported, in part:
Is feeling bitter and resentful to others since returning from Vietnam. Had romance with a chinese [sic] girl he met there and would like to marry her. Wants to return to live there or have her come here, but the girl is unwilling to leave her family. Corresponds with her regularly. Girlfriend is crippled – has deformed leg.[18]
...
Doesn’t feel there is very much wrong with him, that he can’t handle himself. Admits to mild depression, Generally sleeps well [illegible] – often down to, in Vietnam, until he met the Chinese girl; drinking excessively again.
...
… a “bit distressed” when mother died, developing a similar reaction then.
rvulation: [sic] Present condition of frustration, & depression appears to be reactive to separation from a girl friend in Vietnam, & problems associated with being reunited with her or marrying her. An unstable dependent personality.
Diagnosis: Reactive depressive state (mild)
[18] Exhibit A1 (supplementary s.37 documents).
There is no mention in the report of Dr New having taken a history of any of the incidents referred to in the evidence of Mr Morgan in this application.
Evidence of Dr Collier, Consultant Psychiatrist
Dr Collier was consulted by Mr Morgan on three occasions in 2008. Dr Collier provided a report dated 26 August 2008 [19] and gave evidence.
[19] Exhibit A9.
In his report Dr Collier recounts the history given by Mr Morgan which includes reference to all the incidents referred to except the helicopter incident.
In relation to the events, other than the helicopter incident, Dr Collier reported:
I have listed several distressing events reported by Mr Morgan to have occurred during his Vietnam service. At least one of these incidents, the one in which Mr Morgan’s mates held their rifles up to the Vietnamese wood cutters, constituted a life-threatening event (category 1 A stressor), in the sense that Mr Morgan found himself in a context where the wood cutters’ lives were threatened (“I thought they were about to kill them. I couldn’t believe what it appeared they were going to do.”) Mr Morgan was also very fearful in the situation that arose very early in his tour of service, namely hearing a gun being cocked while AWOL in Vung Tau. He was also very fearful in the situation at the rubbish tip. There is an element of subjectivity in his responses, but in each case he believed his life to be under threat.[20]
[20] Exhibit A9.
Dr Collier diagnosed Mr Morgan as suffering three psychiatric conditions, namely Generalised Anxiety Disorder, Major Depressive Disorder and alcohol dependence. In his opinion the major depressive disorder occurred during Mr Morgan’s Vietnam service and has continued ever since. He was unable to determine whether the anxiety disorder commenced during service. It may have occurred many years later. In his opinion the alcohol abuse developed either during service or soon after his return to Australia.
Following his report Dr Collier continued to treat Mr Morgan. Dr Collier provided a further report dated 6 August 2009.[21] In his second report Dr Collier states that in late 2008 Mr Morgan first told him of the helicopter incident. He reports that;
In my opinion, this experience was a life-threatening event. Mr Morgan certainly indicates that he believed it to be so.
[21] Exhibit A10.
When he gave evidence Dr Collier said that there were a number of reasons Mr Morgan may not have recounted the event earlier, namely forgetfulness, that he did not see it as significant and that he experienced difficulty in talking about the incident.
Also in giving evidence Dr Collier said that it was speculative “in a sense” to relate particular incidents to conditions suffered as conditions suffered may relate to a totality of experiences.
Evidence of Dr Kaplan, Consulting Psychiatrist.
Dr Kaplan assessed Mr Morgan in March 2011. He provided a report dated 21 March 2011[22] and gave evidence.
[22] Exhibit A12.
Dr Kaplan diagnosed Mr Morgan as suffering Post Traumatic Stress Disorder and substance abuse in the form of alcohol and tobacco. In his opinion the substance abuse developed during this tour of duty. When he gave evidence Dr Kaplan said that Major Depressive Disorder and a later Anxiety Disorder, together with Alcohol Abuse or Dependence were alternative diagnoses. However in his opinion Post Traumatic Stress Disorder was the most likely diagnosis as Mr Morgan claims that his experiences in South Vietnam continue to intrude upon his thoughts.
In his report Dr Kaplan stated, in part:
Mr Morgan describes a range of symptoms of anxiety and depression and psychological sequelae in relation to the traumatic events he experienced during his tour of duty in Vietnam. His symptoms appear to have gradually developed during that tour of duty. He was probably sensitized by the first incident and he developed psychiatric conditions as a result of the subsequent incidents.
He stated also:
Mr Morgan, in addition, suffers from substance abuse in the form of alcohol abuse and, in addition, in relation to his use of tobacco. His use of alcohol is also a form of avoidance behaviour. His substance abuse developed during his Vietnam tour of duty, was probably directly related to the traumatic events he experienced and represent a form of self-medication in relation to his depression, his anxiety, his dealing with his intrusive thoughts and memories.
Evidence of Dr Strauss, Consultant & Occupational Psychiatrist
Dr Strauss assessed Mr Morgan in August 2011. He provided reports dated 9 August 2011[23] and 28 February 2012[24]and gave evidence.
[23] Exhibit R1.
[24] Exhibit R2.
In the opinion of Dr Strauss, Mr Morgan is suffering from an Anxiety Disorder, a Depressive Disorder and a Substance Dependence Disorder. Further it is his opinion that the basis of these disorders was “a number of frightening experiences [in South Vietnam] a few of which appear to have been life-threatening.”[25] The experiences related by Mr Morgan to Dr Strauss included all of the incidents previously referred to in these reasons.
[25] Exhibit R1.
On 9 August 2011 Dr Strauss reported, in part:
At this stage however I do believe that his alcohol dependence, his depressive disorder and his anxiety disorder are genuine conditions and there are no other psychiatric problems.
I believe that he developed those psychiatric problems while in Vietnam and I believe that those psychiatric problems are directly connected to service.
On 28 February 2012 Dr Strauss reported, in part:
Again I repeat as I have previously done that it is not for me to decide whether or not this man did have upsetting experiences in Vietnam as he has claimed. It may be that he did not in which case I cannot state that he has service related psychiatric problems. On the other hand if he did have upsetting and distressing experiences in Vietnam he is probably suffering from service related psychiatric problems.
Claim form lodged by Mr Morgan
In the Claim for Disability Pension lodged by Mr Morgan on 24 June 2008,[26] he referred to having experienced some extreme stressors in South Vietnam where he felt his life was threatened. He did not specify particular events in the application form.
[26] Exhibit A1 p22.
CONSIDERATION OF THE MAJOR DEPRESSIVE DISORDER CLAIM
In Repatriation Commission v Deledio[27] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service:
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 a SoP [Statement of Principles] 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 a 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.
[27] (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998).
Issues for determination
We have to determine the following issues:
1)Did Mr Morgan render "operational service” and if so, when?
2)Does Mr Morgan suffer from major depressive disorder?
3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?
4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?
5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
6)If so, considering section 120(1) are we satisfied beyond a reasonable doubt that the disease suffered by Mr Morgan was not war-caused?
Determination of the issues
Issue 1: did Mr Morgan render “operational service” and if so, when?
It is not in dispute that Mr Morgan rendered operational service from 11 February 1969 until 11 February 1970. We are satisfied that this was an appropriate concession by the Commission.
Issue 2: does Mr Morgan suffer from Major Depressive Disorder?
On the basis of the evidence of Dr Collier, Mr Morgan’s treating specialist, we are satisfied that Mr Morgan suffers from Major Depressive Disorder. This diagnosis is supported by Dr Strauss. Dr Kaplin diagnosed Post Traumatic Stress Disorder, but agreed that Major Depressive Disorder was an alternative diagnosis. The Commission agrees that Mr Morgan presently suffers this condition.
Issue 3: considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?
Having considered all of the material we determine that it points to the following hypothesis connecting the depressive disorder with the circumstances of Mr Morgan’s operational service:
oMr Morgan experienced each of the six incidents whilst serving in South Vietnam;
oeach of the incidents caused him to suffer Major Depressive Disorder or aggravated an existing disorder;
ohe suffered the condition whilst in South Vietnam or shortly after his return to Australia;
ohe has continued to suffer from the condition.
We have reached this determination having considered the evidence of Mr Morgan as to the effect each of the incidents had upon him. We take into account also the evidence of Dr Collier, Dr Kaplan and Dr Strauss that the depressive disorder developed while Mr Morgan was serving in South Vietnam.
Issue 4: is there a relevant Statement of Principles in force?
We are satisfied that the relevant Statement of Principles is No.27 of 2008 concerning Depressive Disorder. In this Statement depressive disorder relevantly means:
a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. This definition is limited to major depressive episode, recurrent major depressive disorder. …
Issue 5: is the hypothesis consistent with the “template” within the Statement of Principles and therefore a reasonable one?
Clause 6 of the Statement provides in part:
The factor 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 is:
(a)for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
...
(ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
…
Clause 9 relevantly provides:
For the purposes of this Statement of Principles:
“a category 1A stressor” 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.
It was argued on behalf of Mr Morgan that the hypothesis raised fits within the template in the Statement of Principles in that:
(a)the material points to Mr Morgan having experienced a life-threatening event and by definition a category 1A stressor, during each of the six incidents while he was on duty in South Vietnam;
(b)the material points to the clinical onset of the depressive disorder within five years of each of the incidents.
It is necessary to determine whether all, or any, of the incidents fit within the template of a life-threatening event. This requires a consideration of the material pointing to Mr Morgan’s perception of the incidents and in particular, in each case, whether the material points to his perceiving that the incident posed a threat of death. It is necessary also to consider whether his perception in each case was reasonable. The medical evidence is to be taken into account in determining these questions.
In Border v Repatriation Commission[28] Reeves J. in the Federal Court of Australia said, in part:
66.In this case, the Tribunal had before it two types of evidence, the medical evidence and the evidence given by Mr Border about the four events. However, none of the medical evidence dealt with the question whether the four events put forward by Mr Border were “life threatening”, as required by the 2008 PTSD SOP. Rather, the appellant’s treating doctors examined whether the appellant’s war service, as a whole, caused his PTSD. As a result, when the Tribunal reached stage three of the Deledio process it did not have any medical evidence before it to indicate whether the hypothesis described a life-threatening event within the terms of the 2008 PTSD SOP. If the Tribunal had been operating in a pre-1994 setting it may have been able to look to the medical evidence pointing to the connection between the appellant’s war service and his PTSD and move onto step four. Indeed, it seems to have embarked upon this exercise at [41] of its reasons. Of course, this was not open to it in a post-1994 case such as this. Here, the relevant SOP required that the appellant must have experienced a “life threatening” event before it could be said that a reasonable hypothesis had been raised connecting the PTSD with the appellant’s war service. In the absence of medical evidence, the Tribunal was left in much the same position as the Tribunal in Woodward — it had to interpret the SOP as best it could.
67.Based on these authorities, the answer to the question posed (at [53] above) in relation to the event described in subpara (a): “experiencing a life-threatening event” is this. It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
In fact the question posed was referred to in paragraph 52:
How, and to what extent, should the tribunal examine the feelings invoked in the veteran experiencing that event, to determine whether the event was life-threatening within that?
[28] (2010) 191 FCR 163, 179 and 180; [2010] FCA 1430 (17 December 2010) at [66 and 67].
In relation to the Vung Tau incident Mr Morgan gave evidence that at the time he expected to be killed. We have taken into account the evidence that Mr Morgan was a young soldier in a war-zone at night, that he was unable to see what was happening in unfamiliar surroundings and that he was only three days into his first tour of duty. We are of the view that the material before us points to his perception that his life was threatened being a reasonable one. This conclusion is supported by the evidence of Dr Collier and Dr Strauss.
We determine that the material before us points to the Vung Tau incident being a life threatening event and to Mr Morgan’s experiencing a category 1A stressor on that occasion.
Having considered the material relating to the sentry duty incident at the rubbish tip we do not determine that this incident was a life-threatening event. The evidence of Mr Morgan indicates that he regarded it as such and this is supported by the evidence of Dr Collier and Dr Strauss. However we do not consider that the material points to his perception being reasonable. Mr Morgan said that the incident occurred approximately three to four months into his tour of South Vietnam and that he was aware that when he was on duty his job was to guard the tip (located within the Base perimeter) from intruders such as scavengers. There is no material which indicates that the persons observed by him were armed or that they acted aggressively. There is nothing to indicate that a reasonable person in the circumstances in which Mr Morgan was placed would regard his or her life as being threatened.
The first patrol incident involved Mr Morgan leaving four hand grenades in long grass and then fearing an ambush using those grenades. Again there is the evidence of Mr Morgan that he feared for his life in a possible ambush and the evidence of Dr Collier and Dr Strauss supporting this. However we do not consider that the material points to this perception as being reasonable. Despite the comments of Mr Morgan’s superior, a reasonable person in Mr Morgan’s circumstances would not have regarded his leaving the grenades behind as increasing that risk of attack, and therefore of death, over and above the risks ordinarily associated with being on such a patrol.
The material before us as to the second patrol incident, which involved coming upon the group of woodcutters, does not point to its being a life-threatening event. In our view sub-paragraph (a) of the definition of a category 1A stressor refers to a threat to the life of the veteran rather than experiencing an event involving a threat to the life of another. The latter circumstance is dealt with in the definition of a category 1B stressor. Our view is in accordance with the judgement in Border.[29]
[29] Border v Repatriation Commission (supra) [45 and 50].
In this instance there is no material suggesting that Mr Morgan perceived a threat to his own life, but rather to the life of others. Even if the meaning of a life-threatening event in sub-paragraph (a) included a threat to the life of another, the material does not point to Mr Morgan’s stated perception of the threat being reasonable. He gave evidence that, having assessed the woodcutters as being innocent civilians, he was fearful that members of the patrol may fire on them. On the material before us, this was not a reasonable perception in the circumstances in which Mr Morgan was placed and in the circumstances known to him at the time.
In relation to the third patrol incident, involving the possibility of Mr Morgan being in a minefield, the material does point to his experiencing a life threatening event. Mr Morgan gave evidence that having seen an object on the ground he immediately feared that he may have walked into a minefield and that he may be called upon to de‑activate the mines. The material points to this being his perception and that in his circumstances, being a young, relatively inexperienced soldier untrained in mine clearing, the materials point to this being a reasonable perception. This is supported by the evidence of Dr Collier and Dr Strauss.
The material does indicate that shortly after Mr Morgan saw the object which he believed may have been part of a mine he realised that it was a harmless object. The question to be decided is whether, on the available material, the event was capable of giving rise to a perception in Mr Morgan of being life-threatening at the time, not whether the event was one capable of being life-threatening. Information not immediately known to him at the time the perception arose is irrelevant.[30]
[30] Border v Repatriation Commission (supra) [67].
The material before us does point to the helicopter incident being a life-threatening event. There is the evidence of Mr Morgan and the evidence of Dr Collier and Dr Strauss pointing to Mr Morgan being, as he described it, “petrified” and believing that he would be hit by a bullet or that a fuel tank of the helicopter would be hit, either event causing his death. Although the material indicates that Mr Morgan did not know whether the helicopter was being shot at, we take into account his age, his relative lack of experience in warfare and that he had not been in a situation such as this previously, we determine that the material before us indicates that his perception that his life was under threat was reasonable in the circumstances which confronted him.
In summary we determine that the material before us points to Mr Morgan’s experiences in the Vung Tau incident, the incident on patrol involving the possibility of being in a minefield and the helicopter incident, each being an experience of a category 1A stressor within the meaning of clause 6(a)(2) of the Statement of Principles concerning Depressive Disorder.
Taking into account the evidence of Dr Collier and Dr Strauss we determine that the material before us points to the clinical onset of the depressive disorder suffered by Mr Morgan being within five years of each of the incidents we have identified.
Issue 6: are we satisfied beyond a reasonable doubt that the Major Depressive Disorder suffered by Mr Morgan was not war-caused?
We will deal with the helicopter incident first as Counsel for the Commission conceded that on the material before us the first three steps in the Deledio process had been met. Counsel conceded also that we could not be satisfied beyond a reasonable doubt that Mr Morgan did not take part in a helicopter mission of the type he described. In our view these were proper concessions based on the evidence of Mr Morgan (which included identification of photographs taken during the mission), Mr Blair and Mr Wertheimer.
It was argued on behalf of the Commission that we should be satisfied beyond a reasonable doubt that there is no sufficient ground for determining that Mr Morgan’s depressive disorder was war-caused by this incident. It was put that we should be satisfied beyond a reasonable doubt that the battle as described by Mr Morgan did not occur. This proposition was based on the following grounds:
oMr Morgan did not discuss the incident with his close friend, Mr Birrell;[31]
[31] Mr Birrell does not refer to the incident in his statement made 20 February 2008, exhibit A7.
oMr Morgan did not inform Dr Collier of the incident during his first consultation;
oin proceedings before the Veterans’ Review Board (decision made 10 September 2008[32]), Mr Morgan did not refer to the incident;
[32] Exhibit A1 pp.124-132.
oMr Morgan did not provide his statement referring to the incident until 16 June 2009, after the Veterans’ Review Board had rejected his claim in relation to a depressive condition;
oDr Collier expressed the opinion that it was “remarkable” that Mr Morgan did not refer to the incident when he initially took a history from him;
oif the effect of the incident was as profound as Mr Morgan now claims he would have reported it to Dr New in 1971 whereas Dr New’s report suggests that he did not do so;
oin April 1971 Dr New diagnosed Mr Morgan as suffering a Reactive Depressive State (mild) apparently being a reaction to his separation from a girlfriend in South Vietnam;
oMr Morgan’s evidence that he was issued with an automatic weapon is implausible as his primary duties were clerical;
oMr Morgan gave evidence that when he was firing his rifle from the helicopter he was kneeling whereas he gave evidence to the Veterans’ Review Board that he was lying down at the time;[33]
[33] Veteran’s Review Board Decision dated 18 June 2010, exhibit A1 p.181.
oMr Morgan’s evidence that he was wearing a bush hat in the helicopter is implausible as it would have blown away;
oMr Morgan’s evidence that he would have been permitted on board the helicopter with a loaded weapon is implausible;
othe evidence of Mr Blair as to the number of helicopters involved conflicts with that of Mr Morgan;[34]
owhen asked if he fired his weapon during the incident he said that he did not and commented “that’s comic book stuff”;[35]
oMr Morgan’s evidence that he fired his weapon whilst on board the helicopter is implausible;
oit is implausible that Mr Morgan would not have told Mr Blair that he had fired his weapon had he had done so;
oMr Morgan’s evidence that the gunner stopped firing to tell Mr Morgan what was happening is implausible;
oMr Morgan’s evidence that the gunner would have told him to take photographs is implausible;
oMr Morgan’s evidence that he was able to take photographs and retain control of his weapon is implausible;
oit was implausible that Mr Morgan was on board a gunship in view of Mr Barsley’s research which indicated that helicopter gunships on missions were overloaded.[36]
[34] Mr Blair gave evidence there were four, Mr Morgan says there were five.
[35] Transcript 7.3.2012.
[36] Mr Barsley is the author of the Writeway Services Pty Ltd report exhibit R4.
It was put on behalf of the Commission that so many aspects of Mr Morgan’s evidence were implausible that we should be satisfied beyond a reasonable doubt that his trip on the helicopter was not as he described and that the effect of the incident was not such as to cause him to suffer a depressive disorder. The Commission points to the lack of any record of the incident in Dr New’s notes of April 1971 and the reference in the notes to the effect on Mr Morgan of his separation from his friend in South Vietnam. The Commission also relies on the evidence of Dr Collier that Mr Morgan did not tell him of the incident during his consultations in July and August 2008 and that Mr Morgan did not report the incident to his treating psychiatrist until late 2008.[37]
[37] Exhibit A10.
The failure of Mr Morgan to report the effects of the incident before late 2008 does raise some concern as to whether this particular incident was a cause of the condition from which he suffers. However, taking into account the evidence of Dr Collier we are not satisfied beyond a reasonable doubt that the incident did not occur. For the same reason we are not satisfied beyond a reasonable doubt that the incident did not cause Mr Morgan’s injury. In his report of 6 August 2009[38] Dr Collier noted that it is sometimes the case with Vietnam veterans that they do not initially provide a complete history.
[38] Exhibit A10.
In any event, under subsection 120(1) we must determine that the disease was war‑caused unless we are “satisfied beyond a reasonable doubt, that there is no sufficient ground for making that determination.” We are therefore required to take into consideration the other events we have determined to have been life threatening on the basis of the material before us.
We accept Mr Morgan’s account of the Vung Tau incident and the third patrol incident (involving the possibility of being in a land-mined area). His evidence as to the patrol incident is consistent with the evidence of Mr Blair that Mr Morgan told him of the incident when they were in South Vietnam and that Mr Morgan appeared to be upset by the incident at that time.
Dr Collier and Dr Strauss both are of the opinion that events in South Vietnam contributed to Mr Morgan’s depressive disorder. Although Dr Kaplan differs in his diagnosis, he is of the opinion that it was Mr Morgan’s service that caused his mental condition. We accept the evidence of Dr Collier and Dr Strauss.
In view of the evidence referred to in the preceding two paragraphs we are not satisfied beyond a reasonable doubt that there is no sufficient ground for making the determination that Mr Morgan’s depressive disorder was war-caused.
Conclusion
In accordance with section 9 of the Act we determine that the Major Depressive Disorder presently suffered by Mr Morgan was war-caused.
CONSIDERATION OF THE GENERALISED ANXIETY DISORDER CLAIM
Issues for determination
The issues arising for determination are the same as those set out in relation to the Major Depressive Disorder claim.
Issue 1: did Mr Morgan render “operational service” and if so, when?
We have made this finding earlier in these reasons.
Issue 2: does Mr Morgan suffer from Generalised Anxiety Disorder?
On the basis of the evidence of Dr Collier and Dr Strauss we are satisfied on the balance of probabilities that Mr Morgan suffers from Generalised Anxiety Disorder. The Commission agrees that Mr Morgan presently suffers this condition.
Issue 3: considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?
Having considered all of the material we determine that it points to the following hypothesis connecting the generalised anxiety disorder with the circumstances of Mr Morgan’s operational service:
oMr Morgan experienced each of the six incidents whilst serving in South Vietnam;
oeach of the incidents caused him to suffer Generalised Anxiety Disorder or aggravated an existing disorder;
ohe suffered the condition whilst in South Vietnam or shortly after his return to Australia;
ohe has continued to suffer from the condition.
We have reached this determination having considered the evidence of Mr Morgan as to the effect each of the incidents had upon him. We take into account also the evidence of Dr Strauss that the generalised anxiety disorder developed while Mr Morgan was serving in South Vietnam.
Issue 4: is there a relevant Statement of Principles in force?
We are satisfied that the relevant Statement of Principles is No.101 of 2007 concerning Anxiety Disorder. This is not in dispute.
Issue 5: is the hypothesis consistent with the “template” within the Statement of Principles and therefore a reasonable one?
Clause 5 of the Statement provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6 provides in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder;
…
Clause 9 relevantly provides:
For the purposes of this Statement of Principles:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
…
For the reasons already set out we determine that the material before us points to Mr Morgan’s experiences in the Vung Tau incident, the incident on patrol involving the possibility of being in a minefield and the helicopter incident, each being an experience of a category 1A stressor within the meaning of clause 6(a)(ii) of the Statement of principles concerning Anxiety Disorder.
Taking into account the evidence of Dr Strauss we determine that the material before us points to the clinical onset of the anxiety disorder suffered by Mr Morgan being within five years of each of the incidents we have identified.
Issue 6: are we satisfied beyond a reasonable doubt that the Anxiety Disorder suffered by Mr Morgan was not war-caused?
For the reasons already stated when considering the depressive disorder claim, we are not satisfied beyond a reasonable doubt that the anxiety disorder suffered by Mr Morgan was not war-caused.
Conclusion
In accordance with section 9 of the Act we determine that the Anxiety Disorder presently suffered by Mr Morgan was war-caused.
CONSIDERATION OF THE ALCOHOL DEPENDENCE AND ALCOHOL ABUSE CLAIM
On the basis of the evidence of Dr Collier and Dr Strauss we are satisfied on the balance of probabilities that Mr Morgan suffers from alcohol dependence and alcohol abuse.
The material before us, being the evidence of Dr Strauss, points to the alcohol dependence and abuse each having clinical onset during Mr Morgan’s tour of duty in South Vietnam.
The relevant Statement of Principles in force is No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse. This is not in dispute. The relevant provisions of this Statement of Principles are identical to those set out above in relation to Anxiety Disorder.
Conclusion
On the basis of the reasoning we have set out in relation to the claim for Anxiety Disorder, in accordance with section 9 of the Act, we determine that Mr Morgan’s alcohol dependence and alcohol abuse were war-caused.
CONSIDERATION OF THE HYPERTENSION CLAIM
The relevant Statement of Principles concerning Hypertension is No. 35 of 2003.
The Commission concedes that Mr Morgan suffers from hypertension and that the clinical onset of this condition was approximately April 2002. It is conceded also that if we determine that Mr Morgan’s alcohol dependence and/or alcohol abuse were war caused then his hypertension should be determined to be war-caused, as Mr Morgan would meet the requirements of clause 5(b).[39]We are satisfied that these are proper concessions and we so determine.
[39] Respondent’s Statement of Facts and Contentions 14.10.2011.
CONCLUSION
The decision under review, being the decision of the Repatriation Commission made 10 September 2009, will be set aside.
In substitution for the decision set aside it will be decided that the conditions of Major Depressive Disorder, Anxiety Disorder, Alcohol Dependence, Alcohol Abuse and Hypertension suffered by Mr Morgan were war-caused.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Dr R McRae, Member.
.......[sgd]............................................
Associate
Dated 31 May 2012
Date(s) of hearing 5, 6, 7, and 8 March 2012 Date final submissions received 4 April 2012 Counsel for the Applicant Mr A Larkin Advocate for the Applicant Ms J Ransley Solicitors for the Applicant Williams Winter Advocate for the Respondent Mr K Rudge, departmental advocate
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