Kilmister and Repatriation Commission
[2004] AATA 310
•26 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1072
VETERANS' APPEALS DIVISION )
Re DENNIS DEREK KILMISTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date26 March 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the conditions of post traumatic stress disorder and alcohol dependence or alcohol abuse are war-caused with effect from 22 March 1999. ...................(Sgd)......................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – applicant suffering from war-caused post traumatic stress disorder – alcohol dependence or abuse - diagnosis – whether applicant has suffered a severe stressor – decision set aside
Veterans’ Entitlements Act 1986 ss 9, 70, 120(1), 120(3)
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Deledio (1998) 83 FCR 82
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879
Woodward v Repatriation Commission [2003] FCAFC 160
Harris v Repatration Commssion (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
26 March 2004 Mr O Rinaudo, Member Decision Under Review
1. The applicant seeks review of a decision made by the respondent on 11 February 2000 that determined post traumatic stress disorder is not related to service within the meaning of section 9 and section 70 of the Veterans’ Entitlements Act 1986 (the Act).
2. On 8 October 2001 the Veterans’ Review Board varied the diagnosis to include alcohol dependence (in remission) and alcohol amnestic syndrome but otherwise affirmed the decision under review as varied.
History
3. The applicant served in the Royal Australian Navy from 6 January 1964 to 5 January 1973. The applicant rendered operational service as follows:
· HMAS Yarra in North Borneo and Malay Peninsular/Singapore from 17 June 1965 to 17 July 1965 and 4 August 1965 to 17 August 1965 and in Vietnam between 25 April 1966 and 9 May 1966 and 26 May 1966 to 9 June 1966
· HMAS Stuart in Vietnam from 16 May 1967 to 8 June 1967
· HMAS Parramatta in Vietnam from 15 May 1971 to 24 May 1971
4. The applicant also rendered eligible defence service from 7 December 1972 until his discharge on 5 January 1973.
5. In this application the applicant relies on two severe stressors, namely, being locked in the boiler room of HMAS Yarra in 1965 and seeing human and animal bodies floating in the water up a river in Vietnam.
Hearing
6. At the hearing of the application, the applicant and Captain Josephs gave evidence. In addition to the oral evidence, the following documentary evidence was tendered.
Exhibit 1 “T” Documents
Exhibit 2 Statement of Dennis Kilmister dated 6 February 2002
Exhibit 3 Statement of Dennis Kilmister dated 21 January 2003
Exhibit 4Writeway Report – Captain JA Josephs AM dated 6 January 2003
Exhibit 5Report of Dr Peter Mulholland dated 21 August 2002
Exhibit 6Report of Proceedings – HMAS Stuart 1967
· Applicant – Dennis Kilmister
7. The applicant confirmed his statements at Exhibits 2 and 3 and gave evidence that he and his fellow sailors were locked in the boiler room on action stations. He said that his duties were to attend to sprayers on the boiler. He said that an alarm would go off indicating action stations and the public address system on the ship would call “action stations”.
8. The applicant stated that the sailors were locked in with latches on the hatches. He said this caused him to have fear that he would not be able to get out. He said he was fearful because there was firing going on outside. He was aware as the public address system had said “this is not a drill”. He said in his statement that:
“I was locked down in the boiler room. It was absolutely terrifying. You are under extreme fear and stress for up to 4 hours or more. We knew that we were engaging with the enemy. You can hear the shells going off. The noise is terrible. All you can think is that some of those shells were being fired back at us and there is nothing that you can do trapped down in the boiler.”
9. The applicant said he cannot now go into rooms that do not have doors or windows and cannot sleep because he has nightmares of being trapped. He said he did not like being in large crowds. He said these terrible nightmares had been going on since he was 19 and still on service. He said he lived with the fear and claustrophobia all day long. He stated that he dreams that he is locked in the boiler and is trying to get out. He said the dream has lasted for six times a week for more than 30 years.
10. The applicant also described an incident when in a river in Vietnam. He said that he was either on HMAS Stuart or HMAS Parramatta. He said he had some difficulty with his memory as a result of alcohol amnestic syndrome. He said he had come up from the boiler room. He noticed things floating in the river. He saw a baby floating and a woman. He said he felt an enormous amount of disgust, guilt and shame. He said he was raised to respect women and this was just beyond his imagination.
11. The applicant said the feeling of helplessness was terrible. He said he suffers guilt and felt responsible for what had happened because he was part of what was going on. He said he has dreams and nightmares about women and children in different states of terror. He said they are bleeding, drowning and screaming and he cannot save them.
12. Under cross-examination the applicant stated he did not know whether the corpses were criminals. He said he did not know the time of day but it was light. He said he believed the part of the river in which he was in was about half a kilometre wide. He said they had been steaming for a couple of hours.
13. The applicant said the boiler room had two hatches. He said the only way out of the boiler room was up the ladder and out the hatch. He said there was a big door and a little door. They were about 1500mm x 15000mm and were hinged. He said the “dogs” secure this with six handles. He said the damage control officer actually locks off the hatch from outside and once inside you cannot get out unless they let you out. He said the doors were watertight and closing them was enough to keep them watertight. However, they were locked to prevent damage if the sailors panicked.
14. The applicant stated, although he had not seen the Russian Cruiser, he had been informed that it was there. He said they were told that every night they were going up the river they were going past a Russian Cruiser.
15. In re-examination the applicant confirmed that his memory was bad.
· Captain Josephs
16. Captain Josephs gave evidence and confirmed his report dated 6 January 2003. Captain Josephs confirmed he was not aware of any ship in any condition of war that locked sailors in.
17. Under cross-examination Captain Josephs confirmed he did not serve on these types of ships. However, he had sought advice from Captain Perrett which is referred to in paragraph 7 of his report (Exhibit 4). He confirmed that Captain Perrett did not serve on HMAS Stuart but did serve on the same class of ship.
Legislative Framework
18. The legislation relevant to this application is set out in section 9 of the Act. Section 9 provides:
“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;
19. In addition, the standard of proof required in this case is as set out in section 120(1) and section 120(3). These sections state 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.
…..
(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.”
20. Section 120 (4) of the Act is also relevant. That section says:
“(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
21. The Statements of Principles (SoPs) relevant to this application are:
· Instrument No 3 of 1999 - Post Traumatic Stress Disorder (PTSD); and
· Instrument No 76 of 1998 – Alcohol Dependence or Alcohol Abuse
22. These SoPs relate to operational service.
Submissions
23. Mr O’Gorman, Counsel for the applicant summarised the applicant’s case by submitting the applicant experienced severe stressors whilst rendering operational service. These stressors caused the applicant’s post traumatic stress disorder and alcohol dependence or alcohol abuse.
24. He argued this hypothesis is consistent with Instrument No 3 Of 1999 (in regards to PTSD) and 76 of 1998 (concerning alcohol dependence or abuse) and that it is not contrary to proved or known scientific facts. Additionally, it is not obviously fanciful or impossible.
25. Mr O’Gorman submitted the Tribunal could not be satisfied beyond reasonable doubt that one or more of the facts necessary to support the hypothesis is disproved, or some other fact inconsistent with the hypothesis was proved.
26. Mr O’Gorman submitted to the Tribunal that the reports of Dr Cantor, Dr Danesi, Dr Jenkins, Dr McNamara and Dr Mulholland all supported the contention that the applicant suffers from PTSD. In addition, Mr O’Gorman confirmed that the reports of Dr Cantor, Dr Jenkins, Dr McNamara and Dr Mulholland supported the contention that the applicant’s PTSD was caused by his service in the RAN.
27. The applicant relies on two “severe stressors” namely:
(a) being locked in the boiler room on HMAS Yarra in 1965; and
(b) seeing human and animal bodies floating in the water up a river in Vietnam.
28. Mr O’Gorman submitted that the evidence pointing to the applicant experiencing a severe stressor were contained in the applicant’s oral evidence, the applicant’s statements at Exhibits 2 and 3 and, to some extent, supported by the investigations set out in the Writeway Report.
29. In those circumstances, Mr O’Gorman submitted that the Tribunal could not be satisfied beyond reasonable doubt that all or any of the factors did not occur in a manner alleged by the applicant.
30. Mr O’Gorman referred the Tribunal to the decision of Stoddart v Repatriation Commission [2003] FCA 334, in particular paragraphs 50 and 55. Accordingly, Mr O’Gorman submitted that the Tribunal would accept that factor 5(a) of Instrument No 3 of 1999 had been satisfied and that factors 5(a) and 5(b) of Instrument No 76 of 1998 had been satisfied. It was further submitted that the Tribunal should find that the applicant’s PTSD caused or contributed to his developing alcohol abuse/dependence within the meaning of factor 5(a) of Instrument No 76 of 1998.
31. Mr Stoner, Counsel for the respondent submitted, in respect of the “lock down” stressor as reported by the applicant, the following:
“Crew members who were employed in the boiler rooms or other machinery spaces of Australian warships were not ‘locked down’ while the ship was in action, or at any other time.”
32. Whilst hatches were secured to make them watertight they were readily activated by crew members who wished to pass through the door. In this regard the respondent relied on the report of Captain Josephs of Writeway Research Services dated 6 January 2003. Whilst in June and July 1965 HMAS Yarra bombarded shore targets on several occasions, HMAS Yarra was not fired upon. Crew members in the boiler room would have been aware of the circumstances of the firing.
33. In respect of the applicant’s contention that he saw dead bodies in Vietnam, Mr Stoner submitted that the ship, whether it was HMAS Yarra, Stuart or Parramatta upon which the applicant was serving, would not have ventured up river. The sole purpose for being there was to unload and reload HMAS Sydney. Sighting of human corpses in the Vung Tau Harbour would have been a rarity. There is no entry of any such sighting in the relevant reports of proceedings. Because there was always a watch and the ship was at action stations, it was unlikely corpses of women, children and babies would have gone unnoticed.
34. Mr Stoner also submitted that it was beyond belief that the applicant and no-one else would have noticed a large number of bodies floating in the water. It was also submitted that it was likely that any such sightings would have been reported.
35. Mr Stoner submitted that factor 5(a) of Instrument No 76 of 1998 is not satisfied in that “the applicant did not suffer from a psychiatric disorder, related to service, at the time of clinical onset of alcohol dependence or alcohol abuse.”
36. Mr Stoner also submitted that factor 5(b) of Instrument No 76 of 1998 because the applicant did not suffer a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
DISCUSSION AND DECISION
Diagnosis
37. In Budworth v Repatriation Commission [2001] FCA 317 and Benjamin v Repatriation Commission [2001] FCA 1879 the Full Federal Court held that as a first step it was necessary to consider the diagnosis of the disease or injury and then consider causation. Different standards of proof applied to both. When determining whether a claimed injury or disease exists, that issue must be decided to the “reasonable satisfaction” of the decision maker in accordance with S120 (4) of the Act.
38. Sections 120(1), (2) , (3) and 120A(3) assume the existence of a relevant injury or disease and provide a standard of proof for the determination of whether that injury or disease was war caused (satisfaction beyond reasonable doubt that there is no sufficient ground for making that determination).
39. There is ample evidence that the applicant is suffering from alcohol dependence or alcohol abuse and PTSD and the Tribunal so finds. In this regard the comments of Dr Mulholland, psychiatrist, which the Tribunal accepts, summarises the applicant’s condition best. Dr Mulholland states:
“From a psychiatric perspective Mr Dennis Kilmister has a chronic PTSD which is related to his service in the RAN. The only difficulty with this diagnosis revolves around the dilemma as to whether he meets the requirements for ‘experiencing a severe stressor’. He has told me about various events and has told other psychiatrists about these events and others and has also referred to these events and others in his statements. Being a psychiatrist I accept that he has experienced a severe stressor as per the relevant requirements however ultimately that is up to the AAT to decide. The difficulty is that the most important stressor is associated with his serving in the boiler room while the ship was cruising in potentially dangerous waters and/or in action on shore bombardment. As far as he was concerned there was a real threat however I understand that this was more in the nature of a perceived threat rather than an actual threat. It is not up to me to be a final arbiter on those matters.
His history is consistent with developing a severe alcohol abuse/dependence disorder arising out of his PTSD. That alcohol abuse/dependence disorder was very severe but fortunately has been in remission for many years. Unfortunately he developed organic brain damage from his excessive consumption of alcohol such that he has had an amnestic disorder presumably due to excessive intake of alcohol for many years (he does not have a dementia).
…..I regard his psychiatric disorders as being a consequence of his service in the RAN however at the end of the day it is up to the AAT to decide whether he precisely fits the relevant legislation.”
40. Dr Mulholland also made the following comments:
“I could readily understand that there would be some inconsistencies in his history. I do not think that these would be due to Mr Dennis Kilmister being deliberately deceptive but rather I would take the view that they are due to his chronic dysmnesia. Because of his chronic dysmnesia it is preferable to cross-corroborate as much of his information as possible.”
41. Accordingly in this case the Tribunal finds that the applicant is suffering from Post traumatic Stress Disorder (PTSD) and Alcohol Dependence/Abuse.
Causation
42. In considering this application, the Tribunal has had regard to the steps to be followed in cases such as this, as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 where the Full Court (Beaumont, Hill and O’Connor JJ) said:
“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 s196B(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 s196B(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 s120(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.”
43. Having regard to the steps set out in Deledio the Tribunal must first consider all of the material which is before it and determine whether that material points to an hypothesis connecting the injury with the circumstances of the service rendered.
44. In this case it is argued that the applicant’s PTSD and alcohol dependence or alcohol abuse are related to the circumstances of the applicant’s operational service.
45. The Tribunal acknowledged that such an hypothesis exists.
46. The question then for the Tribunal to determine is whether the SoPs are in force which relate to the hypothesis.
47. In this case SoPs relating to PTSD and alcohol dependence or alcohol abuse exist. In respect of the former, the SoP is Instrument No 3 of 1999 and for alcohol dependence or alcohol abuse the relevant SoP is Instrument No 76 of 1998.
48. In accordance with step 3 of Deledio the Tribunal must now consider whether the hypothesis is a reasonable one. To do this the hypothesis must be consistent with the template to be found in the SoPs. That is to say that the hypothesis must contain one or more of the factors which the Authority has determined to be a minimum which must exist and be related to the person’s service.
49. In this regard the factor with respect to the SoP relating to PTSD which the applicant says is met, is factor 5(a) which states that the applicant must have experienced a severe stressor prior to the clinical onset of post traumatic stress disorder.
50. In considering step 3 the Tribunal notes the explanation of Finn J as to the proper operation of step 3 in Harris v Repatriation Commission (2000) 31 AAR 270 at 282:
“It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that ‘one of the disputed facts happens also to be a component of an SoP’.”
51. In Arnott v Repatriation Commission(2001) 32 AAR 445 at 452-453 the Full Federal Court, at paragraph 27, said:
“However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the ‘particular claim’ fits the ‘template’ laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage.”
52. In respect of alcohol dependence or alcohol abuse, the applicant submits that he meets factors 5(a) and 5(b) of the SoP in that he was suffering a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse or he experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
53. The applicant relies on two stressors to satisfy the SoPs in each case. For the SoP relating to PTSD, the relevant definition states 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 another person’s,
physical integrity.In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlement Act applies, events that qualify as stressors include:(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;”
54. The definition in the alcohol dependence or alcohol abuse SoP is exactly the same except that in the first paragraph after the words “physical integrity” are the following words:
“which event or events might evoke intense fear, helplessness or horror.”
55. In this application, the applicant relies on two stressors, namely when the applicant was “locked down” in the boiler room during action stations and the applicant seeing dead bodies in a Vietnam river including a woman and child.
56. In his submission, Mr O’Gorman referred the Tribunal to the Federal Court decision of Stoddart v Repatriation Commission [2003] FCA 334 and particularly at paragraph 50 and 55. Mr Stoner, on the other hand, submitted that whilst Stoddart was authority for a subjective element to the test, the departure from:
“a strictly objective tests extends only so far as a veteran’s personal knowledge and experience could reasonably permit a threat to be perceived. Use of the word ‘reasonably’ requires an objective assessment in relation to the person’s subjective perception”.
57. Mr Stoner distinguished the decision of Stoddart from the current case in the following terms:
“In the alternative, Stoddart should be confined to its facts. At the relevant time, Mr Stoddart was 18 years of age. He was alone, in the bowels of the ship, behind sealed doors and bereft of communications. He was aware that during a recent exercise a star shell had fallen down a hatch on HMAS Tobruk and exploded in the ammunition tunnel, killing several crew members. Other than (at times) the sounding of action stations, he lacked any objective means of assessing whether there was a threat.
While Mr Kilmister was also young, he was not working on his own in the bowels of the ship, with no form of communications should something go amiss. He was in the boiler room, with other crew. He was not ‘locked down’, as Mr Stoddart seems to have been. He would have known, beforehand, by means of Daily Orders and other briefings, that HMAS Yarra was tasked to bombard shore target; and he would have experienced similar conditions during practice firings: report of Capt HA Josephs for Writeway Research Service dated 6 January 2003, at [16].”
58. In Stoddart v Repatriation Commission [2003] FCA 334, his Honour Justice Mansfield held:
“...the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
59. In Woodward v Repatriation Commission [2003] FCAFC 160 the Full Federal Court considered Stoddart and said:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.”
60. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by his Honour Justice Mansfield, clearly accepted the approach taken by Mansfield J (and adopted by the Full Court in Woodward’s case) in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J namely “an indication of probable evil to come; something that gives indication of causing evil or harm”, and furthermore stated that the description of “a risk of death”, “can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
61. Also significant is the Full Court’s observation in addressing what can be described as routine normal service duties “that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time.”
62. The Tribunal is satisfied that if the events occurred as described by the applicant then they amount to severe stressors and come within the definition of the relevant SoPs. The question for the Tribunal, adduced by the respondent at the hearing, is whether the incidents occurred in the manner described by the applicant or at all.
63. Since the hypothesis does contain these factors it can neither be said to be contrary to proved or known scientific fact nor otherwise fanciful. Accordingly, the hypothesis is a reasonable hypothesis.
64. It is now necessary for the Tribunal to examine the facts from the material before it and determine whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. If the Tribunal is not so satisfied, the claim must succeed.
65. In this regard the Tribunal notes the evidence given by Captain Josephs in his report dated 6 January 2003. In particular, at paragraphs 5 and 6 of the report, Captain Josephs states:
“5. The notion that men employed in the boiler rooms and other machinery spaces of a warship were ‘locked down’ while the ship was in action, or at any other time, is a popular misconception. When a RAN ship went to Defence Stations or Actions Stations, or when navigating in potentially hazardous conditions, certainly watertight doors in many sections of the ship, including boiler rooms and machinery spaces, would be tightly secured as a damage control measure.
6. These doors were not fitted with locks or ‘locked’, but were secured by a number of ‘dogs’ or swivel clips spaced evenly around the periphery of the door. Alternatively a watertight door might be fitted with a similar number of securing bars operated simultaneously by a wheel located in the centre of the door. Ladder hatches were fitted with a small, centrally-positioned, lidded ‘manhole’ opening so that when the main hatch was secured a man could pass through as required. Access to and egress from secured compartments was operationally necessary at all times, and could be achieved by simply activating the securing mechanisms when required. Every member of the ship’s company would be expected to be aware of and familiar with these arrangements”
And further at paragraph 7 where Captain Josephs states:
“7. Captain J.K. PERRETT RAN Rtd is a very experienced ex-RAN Engineer Officer who has served in Type 12 Destroyer Escorts similar to STUART. He has confirmed that the arrangements described in the above paragraph are correct, and that the access to the boiler room in Type 12s was through a ladder hatch fitted with a lidded manhole opening. Ready and regular access to the boiler room was necessary for many reasons, and when the main hatch was secured personnel simply operated the manhole cover to pass through, and secured it firmly after them.”
66. Captain Josephs went on at paragraphs 29, 30 and 31 of his report to give evidence that the applicant saw corpses in a Vietnam river.
“29. While STUART was at anchor boat patrols, ship’s divers and upper deck sentries would have maintained a careful watch for suspicious debris. The sighting of a human corpse in the water around the anchor berths off Vung Tau would have been a rarity, but standard operating procedure would have required patrols to try to identify any such corpse for intelligence purposes, and numbers of corpses of babies, women and children could hardly have gone unnoticed or unremarked.
30. Commander G.R. LAMPERD RAN Rtd was Diving Officer onboard STUART during the May 1967 visit to Vung Tau, and was responsible for the conduct of Operation Awkward. He considers it would have been unlikely that any sightings of bodies in the water would not have been reported, and while he was not prepared to directly contradict Mr KILMISTER’s claim provided a statement of the circumstances as he recalled them. A copy of this statement is enclosed at Attachment 10.
31. Lieutenant Colonel H.T. CONANT Rtd is a miliary historian who served in Vietnam, has maintained comprehensive records and is very well informed about conditions in an around Vung Tau during the Vietnam conflict. He has advised that a floating corpse was occasionally found in the close inshore waters around Vung Tau, but the victims were usually involved in the local criminal sub-culture and resulted from gang warfare rather than military conflict.”
67. Given that, in respect of the hatch incident, the evidence was that there was a popular misconception that hatches were in fact locked down, it is difficult for the Tribunal to find beyond reasonable doubt that even if hatches were not locked down that the applicant did not believe he was locked in the boiler room and, as a result, suffered feelings of extreme fear.
68. The applicant was at the time quite young and the ship was at action stations. It was firing its guns. Whilst the threat of return fire may have been very low, there was some prospect the ship would be fired at.
69. Accordingly, the Tribunal is satisfied that the applicant believed that he was locked in the boiler room and as a result suffered a severe stressor within the meaning of the relevant SoP.
70. With respect to the bodies in the water, again Captain Josephs reported that sighting of such bodies was a rarity. There is no evidence that would cause the Tribunal to accept beyond reasonable doubt that the events did not occur. It should also be noted that in the report Commander Lamperd was not prepared to directly contradict Mr Kilmister’s claim.
71. Accordingly, the Tribunal is satisfied that the applicant saw bodies, including the bodies of a woman and child, in the Vietnam river and that this constitutes a severe stressor in accordance with the relevant SoPs.
72. Accordingly, the Tribunal is not satisfied beyond reasonable doubt that the hypothesis is not reasonable and therefore determines that the hypothesis is reasonable.
73. The Tribunal sets aside the decision under review and in substitution therefor determines that the conditions of post traumatic stress disorder and alcohol dependence or alcohol abuse are war-caused with effect from 22 March 1999.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed:
AssociateDate/s of Hearing 3 July 2003
Date of Decision 26 March 2004Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr J Stoner
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