Laarhoven and Repatriation Commission - [2001] AATA 675

DECISION AND REASONS FOR DECISION [2001] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1864

GENERAL DIVISION         )
           Re      MARINUS LAARHOVEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member
Dr P Lynch, Member

Date27 July 2001
PlaceSydney
DecisionThe decision under review is set aside and in substitution therefor the Tribunal decides that:
(a)The diagnosis of the condition post traumatic stress disorder is varied to adjustment disorder.
(b)The conditions of adjustment disorder, alcohol abuse and chronic bronchitis are defence-caused with effect from 11 April 1996.
(c)The matter is remitted to the Repatriation Commission for assessment of the correct rate of disability pension.
..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
Veterans' Affairs – Disability Pension – operational and defence service – diagnosis – adjustment disorder – psychoactive substance abuse or dependence – chronic bronchitis

LEGISLATION
Veterans' Entitlements Act 1986 section 9, 70, 119, 120, 120A, 120B

AUTHORITIES
Budworth v Repatriation Commission [2001] FCA 317
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307

REASONS FOR DECISION

Ms S M Bullock
Senior Member

27 July 2001 Dr P Lynch

Member

This is an application for a review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Marinus Laarhoven ("the Applicant") of a decision made by the Respondent, the Repatriation Commission ("the Commission") on 28 August 1997 (T2). The Commission refused Mr Laarhoven's claim for psychoactive substance abuse or dependence, chest and lung problems and post traumatic stress disorder. A claim for bilateral sensorineural hearing loss was accepted with effect from 11 April 1996. Disability Pension was continued at 60 per cent of the General rate. On 29 September 1999, the Veterans' Review Board ("the Board") affirmed the Commission's decision in relation to psychoactive substance abuse, chest and lung problems and post-traumatic disorder. In relation to Mr Laarhoven's application for review in relation to an increase in pension for his accepted conditions, the Board adjourned this matter pursuant to section 152 of the Veterans' Entitlements Act 1986, pending further investigation. This assessment had not been finalised at the time of hearing (T12).
A hearing was held before the Tribunal on 19 April 2001 and resumed on 29 May 2001. Oral evidence was provided by Mr Laarhoven at hearing and by Mrs R Laarhoven by conference telephone. Oral evidence was also provided at the hearing by Dr A H Dinnen, Consultant Psychiatrist and Dr R V Delaforce, Forensic Psychiatrist, by conference telephone. Mr Laarhoven was represented by Mr M Vincent of Counsel and the Respondent was represented by Mr P Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Act 1975 ("T documents" T1-T17) and the following exhibits:
Exhibit NumberDescription Date
A1      Report of Dr A H Dinnen, Consultant Psychiatrist      19 April 2000
R1      Letter of Referral from Department of Veterans' Affairs to Dr R Delaforce Report by Dr R Delaforce, Forensic Psychiatrist   11 February 2000 4 April 2000
R2      Letter of Referral from Department of Veterans' Affairs to Dr R Delaforce Report of Dr R Delaforce, Forensic Psychiatrist 2 June 2000   27 June 2000
R3      Letter of Referral from the Department of Veterans' Affairs to Dr R Delaforce Report of Dr R Delaforce, Forensic Psychiatrist 18 August 2000   6 September 2000
R4      Clinical notes of Dr I Hayes, Psychiatrist           Various
R5      Letter to Dr I Hayes, Psychiatrist, from Department of Veterans' Affairs Letter in reply in from Dr I Hayes, Psychiatrist        12 April 2001   12 April 2001
R6      Reports of Clinical Associate Professor Breslin, Consultant Thoracic Physician     12 December 2000 8 January 2001 5 February 2001

issues

At hearing, Mr Godwin advised the Tribunal that the Respondent conceded that Mr Laarhoven has chronic bronchitis as a defence-caused condition, meeting the requirements of the Statement of Principles, 74 of 1997 concerning Chronic Bronchitis and Emphysema and that this condition should have a nil assessment.
The issues remaining for the Tribunal to determine are:
1.Whether or not Mr Laarhoven has a psychiatric condition and what is the diagnosis of this condition; and
2.Whether or not Mr Laarhoven has a service-related psychoactive substance abuse or dependence problem in the form of alcohol abuse or dependence.

service history

Mr Laarhoven served in the Australian Army from 20 February 1964 to 30 September 1984 (T3, pp19F-19L). Mr Laarhoven served in Vietnam from 15 March 1968 to 2 April 1969 (T3, pp19G-19H) and this constitutes operational service for the purposes of the Veterans' Entitlements Act 1986. Mr Laarhoven also rendered defence service as defined in Part IV of the Veterans' Entitlements Act 1986 from 7 December 1972 to 30 September 1984 (T3, pp19J-19K).
legislation
A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Section 9 of the Act deals with war-caused injuries or diseases and 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;
(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;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty, or away from a place of duty, upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and
in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise
…."

Section 70 of the Act deals with defence-caused injuries or diseases and eligibility for pension arising out of defence service.
The standard of proof to be applied to this matter varies according to whether one is considering Mr Laarhoven's operational or defence service.
For operational service, the standard of proof is that of the reasonable hypothesis and the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for making the finding that a condition is war-caused. The relevant sections of the Act are subsections 120(1) and 120(3) of the Act which provide:

"120. Standard of proof

(1)      Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease;     or
(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
…"

In respect of Mr Laarhoven's defence service, subsection 120(4) of the Act applies. The Tribunal is required to decide all relevant matters to its reasonable satisfaction. This means that the Tribunal has to decide whether, on the balance of probabilities, Mr Laarhoven's claimed conditions are defence-caused.
Subsection 120(4) states as relevant:
"…
(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.
Note: This subsection is affected by section 120B
…"

In relation to Mr Laarhoven's operational service, the Tribunal is required to assess the reasonableness of any hypothesis in accordance with any Statements of Principles, issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. In this regard, the Tribunal is required to apply section 120A of the Act in reaching its decision. As relevant, section 120A states:
"120A Reasonableness of hypothesis to be assessed by reference to
Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered     by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)           the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)      If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection   196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of
Principles.
(3)      For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)      Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be
…"

In respect of Mr Laarhoven's defence service, the Tribunal is also required to apply section 120B of the Act. This requires the Tribunal to decide matters to its reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medication Authority or any relevant determinations or declarations under the Act.

Section 120B states as relevant:
"120B Reasonable satisfaction to be assessed in certain cases by
reference to Statement of Principles
(1)      This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2)      If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3)      In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service
…"

Section 119 of the Act, which is not set out here, reflects that the decision making process under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or deficiency in records.
statements of principles
The Tribunal considers that the appropriate Statements of Principles are:

Instrument 5 and 6 of 1994 concerning Psychoactive Substance Abuse or Dependence for operational and defence service;
Instrument 58 of 1996 concerning Adjustment Disorder for defence service; and
Instrument 74 of 1997 concerning Chronic Bronchitis and Emphysema for defence service.

background

The following information is provided by way of background and the information contained within is not in dispute:

Mr Laarhoven was born in Holland on 11 August 1939. He came to Australia in 1954 aged approximately 15 years old.
Mr Laarhoven is married and has two adult children, a daughter and a son who live in Brisbane.
On 9 July 1996, Mr Laarhoven lodged a claim for "Increase in Disability Pension" in respect of his accepted conditions of crush fracture L3, accepted from 20 June 1978 and bilateral sensorineural hearing loss, accepted from 11 April 1996 (T4).
On 11 July 1996, Mr Laarhoven lodged a claim for the conditions of "Lung problems", "PTSD, Alcohol and Smoking Abuse" and "Hearing Loss and Tinnitus" as service-related (T5, p26). Mr Laarhoven noted the lung problems commenced in 1983 and post traumatic stress disorder, alcohol and smoking abuse and hearing and tinnitus commenced in 1968.
On 28 August 1997, the Commission refused Mr Laarhoven's claim for post traumatic stress disorder, lung problems and psychoactive substance abuse or dependence, while accepting bilateral sensorineural hearing loss and continued pension at 60 per cent on the General rate.
On 24 October 1997, Mr Laarhoven lodged an application for review to the Board in relation to the Commission's decision concerning his entitlement to pension and the rate of pension (T9).
On 29 September 1999, the Board affirmed the Commission's decision in relation to post traumatic stress disorder, psychoactive substance abuse and lung problems, but adjourned the proceedings in relation to the assessment of the rate of pension, pending further investigation by the Commission (T12).
On 10 December 1999, Mr Laarhoven lodged an application for review to the Tribunal (T1).

EVIDENCE OF MR LAARHOVEN

Mr Laarhoven told the Tribunal that he served his apprenticeship as a baker and pastry cook in approximately 1955.
Prior to joining the Army on 20 February 1964, Mr Laarhoven drank socially, he said, but not at home which was on a farm. Mr Laarhoven told the Tribunal he drank beer at that time or an occasional rum and coke. It was difficult for Mr Laarhoven to remember details but he recalled that on his 21st Birthday, he consumed alcohol. Mr Laarhoven was allowed the family car on Monday evenings and on those occasions, he would only consume one to two beers and never more than four cans of beer.
When Mr Laarhoven joined the Army in 1964, he stated that he was a good sportsman involved in sporting activities such as cross-country running and golf. At that time, he only consumed alcohol on weekends. Mr Laarhoven stated that his alcohol consumption pattern did not change in the four years in the Army leading up to his tour to Vietnam.
Prior to going to Vietnam, Mr Laarhoven learnt of the death of a friend of his, Erald Nielson. Mr Laarhoven had met Mr Nielson in the Enoggra Barracks in Brisbane. He had undertaken basic training with Mr Nielson. Mr Laarhoven told the Tribunal he learnt about Mr Nielson's death from a phone call from Mr Nielson's sister. Mr Laarhoven stated that the family had not been fully appraised of the circumstances of Mr Nielson's death. There were conflicting stories, for example, a newspaper article indicating that Mr Nielson had been killed by gunfire from Australian soldiers. Mr Laarhoven had heard a different story from Mr Nielson's unit. Upon learning of Mr Nielson's death, Mr Laarhoven drove to Brisbane to attempt to calm Mr Nielson's grieving mother.
Before going to Vietnam, Mr Laarhoven stated he did preliminary training at Canungra, including compass reading and "going bush" with the unit.
In Vietnam, Mr Laarhoven was based at Nuit Dat. He stated he was with the Artillery for six weeks and for the rest of the time with the ARU. Mr Laarhoven was assigned as a cook. He also had to perform security duties and clearing patrols and participated in a three-day patrol. Mr Laarhoven stated that he had told his Commanding Officer ("CO") that he was not a soldier. He had never fired guns and he did not want to go on patrols. The reply from his CO was "you're a soldier first and a cook second". Mr Laarhoven told the Tribunal that he had not experienced anything in his training to equip him for dealing with his being outside the wire perimeter at Nuit Dat. He was a Corporal when he commenced service in Vietnam.

During the first three months of his Vietnam service, Mr Laarhoven's alcohol consumption increased, he stated. He obtained alcohol from rations and there was alcohol in supplementary ration packs that he obtained from National Servicemen. Prior to Vietnam, Mr Laarhoven stated that he had consumed rum or beer but in Vietnam, he commenced drinking whisky. The quantity of alcohol consumed varied, depending on the day, the duties and who Mr Laarhoven was with. Mr Laarhoven stated he did not drink on duty. When he did drink, he would consume half a 750ml bottle of whisky per day. Mr Laarhoven told the Tribunal this had no ill effects on him. He usually drank with the man with whom he shared a two-man tent. Mr Laarhoven's colleague did not cope with service in Vietnam and was subsequently sent home because he was often too drunk to work and was considered dangerous. Mr Laarhoven told the Tribunal that he was not affected by the amount of alcohol he drank. After cooking dinner and serving the soldiers, he went to the OR's mess, had two beers, then went to his tent where he often continued to drink. Mr Laarhoven told the Tribunal he was quite alright to continue work the next morning. His cooks would come on duty early to do breakfast and Mr Laarhoven commenced work at eight or nine o'clock each day
Mr Laarhoven told the Tribunal that clearing patrols were undertaken three times per week and sentry duties, worked for a number of hours until relieved, were undertaken perhaps two nights per week. Mr Laarhoven told the Tribunal that he did not experience any incidents in Vietnam.
After three months in Vietnam, Mr Laarhoven requested "R and R" leave which was granted. This leave was unusual in that it was usually only granted after six months' service. Mr Laarhoven explained to the Tribunal that just prior to coming to Vietnam, his wife had miscarried with their first child. Mr Laarhoven stated that he was devastated by this event and very angry. In Vietnam, he felt lonely and could not handle the pressure, he stated. Mr Laarhoven further explained to the Tribunal that he had a wonderful time on leave in Sydney. Once more in Vietnam, Mr Laarhoven was promoted to the rank of Sergeant. It was then "open slather" in terms of his alcohol consumption because Mr Laarhoven now had access to the Sergeants' Mess and indeed, he had responsibility for this facility. There was no limitation to alcohol availability, Mr Laarhoven stated. He could buy a litre of whisky for $1.60. Mr Laarhoven told the Tribunal that he kept dozens of bottles of whisky behind the bar. Mr Laarhoven would also sometimes consume vodka and orange, but not often.
Mr Laarhoven stated he did not want to be a soldier. Everytime he heard guns discharge, he just wanted to be safe at home. He often thought about his friend, Erald Nielson, but more at the beginning of his service than towards the end.
After Vietnam, Mr Laarhoven stated that he would consume alcohol at lunchtime having three or four beers in the Sergeants' Mess and on Fridays, he would consume between ten to fifteen beers and would not go back to work. Mr Laarhoven stated that he never drank at night at work. He went home, as he did not like listening to the soldiers talking about their Vietnam experiences.
Mr Laarhoven's pattern of alcohol consumption did not change very much when he returned to Australia. He then became a Warrant Officer in about 1972, according to his records. Mr Laarhoven stated that he was very proud of this promotion. At that time, Mr Laarhoven was working five days per week and was still very fit, playing soccer and taking his soldiers, who were also chefs, on five-mile runs. Mr Laarhoven stated that he wanted to show the 85 men under him that he could still keep up with them. "I was very dedicated and hence I got all my promotions from dedication and yes, I did not drink for quite some time, simply because I knew what my responsibilities were which was looking after my soldiers, teaching my soldiers and staying fit". (Transcript, 19 April 2001, p41) Mr Laarhoven told the Tribunal that he remained fit until having a service-related motor vehicle accident in 1976.
Mr Laarhoven described his motor cycle accident in 1976 when he was riding a motor cycle and was hit by a car. He suffered crushed vertebrae. When Mr Laarhoven was discharged from hospital, he wore a solid brace and he was optimistic that everything was going to "come good".
After his motor cycle accident, Mr Laarhoven was promoted because, he believed, he was a good caterer and a very good chef. It was in this job that he assisted the units in such matters as checking on promotions and equipment. He was no longer directly in charge of soldiers.
Twelve months after the accident, Mr Laarhoven stated that his back became much worse in terms of pain. Mr Laarhoven told the Tribunal that he began to drink more because the alcohol helped dull his back pain. Tablets did not seem to help that much. Mr Laarhoven stated:
"….I think I was drinking because I became – useless is not the word to use but from a sportsperson to what I became after that accident, was very hard to take and I think was more the frustration, the anger that when you got the pain that you took to the alcohol… " (Transcript, 19 April 2001, p6)
Mr Laarhoven stated that he was now drinking beer and less whisky.
Mr Laarhoven described the pain from his back changing to include daily stabbing pain in his left leg. This occurred about four years after the accident and remained at this level for the remainder of his service. Mr Laarhoven stated he had a back operation in 1994/1995.
In 1984, Mr Laarhoven reduced his alcohol consumption as well as smoking following a lung operation. He stated that he drank minimal or no alcohol for approximately twelve months.
From the time of his motor cycle accident until the end of his service in 1984, Mr Laarhoven stated that the last four years were his worst in the Army. His job was to travel by motor vehicle or aeroplane to see various units. On arrival at a particular unit, the first thing which would occur would be that he was taken to see the mess. Following such inspections, Mr Laarhoven was required to write a report to Canberra each Friday. He claimed the authorities did nothing with his report so his job became "a non-job". Mr Laarhoven stated he became very "slack" and even when he was recommended for promotion to Captain in Melbourne, he did not want this and resigned instead.
In 1984, Mr Laarhoven left the army and commenced work as a chef at the City Tattersalls Club, Brisbane. At the commencement of his employment, he was earmarked to become Executive Chef, which he subsequently became in 1985. Mr Laarhoven continued at City Tattersalls Club until 1994. Mr Laarhoven described most of his work as requiring him to do telephone ordering, rostering and organising functions. He would usually get to work by 9am and be left by 2.30pm. Mr Laarhoven had no heavy lifting and "just walked around". By the time he left this employment, his back pain was getting too much to bear and he stated that he was taking many tablets to try and stop the pain. In relation to comments made by Forensic Psychiatrist, Dr R Delaforce, that Mr Laarhoven had argued with the Chief Executive Officer of the Club, Mr Laarhoven stated that there had been an argument over the wedding of the Chief Executive Officer's daughter and there was a concern about one of the tables not being served. Mr Laarhoven stated that he was in pain and "very uptight" and he pushed the Chief Executive Officer out of the kitchen. The Chief Executive Officer ordered Mr Laarhoven to see him in his office the next day.
While employed at City Tattersall Club, Mr Laarhoven stated that on Thursdays or Fridays at the end of work, he would sometimes be asked into the Boardroom to discuss future function arrangements. Mr Laarhoven stated that on these occasions, he would consume enough alcohol to require him to have a taxi called to take him home. This could sometimes be at 9pm or 11pm. On other days, he would leave the Club at approximately 2.30pm or 3.00pm.
Following his cessation from work at City Tattersalls Club, Mr Laarhoven attempted to work at his brother's Mitre 10 Store, working on the front desk. This involved standing for periods of time. Mr Laarhoven lasted in this position for approximately two or three weeks, working a few hours each day. During this period, Mr Laarhoven earned $1,100.00. Mr Laarhoven was asked by his brother to leave because he was too aggressive with the customers. The reason for this aggression, Mr Laarhoven stated, was because of the severe pain that he was experiencing.
Mr Laarhoven told the Tribunal that it was in the 1990s that he considered he really wanted and needed alcohol because of his back problems becoming worse and worse.
Mr Laarhoven stated that he has tried to cut back his alcohol consumption at various points in his life particularly after the lung operation and when he was a Warrant Officer. This reduction or brief cessation of alcohol consumption was characterised by Mr Laarhoven's telling his wife not to join the wine club and not to buy any alcohol. While he had lasted with no alcohol for a period of 12 months after the lung operation and for a number of years when he was Warrant Officer, there had been other times when Mr Laarhoven had lasted two or three weeks not consuming alcohol but then he would find he had to return to drink. Even now, if Mr Laarhoven has good days characterised by a reduction in pain, he stated that he would not drink. There was an improvement approximately one month before the hearing with a period of six days when Mr Laarhoven experienced little or no pain. He told the Tribunal that he felt marvellous and may have celebrated with one glass of red wine. Mr Laarhoven told the Tribunal that there is no pattern to the pain-free day(s) and pain also returns for no apparent reason.
Since retirement, Mr Laarhoven stated he consumes light beer during the day, approximately four to six 375ml bottles with lunch. Mr Laarhoven also consumes two bottles of whisky per week. Two or three nights per week, he and his wife will have wine with dinner. They will drink a bottle of wine on each occasion. Mr Laarhoven also has whisky then and also before he goes to bed. Mrs Laarhoven may have a nip of whisky at night with Mr Laarhoven. Mr Laarhoven consumes his whisky in a seven-ounce glass. The consumption of wine per week varies between three bottles per week up to seven or eight bottles of wine. Mr Laarhoven does not have any exercise apart from walking the dog 200 metres. If he walks further than this, he experiences pain in his left leg and back. Mr Laarhoven still smokes five packets of cigarettes per week.
Mr Laarhoven was asked about his back symptoms and his reaction to them. Mr Laarhoven noted that when he experiences back pain, which is frequently, he becomes irritable, stating "I go off the handle easily" and "I go to sleep". Mr Laarhoven stated that he does not want to talk and also feels very frustrated he cannot do what he used to do. Mr Laarhoven described isolating himself in bed, taking tablets and drinking.
Mr Laarhoven was pulled over some years ago by the police and breath-tested. He was over the legal limit for alcohol but fortunately was not charged. Mr Laarhoven described the circumstances leading up to this encounter when he had been drinking with his wife, who had then suddenly decided she wanted to attend a fashion parade. Because this trip was not planned, Mr Laarhoven had not been monitoring his drinking. Mr Laarhoven acknowledged that he had never had any alcohol-related civilian charges or any disciplinary action taken against him either in his service or civilian life. Mr Laarhoven also acknowledged that he had been promoted in the army and in civilian life - he had attained high career achievements.
Mr Laarhoven told the Tribunal that he believes he does drink excessively. He stated of alcohol that "it is a security blanket". Mr Laarhoven further stated that he did need alcohol and this became apparent particularly in the 1990s.
Mr Laarhoven stated that he did not feel a lack of motivation but he was frustrated when not able to do things he used to do and because of his back injury, "he suffered like hell". Dr Hayes has told Mr Laarhoven that he should try to undertake activities in small steps and to rest. He does undertake exercises every day as shown to him by a physiotherapist. Mr Laarhoven will take "Prodeine", six tablets per day for pain and also "Rivotril", otherwise his left leg and back are so very painful that he cannot sleep. Mr Laarhoven also takes "Pravachol" for cholesterol and "Tenormin" for his heart. Mr Laarhoven has not seen a pain management specialist.
evidence of mrs rhonda agnes laarhoven
Mrs Laarhoven provided evidence by conference telephone from her home in Kyogle. She was alone when giving evidence.
Mrs Laarhoven stated she was 14 or 15 years old when she first met Mr Laarhoven. He is seven years older than her. Mr and Mrs Laarhoven started going out when Mrs Laarhoven was approximately 15 years old. In those early days, Mrs Laarhoven described her husband as a "larrikin". He loved motor bikes, tearing around with his mates and soccer. Mr Laarhoven was an apprentice baker at the time Mrs Laarhoven met him. Mrs Laarhoven recalled that her husband drank alcohol at that time but she was not with him and his friends when they drank, as she was still at school. Mrs Laarhoven thought that Mr Laarhoven was frequently out with his mates approximately three or four times a week and they would drink on these occasions, but Mrs Laarhoven was unable to say what Mr Laarhoven drank or in what quantities. Mr Laarhoven worked at night and would go out with his friends during the day.
Shortly before they were married, Mr Laarhoven was in the Army and he was posted to Sydney. Mrs Laarhoven saw him when he was on weekend leave. At that time, they would go together to dances, to the beach and would drink socially. Mrs Laarhoven drank rum and coke but she could not recall what her husband drank.
In 1967, Mr and Mrs Laarhoven married. Mrs Laarhoven was almost twenty one and Mr Laarhoven twenty seven years old. Mrs Laarhoven described her husband's character as continuing to be a larrikin. When he had holidays, Mr Laarhoven always wanted to earn extra money so he would take on odd jobs such as picking grapes.
Mrs Laarhoven described the loss of her first child, which occurred approximately two months before Mr Laarhoven went to Vietnam. Mrs Laarhoven was obviously devastated by the loss of their child. She learned from friends that Mr Laarhoven was also devastated by this tragedy, but he did not confide his level of distress to Mrs Laarhoven.
When Mr Laarhoven was on R and R leave in Sydney from Vietnam, she noted that he was very glad to be back and that he did not want to return to Vietnam. Mr Laarhoven did not speak about his Vietnam experiences then or subsequently. Mrs Laarhoven knew other men who had served in Vietnam who could speak of nothing else other than their experiences in Vietnam, but not Mr Laarhoven. Mrs Laarhoven thought that her husband may have consumed alcohol when he came back from Vietnam but could not recall how much.
When Mr Laarhoven permanently returned to Australia from Vietnam, he may have drunk at the mess, Mrs Laarhoven thought. The couple would also have drinks together at home at night. Mrs Laarhoven told the Tribunal she was dreading Mr Laarhoven's coming home from Vietnam but in reality, her fears were not realised. She recalled no great problems and she noted no changes in Mr Laarhoven's personality.
Circumstances changed however in 1976, after Mr Laarhoven had his motor cycle accident. Mrs Laarhoven told the Tribunal that Mr Laarhoven was in pain from his back when discharged from hospital but these symptoms gradually improved. There then came a point when the pain returned and Mr Laarhoven's condition has deteriorated over the years. Mrs Laarhoven believed that the pain became really worse in the 1980s. After the accident, Mr Laarhoven could no longer go on runs, play soccer with his son or undertake the physical activities and work around the house that he had previously undertaken.
Mrs Laarhoven noted that for a while after the motor accident, Mr Laarhoven could undertake some gardening but when the pain in the back changed to include sciatica and a burning sensation in his left leg, he could no longer undertake this activity. Mrs Laarhoven stated that her husband now experiences mainly back pain and pain in the left leg. There is sometimes more an ache with pain across the buttock area and down his left leg. Mrs Laarhoven recalled that years after the accident, her husband had an operation and there was temporary relief for a period of approximately twelve or eighteen months but the pain eventually returned and worsened.
In relation to Mr Laarhoven's alcohol consumption upon return from Vietnam, Mrs Laarhoven did not recall her husband drinking excessively and stated that alcohol was not a feature of their life at that time. He was not coming home from work drunk apart from the "Welcome Home Party" on his arrival in Australia.
Mrs Laarhoven stated that her husband's alcohol consumption has increased particularly over the past ten years. Mrs Laarhoven stated that she believes that alcohol helps Mr Laarhoven ease his back pain – "it's like a prop".
Mrs Laarhoven recalled telling her husband that he was drinking too much in the early 1980s. He was drinking more beer then and would become intoxicated, very noisy and loud. The drinking would occur either at home or in Brisbane, where he was working. Mrs Laarhoven does not believe that Mr Laarhoven has had any liver function tests performed. There were times when her husband would try not to drink and this would occur for a week or so. Mrs Laarhoven particularly recalled a period of abstinence some fifteen to twenty years ago.
Currently, Mr Laarhoven consumes four, five or six stubbies of beer per day and two bottles of whisky per week, with wine being consumed with dinner. Mrs Laarhoven was not sure whether her husband's beer consumption related to his back pain, but definitely thought that his whisky consumption was directly related to his pain. Mrs Laarhoven said that she might have a nip of whisky each night, but she has not been drinking much recently. Mrs Laarhoven noted that occasionally her husband might become noisy or aggressive, following alcohol consumption but if he were at home, he would eventually take himself off to bed. Mr Laarhoven did not get drunk very often, Mrs Laarhoven stated. His consumption of whisky is by the glassful and she estimated that the glass would contain 150 to 180mls. Occasionally, Mr Laarhoven might mix his whisky with cold water or ice. Mrs Laarhoven noted that her husband tends to top his glass up before finishing it, so it was difficult for her to estimate the whisky consumption per night.
Mrs Laarhoven explained to the Tribunal that when her husband is in pain from his back, she could see it in his face. Mrs Laarhoven described her husband on such occasions as becoming withdrawn and not wishing to talk, walk or interact with anyone. He will not socialise and becomes "down". This can happen two or three times per week. Nothing else causes him to have such low moods, Mrs Laarhoven stated. Mrs Laarhoven further noted that her husband is not able to deal with pressure and "explodes", he "rants and raves" to her for a while and also does not spare his friends from his aggressive or argumentative outbursts. Mrs Laarhoven explained to the Tribunal that her husband says some "very hurtful things" to her. "He also loses his cool", not only with people known to him but also with strangers. Mrs Laarhoven wanted the Tribunal to understand that her husband is not by nature an irritable person. She explained that Mr Laarhoven is by nature very nice, usually very interested in the world and is a person who enjoys watching television and is aware of current affairs. Currently, Mr Laarhoven cannot play golf or do the gardening. When pain interferes with his activities, he gives it away and then tries again later. An example of this occurred recently when Mr Laarhoven was attempting to assist his wife in the removal of mildew from the veranda of the family home. Mrs Laarhoven stated that back pain often wakes her husband. On such occasions he will take a tablet, have a cup of coffee, read for approximately 30 minutes and then return to bed.

Mrs Laarhoven told the Tribunal that she and her husband do not get into "loggerheads" all that often. Mrs Laarhoven stated that her way of coping has been to come to terms with Mr Laarhoven's behaviour over the years. She has learned for example, to not get involved in arguments. Mrs Laarhoven explained to the Tribunal that Mr Laarhoven often accuses her of saying certain things when she in fact has not. Another way of Mrs Laarhoven's coping is that she just "does her own thing", having her own social life and circle of friends. The local priest comes to visit quite often and to have dinner. He is often a mediator between Mr and Mrs Laarhoven. The priest tells Mrs Laarhoven that he does not know how she puts up with her husband.
Mrs Laarhoven agreed with Dr Dinnen's assessment that Mr Laarhoven's mood is often up and down because of the back and leg pain. If Mr Laarhoven is staying in bed, she notes he feels better. He then becomes active, but consequently experiences pain and by mid afternoon he is angry, frustrated and starts drinking whisky. Mrs Laarhoven stated that her husband cannot bear to be in a crowd and generally he does not like many people around him. Mr Laarhoven tries to be active and has tried to help with the local "Meals on Wheels" service but found he could not continue because of the difficulty of frequently getting in and out of a car.
Mrs Laarhoven told the Tribunal that she had been unexpectedly interviewed by Dr R Delaforce, Consultant Psychiatrist. She had been waiting for her husband in the car park while he was being examined by Dr Delaforce. When he seemed to be later than she expected, she visited Dr Delaforce's rooms where she encountered Dr Delaforce who invited her in to speak with him. Mrs Laarhoven agreed with Dr Delaforce's description in his report of his discussions with her. Mrs Laarhoven agreed that she told Dr Delaforce about Mr Laarhoven's alcohol use, which confirmed an excessive use of alcohol. Mrs Laarhoven also agreed that she had told Dr Delaforce that Mr Laarhoven was irritable and while a good husband, he became depressed on less than half the days. She agreed she told Dr Delaforce that Mr Laarhoven did not have any significant loss of interest in life, the difficulty being however, that her husband could not do what he would like to do because of his back problems. Mrs Laarhoven thought that she spoke with Dr Delaforce for approximately 15 minutes and characterised the conversation as not very "deep".
Mrs Laarhoven stated to the Tribunal "I honestly believe that his [Mr Laarhoven's] problems all stem from the accident he had" (Transcript, p22, 29 May 2001).
medical evidence
Dr a h dinnen, consultant psychiatrist
Dr Dinnen had been present during part of Mr Laarhoven's evidence to the Tribunal. Dr Dinnen stated that Mr Laarhoven's evidence satisfied him of a clear diagnosis of alcohol abuse as a minimum, if not alcohol dependence. In relation to his diagnosis of alcohol abuse, Dr Dinnen opined that Mr Laarhoven's nature of coping with life is through excessive consumption of alcohol which is a maladaptive pattern of behaviour. Dr Dinnen noted that under the World Health Organisation Standards, greater than four drinks per day is maladaptive.
In relation to the relevant Statement of Principles for operational service, Instrument No. 5 of 1994 concerning Psychoactive Substance Abuse or Dependence, Dr Dinnen noted that Mr Laarhoven's circumstances and evidence to him met the definition contained within the Statement of Principles for "psychoactive substance abuse or dependence" which is defined as:
"…a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by
either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
…"

Dr Dinnen considered that Mr Laarhoven's circumstances met Factor 1(a) of the Statement of Principles which states:
"…(a) experiencing a stressful event prior to the clinical onset of psychoactive
substance abuse or dependence, and maintaining the abuse or dependence post-service;…"

Dr Dinnen opined that either Mr Laarhoven's service in Vietnam as a cook in a combat zone could be considered a stressful event or indeed, his back injury arising out of the motor cycle accident in 1976 could also be considered a stressful event. The Tribunal noted that "stressful event" is defined in the Statement of Principles as:
"…an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress…"

Dr Dinnen noted that Mr Laarhoven was frightened in Vietnam and started drinking. Dr Dinnen further opined that the onset of alcohol abuse occurred while Mr Laarhoven was in Vietnam.
While Dr Dinnen noted that Mr Laarhoven had periods of cessation of alcohol consumption, for example between 1973 and 1978 when he was a Warrant Officer and after his lung operation, Dr Dinnen opined that the nature of abuse tends to be intermittent. The issue for Dr Dinnen is that Mr Laarhoven kept going back to a heavy pattern of alcohol abuse. The fluctuation in alcohol consumption is not a reflection of recovery, Dr Dinnen concluded. Recovery comes when a person stops drinking altogether. Thus, in terms of the requirement within Factor 1(a) that the abuse should be maintained, the fact that Mr Laarhoven ceased drinking for a time, but then later continued his heavy alcohol abuse pattern, was sufficient for Dr Dinnen to conclude that Mr Laarhoven was maintaining his alcohol abuse or dependence.
Dr Dinnen further opined, that in relation to Mr Laarhoven's having symptoms of alcohol withdrawal, when he ceased or cut down his alcohol consumption, that in today's society, it is rare to see any evidence of withdrawal, principally because of the current knowledge of diet and the ability of people abusing alcohol to obtain vitamin B supplements. Dr Dinnen stated that what Mr Laarhoven had described to him and also to the Tribunal, in terms of his attempts to give up drinking and then going back to it, made it clear to Dr Dinnen that Mr Laarhoven was very well aware that it was not good for him to drink. Mr Laarhoven is aware that prolonged alcohol consumption is associated with very real problems. Dr Dinnen stated that the evidence indicated to him that Mr Laarhoven needs alcohol and this certainly has been the pattern for the last ten years. Dr Dinnen further opined that Mr Laarhoven's drinking pattern is also typical of chronic degenerative back conditions where there has been a history of trauma and as age progresses, the condition worsens, as does the associated pain. The pathological means of coping with that pain, in Mr Laarhoven's case, is that the consumption of alcohol is reinforced. In the last ten years, Mr Laarhoven's alcohol abuse has worsened, Dr Dinnen stated.
In relation to Mr Laarhoven's description of his alcohol consumption history over the years, Dr Dinnen noted that obtaining any chronological information from people who have substance abuse problems is difficult. Dr Dinnen opined that if Mr Laarhoven was having problems with alcoholism during his year in Vietnam, it would have been found on his record. Dr Dinnen noted Mr Laarhoven's history of drinking half a bottle of whisky per night while in Vietnam and opined that he thought this would have been later on in his thirteen months tour of duty. Dr Dinnen was of this view because drinking half a bottle of whisky per night would have caused Mr Laarhoven to be very unwell the next day unless he was a seasoned drinker.
Dr Dinnen was also not troubled by the fact that despite having an alcohol abuse problem, Mr Laarhoven had been promoted both in the Army and had high achievement in his civilian career. Dr Dinnen provided the Tribunal with the example of a doctor who suffered alcohol abuse and whose life was dissolving around him, yet he was able to maintain his medical practice. Dr Dinnen opined that the deterioration from alcohol abuse starts many years on in the abuse pattern. Usually in the early stages of chronic abuse, people are able to maintain their everyday functions, Dr Dinnen stated.
Given the large quantities of alcohol Mr Laarhoven currently consumes, Dr Dinnen stated that he did not think that Mr Laarhoven was as well as he appeared to be. Mr Laarhoven is however, clearly a capable man, Dr Dinnen opined, and noted that a common finding with chronic alcohol abuse or dependence is that if one eats well and has a supportive social environment, the substance abuse can be maintained by one's body over a long period of time. Dr Dinnen opined that Mr Laarhoven has done well given the extent of his alcohol problem but he thought that it was starting to catch up with him now.
Dr Dinnen opined on hearing Mr Laarhoven's evidence, that there may well be a problem of organic brain damage, although this would require objective testing principally by CT scan.
Dr Dinnen noted that sufferers of alcohol abuse often underestimate their alcohol consumption. Mr Laarhoven's estimate of his current consumption of two bottles of whisky per week, a bottle of wine with dinner and six stubbies of beer at lunchtime, is therefore likely to be an underestimate, Dr Dinnen opined, reiterating that Mr Laarhoven must have a strong constitution.
In relation to a diagnosis of Mr Laarhoven's mental health condition, Dr Dinnen opined that this was most properly diagnosed as an adjustment disorder with depression, consequent to chronic back injury and disability. Adjustment disorder is usually diagnosed with other features, for example anxiety, depression or mixed features. Dr Dinnen stated that adjustment disorder usually reflects a lesser degree of depressive illness than either a dysthymic disorder or a depressive disorder, noting that if there were a resolution of Mr Laarhoven's back problems, then he would recover from the depressive symptoms. Dr Dinnen noted that Mr Laarhoven's symptoms of depression included irritability, anger and aggression. Mr Laarhoven's statement of feelings of being useless reflected depression and in terms of presentation, Mr Laarhoven appeared to Dr Dinnen to be depressed. Mr Laarhoven is using sleep and bed rest as a refuge and that is common in depressive conditions, Dr Dinnen opined. Dr Dinnen further opined that as long as Mr Laarhoven keeps drinking, his depression in a sense is under control, as there is the ongoing therapy of self-medication by alcohol.
Dr Dinnen opined that Mr Laarhoven's unhappiness at his back condition and the way he deals with it is in excess of what would be expected for someone with a chronic back condition. In this regard, Dr Dinnen referred the Tribunal to the maladaptive use of alcohol to self medicate. Further, Mr Laarhoven is not obtaining optimal pain management, although Dr Dinnen noted that Mr Laarhoven would not be easy to treat.
In relation to the relevant Statement of Principles, Instrument No 58 of 1996, concerning Adjustment Disorder, Dr Dinnen considered the diagnostic criteria required by the Statement of Principles to be met in relation adjustment disorder. Dr Dinnen opined that in relation to diagnostic criteria A, Mr Laarhoven had developed emotional or behavioural symptoms in response to the identifiable stressor of his chronic back condition within three months of the onset of that chronic back condition. In relation to diagnostic criteria B, which requires that: symptoms or behaviours are clinically significant as evidenced by either marked distress that is in excess of what would be expected from exposure to the stressor; or there is significant impairment in social or occupational functioning, Dr Dinnen opined that the symptoms of aggression, irritability, depression and maladaptive use of alcohol were all clinically significant pathological behaviours which he, as a psychiatrist, considered to be in excess of what would be expected as a normal response for someone with a chronic back condition. Further, Dr Dinnen opined that Mr Laarhoven's relationship with his wife was impaired because of his adjustment disorder and the symptoms arising out of it.
Dr Dinnen opined that an expected reaction to chronic back pain would be to organise good pain management. Further, while a person suffering chronic back pain would be expected to be disappointed and possibly frustrated at the chronic nature of his or her condition, nevertheless with the right circumstances, the right temperament and attitude, a good adjustment to the condition should be made with a reasonable quality of life. There may even be an initial period of slight and intermittent depression in response to the back condition; however a reasonable adjustment would then be made and the pain managed. The majority of patients with a chronic back condition would not have the level of psychiatric disturbance that Mr Laarhoven has, Dr Dinnen opined. It is not normal, Dr Dinnen opined, for someone with a bad back to be so incapacitated with pain as to drink to cope with the problem. There is an interaction between Mr Laarhoven's drinking because of the adjustment disorder and also because he has an alcohol abuse or dependence problem. Dr Dinnen opined that if Mr Laarhoven had not gone to Vietnam, he may not have had the drinking problem and he may also not have had the level of disturbance that is currently evidenced. There is an interaction between alcohol consumption, Mr Laarhoven's mood problem and his back condition, Dr Dinnen opined.
Dr Dinnen noted that Mr Laarhoven did not have a depressive condition before his back injury. When he became aware of the chronic nature of his back condition and the continuing and worsening back pain and pain in his left leg, that was the onset of the adjustment disorder, Dr Dinnen opined.
In relation to the opinions expressed in Dr Delaforce's various reports, Dr Dinnen stated he did not agree with many of his conclusions. Dr Dinnen noted that Dr Delaforce concluded Mr Laarhoven was not depressed, yet in his reports he recorded features of depression such as: "looked depressed"; Mr Laarhoven was short tempered; depressed for half of his days in the last ten years; having a "declined interest in life"; "loss of interest" and, sleep difficulty from pain. Further, Dr I Hayes, Psychiatrist, had treated Mr Laarhoven with "Cipramil" which is an SSRI drug used in the treatment of depression. In relation to Dr Delaforce's questioning Mr Laarhoven's credibility, Dr Dinnen strongly disagreed with his conclusions and stated that he had no difficulty with Mr Laarhoven's credibility.
At hearing, Dr Dinnen noted that he had clearly observed Mr Laarhoven's back discomfort. If Mr Laarhoven had then gone home and had a massage or bath and lay down, then that would be an example of a healthy adjustment. From the evidence, when experiencing chronic back pain, Mr Laarhoven drinks enough so as then to be able to obliterate his pain through the use of alcohol. This is an unhealthy adjustment, Dr Dinnen concluded.
In relation to the issue of the death of Mr Laarhoven's friend, Dr Dinnen stated that he did not question Mr Laarhoven about this. He took his information from Dr Hayes' report. Dr Dinnen did not go into this matter because Mr Laarhoven had told him there was not anything specific which happened to him in Vietnam that was traumatic or stressful. Also, Dr Dinnen noted that Dr Hayes did not place a great deal of significance on Mr Nielson's death.
dr r delaforce, forensic psychiatrist
Dr Delaforce provided a report dated 4 April 2000 (Exhibit R1) and subsequent reports dated 27 June 2000 (Exhibit R2) and 6 September 2000 (Exhibit R3). Dr Delaforce also interviewed Mrs Laarhoven for fifteen minutes.
Dr Delaforce noted in his first report: "In general his back problems were central to his mental health problems…" (Exhibit R1). Dr Delaforce noted that Mr Laarhoven looked depressed when he interviewed him and Mr Laarhoven told Dr Delaforce that over the past ten years, he has been depressed on most days for half of the time. Mr Laarhoven described to Dr Delaforce feelings of "hopelessness". Dr Delaforce administered the "Beck Depression Inventory – Second Edition (BDI – II)". Mr Laarhoven scored a rating of 31 on the Beck Inventory, which placed him in the severe (highest) range of major depression. Dr Delaforce noted that Mr Laarhoven took the medication "Rivotril" at night to help ease his pain in addition to consuming alcohol. Dr Delaforce also noted a history of the local priest frequently visiting at home to provide pastoral care/counselling to Mr and Mrs Laarhoven. In relation to Mr Laarhoven's alcohol use, Dr Delaforce noted that alcohol was used prior to service but only on special occasions. The use of alcohol increased in service and increased further in Vietnam, where Mr Laarhoven reported to Dr Delaforce consuming a maximum of ten standard drinks daily. Post Vietnam, and prior to leaving the Army, Mr Laarhoven reported to Dr Delaforce his drinking twelve or more standards drinks daily. For about the next ten years, when Mr Laarhoven was working at the Tattersall's Club in Brisbane, Dr Delaforce's history of alcohol abuse by Mr Laarhoven was that he consumed about half the previous quantity of alcohol.
Mrs Laarhoven had told Dr Delaforce that her husband's problems stemmed from his back and left leg problems. Dr Delaforce noted that medication such as "Clonazepam" made Mr Laarhoven too tired and sleepy and Mrs Laarhoven confirmed excessive use of alcohol by her husband. Mrs Laarhoven's information to Dr Delaforce was that he did get depressed but it was "less than on half the days".
Dr Delaforce concluded that Mr Laarhoven's main health problem is chronic pain and related limitations on his activity associated with chronic low back conditions which followed the 1976 accident. Dr Delaforce considered whether Mr Laarhoven had post traumatic stress disorder, alcohol abuse or dependence, depressive disorder, adjustment disorder or pain disorder associated with both psychological factors and a general medical condition. Dr Delaforce noted, "There were some indications of a mental disorder", but because of significant problems with the consistency of Mr Laarhoven's information to Dr Delaforce and the difference between what Mrs Laarhoven had told him as opposed to her husband, this made assessment difficult and unreliable, Dr Delaforce concluded. Accordingly, Dr Delaforce opined:
"My final conclusion is that I cannot substantiate a diagnosis of a mental disorder either currently or in the past. Nevertheless he apparently does have considerable mental health problems and continues to use very excessive alcohol. I particularly note the recorded objective findings regarding his back condition, and the continued related morbidity. I conclude that the severity of the back problem and related impairment is such that his mental health response is an expected response and not excessive. Therefore I did not diagnose an Adjustment Disorder. There were insufficient and inconsistent details for a diagnosis of a Depressive Disorder. My diagnostic findings are therefore similar to those of Dr Hayes." (Exhibit R1, p6)

As Dr Delaforce did not diagnose a condition, he therefore did not undertake any assessment under the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide").
In his later report of 27 June 2000, Dr Delaforce reiterated that with the unreliability of information provided by Mr Laarhoven, it was difficult to make any diagnosis. Further, Dr Delaforce referred to an opinion expressed by a USA Forensic Psychiatrist, Professor P Resnick, who provided a contribution in the "Comprehensive Textbook of Psychiatry, 2000 Edition". In Chapter 27.2, "Malingering, Detection of Malingering", Professor Resnick wrote:
"…The clinician's suspicion should be aroused if an interviewee issues spontaneous assurances of veracity: " Doc, would I tell you a lie?" or "To be perfectly honest …"

Dr Delaforce noted that during his interview with Mr Laarhoven, he was often stating that he was being honest. These assertions raised further Dr Delaforce's already considerable concern about the unreliability of the information Mr Laarhoven was giving over the years in relation to his claim. Dr Delaforce expressed the view that if a psychiatrist could not rely on the accuracy of the history given, then it was not possible to make a diagnosis on inconsistent or untruthful information. Dr Delaforce stated his belief that Mr Laarhoven was telling different people different information. Dr Delaforce further pointed out that he considered it his role as part of legitimate psychiatric practice to point out inconsistencies in a person's history and to assess credibility. Dr Delaforce told the Tribunal that he specialised virtually 100 per cent in forensic psychiatry.

Dr Delaforce specifically expressed concerns in his reports and at hearing about Mr Laarhoven's statement to Dr Hayes that in Vietnam he had found the body of a friend, Erald Nielsen, shot by his own troops. These details were not those provided by Mr Laarhoven to Dr Delaforce. When later questioned by the Department of Veterans' Affairs about the information provided to Dr Hayes by Mr Laarhoven concerning Mr Nielsen's death, Dr Hayes subsequently advised the Department that he could not recall the exact circumstances or information given to him by Mr Laarhoven. Dr Delaforce opined that Mr Laarhoven's case was like a compensation matter and that Mr Laarhoven could be providing misleading information in order to obtain financial gain. Alternatively, Dr Delaforce noted that Mr Laarhoven could just be a poor historian. Dr Delaforce advised the Tribunal that he did not question Mr Laarhoven about any of the inconsistencies he found in Mr Laarhoven's evidence. Dr Delaforce acknowledged that he did not know what questions Dr Hayes had put to Mr Laarhoven about his experiences in Vietnam. Dr Delaforce stated that Mr Laarhoven's matter was "evolving" with details emerging along the way.
Dr Delaforce stated that when diagnosing a condition, he assesses the information and circumstances of a particular patient's condition against the diagnostic criteria in DSM-1V. Dr Delaforce does not make diagnoses based on impression. In relation to Mr Laarhoven having a condition of alcohol abuse, Dr Delaforce noted that his impression was that Mr Laarhoven would qualify for a diagnosis of alcohol abuse. However, when Mr Laarhoven's circumstances were objectively held against the DSM-1V diagnostic criteria, he did not feel that Mr Laarhoven met the requirements. Specifically in relation to the Statement of Principles, Instrument No. 5 of 1994 concerning Psychoactive Substance Abuse or Dependence, Dr Delaforce noted that circumstances where someone was in a combat zone such as Vietnam, are of course stressful. If it had been true that Mr Laarhoven had found the body of his dead friend in Vietnam, this could have constituted a stressful event. However, Dr Delaforce did not consider that the information provided by Mr Laarhoven to Dr Hayes was reliable and therefore this could not be considered a stressful event. Dr Delaforce stated that being on patrol would be potentially stressful for a cook; however he noted that "…In terms of all the other servicemen I have seen, I don't rate that [patrol] as a stressful event". Dr Delaforce opined that the biggest stress for Mr Laarhoven was the loss of his first child prior to going to Vietnam. Mr Laarhoven had not told Dr Delaforce of this significant event, reinforcing Dr Delaforce's view of Mr Laarhoven not being credible.
In relation to Mr Laarhoven's evidence of consuming half a bottle of whisky in Vietnam, Dr Delaforce thought that that level of consumption indicated a considerable capacity and tolerance to the use of alcohol. This fitted with a history of consumption of alcohol prior to service, Dr Delaforce opined.
In relation to the question of diagnosis of an adjustment disorder with depression, there were two difficulties noted by Dr Delaforce. Firstly, Dr Delaforce noted the "huge amount" of inconsistent information Mr Laarhoven gave about his depressive symptoms. Secondly, Dr Delaforce noted the effect and extent of the back injury on Mr Laarhoven's activity did not lead Dr Delaforce to conclude that the restrictions or limitations impacting on Mr Laarhoven and his reactions to these were not more than would be expected.
Turning to the diagnostic criteria for adjustment order in DSM-1V, considering criteria A, Dr Delaforce opined that because of the difficulty of obtaining reliable and credible information from Mr Laarhoven, it was very difficult therefore to assess whether there was any true emotional or behavioural impact in response to Mr Laarhoven's back condition. Dr Delaforce stated that he could accept the stressor of the back because there was objective evidence of pain and limitation but beyond those objective signs, Dr Delaforce had difficulty. In relation to criteria B, the symptoms being required to be clinically significant and in excess of what would be expected or for there to be a significant impairment of social or occupational functioning, Dr Delaforce noted that Mr Laarhoven's statements of being bored and frustrated with his limitations and pain, were within the normal range. Dr Delaforce opined that Mr Laarhoven is not markedly distressed. Dr Delaforce stated:
"…I have seen a lot of people with back problems because I do virtually 100 per cent forensic psychiatry, compensation claims, back problems – where it usually gets very significant, where it goes beyond the normal and expected…as distinct from Mr Laarhoven, he is bored that he can't do more, he wants to do more but his back does not allow him to, compared to someone else who would be probably moving into the area of adjustment disorder where they could do more, they could socialise more, they could get around more but they have given up and they withdraw and they just stay at home. … "(Transcript, 19 April 2001 pp73, 74)

Contrary to Dr Dinnen's opinion that Mr Laarhoven did not undertake any activities and had lost interest, Dr Delaforce stated that Mr Laarhoven gave him the clear indication that he has considerable interests and socialises with his mates. Accordingly, Dr Delaforce opined that Mr Laarhoven's impairment is not so marked but is of a nature that would be consistent with the severity of his back problem. Therefore, Dr Delaforce concluded that Mr Laarhoven's circumstances did not meet criteria B. In relation to criteria C, Dr Delaforce noted that this did not apply, nor did criteria D or E. Dr Delaforce further noted Mrs Laarhoven's evidence that her husband became angry because he could not do certain things but this response was to be expected, Dr Delaforce opined.
In relation Dr Dinnen's assessment from Chapter 4 of the Guide, Dr Delaforce stated there was "too much rating of Mr Laarhoven's back" in Dr Dinnen's assessment under Chapter 4. Dr Delaforce opined that Mr Laarhoven is not a person who because of his back condition gets reactions or symptoms in excess of what is considered normal and this included withdrawal and being depressed from time to time.
Dr Delaforce opined that Mr Laarhoven may well have affected mental functioning because of the effects of his alcohol. While he would suspect that such impairment of mental functioning because of alcohol would be present, it would need to be properly and objectively tested.
In relation to Dr Delaforce's use of the Beck Inventory to assess Mr Laarhoven's depression, Dr Delaforce told the Tribunal that he had expected Mr Laarhoven to give suspect answers. Because of this suspicion, he administered the Beck Inventory because it did not take very long. Dr Delaforce denied giving this Inventory to Mr Laarhoven because he had other patients waiting for him. Further, Dr Delaforce acknowledged that the Beck Inventory was not a very rigorous test for depression and that he could have used more rigorous instruments however these were more costly and more time consuming. Dr Delaforce stated:
"…I'm not going to waste time putting him through that when the information already is inconsistent and suggests that it is suspect, because the odds are you'll get something, you know, you'll get similar elsewhere. …" (Transcript, 19 April 2001, p98)

Dr Delaforce told the Tribunal that he was empathetic towards veterans and had learned a great deal from veterans during his thirty years in psychiatry. He noted that in relation to his involvement with veterans' claims for pensions, he estimated that he provided favourable opinions supporting their claims in the range of between 60 – 75 per cent. One of the greatest lessons of psychiatry that Dr Delaforce has learnt, he told the Tribunal, is the sense of stress that veterans experience and the chronic continuing effect of their service on their lives.
submissions
Mr Vincent, for Mr Laarhoven, submitted that the Tribunal must determine the diagnosis of Mr Laarhoven's condition. Mr Vincent referred the Tribunal to Budworth v Repatriation Commission [2001] FCA 317 for authority that the diagnosis of a disease or injury has to be determined on the balance of probabilities. Mr Vincent stated that there is significant symptomatology associated with Mr Laarhoven's back condition and alcohol consumption. Relying on Dr Dinnen, Mr Vincent submitted that Mr Laarhoven has two psychiatric disorders, namely adjustment disorder with depression and alcohol abuse or dependence.
In relation to alcohol abuse or dependence, Dr Dinnen had opined that he had no doubt there was alcohol abuse present and on the basis of the evidence Dr Dinnen heard during the cross examination of Mr Laarhoven, he opined that there did now seem to be an alcohol dependence. Dr Dinnen had noted that Mr Laarhoven stated that he needed alcohol and this has been his pattern for the last ten years. Mr Vincent submitted that alcohol provides a pathological means of Mr Laarhoven's coping with his chronic degenerative back condition. This pathological use of alcohol as a means of coping is then reinforced as the back condition worsens and Mr Laarhoven consumes more alcohol. Mr Vincent referred the Tribunal to Mr Laarhoven's evidence that he drinks to help manage his pain, to help him cope with it.
Mr Vincent submitted that the evidence supported alcohol dependence in preference to alcohol abuse, although looking back to the Applicant's alcohol history in earlier decades, this would suggest alcohol abuse. The relevant Statement of Principles, Instrument No. 5 of 1994 concerning Alcohol Abuse or Dependence deals with the reasonable hypothesis standard of proof, which covers Mr Laarhoven's Vietnam service. Mr Vincent referred the Tribunal to Dr Dinnen's opinion that Mr Laarhoven's tour of duty to Vietnam, in the circumstances of his being a cook, not trained in combat, or having only been on a rifle range three times in his life and being realistically frightened, was stressful. Mr Vincent was not contending that Mr Laarhoven was a naive, frightened young man going to Vietnam. He was aged 24 or 25 years old at that point. Mr Vincent referred the Tribunal to Dr Delaforce's concession that Mr Laarhoven's duties could amount to a stressful event. The difficulty for Dr Delaforce was that he could not accept Mr Laarhoven's evidence because he felt there were too many inconsistencies. Further, Dr Delaforce thought that Mr Laarhoven's experiences were not as severe as the vast majority of troops that have gone to Vietnam. Mr Vincent contended that this was not the appropriate test. The test was whether the events were subjectively stressful to Mr Laarhoven. Mr Laarhoven had stated that he was very frightened about his service, being in a combat zone and having to perform duties outside the wire. He had not been trained and he had the recollection of his friend, Mr Nielson, having been killed previously in Vietnam. The Respondent made a great deal of Dr Hayes' reporting that Mr Laarhoven was not phased by his Vietnam experience. Mr Vincent submitted that this did not mean that Mr Laarhoven came away from Vietnam not being distressed. Mr Vincent also noted Dr Hayes' conclusion that Mr Laarhoven was alcohol dependent. Further Mr Laarhoven had just suffered the loss of a child prior to going to Vietnam. Mr Vincent contended that the two expert psychiatrists were in agreement that the duties performed by Mr Laarhoven met the requirements of Factor 1(a) of the relevant Statement of Principles, which refers to experiencing a stressful event. Mr Vincent submitted that there had been no challenge to the evidence that Mr Laarhoven took guard duty approximately three days per week. Further, Mr Vincent noted that Dr Delaforce had conceded that the whole experience of being in Vietnam as a non-specialist combat soldier would be stressful in itself (Transcript, 19 April 2001, p94).
Mr Vincent concluded in relation to alcohol abuse that there was abundant material to indicate the condition of abuse was present and war-caused. Even though Mrs Laarhoven did not know much about her husband's alcohol consumption post Vietnam while he remained in the Army, her clear evidence supported an alcohol abuse problem, particularly for the past ten years, during which Mr Laarhoven had continued his alcohol consumption despite her entreaties. The unequivocal evidence is that Mr Laarhoven's alcohol consumption increased after his back injury. Such evidence supported the social impact of Mr Laarhoven's drinking and the continuation of drinking despite its adverse impact on his health and the relationship with his wife. Dr Dinnen's evidence was very clear and concise unlike the evidence of Dr Delaforce, who had to be redirected to the questions he had been asked. Mr Vincent particularly wanted the Tribunal to note Dr Dinnen's opinion that Mr Laarhoven drank both because he has an adjustment disorder and because he has an alcohol dependency problem.
Even with Dr Delaforce's more "jaundiced" view, Mr Vincent submitted that a stressful event has been raised. Mr Vincent submitted that in terms of disproving the raised hypothesis, the only material capable of offering disproof is Dr Delaforce's opinion that Mr Laarhoven's story is not to be believed. Mr Vincent further submitted that there is no suggestion that Mr Laarhoven did not perform the stressful duties. If the Tribunal were not satisfied that a reasonable hypothesis had been raised linking Mr Laarhoven's stressful service in Vietnam with an alcohol abuse or dependence problem, then there remained the contention that on the balance of probabilities, alcohol abuse was linked to Mr Laarhoven's defence-caused back injury. There is no contest in the evidence, Mr Vincent submitted, that alcohol consumption is related to back pain. The only issue is that of diagnosis.
As an alternate submission, Mr Vincent stated that if a reasonable hypothesis has been established, then there is nothing to stand in the way of alcohol abuse or dependence having been aggravated by defence service as a result of Mr Laarhoven's back injury. There is a drinking history in the early decades of very large amounts of alcohol being consumed on service in Vietnam. It does not matter, Mr Vincent submitted, whether Mr Laarhoven was drinking a quarter of a bottle or half a bottle of whisky. The amounts are inordinately above what he used to drink and he obviously had become habituated.
Mr Vincent submitted that Dr Delaforce had overstepped the mark in terms of becoming an advocate in this matter. In this regard, Mr Vincent further submitted that Dr Delaforce became overzealous in trying to find holes in Mr Laarhoven's story. The most serious inconsistency for Dr Delaforce was the story about Mr Laarhoven's friend's death. The only evidence of a different story was in fact that provided in Dr Hayes' report. Mr Vincent submitted that it is not known whether Dr Hayes correctly transcribed what he was told by Mr Laarhoven or whether he correctly understood what he was told. Dr Delaforce himself conceded that he had no idea what questions Mr Laarhoven had been asked. Mr Vincent submitted that Dr Delaforce was prepared to imagine that there was a problem in this case and had lost his objectivity. He became determined to push the view, Mr Vincent contended, that Mr Laarhoven was misleading people. The various inconsistencies, listed by Dr Delaforce, were not put by Dr Delaforce to Mr Laarhoven. Therefore, Mr Laarhoven had no opportunity to explain any concerns which Dr Delaforce might have had about: the commencement of his alcohol consumption; discrepancies in the Alcohol Questionnaire; his level of alcohol consumption; any difference between Mr and Mrs Laarhoven's evidence; and, Mr Laarhoven's cessation of the medication "Cipramil" without telling Dr Hayes.
The Respondent had noted different evidence given by Mr Laarhoven to the Board that he consumed rum in Vietnam, while he had told the Tribunal he drank whisky. This was of no great significance, Mr Vincent submitted, because it could not be determined whether Mr Laarhoven gave incorrect information to the Board or the Board made a mistake about his evidence. Similarly, in relation to whether Mr Laarhoven consumed half a bottle of whisky in his tent at night had to be understood in the context of dealing with matters which occurred some 35 years earlier.
Mr Vincent referred the Tribunal to Mrs Laarhoven's evidence and submitted that Mr Laarhoven and Mrs Laarhoven both stated that pain restricts Mr Laarhoven from undertaking activities. He becomes frustrated about the pain: pain means that he has to go and lie down; Mr Laarhoven does not want to socialise; and, he then drinks to alleviate the pain. The quantity of alcohol consumed as discussed by Mrs Laarhoven was virtually identical to that listed by Mr Laarhoven. Mr Vincent further submitted that for cultural reasons, Mr Laarhoven is a very unexpressive person.
Mr Vincent noted Mrs Laarhoven's evidence, describing her husband as someone who did not let her know what was going on inside his head. Mrs Laarhoven herself down-played her husband's problems. When pressed however, Mrs Laarhoven noted that the local priest, who visits regularly, has commented to her that he does not know how Mrs Laarhoven is able to put up with her husband. Further, it appears that Mr Laarhoven is quite critical of his wife in public but Mrs Laarhoven has learnt to put up with this. Mrs Laarhoven's evidence revealed that there are serious social/relationship effects as a result of her husband's condition. Mr Vincent submitted that Dr Delaforce is not correct therefore in stating that Mrs Laarhoven is presenting a healthy picture of her husband.
Referring to Dr Delaforce's first report, Mr Vincent noted that if it had not been for Dr Delaforce's caveat about the reliability of Mr Laarhoven's information, he would have made a finding of alcohol abuse. Further, Dr Delaforce noted in his report that Mr Laarhoven does have considerable mental health problems and uses excessive alcohol. Dr Delaforce took a history of Mr Laarhoven's history of drinking and using alcohol to get to sleep and to overcome pain (Transcript, 19 April 2001, p92). Further, Dr Delaforce noted that Mr Laarhoven took "Rivotril" for pain and that if he took it during the day, this would significantly impair a person's functioning.
Turning to the issue of adjusment disorder, Dr Dinnen found this to exist while Dr Delaforce did not. Mr Vincent submitted that the correct approach is that taken by Dr Dinnen, who has noted that Mr Laarhoven's response to his back condition and its impairment is an adjustment disorder. The disorder is manifested in the manner that Mr Laarhoven deals with his back pain. That is, Mr Laarhoven drinks, he is clinically depressed, isolates himself and shuts off communication with people. This is a long-standing pattern of behaviour and it is, in Mr Vincent's submission, a pathological and maladaptive response by Mr Laarhoven to his back problem.

Mr Vincent stated that Dr Delaforce did not specifically address the relevant Statement of Principles concerning Adjustment Disorder. While Dr Delaforce had referred to the DSM–1V diagnostic criteria, there was more required in an assessment than that. From Dr Delaforce's evidence, Mr Vincent submitted that he had accepted that Mr Laarhoven's back condition would constitute a psychosocial stressor as defined in the Statement of Principles concerning Adjustment Disorder. (Transcript p73, 19 April 2001). Dr Delaforce had difficulty accepting that Mr Laarhoven was markedly distressed by his back condition however. Mr Vincent contended that Mr Laarhoven's back and leg pain directly impacts on him in terms of what he can and cannot do. Referring to the evidence, Mr Vincent submitted that as a result of his pain, Mr Laarhoven is having clinically significant recurrent and ongoing reactions, both socially and emotionally, which impacts not only upon him, but also on those around him. If such reactions occurred only occasionally, with Mr Laarhoven intermittently noting that he was frustrated or he had had enough, then that would not be a pathological response, Mr Vincent submitted. What Mr Laarhoven actually does to cope however, is that he drinks, withdraws and does not socialise. This is why Dr Dinnen noted that Mr Laarhoven's reaction to the chronic stressor is pathological. Dr Dinnen asserted that the expected normal response should involve Mr Laarhoven's seeking pain management and dealing with his chronic back problem in a positive framework. The very fact that Mr Laarhoven has been prescribed "Cipramil" by Dr Hayes indicates that there is depression present and this seems not to have been considered by Dr Delaforce. The prescription of "Cipramil," an "SSRI" anti-depressant drug, should have alerted an independent psychiatrist such as Dr Delaforce that there were clinical grounds for considering that the patient was suffering from depression.
Mr Vincent submitted that Dr Delaforce's evidence was "curious" in his use and discussion of the Beck Inventory for Depression. Dr Delaforce concluded that because Mr Laarhoven scored a high result, he believed Mr Laarhoven was "faking" the answers to the questionnaire. The logic seemed to be, Mr Vincent submitted, the higher the score on the depression scale, the less the patient has the condition. Conversely, if a patient achieved a lower score, then there must be something wrong with him or her.
The Tribunal should be satisfied, Mr Vincent contended, that Mr Laarhoven has significant impairment in social functioning and there is clearly a marked distress which is excessive because of his habituated response. Mr Laarhoven's problems have been ongoing for ten years. Surely the length of time also made Mr Laarhoven's response excessive, Mr Vincent submitted. In conclusion, Mr Vincent submitted that Mr Laarhoven has two psychiatric disorders, which are interrelated. In relation to the assessment of these conditions, Mr Vincent submitted that this matter should be remitted to the Commission with the date of effect, including the conceded condition of bronchitis, being 11 April 1996.
Mr Vincent reiterated in his final submissions that while in relation to Adjustment Disorder the Respondent submitted that Mr Laarhoven's back condition could not be considered a stressful event, the Applicant's position is that a stressful event should not be narrowly defined to exclude incidents of that type. Mr Vincent's preferred submission is that Vietnam service led to Mr Laarhoven's alcohol abuse or dependence. A further submission is that the Applicant's back problems led to his alcohol consumption and then dependence or abuse. These submissions are not mutually exclusive, Mr Vincent stated. If the Tribunal were to consider that there was an alcohol abuse problem present prior to the back injury but it was not war-caused, then the question of aggravation must be considered. In the relevant Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Factor 5(c) is available in terms of a stressful event being the back condition. Alternatively, Factor 5(d) is available, if the Tribunal accepted that there was an adjustment disorder, and drinking was part of the response to the adjustment disorder. There would therefore be a worsening of the alcohol abuse or dependence arising out of the psychiatric condition of adjustment disorder. There are therefore many ways in which Mr Laarhoven could satisfy the factors in the Psychoactive Substance Abuse or Dependence Statements of Principles.
Mr Godwin submitted that the Tribunal has various possibilities in relation to the psychiatric conditions claimed by Mr Laarhoven. The diagnosis of conditions is made reference to in Budworth (supra) and also in relation to Repatriation Commission v Gosewinckel (1999) 59 ALD 690. Mr Godwin referred the Tribunal to paragraph 64 of that decision which noted that Statements of Principles require the presence of a number of distinct symptoms of clinically significant matters, for example, distress, restlessness. Unless all of those clinically significant symptoms referred to in the factor and definitional requirements of the Statement of Principles are present, then it cannot be said consistently, with the medical-scientific standard prescribed, that a condition is present. To apply the principles in Repatriation Commission v Gosewinckel (supra) to Mr Laarhoven's case, the Tribunal must consider the relevant Statements of Principles for alcohol abuse or dependence and also adjustment disorder. The elements of the factors and the diagnostic criteria contained within the Statements of Principles must all be met before a diagnosis can be made and the claim accepted, Mr Godwin contended.
Referring to the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument No. 5 of 1994, the Tribunal must note the definition of psychoactive substance abuse or dependence and the diagnostic criteria in the Statement of Principles at paragraph four must be met. The factor relied upon by Mr Laarhoven is that of his experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence and maintaining that abuse or dependence post service (Factor 1(a)). Mr Godwin noted that Dr Delaforce acknowledged that going to a war zone is stressful. Dr Delaforce also noted in his evidence that being away from home is also stressful. The question here however, is whether Mr Laarhoven experienced a stressful event as defined in the context of his service in Vietnam. Mr Laarhoven's evidence is of his feeling frightened but at the same time he had told Dr Hayes that he was not particularly distressed by Vietnam. There was thus conflicting evidence about the effects of Vietnam on Mr Laarhoven. The further evidence was that Mr Laarhoven went on patrols but they were without incident.
Mr Godwin submitted that Mr Laarhoven's service in Vietnam generally contains no account of any incident which could be regarded as a stressful event. Contained within Factor 1(a), is also the issue of the clinical onset of abuse or dependence. Dr Dinnen opined that the clinical onset of alcohol abuse or dependence occurred in Vietnam and the impression from Dr Dinnen is, Mr Godwin submitted, that Mr Laarhoven was a naïve, young, frightened man with little experience with alcohol. There was also a discrepancy between information told to the Board as to Mr Laarhoven's drinking rum in Vietnam compared with his evidence to the Tribunal that he drank whisky. Again, the issue of reliable memory and credibility had to be considered in relation to this evidence. Even before considering Factor 1(a), Mr Godwin contended that the evidence in relation to the diagnostic criteria for alcohol abuse or dependence does not suggest Mr Laarhoven had recurrent, social, occupational or psychological problems in Vietnam. Mr Laarhoven's evidence was that he had a successful army career, good family relationships and relationships with his friends. Even now, despite having an increasingly severe back problem, Mr Godwin submitted that Mr Laarhoven is still entertaining his friends and getting on with an active life without any real evidence of recurrent social, occupation, psychological or physical problems associated with alcohol. In Vietnam, Mr Laarhoven was promoted from Corporal to Sergeant and eventually when he returned to Australia, to Warrant Officer.
The amount of alcohol Mr Laarhoven reported to be drinking in Vietnam in his first three months, that of half a bottle of whisky per night, suggests that he must have been a seasoned drinker at that time, Mr Godwin contended. Mrs Laarhoven had provided evidence that during her husband's teenage years he was a larrikin. That was many years before Mr Laarhoven joined the Army, by which time he was 24 or 25 years of age. Mr Laarhoven went to Vietnam when he was approximately 28 years of age. Mr Godwin referred the Tribunal to Dr Delaforce's account from his notes that Mr Laarhoven's drinking in Vietnam was associated with the card game "Crown and Anchor" and this information again indicated that Mr Laarhoven told different people different information.
Mr Godwin submitted that in Vietnam, Mr Laarhoven was not a naïve, young, frightened man. Mr Laarhoven had been a soldier for some time, knew how to drink, knew about gambling and was very social. Mr Godwin submitted that Mr Laarhoven was not spending his night in the tent with his mate but was out mixing socially with other soldiers. In reference to Mrs Laarhoven's evidence, she did not perceive any change in Mr Laarhoven after his return from Vietnam. He was very glad to be home and apart from his "Welcome Home" party, when he consumed far too much alcohol, Mrs Laarhoven was not aware nor did she recall her husband's intoxication being a feature of their life immediately post Vietnam.
Mr Godwin submitted that there was simply no evidence to support Dr Dinnen's opinion that Mr Laarhoven had an alcohol abuse problem. In very recent years however, Mr Godwin noted that it is apparent from Dr Hayes' notes, that he did encourage Mr Laarhoven to cut down or cease his alcohol consumption but those recommendations seem to be in vain. In Mr Laarhoven's earlier years however, there was no recognition by Mr Laarhoven that he had a drinking problem that he wanted to stop. There is no evidence, Mr Godwin submitted, of his making early efforts to cease consumption that were unsuccessful. Mr Godwin referred the Tribunal to two periods when Mr Laarhoven reduced significantly his alcohol consumption. One occasion occurred when Mr Laarhoven was promoted to Warrant Officer and as he noted, he was very proud of this promotion and very busy in his job. This was about 1971, Mr Godwin noted. The other occasion, when Mr Laarhoven ceased alcohol consumption was after his lung operation and his evidence was that he virtually ceased drinking for approximately 12 months. The cessation of alcohol consumption was also associated with a cessation of smoking cigarettes for two years. Mr Godwin submitted that there is no evidence to justify the diagnosis of alcohol abuse at the time of Mr Laarhoven's Vietnam service or on his returning home. Certainly during the period when he became Warrant Officer and in the period after his lung operation, Mr Laarhoven ceased drinking and that is not consistent with the maintenance of psychoactive substance abuse or dependence. Mr Godwin did not agree with Dr Dinnen's opinion concerning what was meant by the terms of the relevant Statement of Principles in relation to "maintaining the alcohol abuse or dependence". Dr Dinnen considered that "maintaining" meant continuing and in effect he was saying once an alcoholic, always an alcoholic.
Mr Godwin submitted that the Tribunal should accept Dr Delaforce's opinion that there was no alcohol abuse or dependence based on Dr Delaforce's finding that Mr Laarhoven did not meet the requisite diagnostic criteria. Quite correctly, Mr Godwin submitted, Dr Delaforce noted that the quantity of alcohol consumed is not one of the diagnostic criteria, though obviously it a good indication that one should look for problems of the kind that might justify a diagnosis of alcohol abuse or dependence. The diagnosis of alcohol dependence is based on the behavioural and physical effects of the abused substance, rather than simply on the level of alcohol consumption itself.
In relation to Dr Dinnen's comments concerning Mr Laarhoven's having to cut back on his alcohol for the sake of his employment and then, when people were adjusted to him, being able to pick up his consumption, again, Mr Godwin submitted that Dr Dinnen was trying to read something into the evidence that simply was not there. The evidence was quite clearly that Mr Laarhoven's career was successful. There is no evidence that his service or civilian careers were ever troubled by his consumption of alcohol and there is certainly no evidence of his making any accommodation of his drinking to the work that he was doing, Mr Godwin submitted. In any event, Mr Laarhoven's work as a chef was conducive to drinking as a normal social activity.
Mr Godwin submitted that Mr Laarhoven had to be pressed considerably in evidence before he stated that he recognised that the amount of alcohol he was drinking was too much. His initial presentation, Mr Godwin submitted, was that he never considered his drinking a problem and that was also Mrs Laarhoven's evidence.
Mr Godwin further submitted that in relation to the Applicant's submission that Mr Laarhoven's alcohol dependence and abuse had been caused by his back problem, there was no factor that covered that situation, Mr Godwin submitted.
Turning to the issue of whether or not Mr Laarhoven had a psychiatric condition of adjustment disorder, Mr Godwin referred the Tribunal to Statement of Principles 58 of 1996 concerning Adjustment Disorder. Once again, Mr Godwin submitted that the diagnostic criteria contained within the Statement of Principles has to be met. Those diagnostic criteria are listed in paragraph 2 of the relevant Statement of Principles. Mr Godwin submitted that the Tribunal had to ask itself what is expected by way of distress and reaction to a stressor in relation to Mr Laarhoven's back condition. Mr Godwin stated that it would be agreed by all that Mr Laarhoven's back condition and the pain from it constitutes a stressor in the Statement of Principles. Dr Dinnen's view is that what is expected from someone with chronic back pain is for good management and for them to improve, adjust and cope. Mr Godwin submitted that the management of a condition is quite separate to a person's response to that condition. Thus, although good management and a good outcome are objectives of treatment and very desirable, they are not the benchmark by which one should measure a person's response. The person's response is their reaction to the real problem that they have and whether their response is indicative of marked distress in excess of what would be expected from that problem.
Mr Godwin referred to Dr Delaforce's opinion that a severe back problem interferes with a person's life in a major way and that some frustration and depressed mood is to be expected with such a condition. Dr Delaforce also noted that Mr Laarhoven has an active life and is getting on with his life. Mr Laarhoven is not, as Dr Dinnen's report suggested, doing absolutely zero. Mr Laarhoven is active. Mrs Laarhoven's evidence confirmed what Dr Delaforce had reported. Mrs Laarhoven gave an outline of her husband's activities, being on the Meals on Wheels roster, not on a regular basis but as a "fill in". Mr Laarhoven also undertakes activities with his friends. Mrs Laarhoven obviously knows her husband better than anyone else and she is a trained nurse. Her evidence was that Mr Laarhoven was doing everything he could possibly do given his back condition and that he was coping as well as someone with a back condition like this would be expected to cope.
Mr Godwin referred the Tribunal to a Work Ability Report prepared by Mr Laarhoven's general practitioner (T14, p83). The doctor had indicated that Mr Laarhoven's mental state was normal, which indicates that the local doctor did not consider that there was any marked distress in excess of what might be normally expected.
Mr Godwin referred the Tribunal to Mrs Laarhoven's evidence that Mr Laarhoven's pain has gradually been worsening. Therefore, Mr Godwin submitted that we are not looking at something that is either constant or diminishing that Mr Laarhoven should be adjusting to and coping with. Rather, the Tribunal should consider that Mr Laarhoven's condition is gradually worsening and increasingly interfering with his life. Referring to Repatriation Commission v Gosewinckel (supra) at paragraph 67 of that decision, it is noted that a Tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the Statement of Principles. In Mr Laarhoven's case, Mr Godwin submitted that Mr Vincent was urging the Tribunal to bypass the words of the Statement of Principles concerning Adjustment Disorder that require marked distress in excess of what would be expected, for a test of whether a man has a disorder and whether it is related to his back. Dr Dinnen had also diagnosed alcohol dependence or abuse on the basis of the amount of alcohol Mr Laarhoven consumed. This was not the test, Mr Godwin submitted. Mr Godwin contended that whether talking about alcohol dependence or adjustment disorder, the diagnostic criteria are not bound up with the issues of causation.
In relation to Mr Laarhoven's credibility, Mr Godwin submitted that there were many inconsistencies in Mr Laarhoven's evidence to various people. In relation to the story about Mr Laarhoven's dead friend, Mr Nielson, this was very curious. Further, the Tribunal should question why Mr Laarhoven did not tell Dr Delaforce of the significant occurrence of the loss of his first child arising out of his wife's miscarriage. Mr Laarhoven was also giving differing accounts about his service and also in relation to his alcohol consumption. Dr Delaforce had noted that he rarely sees anyone as inconsistent as Mr Laarhoven in the provision of information. While Mr Godwin conceded that possibly Dr Delaforce may not actually have had the "correct hunch" about some of the inconsistencies in Mr Laarhoven's evidence, there were many inconsistencies identified by Dr Delaforce which should cause the Tribunal to carefully analyse Mr Laarhoven's credibility. Another issue for concern is the fact that Mr Laarhoven had gone to Dr Hayes with the aim of obtaining post-traumatic stress disorder as a separate condition and gave a post traumatic stress disorder appropriate history for that condition. However, when Mr Laarhoven went to Dr Dinnen, he had decided that his back was the main problem and gave a more appropriate history there. This is indicative, Mr Godwin submitted, of Mr Laarhoven's not being reliable because he has a vested interest in the inquiry and the history that he gives.
In final submissions, Mr Godwin noted that in Dr Hayes' clinical notes, there was a comment made by Dr Hayes that in Vietnam, Mr Laarhoven was under attack and there were bullets flying around. Clearly, Mr Laarhoven was never under attack and shot at as such. In relation to Mr Laarhoven's adjustment disorder, Mrs Laarhoven had stated in her evidence that Mr Laarhoven had to give up helping her clean mildew from the verandah. He took a break for a while and then came to this work. Mr Godwin submitted that this is not a picture of man who is overwhelmed by his inability to do something. The evidence is that he does what he can reasonably do within the constraints of his back problem and when there is an initial failure, he does not immediately give up, turn to drink and go to bed. He gives it a break and comes back and gives it another go later. That is an example, Mr Godwin submitted, of a good adjustment to a chronic back problem and not an adjustment disorder.
findings

The Tribunal has reached a decision in this matter taking into the account the oral and documentary evidence, the submissions, legislation and case law. Before dealing with the issues of entitlement, the Tribunal wishes to make comment about Mr Laarhoven's credibility.
It is clear to the Tribunal that there are inconsistencies in Mr Laarhoven's evidence. Inconsistencies have been revealed for example, in relation to Mr Laarhoven's evidence about the death of his friend, Mr Nielson; the level of his alcohol consumption; not telling Dr Delaforce about the miscarriage of his first child; and, information in Mr Laarhoven's Alcohol Questionnaire. Dr Delaforce found these inconsistencies so great as to preclude his making a psychiatric diagnosis because he could not rely on information provided by Mr Laarhoven. The Tribunal agrees with Dr Delaforce's general proposition that as a psychiatrist, and indeed as a Tribunal, evidence and assertions should not be blindly accepted without there being an objective analysis of the material being presented. This is particularly important in this jurisdiction when deciding whether factors in Statements of Principles are met or diagnostic criteria present. There has to be a confidence that the decisions made are based on as reliable information as possible. The difficulty in this particular matter is that Dr Delaforce did not test any of his concerns about the unreliability or inconsistency of the information and hence, Mr Laarhoven's credibility. Mr Laarhoven was never given an opportunity by Dr Delaforce to answer any of these inconsistencies or to provide Dr Delaforce with any possible explanations. Because of this omission and Dr Delaforce's single-minded view of Mr Laarhoven's lack of credibility, Dr Delaforce diminished the value of his opinions because he himself began to lose objectivity - the very quality he was espousing as essential to his reporting and opinions asserted in evidence. Dr Delaforce's loss of objectivity was starkly evidenced by his decision to provide Mr Laarhoven with the Beck Inventory for Depression. From Dr Delaforce's evidence, the Tribunal noted that because Dr Delaforce was so convinced of Mr Laarhoven's lack of credibility, he then provided Mr Laarhoven with a psychometric test which was less rigorous but which provided Dr Delaforce with the result he expected without wasting too much time. Such attitudes are not what the Tribunal would expect of an expert engaged to provide objective and value-free opinion.
The Tribunal's view is that while there are inconsistencies, they are not major, nor indeed fatal to Mr Laarhoven's case. The Tribunal does not consider that Mr Laarhoven has deliberately set out to mislead the Tribunal. The Tribunal must be mindful of section 119 of the Act in allowing for the passage of time and its impact on Mr Laarhoven's memory. There may also be other explanations for these inconsistencies such as that proposed by Dr Dinnen, in that Mr Laarhoven may have some organic brain disorder. If Mr Laarhoven had been trying to deliberately mislead the Tribunal, he would hardly have told the Tribunal of his excellent career path both in the Army and in civilian life.
Turning now to the issue of entitlement, the Applicant asserts that there is alcohol abuse or dependence arising out of stressful service in Vietnam. Before turning to consider the relevant Statement of Principles, Instrument No 5 of 1994 concerning psychoactive substance abuse or dependence, the Tribunal considers first the diagnostic criteria of psychoactive substance abuse or dependence. These criteria are contained within paragraph 4 of the Statement of Principles and state:
"… 'psychoactive substance abuse or dependence' means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example driving while intoxicated);
…"

This issue of diagnosis must be clarified before turning to the factors contained with the Statement of Principles.

The Tribunal finds that Mr Laarhoven consumed alcohol to a significant degree before he went to Vietnam when he was aged approximately 28 years old. The Tribunal reaches this conclusion because, having accepted his evidence that within three months of his being in Vietnam he was able to consume half a bottle of whisky without any deleterious effects, he must have been a seasoned drinker and indeed have had some tolerance of alcohol. The Tribunal also notes Mrs Laarhoven's evidence that in his youth, Mr Laarhoven was a larrikin, spending much time with his mates and consuming alcohol, though Mrs Laarhoven could provide no estimates of the level of early alcohol consumption. The Tribunal accepts that Mr Laarhoven was consuming alcohol also in Vietnam and that this alcohol consumption may have increased. However, in relation to the diagnostic criteria, there is no evidence to suggest that in Vietnam and post Vietnam up until Mr Laarhoven's motor cycle accident on defence service, that there was any persistent or recurrent social, occupational, psychological or physical problems arising out of his alcohol consumption. Mr Laarhoven was promoted in the Army both in Vietnam and when he returned to Australia. He was able to control his alcohol so as not to affect his occupational standing. Mrs Laarhoven's evidence was that post Vietnam she did not notice any change in Mr Laarhoven and certainly at that time, alcohol consumption was not a feature of their lives. Further, Mr Laarhoven's evidence was that he is very aware of not drinking whilst driving and limits his alcohol consumption. The Tribunal considers it significant that when Mr Laarhoven was promoted to Warrant Officer, he was able to cut down his alcohol consumption and found no withdrawal or ill effects. This was similarly the case after his lung operation. Accordingly, the Tribunal is reasonably satisfied that Mr Laarhoven did not meet the diagnostic criteria for psychoactive substance abuse or dependence arising out of his Vietnam service and up until his motor vehicle accident in 1976.
The Tribunal next turns to consider the diagnosis of Mr Laarhoven's other claimed mental health problem. The Tribunal notes that Mr Laarhoven's claim was initially for post traumatic stress disorder. The Tribunal does not consider, on the evidence that Mr Laarhoven has post traumatic stress disorder and considering the relevant Statement of Principles, he does not meet the diagnostic criteria. The proposition put to the Tribunal is however that Mr Laarhoven does suffer from adjustment disorder which is covered by Statement of Principles 58 of 1996. Before considering whether or not Mr Laarhoven meets any of the factors in the Statement of Principles, the diagnostic criteria must be addressed. There is consensus between the parties that the back injury arising out of Mr Laarhoven's motor cycle accident is an identifiable psychosocial stressor as defined within the Statement of Principles. Turning to the specific diagnostic criteria 2A, the Tribunal considers that Mr Laarhoven meets this criteria in that he has developed emotional and behavioural symptoms in response to his chronic back condition, which have occurred within three months of that chronic condition being manifest. The emotional and behavioural symptoms include irritability, poor sleep habits, aggression and depression. Turning to the diagnostic criteria 2B, which require that Mr Laarhoven evidence clinically significant symptoms or behaviours of marked distress in excess of what would be expected, the Tribunal considers on the evidence and particularly Mrs Laarhoven's evidence, that Mr Laarhoven has exhibited symptoms of depression such as irritability, low mood, a sense of hopelessness, poor sleep pattern and the pathological use of alcohol. These behaviours and symptoms are more than would be expected of someone with a chronic back condition responding normally, including intermittently exhibiting a sense of frustration and occasional depression. While the Tribunal notes Dr Delaforce's view that Mr Laarhoven has been able to continue to be physically and socially active, the Tribunal's understanding of Mr Laarhoven's evidence, and particularly that of Mrs Laarhoven, is that he will try to undertake activities but then becomes frustrated, angry and withdraws, usually to consume excessive quantities of alcohol. The Tribunal considers that Mr Laarhoven has always been an active man who has, in recent times, found it so difficult to accept his limitations to the point where his response involves pathological behaviours.
The Tribunal further considers that there has been a significant impact on Mr Laarhoven's social or occupational functioning as a result of his behaviours and symptoms. In this regard, the Tribunal notes that following his retirement from the City Tattersalls Club, he attempted to work for his brother but was unable to last more than two or three weeks because of his aggressive behaviour towards the customers. He was in such pain that he found that this was translated into aggressive behaviour. Further, on consideration of Mrs Laarhoven's evidence, it is clear that Mr Laarhoven's behaviour within the marriage has in recent times been consistently hurtful to the point where Mrs Laarhoven has developed her own life as a coping mechanism. Thus the Tribunal finds that the diagnostic requirements of 2B are met. The Tribunal finds that the remaining diagnostic requirements are also met or not relevant. Accordingly, on the balance of probabilities, the Tribunal is reasonably satisfied that Mr Laarhoven has an adjustment disorder which occurred within three months of his back condition becoming chronic and this became apparent, certainly by the time of Mr Laarhoven's discharge from the Army.
Turning to the specific factors, the Tribunal considers that the relevant factor is Factor 5(a) which requires experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of the adjustment disorder. 'Psychosocial stressor' is defined as:
"…an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being in a motor vehicle accident, experiencing a failure or loss such as divorce: or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder):…"

The Tribunal sees as the psychosocial stressor the chronic back condition that arose out of Mr Laarhoven's motor cycle accident in 1976. The behavioural symptoms and signs of pathological use of alcohol, withdrawal and depression became apparent, on the Tribunal's understanding of the evidence, by 1977 when Mr Laarhoven realised the chronicity of his problem and his response to this realisation was in excess of what was expected. Accordingly, the Tribunal finds that Factor 5(a) of the Statement of Principles is raised by the evidence. The Tribunal is therefore reasonably satisfied on the material before it that a connection has been raised between Mr Laarhoven's defence service and his adjustment disorder as required by the Act.

With the onset of Mr Laarhoven's adjustment disorder, part of his excessive response to the chronic back condition which gave rise to the adjustment disorder was to seek relief in alcohol. The Tribunal has already found that Mr Laarhoven had not met the diagnostic criteria for psychoactive substance abuse up until at least 1976. What occurred after Mr Laarhoven's motor cycle accident was that his back condition became increasingly worse and as this occurred, Mr Laarhoven sought relief by increasing his consumption of alcohol to a pathological level. The Tribunal finds by 1984, Mr Laarhoven was using alcohol despite being aware of its having repercussions socially in relation to his relationship with his wife and psychologically and physically in relation to having been told by Dr Hayes that he should reduce his alcohol consumption. By the 1990s, the Tribunal considers that there was an onset of psychoactive substance abuse or dependence. Mrs Laarhoven's evidence supports this finding, including her statements that after the motor cycle accident she had recalled telling her husband that he should cease his alcohol consumption and indeed her evidence was that in the last ten years his alcohol consumption has been excessive. Mrs Laarhoven also stated that it was from the point of Mr Laarhoven's back injury that all of the problems have occurred. Turning to the specific factors in the relevant Statement of Principles for defence service, Instrument Number 6 of 1994 concerning Psychoactive Substance Abuse or Dependence, the Tribunal considers the relevant factor is Factor 1(b) requiring a psychiatric condition to be present prior to the clinical onset of psychoactive substance abuse. The Tribunal considers that psychoactive substance abuse in the form of alcohol abuse became clinically apparent probably in 1984 but most certainly by 1990, which is after the onset of Mr Laarhoven's adjustment disorder. Accordingly, the Tribunal finds that the evidence before it is such as to lead the Tribunal to be reasonably satisfied that the material raises a connection between Mr Laarhoven's alcohol abuse and the relevant service as required by the Act. While the Tribunal notes that Mr Laarhoven was consuming large amounts of alcohol prior to the onset of psychoactive substance abuse, there is a material contribution made to the establishment of this condition by Mr Laarhoven's defence service during which he had the motor cycle accident causing his chronic back condition.
In relation to Mr Laarhoven's bronchitis, the Tribunal finds that the concession made by the Respondent to accept this condition as defence-caused is entirely appropriate when one considers the relevant Statement of Principles.
Accordingly, for all the reasons set out above and in all the circumstances, the Tribunal sets aside the decision under review and substitutes its decision that the diagnosis of the condition post traumatic stress disorder should be varied to that of adjustment disorder. The conditions of adjustment disorder (as varied), alcohol abuse and bronchitis are found to be defence-caused and accordingly, Mr Laarhoven is entitled to a Disability Pension for these conditions. The Tribunal further determines that the date of effect for these conditions being defence-caused is from and including 11 April 1996. The correct assessment of these newly accepted conditions is remitted to the Respondent in order that assessment may be made up to date in relation to the impairment rating and lifestyle effects.
I certify that the 144 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock,
Senior Member and Dr P Lynch, Member
Signed:         .....................................................................................
  Stella Vaughan, Associate
Dates of Hearing  19 April 2001 and 29 May 2001
Date of Decision  27 July 2001
Counsel for the Applicant        Mr M Vincent
Solicitor for the Applicant          Ms P Robertson
Advocate for the Respondent Mr P Godwin, Departmental Advocate