Lees and Repatriation Commission
[2003] AATA 1027
•10 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1027
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/255
VETERANS' APPEALS DIVISION ) Re ANTHONY RICHARD LEES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date10 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision that the Post Traumatic Stress Disorder suffered by Anthony Richard Lees is not war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.
.................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
Veteran’s Affairs – whether Post Traumatic Stress Disorder war-caused- whether severe stressor
Veteran’s Entitlements Act 1986 ss 9, 120(1), 120(3), 120A(3) and 196B(2)
Repatriation Commission v Deledio 83 FCR 82
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Anthony Lees (“the Applicant”) to review a decision to refuse a claim for disability pension for Post Traumatic Stress Disorder (PTSD) on the grounds that it is not a war-caused disability within the meaning of that term in section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. At the hearing, Mr. McGhee of Counsel represented the Applicant and Mr. Williams represented the Respondent.
3. The Applicant claims that he suffers from the psychiatric illness, PTSD, which was caused by a traumatic event whilst on board the HMAS Sydney in Vung Tau Harbour, Vietnam. The Applicant claims he was locked inside a freezer alone while scare charges were unexpectedly set off around the vessel.
4. The Tribunal heard oral evidence from the Applicant, Commodore Philip Mulcare and Commander Peter James Burn.
5. The following documents were before the Tribunal:
(a)The documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1;
(b)Statement of Richard Lee Burridge, dated 20 January 2003, exhibit 2;
(c)Statement of the Applicant, dated 28 March 2003, exhibit 3;
(d)Writeway report of Commodore Philip Mulcare, dated 14 January 2003, exhibit 4; and
(e)Statement of Commander Peter James Burn, received by the Tribunal on 11 March 2003, exhibit 5.
6. The following matters are not in dispute and the Tribunal finds:
(a)The Applicant was born on 11 January 1954.
(b)The Applicant joined the Royal Australian Navy at 15 years of age on 10 October 1969 and retired 20 years later on 20 November 1989.
(c)The Applicant completed an “initial cooks course” on 3 December 1971.
(d)The Applicant served as a cook on the HMAS Sydney from 13 September 1972 until 30 September 1973. Whilst serving on the Sydney, the aircraft carrier was used to carry cargo from Australia to Vietnam. The Sydney sailed from Garden Island on 1 November 1972 and arrived in Vung Tau on 23 November. The ship was unloaded between the hours of 0700 and 1830, after which time it proceeded to sea for “night steaming”.. The Sydney again anchored in Vung Tau on 24 November and discharge of cargo continued from 0700 to 1330, when all cargo had been off-loaded. The Sydney sailed at 1500 hours. It arrived in Hong Kong Harbour on 30 November. The Applicant’s service on the Sydney from 1 November 1972 to 30 November 1972 constitutes “operational service” within the meaning of that term in the Act.
(e)In addition the Applicant rendered “eligible defence service” from 7 December 1972 until he was discharged on 20 November 1989, with the rank of Chief Petty Officer.
(f)Between 1989 and October 2000, the Applicant worked mainly as a chef and project manager for various catering and facilities management companies and hotels.
7. The Applicant has the following disabilities which have been accepted as service related:
(a)Tinea
(b)Bilateral Sensori-neural hearing loss
(c)Sprain or strain of right ankle
(d)Chronic solar skin damage
(e)Gastritis
(f)Duodenitis
(g)Gastro-oesophageal reflux disease
(h)Chronic Bronchitis and Emphysema
(i)Diabetes Mellitus
(j)Eligible for treatment (not service related) PTSD
8. The Applicant has the following disabilities which have not been accepted as service related:
(a)Chronic Airflow Limitation
(b)Alcohol Dependence or Alcohol Abuse; and
(c)PTSD
9. The Applicant has been in receipt of the disability pension since 23 February 1999. This pension was assessed at 80% of the General Rate from 5 October 2000. He is also in receipt of the service pension due to permanent incapacity.
10. On 5 January 2001 the Applicant made a claim for an increase in the disability pension based on Alcohol Dependence and/or Abuse. In his claim form he stated:
“Because of AD (alcohol dependence) my life is completely ruined. I have had 2 marriages and my children and grandchildren do not visit me .All in my life is ruined due to my AD. Alone I cannot work more than 8 hrs per week…
Due to my stressful operational service I took up drinking to calm my nerves. I had a drinking problem whilst in the Royal Australian Navy.”
11. On 3 May 2001 the Respondent rejected the Applicant’s claim for Alcohol Dependence or Alcohol Abuse and decided to continue the Applicant’s disability pension at 80% of the general rate with effect from 5 October 2000. In the decision the delegate of the Respondent stated:
“Although there is a history of having suffered from PTSD … which may have contributed to alcohol dependence or alcohol abuse, this psychiatric disorder has not been claimed or accepted due to operation or eligible service….
Severe stressor
After reading the psychiatrist’s report, I find there is no history of ever having experienced a severe stressor as defined by the RMA and required by the Statement of Principles.”
12. The psychiatrist’s report referred to by the delegate of the Respondent was Dr. Philip Bird’s report dated 3 April 2001 which stated the following:
“He stated that when he joined the Navy at 15 he did not drink alcohol. Occasionally he would, prior to his tour on HMAS Sydney to Vietnam, drink alcohol when he was very involved in sports. He was playing “A Grade” Rugby Union and his weight was approximately 85 to 90 kilos.
He described being in the harbour at Long Tan and his duties included loading stores into the lower deck of ship and outside he would hear scare charges going off. There were vibrations and shaking throughout the ship. He felt very scared with an increase in his heart rate, excessive sweating, believing that if the ship went down he would drown, as the ship was an action station and he would be unable to escape from the ship. He also had some time on the deck of the ship, although he was on guard duty with an SLR but not given any live ammunition. He became very fearful of these experiences and was unable to sleep following leaving Vietnam.
On arrival in the Philippines, where he remained for 5 days, he began to drink alcohol excessively to try and abate his symptoms of anxiety and insomnia. This continued during a further stop in Hong Kong and then it persisted throughout his naval career. He admitted he changed on return to Australia in his relationship with his wife who he met when he was 18 years old, and the relationship dramatically deteriorated. He became violent, irritable and drank whenever he had the opportunity. After 6 years following his return from Vietnam, his wife left him. Prior to this time she left on a number of occasions to live with her mother, but the separations were only temporary. He stated he was unaware of any violence towards her, but she stated that on a number of occasions he has physically assaulted her. He drank excessively, up to 20 units of beer a night, or 25 units of spirits. He also managed to smuggle alcohol onboard ship and drank spirits whenever possible. He admitted that the crew were aware of his excessive drinking, but provided he turned up for duty not intoxicated, there were no serious recriminations for his excessive alcohol consumption.
….
He stated that also he was a non-smoker prior to his tour to Vietnam, and commenced smoking on return. Again, he currently smokes 40 cigarettes per day and has done since his tour to Vietnam he has been unable to reduce his tobacco consumption. He stated that he was concerned about his smoking in large amounts and had tried using both Nicorette and Nicotine Patches to try and reduce his tobacco consumption without success. He spends a great deal of time considering the medical consequences of smoking which he is unable to control.
He joined his tour of Vietnam as described above. He described being very fearful and scared, believing that if the ship was attacked he would drown in the sea. He described being very fearful of this. He also described intrusive thoughts related to this experience. He described distressing dreams about these experiences at least once per week. At times, when stressed he believes he is back in Vietnam with the distressing thoughts. He described being angry and irritable with outbursts when he experiences cues reminding of his service and also admits his heart rate increases and he becomes sweaty
The diagnosis, according to American Psychiatric Association Diagnostic and Statistical Manual IV is of
· Post Traumatic Stress Disorder meeting criteria A1, 2; B1,2,3,3,4,5; C1,2,4,5,6,7; D1,2,3,4,5; E and F. Subtype Chronic. Date of onset 1972.
· Alcohol Dependence meeting criteria 1a,b; 2a, b; 3;4;5;6;7. Subtype with psychological dependence. Date of onset 1972.
· Nicotine dependence meeting criteria 1a, b; 2a, b; 3; 4; 6. With psychological dependence. Date of onset 1972.
· Major Depression meeting criteria 2a; 4; 5; 6; 7; 8; 9b, c,d,e; Date of onset 1997 (approximately).
I consider the primary diagnosis is of Post Traumatic Stress Disorder with subsequent diagnoses of Alcohol Dependence, Nicotine Dependence and Major Depression being secondary. I consider that the onset of the Post Traumatic Stress Disorder is service related. I further consider that the lack of appropriate interventions with regard to his Alcohol Dependence throughout his service career have been in part due to the acceptance of his heavy alcohol consumption, despite the obvious impairment in psychological and professional performance.”
13. On 7 May 2001 a further claim for an increase in service pension was lodged by the Applicant on the basis he suffered from PTSD. In his claim form the Applicant stated:
“Due to my stressful operational service in SVN has caused this problem with my life. My first severe stressor prior to the clinical worsening of PTSD was at HMAS Leeuwin as a 16 year old when a rifle was pointed at me on the rifle range… a young sailor’s rifle was jammed and he pointed it at us and said his rifle was not firing…. I was totally stressed from this. My next severe stressor was below the water line on the Sydney in Vietnam in the fridge getting stores and scare charges went off against the ship’s side and when the concussion hit the side of the ship on these occasions I panicked and could not get out of the fridge. I still have nightmares about this.”
14. The Respondent rejected the Applicant’s claim for PTSD on 9 May 2001. The reasons for the refusal were as follows:
“In your claim you have contended that PTSD was caused by two events referred to on your claim form. I am satisfied that the first event, namely the rifle range incident, meets the criteria for a severe stressor…... However as this event was not during your operational or eligible service, I am unable to accept your claim on this incident.
The next event referred to on your claim form, namely the scare charge incident, does not meet the criteria for a severe stressor.”
15. On 26 June 2001 Dr. Philip Bird provided a further report stating:
“This is in addition to my initial report on Mr. Lees. A second interview was carried out at my rooms at the request of his General Practitioner, Dr. Peter Alroe. At this further assessment further details were obtained regarding the events surrounding Mr. Lee’s traumatic experiences whilst on active duty in Vietnam.
He described further details of being in the harbour at Vung Tau. He described being in the fridges inside the ship. These were large enough to walk inside and unable to be opened from the inside. During the time in the harbour at Vung Tau the ship was at action stations, the fridge door was shut and locked and there was no lighting inside the fridge itself. At this time the scare charges were being dropped around the ship. Mr. Lees had no idea what these were and assumed from the sound of the explosions indicating that the ship was being attacked. He became terrified and began screaming but no-one was able to hear him. He also described being urinary incontinent during this time. He stated that the fridge door was opened after approximately 15 minutes. He was distressed and tremulous and very angry about the episode. He was told to go to the top deck to get some fresh air, then to return to his regular duties.
Since this time he described the symptoms as described in my previous report. I consider that these events would meet the criteria for a traumatic event, as he was confronted with an event which involved threat and death, based on the assumption that he was trapped inside a ship which was being attacked by the North Vietnamese. His response involved intense fear, helplessness and horror.”
16. On 16 May 2001, the Applicant appealed the decision of the delegate dated 9 May 2001 to the Veterans’ Review Board. In support of his appeal to the Veterans’ Review Board he wrote:
“I believe that the delegate has not taken into a/c the 2nd stressor that aggravated my PTSD of being locked up in a ships fridge below the waterline & no lighting & door secured caused the 2nd stressor. I was locked in fridge for 15min. This was caused when scare charges went off and the crew I was with accidentally locked the fridge door as charges went off we were below the waterline. It was only after a head count that they found out that I was missing and opened the fridge up. I thought that I was going to die & I relive this thru dreams & nightmares.
I believe that (the Delegate) has got it wrong and has not taken into a/c my life threatening situation, at the time of the explosions we did not know what was causing these explosions. The stores party locked up the fridge & freezer.
Only after I was released from the freezer & went to the upper deck we found out what caused these explosions. I have been traumatised ever since & cannot go into confined spaces.”
17. On 4 February 2002 the Veterans’ Review Board rejected the Applicant’s claim that his PTSD was war-caused.
18. The Applicant then appealed to this Tribunal. In support of his claim he provided a written statement dated 28 March 2003.
“6. When inside the fridge we had almost taken all that was required and I was over at the back of the freezer getting the last of the stores, when the explosions started. I was the only member of the stores party still inside at the time. The rest were starting to take the stores up to the kitchen and butcher shop. The door shut and the lights went out. I was cold and dark. I was shocked to have been locked inside and to be suddenly in darkness. I made my way to the door to try and get out into the airlock, but the door would not open. It had been locked from the outside. I yelled out hysterically to alert anyone outside the freezer that I was inside but no one responded. I heard many explosions outside the hull. The noise was deafening. The ship shook. I was terrified. I continued to yell and scream the whole time. I cried and I wet myself, as I was so scared. I do not know why the lights went out but assume that they do not stay on when the freezer is closed. I had never been inside the freezer when the door was shut before. The airlock is usually shut when we were going in and out. It was pitch black inside the freezer.
7. I recall that Leading Cook Blanch was with the party with 4 or 5 others like myself on store duty. There was not a log keeper taking details of every person who came in and out of the freezer on this or other occasions. This may have been what was supposed to occur but it did not. The log keeper usually moved about and checked on temperatures of different fridges and freezers. On this occasion we certainly did not log in or out. There would be no such log in existence, as we never signed it.
8. At the time I felt that we were under attack and was sure that I would die in the freezer as I was alone and could not get out. The explosions were spasmodic but stopped after a period of time. I was fearful that I would perish from the cold of the freezer or suffocate if I was not discovered in time. Both of these latter issues have been totally ignored to date, with a focus only on whether the ship was under attack and whether I could be killed or seriously injured as a consequence of such an attack. I was still screaming when I was eventually let out 15 minutes later. I was very upset and angry. I observed the person outside the door to be holding a lock which appeared to have been taken from the hasp on the outside of the door and I assumed had been used to lock the door.. I abused Cook Blanch who was very apologetic and was trying to calm me down. I was sent up on deck by him to calm down. He told me to change my overalls. I went back to the Mess to change, had a smoke and then returned to duties.
9. The very fact that I was locked inside a Freezer gave rise to a fear of death or injury.
10. The fear that the ship was being attacked and may sink, with me being in a helpless situation, also gave rise to such a fear. I was terrified. I was only aged 18 at the time of this incident. I have had nightmares about this incident ever since.”
19. In oral evidence before the Tribunal the Applicant confirmed his statement dated 28 March 2003. On cross-examination he confirmed that:
(a)The scare charges appeared to precipitate the shutting of the refrigerator door.
(b)He was inside the refrigerator when the first explosion occurred.
(c)He could hear very loud explosions whilst inside the refrigerator. They seemed to go off at 10 second intervals.
(d)The noise was deafening and the ship shook.
20. Commander Peter James Burn also gave a written statement dated 11 March 2003 and oral evidence to the Tribunal. His evidence is summarised as follows:
(a)He served in the Royal Australian Navy as an engineer for 35 years. He served on HMAS Sydney on the following occasions
(i)November 1956 to May 1957;
(ii)June 1971 to August 1971;
(iii)September 1971 to December 1971 ; and
(iv)16 October 1972 to 15 January 1973.
(b)Part of his duties as engineer were to twice a day travel to every section of the ship to check various machinery. He was also responsible for the refrigeration and air conditioning aboard the ship. This included checking the temperature of the freezers and fridges. The fridges and freezers where opened twice a day for 15 minutes at a time. The logbooks only recorded the times personnel entered the freezers or fridges, not the names of the personnel.
(c)Before any supply rating was allowed to enter the rooms for the first time they were to be informed of the emergency means of opening the door from the inside should the door close fully when removing stores.
(d)This emergency control consisted of a large red button immediately adjacent to catch door which when struck would release the shutting mechanism for the door. It would not release a door if a lock had been placed in the hasp but this should never happen if the watch-keeper was aware that a person was in one of the rooms.
(e)He was familiar with scare charges and saw them in operation in Vung Tau Harbour.
(f)He only ever saw scare charges in use 75 meters to 100 meters from the ship. He did not accept that they were ever thrown from the deck of HMAS Sydney.
(g)He has heard the scare charges go off while on the deck of the vessel. He has never heard a scare charge while below deck on the Sydney. He does not accept that anyone would be able to hear a scare charge whilst inside a freezer on board the Sydney. This is because firstly, the freezers were located in the middle of the ship surrounded by the decks below, above and on the side, and secondly, there was a thickness of four inches of cork insulating the freezers and fridges that made it impossible to hear anything outside.
(h)He said “categorically” that there was no power failure on the HMAS Sydney at that time.
(i)For the door of a refrigerator to shut and for the light to be switched off, both operations would have to be done manually.
21. Commodore Philip Mulcare from Writeway Research Service provided the Tribunal with a report dated 14 January 2003 in which he stated:
“7. Scare charges were made up and some were positioned in locations on 3 Deck in SYDNEY for emergency use. However, during SYDNEY’s early voyages (1965/67) and from 1970 onwards, scare charges were only thrown from ship’s boats, not from the ship itself. During unloading operations, boats and barges were alongside or near the ship most of the time and, for safety reasons and to avoid disrupting operations, scare charges would not have been thrown from the ship unless there was evidence of a diver attack, or imminent attack, on the ship. Commodore J.W.L. Merson RAN Rtd, SYDNEY’s Commanding Officer in 1972, has advised me that his firm recollection is that scare charges were only thrown from ship’s boats, not from the ship itself. Lieutenant Commander G.P. Haughy RAN Rtd, then a Sub Lieutenant, was one of the bridge watch keepers and at other times coxswain of one of the motor cutters on patrol around the ship. He recollects that charges were thrown from boats, which were some distance, he estimates about 100 metres, from SYDNEY.
8. A scare charge would have to explode very close alongside to have any concussive effect on a ship the size of SYDNEY. There is no evidence of any scare charges exploding close alongside in November 1972.
…
10. Mr Lees joined SYDNEY as a Cook (Able Seaman) on 13 September 1972, aged 18 years 8 months and worked in the Main Galley. As a Cook, he could well have been a member of a stores party retrieving stores from a cold room or cool room. His contention refers to “freezers”, which indicates he is referring to a cold room where frozen provisions were kept.
11. Drawings of sections of 5 and 6 Decks in HMAS MELBOURNE, the same class of ship as SYDNEY, showing the layout of the ship’s refrigerated compartments, are attached. (SYDNEY’s layout was similar to MELBOURNE). 5 Deck was on the waterline and contained three cold rooms (frozen provisions) and one cool room. Two more cool rooms were below on 6 Deck, which was below the waterline.
….
15. The cold rooms on 5 Deck were inboard compartments i.e. with other compartments between them and the ship’s side. They were also insulated all round with approximately 4 inches of cork, which would have had a marked sound proofing effect. I have been advised that with the doors closed the sound of scare charges thrown say 100 yards from the ship would have been very muted, if they were audible at all, in the cold/cool rooms, particularly those on 5 Deck.
16. The veteran’s appeal indicates he was a member of a stores party retrieving stores from ‘the freezer’ (i.e. a cold room on 5 Deck) when the lights went out. Normally there would be three phases associated with getting stores from a cold room or cool room. In the first instance personnel would enter the cold room and close the door while they identified the stores required and moved them near the door. Secondly they would unload the stores from the cold room into the airlock (these two phases could be concurrent provided the time the cold room door was open was reduced to a minimum) and then, after the cold room door was shut, the airlock door would be opened to transfer stores into the lobby and then to 4 deck.
…
Summary
19. In summary, there are no records available to show whether there was a power failure as described by the veteran. The higher state of machinery readiness maintained in Vung Tau would have reduced the likelihood of a total power failure in sections of the ship. In the event of one generator failing at least half the lighting in major compartments, passageways and ladder bays should have remained on. However, if there was a power failure, it is unlikely to have been caused by the concussive effects of a scare charge explosion, as the evidence indicates that scare charges were not thrown close to SYDNEY while she was at anchor in Vung Tau in November 1972. Also the noise of distant scare charge explosions would have been muted, if audible at all, in closed cold/cool rooms, due to the central position of these compartments, and their insulation.”
22. The Tribunal must consider sections 120(1), 120(3), 120A(3) and 196B(2) of the Act in order for it to determine whether the Applicant’s PTSD was war-caused. Repatriation Commission v Deledio 83 FCR 82 identifies the steps that need to be taken by the Tribunal :
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
23. The material before the Tribunal points to an hypothesis that the Applicant was locked in the freezer for 15 minutes while scare charges went off around the HMAS Sydney and this event was so traumatic that it caused his life long psychiatric illness of PTSD.
24. The relevant SoP for PTSD is No. 3 of 1999 as amended by No. 54 of 1999, and in particular factor 5(a); which provides:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;
“experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
25. The Tribunal notes the report of Dr. Greg Knight at folios 14 and 15 of the section 37 statement. Dr. Knight examined the Applicant in March 1999 and his report of 25 March 1999 contains the following introductory paragraphs:
“Mr Lees confirmed the conditions you listed as service accepted disabilities and denied awareness of any other medical problems. I also spoke with his General Practitioner (Dr W Lewis, Ph: 07 5446 2166).
Several of the conditions you listed I would rate as having little, if any, adverse effect on Mr Lees work capabilities. These include his tinea, chronic solar skin damage, gastritis/duodenitis and gastro-oseophageal reflux disease. Mr Lees confirmed that he suffers from tinea pedis and cruris and he uses Tinaderm periodically to suppress same. He referred to “sun spots” over each forearm and his face. He described occasional stomach pains and acid reflux, particularly after beer and lying down at night; for this he regularly use SOMAC tablets to prevent nocturnal reflux.
The conditions with some bearings on his on-going work capacity include the right ankle ‘sprain or strain’, chronic bronchitis and emphysema, and bilateral sensori-neural hearing loss.”
Dr. Knight’s report contains no reference to any complaint by the Applicant about alcohol abuse/dependence, nor anything about PTSD, nor any other psychiatric disorder.
26. The Tribunal also notes that the Applicant served in the Navy for a further seven years, during which time he was promoted, after his two days in Vung Tau in November 1972.
27. The Tribunal does not accept that the Applicant has suffered from a severe debilitating psychiatric disorder ever since his two days in Vung Tau.
28. The Tribunal further notes that when the Applicant first claimed for pension for alcohol dependence in January 2001, he did not mention scare charges, nor anything about being locked in a refrigerator. If those events had been as traumatic for him as he now claims, he would surely have said so in January 2001.
29. In April 2001, the Applicant had a long consultation with Dr. Bird. He told Dr. Bird that the scare charges were causing vibrations and shaking throughout the ship, and that this fact caused him to be scared. He never mentioned anything about being locked in a refrigerator.
30. The material available to the Tribunal indicates that it was not until June 2001, that the Applicant mentioned anything about being traumatised by being locked in a refrigerator. This was during the course of a second interview with Dr. Bird.
31. The Tribunal accepts the evidence of former Commander Burn and the material gathered by former Commodore Mulcare. Consequently, the Tribunal rejects the claim by the Applicant that the aircraft carrier Sydney was shaken by small scare charges being detonated at least 60 metres from the ship. The Tribunal also rejects the Applicant's claim that whilst in a refrigerator in the middle of an aircraft carrier, he was terrified by the sounds of loud explosions. The Applicant’s evidence is either a gross exaggeration or a downright untruth.
32. The Applicant’s credibility is poor and consequently it is difficult to determine whether or not he was actually locked in the refrigerator for 15 minutes. Two things are certain, the scare charges did not cause the door to shut, and neither did any power failure. It could have been done by one of the other sailors by mistake.
33. At any event the fridge event was not the traumatic episode that the Applicant now claims. He has been making disability claims since early 1999 and he did not mention it until June 2001.
34. The Tribunal does not accept that the Applicant experienced a “severe stressor” within the meaning of that term in the relevant SoP. Consequently, the hypothesis raised by the material is not reasonable.
35. The Applicant’s PTSD is not war-caused.
36. The Tribunal affirms the decision to refuse a claim by the Applicant for disability pension for PTSD.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 3 April 2003
Date of Decision 10 October 2003
Counsel for the Applicant Mr. McGhee
Solicitor for the Applicant Parker & Co.
Respondent Mr. Williams, departmental advocate
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