Leitch and Repatriation Commission (Veterans' entitlements)
[2021] AATA 578
•18 March 2021
Leitch and Repatriation Commission (Veterans' entitlements) [2021] AATA 578 (18 March 2021)
Division:VETERANS’ APPEALS DECISION
File Number(s): 2017/4432
Re:Geoffrey Leitch
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:S Taglieri SC, Member
Date: 18 March 2021
Place:Hobart
Decision Affirmed
....................[sgd].................................
Sandra Taglieri SC, MemberCatchwords
Veterans’ entitlements – eligibility for increase in pension rate – whether a disease or injury is defence-caused – alcohol use disorder – generalised anxiety disorder – temporal requirements of Statement of Principles – decision under review is affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning anxiety disorder No. 103 of 2014
Statement of Principles concerning alcohol use disorder (Balance of Probabilities) No. 49 of 2017Cases
Simos v Repatriation Commission (2013) 212 FCR 391.
Repatriation Commission v Deledio (1998) 83 FCR 82.Repatriation Commission v Gorton (2001) 110 FCR 321.
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th Ed, 2013).
REASONS FOR DECISION
Between 1969 and 1989, the Applicant served in the Royal Australian Navy. At the time he enlisted, he was 17 years old. He served on various naval ships and performed various duties, being promoted over the years of his service to Warrant Officer at the time of discharge. He is currently 68 years of age.
The Applicant is in receipt of a part disability pension pursuant to the Veterans’ Entitlements Act 1986 (VEA) for physical conditions. He claims to be entitled to an increase in pension on account of suffering an anxiety disorder and alcohol use disorder. His claim was rejected by the Repatriation Commission and the Veterans’ Review Board affirmed that decision on 9 December 2016 (the reviewable decision).
On 7 December 2020, the Tribunal conducted a hearing regarding an application to review the reviewable decision. Prior claims had been made for anxiety disorder and alcohol use disorder by the Applicant in 2007 and 2013. Documentation in respect of those claims was tendered into evidence as part of the “T documents” that were received by the Tribunal for the purposes of the current proceedings. Although documents relating to the past claims are of some interest and relevance, the Tribunal is required to conduct a fresh merits review hearing to determine the Applicant’s claims.
The evidence of most assistance in the proceedings is the oral evidence of the Applicant and the expert witnesses called by the parties, as the Tribunal had the opportunity to assess their evidence after it was tested by cross-examination.
For the purpose of the proceedings before the Tribunal, the parties agreed that the following issues were those for determination by the Tribunal:
(a)whether the Applicant suffered either a generalised anxiety disorder (GAD) or alcohol use disorder (AUD); and
(b)if he suffered either disorder, whether it was defence-caused.
In opening submissions, both counsels agreed that for the purposes of determining whether either of the claimed disorders were defence-caused, the applicable Statements of Principles (SOP) were —
(a)anxiety disorder, SOP No. 103 of 2014; and
(b)alcohol use disorder, SOP No. 49 of 2017.
The parties were also in agreement that for the purposes of the VEA, the period of eligible service was between 7 December 1972 and 22 November 1989.
DEFENCE-CAUSED INJURY OR DISEASE
Part II and Part IV of the VEA provide for entitlements to pension for war-caused injury or disease and defence-caused injury or disease. In this case, the Applicant’s undisputed service with the Royal Australian Navy (RAN) was arguably capable of giving rise to a pension pursuant to the VEA, providing the Tribunal was satisfied that the claimed conditions existed and met the causal requirements of the VEA, including the SOPs established under s 196B for the purpose of s 120A of the VEA.
The role of the SOPs when addressing the question of causation of relevant injury or disease under the VEA was explained in Repatriation Commission v Gorton[1] by Heerey J in the following terms:[2]
Section 120(1) and (3) of the VE Act prescribe the standard of proof to be used in making a determination under s 13(1) where the claim relates to operational service. As explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571, the threshold question posed by s 120(3) is: does the whole of the material before the decision-maker raise a reasonable hypothesis connecting the disease with the particular circumstances of the veteran's service? If so, the Commission is to determine that the disease was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination: s 120(1).
A claim made on or after 1 June 1994 that relates to operational service rendered by a veteran is affected by s 120A.
Section 120A(3) provides that a hypothesis connecting a person's disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force an SoP that "upholds" the hypothesis. That is, the hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the SoP: see Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 96, endorsing the observations at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.
[1] (2001) 110 FCR 321.
[2] Ibid [8]–[10].
Section 120 and 120A of the VEA provide explicit direction to the Tribunal regarding matters of “proof” or “satisfaction”. Heerey J’s reference to “the template” is the required process to be followed in arriving at a determination.
It is useful to set out the process which is helpfully extracted in the reasons of Tracey J in the matter of Simos and Repatriation Commission:[3] :
These provisions were considered by a Full Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82. The Court determined that a four-step process was necessary in order to establish an applicant’s entitlement to a pension under the Act. Those steps, which the Court identified at 97-8, were:
1The 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.
2If 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If 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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4The 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.
[3] (2013) 212 FCR 391, [7] (Simos).
CONTENTIONS
The Applicant contended that he suffers both GAD and AUD which are defence-caused and result in incapacity. No specific contention was made during the hearing about the date of onset of either condition by his counsel but because of the temporal requirements of the SOPs, this is in the Tribunal’s view critically important.
To establish suffering defence-caused injury or disease, emphasis was placed on what was said to be a Category 1B stressor being an incident during service when it is claimed that the Applicant observed the death of a pilot who had ejected from a Skyhawk aircraft. Reference was also made to marriage counselling and separation in 1983, said to be Category 2 stressors. It appeared that these events were principally relied upon for the purposes of establishing satisfaction of the applicable SOPs.
The meaning of Category 1B and Category 2 stressors were agreed to be the same in relation to both GAD and AUD. Relevantly, the SOPs provide for their meaning as follows:
"a category 1B stressor" means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
The SOPs also specify temporal requirements that apply before GAD or AUD can be said to be connected to service on the balance of probabilities. That is, experiencing a category 1B stressor within the two years before the clinical onset of or clinical worsening of anxiety disorder or alcohol use disorder is required. Further, experiencing a Category 2 stressor within six months before clinical onset or clinical worsening of alcohol use disorder is required.
Counsel for the Respondent, other events and episodes during service were the subject of prior claims and statements by the Applicant. These other events were of arguable relevance to whether the Applicant suffered a defence-caused injury or disease and are usefully referenced in the T documents. In particular—
(c)in the report of Dr Ratcliff of 1 August 2007,[4] there is reference to when posted to HMAS Perth, the Applicant was the last to see a young sailor returning from shore leave, who was later found dead in dry dock.
(d)in the report of Dr Jeffrey Swift dated 4 October 2010,[5] there is reference to:
(i)the Applicant being young and inexperienced onboard HMAS Sydney in operational waters off Vietnam in 1970;
(ii)an incident on board HMAS Swan where it is claimed there was a near collision with a merchant ship and the Applicant was on watch having reported the approaching merchant ship, but action was taken belatedly.
[4] T13, 96.
[5] T24, 140.
The Applicant gave oral evidence about all the incidents above and was cross-examined in detail.
The Respondent contended that the Applicant does not suffer from either a GAD or AUD. In the alternative, if he does, the Respondent contends that they are not defence-caused as the SOPs which apply are not satisfied.
THE EVIDENCE
The Applicant stated that before enlisting he did not consume significant amounts of alcohol. He had one to two cans on a Friday after work once a week.
During training following enlistment he may have had one or two beers on a weekend but again he did not drink significant amounts of alcohol.
Once he was posted to HMAS Sydney, the regular issue was one large beer can each evening. This was equivalent to 26 ounces.[6] He said that although he received this issue, he gave some of it to others and did not drink it all.
[6] Transcript, 7 [25]–[23].
When he was posted in Vietnam in November 1970 on HMAS Sydney, there was no beer issue.[7] While in Vietnam, the ship was in the waters near Vung Tau, 500 metres off-shore. The Applicant was assigned duties but no information or elaboration was given about what to expect.[8]
[7] Transcript, 8 [19].
[8] Transcript, 8 [12]–[13].
After returning from Vietnam, he was posted to HMAS Cerberus and undertook an Able Seaman’s course. He was based at the Gunnery School where there was a junior sailors’ mess “Wets”. The bar opened at the mess from 4:30 PM. The Applicant stated that there was no restriction on alcohol consumed, but he only attended one or two times per week at the mess and did not drink to excess. He consumed three to four cans per day or in the mess minis, 10 ounce beers.[9]
[9] Transcript, 9 [1]–[2].
The Applicant was also posted to HMAS Perth, Swan, Yarra, and Derwent. He served for almost seven years on HMAS Swan, initially from 1974.[10] He was posted back to HMAS Cerberus for a promotion course and a Petty Officer course but he then returned to HMAS Swan.
[10] Transcript, 9 [27].
It was during his time on HMAS Swan serving as Petty Officer that he said he witnessed the Skyhawk aircraft crash incident involving a Singaporean pilot.
The evidence given by the Applicant was:[11]
[11] Transcript, 10–12.
MR HART: Can you describe what happened?---Well, I was on the Tops part of ship with my work crew and whilst the planes were coming in on the Splash Target we were all observing it and I - I looked down and then something made me look up and I saw the plane very low. And I thought, geez this is going to be good. And I watched the plane land on the Splash Target. I immediately looked up in the sky and saw the pilot had ejected. He was - the parachute had opened and he was going down.
Right. So when you say it landed on the target, it crashed to the target?---It almost landed right on top of the target.
Was there anything in your mind which was obvious as to why the pilot had ejected?---No, I couldn’t see any reason.
How long after he ejected did the pilot hit the water?---I’d estimate between 30 and 40 seconds.
Did you see the pilot hit the water?---Certainly did.
What happened to the parachute?---The parachute - the pilot hit the water and the parachute came down over the top.
Did you see the pilot after that?---No.
What then happened with the Splash Target?---The Captain immediately ordered the cutting of the line, or the releasing of the line, and turned the ship towards where the pilot went down.
Right. So what then happened after the ship was turned around towards the target?---The Captain pulled up - up in the vicinity of where they plotted the pilot’s position. And there was debris in the water.
How did you feel about what had transpired?---Well, I didn’t know how to feel. I just watched the pilot hit the water. Couldn’t - didn’t think of why he did it, it’s just that he had ejected and I didn’t feel too good.
What then happened?---Well, as I said, the Captain pulled the ship up as close to the position where the pilot went in the water and there was debris in the water and then amongst that debris was his helmet.
What did Swan do with respect to the location of the pilot?---We put a Dan Buoy down - a Dan Buoy is a marker that you put in the sea and it floats and it’s very heavily weighted so it sort of stays in position. The Captain ordered a swimmer of the watch to get into the water and retrieve what was in the water. And as the swimmer swam towards the helmet, we were all watching and we didn’t know whether there was any body parts in that, or whatever. The swimmer got to the helmet, turned it round and was very relieved that there was nothing in the helmet. The debris was collected, brought back on board and the ship remained in that area trying to find the pilot. We had no success. We were there for overnight and the next morning Singaporean Navy came out and found the pilot.
Your evidence is that you collected debris, or the ship’s company collected debris. What did the debris include?---Well, it was the pilot’s helmet, there were - you could tell that what he had in his last meal. There was food wrappers and some maps, and what have you, out of the plane.
Did you observe the swimmer swimming to the wreckage?---I certainly did. It was right next to the ship.
How far away were you from the debris?---Well, the time the swimmer got there, we were right above it, about 10, 12 feet.
So you had an opportunity to observe the helmet?---Certainly.
And you were unsure as to whether the helmet was intact or whether it had body parts?---That’s correct. I - we had no idea. We were all very apprehensive.
Can you recall what your duties were at that time?---I was the supervisor of the Tops part of ship.
So you were in a position to observe what had occurred?---Certainly.
And you did, in fact, observe it?---I certainly did.
Now, you’ve described this in detail this morning. Have you had an opportunity to reflect at any stage about what you observed?---I think about it every now and then.
And how do you feel when you think about the incident?---Very sad. A lot of times I tear up.
Do you visualise the incident at all?---I can describe it, I see it as plain as day. Even today.
So, immediately prior to the incident how many planes had there been involved in the exercise?---I think there was around four or five. What they were doing, they were coming in from different directions over the target.
And the total time involved from when you were conscious of the pilot ejecting to the swimmer being put in the water - how long did that take for that to occur?---It was probably about ten minutes by the time the ship turned, pulled up.
You were conscious of the fact that the pilot had ejected and had gone into the water?---Most definitely. We watched him - we watched him from the time - as soon as we saw his parachute open till the time he hit the water.
At the time of the incident described at [26], the Applicant stated that he was drinking his standard issue of one large beer (26 ounces), but eventually he started drinking ‘a hell of a lot more’.[12]
[12] Transcript, 13 [1]–[19].
In evidence in chief, there was little clarity given to the above statement that the Applicant ‘eventually started drinking a hell of a lot more’, except for the following exchange:[13]
MR HART: By 1980 how was your drinking proceeding? Did your drinking stay the same? Had you increased or had it moderated?---I would say it increased.
How do you know that to be the case?---Well, I was drinking anything up to six stubbies a night.
[13] Transcript, 13 [40]–[44].
The Applicant’s evidence was that despite increased alcohol use, he did not encounter any disciplinary or performance issues, other than on one occasion his performance being marked down not due to alcohol related matters, but his unwillingness to share with his superior details about his marriage difficulties.[14]
[14] Transcript, 17 [2]–[3].
The Tribunal received evidence from the Applicant about the breakdown of his first marriage. Initially he stated that that he received a “dear John” letter in the early 80s and this was attributable to his absences from home due to postings and a “mention of alcohol consumption”.
He then however stated that the receipt of the letter was not long after the Skyhawk pilot incident and so the marriage difficulties were earlier.
Following receipt of the letter from his wife, the Applicant arranged leave and there was an attempt at reconciliation. He stated that he had applied for a transfer to dockyard police which involved daytime duties, so he could be home in the evening. But his request was rejected.
The Applicant stated that despite the marriage difficulties his alcohol consumption did not change at all.[15]
[15] Transcript, 15 [1]–[3].
When the Applicant’s marriage ended in 1983, he had been living in Sydney and was posted to HMAS Nirimba. This was what the Applicant described as “the apprentice’s establishment”. He stated that the bar opened at 4:00PM onwards and there were also monthly functions.
The Applicant gave evidence about how the Navy dealt with persons who had alcohol consumption difficulties. He stated that until the mid-1980s nothing was done unless there had been a disciplinary effect. He stated excessive alcohol consumption was swept under the carpet. In the mid-1980s a “drying out” facility was established at the RAAF base at Richmond, but unless there was a disciplinary issue service personnel did not go there and alcohol use was just dealt with in house.[16]
[16] Transcript, 15 [29]–[36].
The Applicant stated that when he was at home his alcohol consumption was definitely an issue and his wife would just tell him that he was drinking too much.[17] The Applicant was getting drunk probably two to three times a week and he stated that his relationship with his wife started to deteriorate. When directly asked whether his alcohol use required him to do something, he stated it did not and that he and his wife “just started to drift apart”. The tenor of this evidence did not convey serious discord or conflict about the Applicant’s alcohol consumption.
[17] Transcript, 16 [4] –[7].
The evidence established that following separation from his first wife in 1983, the Applicant began cohabiting with the person who became his second wife.[18] At this time, the Applicant’s alcohol consumption was steady at six stubbies each evening.
[18] Transcript, 25.
The Applicant’s second marriage ended but the evidence as to the reason for this was confusing, contradictory and not convincing. The Applicant stated that his second wife was more tolerant towards his drinking and remonstrated with him “occasionally”. When asked why the marriage ended, he stated it was “mainly alcohol”.[19]
[19] Transcript, 17.
The evidence before the Tribunal from the Applicant about alcohol use was that:
(e)During recruit training and prior to turning 18 years old, the Applicant did not consume alcohol. On the weekends when on leave and visiting his sister, he may have had a can or two.[20]
(f)On HMAS Sydney from 1970, after turning 18 he did not always drink his alcohol issue and it was given to others. He consumed about 1 can per week. An “issue” refers to one 26 oz can.[21]
(g)At the Gunnery School in 1970, the Applicant would go to the “Wets” once to twice a week where there were no alcohol restrictions. He would also drink on a Saturday when he enjoyed the SP booking in the bar. In his view, he only drank beer and did not drink to excess during this period.[22] His intake was three to four cans a day or in the mess three to four “minis” (10 oz beers).
(h)While serving on the HMAS Swan, during which time the Seahawk pilot incident occurred (November 1977) he drank his beer issue each night (26 oz) and eventually ‘a hell of a lot more’ because there was an open fridge and honour system. Prior to the Seahawk pilot incident he was drinking more and after the incident even more.[23]
(i)Throughout his first marriage (1973–83), his alcohol consumption was probably the same.[24]
(j)As a Warrant Officer (from 1988 based on the service record) he would leave West Head, going into Cerberus, go to the mess and have a couple of beers before going home, picking up his wife from work, having a couple of beers at the pub and then going home and opening a couple more.[25] It can be inferred that the Applicant was referring to beer, when giving this evidence.
(k)After leaving the Navy, the Applicant’s alcohol consumption was sometimes the same and sometimes higher.[26]
(l)His doctor advised him to reduce alcohol use, but he was not necessarily able to do that.[27]
(m)The Applicant agreed that he was drinking six cans of beer daily from 1970, but said he was referring to small cans.[28] It can be inferred from other evidence that this amounted to about 60 oz beer daily.
[20] Transcript 6 [41]–[43].
[21] T21 129; Transcript 7 [29]–[30].
[22] Transcript, 8 [43]–[44].
[23] Transcript, 13 [1]–[19].
[24] Transcript, 25 [12]–[14].
[25] Transcript, 18 [8]–[18].
[26] Transcript, 18 [43]–[45].
[27] Transcript, 19 [15]–[20].
[28] Transcript, 21 [19]–[20].
In cross-examination, when questioned about what was written in the claim form submitted in 2007,[29] the Applicant stated that when referring to six cans of beer every day from 1970, he was describing six small cans of beer. Although the claim form stated that he was drinking heavily every day from 1970, the Applicant disputed that was the situation. However, he acknowledged that he had read the form and signed it.
[29] T11.
It was put to the Applicant that he had attributed his alcohol use to “stressful service in South Vietnam”, this being a reference to being in the waters near Vung Tau in 1970. When pressed about drinking at the level of six cans of beer per day from 1970, the Applicant conceded “possibly, yes. Not before 1970”. He stated that everyone was worried during the posting to Vietnam and that he had been led by his advocate in relation to what was included in the claim form.
The Applicant was also questioned about evidence given in prior proceedings before the AAT, that in around 1977 he was drinking six to seven cans of beer most evenings. It was put to him that he had been doing so from 1970. He disputed this but conceded that the documentary evidence produced showed that to be so.[30]
[30] Transcript, 22 [25]–[26].
The Applicant was asked about an incident between 1969 and 1975 involving the death of a sailor in dry dock and his medical examinations before and after this incident. His evidence was as follows:[31]
Yes, I was there. I was on duty the night he died. He came back on board at midnight, nearly at midnight, and they found him in the dry dock the next morning after I’d told him to go to bed.
MS DOWSETT: But you didn’t see him fall?---No, nobody saw him fall.
Right. And you didn’t observe his body?---No.
And so we see that after that incident, you’ve come to your next medical examination, and as I said before your emotional stability and mental capacity were recorded as normal?---Yes, recorded as normal.
[31] Transcript, 28 [8]–[20].
The Applicant agreed that the one occasion when he had not been able to attend work due to alcohol consumption was in 1977 and that he had lost his license for drink-driving in August 1980.
The Applicant agreed that his alcohol consumption was the same throughout the entire period of his first marriage.[32]
[32] Transcript, 25 [12]–[14].
The Respondent’s counsel cross-examined the Applicant in respect of various medical and defence records including entry and exit questionnaires, medical examination records, service and PEP records. Without detailing the lengthy cross-examination, the effect of the Applicant’s evidence was that he had never indicated experiencing symptoms that may be indicative of a GAD or AUD such as dizzy spells, fainting, sleep difficulty or severe headaches. Further, that he had not had any adverse disciplinary events.
When cross-examined by reference to the Applicant’s service records, the Applicant conceded that his engagement with the social worker at the time of receipt of the “dear John letter” and difficulties in his first marriage were between late 1978 and prior to 15 January 1979.[33]
[33] Transcript, 30.
Cross-examination of the Applicant also established that the recorded medical restriction in 1980 was due to a broken leg and not any issues surrounding his marriage, alcohol use or anxiety.[34]
[34] Transcript, 32.
Evidence was also elicited in cross-examination regarding a record of an ‘anxiety reaction from sudden noise (benign)’ in 1984.[35] The Applicant could not specifically recall the occasion but agreed that he sought no further treatment and continued with his posting and duties.
[35] Transcript, 34.
The Applicant was also cross-examined about his discharge medical examination and agreed that he had not reported any injury or illness nor disclosed any symptoms that may be indicative of suffering and illness injury or disease, other than by ticking “muscle weakness”. His statement was that there was nothing he was ‘going to confide to the Navy, no’. He agreed that the only condition he had at discharge was medial epicondylitis.[36]
[36] Transcript, 40–1.
When the Applicant was cross-examined about an alleged close quarters situation while he was serving on HMAS Swan in 1975 he agreed that the Commander Mike Rayment had no recall of the situation. He also agreed that the commanding officer of the ship might reasonably be expected to remember an incident such as that which he described.
Despite this, the Applicant’s evidence about the incident was forthright and convincing. His demeanour and emotion as he gave his evidence was heightened compared to evidence given in relation to other matters. Relevantly, he stated:[37]
MS DOWSETT: I suggest to you that that’s because it didn’t happen?---I beg to differ. It did happen.
There’s no record of it anywhere?---If I - well, we’re not all privy to the ship’s log, which every ship’s movement is recorded in; every engine, every change of revolutions is recorded in. I don’t believe we’re privy to that. Because at the time, Sub Lieutenant Stone was the Officer of the Watch. I was the petty officer on deck - or the lead nand, I think it was then, lead nand of the watch. I was reporting to the bridge that the ship was closing on us for about an hour, and he took no evasive action until it was almost too bloody late. It did happen. It did happen, irrespective of the fact that they say they can’t find any evidence of it.
The person in charge of the vessel would know if the call was made to stop both engines and then half astern both engines - that’s a dramatic movement in the ship?---It is when your ship’s almost cutting your bow off.
If such a dramatic movement happened, the commander of the ship would be aware of that?---Well at the time - Admiral [sic] Rayment would have been in mid-80s, I suppose.
But it actually happened. And (indistinct), the ship’s movements would have been recorded in the ship’s log. If we could get hold of the ship’s log, there is proof that something dramatic happened.
The captain of the ship was in his cabin at the time. The two people that were on board the - on the bridge were Lieutenant Borobriff and Sub Lieutenant Stone.
Just because the captain doesn’t remember - I remember. And there are other people on that ship who would remember, and unfortunately, as time’s passed I’ve forgotten their names. But it did happen. And I’ll go to the grave knowing that.
[37] Transcript, 42–3.
The Applicant was lastly cross-examined about the incident involving the Singaporean Skyhawk pilot. The evidence under cross-examination was largely consistent with that given in evidence in chief. Particularly important to the requirements that need to be satisfied pursuant to the applicable SOP, the Applicant was cross-examined about his feeling of apprehension at the time and what he had seen. The Applicant’s evidence was:[38]
MS DOWSETT: You described being apprehensive about what might be collected?---Well we were standing right above the wreckage - the stuff that was in the water. The ship had pulled up alongside it, and I was standing right above it, from my position on the ship.
And I suggest to you that the reason for your apprehension was because you quite literally did not and could not know what had happened to the pilot?---No one knew what - we saw him hit the water. We had no idea what happened to him. We didn’t know whether he was injured, or what.
Right. So on seeing the debris, you’ve drawn an inference about what you think happened?---I didn’t draw any inference. The plane hit the target, the pilot ejected, disappeared, we found debris in the water. I wasn’t to form any opinion about exactly what happened or what caused the accident.
Sorry, I’m not asking you to - what the cause of the accident was. You’ve inferred that the pilot was killed?---Yes.
But you didn’t see that happen?---No.
[38] Transcript, 45–46.
The Applicant agreed that the incident involving the Skyhawk pilot occurred on 8 November 1977 and that the service records, medical records and T documents generally demonstrated that he had not been unable to perform duties, nor had treatment for anxiety or reported symptoms or concerns during the two years afterwards. When asked about his drinking habit not changing, he claimed that it probably escalated fractionally.[39] This latter statement was challenged by reference to the absence of any disciplinary issues or evidence of increased alcohol and the Applicant stated that although he had an unblemished record it didn’t mean he didn’t drink.
[39] Transcript, 47 [1]–[2].
It was put to the Applicant that counselling during his first marriage was shortly prior to January 1979 while posted at HMAS Nirimba. The Applicant agreed and also agreed that there were no medical or disciplinary issues in the six-month period following this, and that the request to transfer to naval police was not at this time but in 1975.[40]
[40] Transcript 46–9.
The Applicant also agreed that his separation was on 23 May 1983 and that in the six months following, there were no medical or disciplinary issues and that his drinking stayed the same.[41]
[41] Transcript 49.
When cross-examined about the period following his divorce on 5 July 1984, the Applicant also agreed that he had had no disciplinary or medical issues in the six months following and his drinking had stayed the same. He also agreed that his performance evaluations were all satisfactory during this period.
The evidence also established that the Applicant agreed that he had not sought any treatment for anxiety or alcohol abuse or use and that these issues were first raised with his general practitioner Dr Pearson who then referred him to Dr Hyde for treatment in 2014. By reference to a referral letter Dr Pearson had written to Dr Hyde dated 23 September 2014, the Applicant agreed that his fitful sleep had developed after he left the Navy.
The Applicant also stated that he had issues with temper or mood, namely having a short fuse and getting angry quickly during his time in the Navy but in addition he said:
There’s nothing recorded in the navy, but I was - the way I am hasn’t changed since I joined the navy. I’ve always had a short fuse.
MS DOWSETT: Always? Your whole life?---For as long as I can remember.
So when you told Dr Hyde that you experience frustration and intolerance with irritability and angry outbursts from time to time, is that again - that’s something, the way you’ve been as long as you can remember?---Yes. I didn’t know what life was like before I joined the navy. That’s when things changed.
When asked about symptoms reported to Dr Swift, a consultant psychiatrist in 2010,[42] the Applicant agreed that they were symptoms he had at the time of seeing Dr Swift but added that he ‘probably had them in the Navy, but you don’t record everything to the medics’. He was challenged as to this by reference to the questionnaires he had completed and agreed that at the time he had done his best to give his honest and accurate answers.
[42] T 24, 140–1.
Tellingly, when further challenged, the Applicant agreed that the answers he had given to the Navy at the time to the various questions were accurate.
The Applicant was re-examined by his counsel but nothing in re-examination materially altered the evidence summarised above.
THE EXPERT EVIDENCE
Dr Hyde, a consultant psychiatrist, first saw the Applicant as a treating doctor and has seen him on four occasions. Dr Hyde has provided reports dated 27 November 2014, 4 May 2015, 27 August 2015 and 31 March 2016.[43]
[43] T32, T34, T37 and T39.
In his initial opinion in 2014, Dr Hyde had considered the report of Dr Swift of 4 October 2010 and agreed that the current diagnosis was generalised anxiety disorder with comorbidity of alcohol dependence. He associated the alcohol dependency to the GAD stating that drinking alcohol was a self-medication strategy to reduce anxiety. Significantly, Dr Hyde’s report notes that the ongoing symptoms of anxiety at the time of his assessment were ‘particularly with managing his responsibilities around the RSL Association’.[44] Alcohol consumption at the time was noted to be six full strength stubbies per day, or 10 standard drinks.
[44] T34, 198.
In the second report in May 2015, Dr Hyde stated:[45]
There were no other formal psychiatric or psychological issues during his service that I am aware of. It is difficult to provide a clear picture of his psychological state in retrospect, however Mr Leitch claims there were specific incidents that caused him high levels of anxiety. To cope with these feelings of anxiety and stressors, he reports using excessive quantities of alcohol.
[45] Ibid.
Regarding the onset of GAD and AUD, Dr Hyde stated ‘generalised anxiety disorder was likely present during his developmental years, prior to service, but in my opinion it would have been exacerbated by his military service’.[46]
[46] T34, 201 [4.6].
The above statement was further clarified by Dr Hyde in his opinion dated 27 August 2015.[47] He stated that clinical worsening of the GAD was more likely than not caused by traumatic events during military service referred to in his May 2015 report. Dr Hyde reiterated that the opinion was in retrospect and based on available evidence stating that the condition became clinically significant most likely after the Applicant left military service.
[47] T37, 223.
Dr Hyde’s report in March 2016[48] provided further detail in relation to the contribution to GAD by the Applicant’s first marriage breakdown. It appears that this was the first occasion on which Dr Hyde was requested to address the SOPs for generalised anxiety disorder.
[48] T39, 230-31.
In his oral evidence under cross-examination, Dr Hyde stated that he had not previously given opinions based on the SOPs for GAD and that he may have given opinions using the SOPs for post-traumatic stress disorder.[49]
[49] Transcript 60 [25]–[29].
In his evidence in chief, Dr Hyde summarised his views on the causative relationship between service and GAD and alcohol use, stating:[50]
The link between - that I think - between these events and the development of anxiety and then the marriage breakdown is that, particularly in veterans, anxiety can manifest as different sort of symptoms, and often in men that can come out as avoidance. So people choose not to go to places or do things. They can have anger outbursts, frustration or irritability, or self-medicate with alcohol or a combination of the above. It’s only when these veterans are presented with what anxiety means that they suddenly realise that, ‘Oh, I’ve got anxiety.’ So, my hypothesis for Mr Leitch was that he was experiencing anxiety and as a way of managing his anxiety he was having anger outbursts, irritability and frustration, which were manifesting in domestic disputes in the home environment. And as a way of managing this he utilised alcohol and avoidance. And in the history for Mr Leitch it is established that he was - had - seen a social worker in approximately 1980 and the Navy became aware of his marriage being at risk and he was - they made an effort to post him to Sydney to try and help save the marriage. But, interestingly, Mr Leitch chose to go on another posting to sea and my interpretation of this is Mr Leitch recognising that when he was with his wife he was angry, frustrated and irritable, and one of the ways to cope with this was for him to drink alcohol and avoid that situation, namely, going back out to sea. So, in a funny sort of way, the Navy had tried to help with the marriage, but what was not clear was that the anxiety was driving a wedge between the marriage. That’s the best understanding I have of the situation. And that is the linkage that I thought, you know, from my point of view looking back on the situation, that potentially could make sense of the situation - why this man has anxiety, why his marriage broke down and why he chose not to stick it out at that marriage and choose another posting out at sea.
[50] Transcript, 58–9.
Under cross-examination Dr Hyde maintained that specific service events as detailed in his reports had caused clinical worsening of GAD even though the Applicant probably experienced GAD prior to service. He maintained this view despite not having particularly clear evidence about when there was an increase in alcohol consumption and despite the absence of contemporaneous reporting of symptoms that may have been indicative of anxiety in medical questionnaires.
Dr Hyde’s reason for maintaining his views were that:[51]
(n)the questionnaires were not particularly helpful, in that they did not even ask if the person was feeling anxious or worried;
(o)the absence of change in alcohol use was irrelevant if the level of use was high;
(p)generally, men were not particularly aware or lacked insight; and
(q)there was a culture of normalising alcohol use.
[51] Transcript, 65–6.
The Respondent called Dr Ian Sale, a consultant psychiatrist. Dr Sale initially provided an opinion on the papers in a report dated 9 April 2019.[52] Dr Sale subsequently examined and assessed the Applicant on 5 September 2019 and then produced a report containing his views dated 9 October 2019.[53] Other than identifying a typographical error, Dr Sale confirmed that the opinions in the reports remained his view concerning the Applicant’s conditions.
[52] Exhibit R5.
[53] Exhibit R6.
Dr Sale expressed the view that the Applicant did not suffer GAD but currently met the definition of AUD.
Regarding AUD, Dr Sale notes it was diagnosed in 2007 but acknowledges that the Applicant’s drinking prior to this time may have been heavy suggestive of alcohol abuse or alcohol use disorder being satisfied in around 2007. On the history taken, Dr Sale noted that alcohol intake probably steadily increased during his service years with some fluctuations according to circumstances and opportunities.
When cross-examined, Dr Sale broadly agreed with Dr Swift’s opinion that GAD is not a static condition, but further stated that it is only when there are clinical signs that a diagnosis can be made. He stated:[54]
It's where it causes actual clinical distress and impairment is important so just having anxiety is nothing unusual but it's got to be a level to where it does actually affect things such as your capacity to work, your relationships, your general health.
[54] Transcript, 81 [21]–[24].
At the time of his initial report, Dr Sale noted that the Applicant’s second marriage breakdown had occurred shortly prior to Dr Swift’s assessment and that this may have contributed to his presentation at the time.[55]
[55] Transcript, 81 [1]–[5].
In his second report Dr Sale noted the variation in estimates of alcohol intake based on reports and documentation. He noted that in 1992, intake was said to be two to three cans of beer per day and later three to four cans in 1996.[56]
[56] T22.
Dr Sale’s opinions following the examination on 5 September 2019 are exceptionally detailed and thorough. It is evident that he has taken into consideration the views of many experts including Dr Ratcliff, Dr Swift and Dr Hyde. He has considered the history given to him by the Applicant, but also critically reviewed records relating to the Applicant’s service and medical records of his GP. Dr Sale is of the opinion that the Applicant does not suffer GAD and his reasoning is detailed and persuasive. He has provided 11 specific points supporting his conclusion and the Tribunal accepts those.[57]
[57] Report 9 October 2019, 9–10.
During cross-examination, Dr Sale agreed that the medical questionnaires completed by the Applicant were of little value, if any, to assessing the existence of clinically significant anxiety. However, he stated that evidence of treatment or incapacity would be clinical indicators of the existence of GAD.
Regarding attitudes towards reporting difficulties with anxiety or alcohol use, the following exchange occurred between counsel and Dr Sale during cross-examination:
MR HART: I'm not talking about the applicant here, a hypothetical situation - if somebody were suffering from anxiety and they were consuming alcohol in a sense of self-medicating; you wouldn't necessarily pick up either anxiety or self-medication through alcohol through these questionnaires?---No, I accept that entirely and in fact in that sort of service environment it's quite likely they wouldn't own up to such problems even if you did ask them directly.
Is that because the culture in the 1970's and the 1980's wouldn't, (a) talk about whether you were suffering from a mental illness or anxiety to be particular; and/or the culture of alcohol consumption - you wouldn't be answering those questions necessarily truthfully?---Well, I think it's probably more that you might see yourself as causing disadvantage to your prospects for advancing in the service if you revealed, say, a problem with nervousness. With alcohol I think it's a bit different. It was certainly part of the culture then and not so much now but it certainly was back then.[58]
[58] Transcript, 79.
Ultimately Dr Sale rejected the proposition that the Applicant suffered GAD because none of those who had assessed him particularly noted signs of anxiety and the history he gave about his worries was narrow in scope and proportional. There were no typical signs of disorder at a level required to meet the SOPs or DSM-V.[59]
[59] Transcript, 81–2, 84 [13]–[25].
It was put to Dr Sale by counsel for the Applicant that he could not rule out the possibility that the Applicant used alcohol in the period of his service as a means of self-medicating and this masked a clinically significant GAD. Dr Sale stated that he could not rule out the possibility but that he preferred the view, like Dr Ratcliff, that drinking was part and parcel of being in the Navy at the time and not indicative of GAD. Dr Sale stated he could find no convincing evidence of GAD and he was reasonably confident that it did not exist.[60]
[60] Transcript, 83 [17]–[24].
It is also necessary to comment on the views of Dr Ratcliff, consultant psychiatrist. Neither party called him to give oral evidence, but the Tribunal has received all his reports into evidence by agreement as they form part of the T-documents. Dr Ratcliff was of the view that the Applicant did not meet the diagnostic criteria for GAD. In addition, over the four reports Dr Ratcliff prepared between 2007 and 2010,[61] he consistently expressed the view that the Applicant met the diagnostic criteria for alcohol abuse disorder pursuant to the previous SOP, which the parties accept is similar to the SOP 49 of 2017.
[61] T13, T18, T23 and T28.
When Dr Sale was directly asked by the Tribunal about AUD and whether the Applicant had such a condition answering diagnostic requirements of the SOP, Dr Sale stated:[62]
Well, there I think the situation is more equivocal in relation to alcohol. Now, I tried to get an understanding of his current use of alcohol and I'm not sure I did. I'm not sure if he's given evidence already to the tribunal [sic] here but perhaps out of that a clear idea was reached but my impression was that he was drinking more than is conducive to good health but I got no impression at all from him that it was something that he regarded as a problem or that it caused him distress and so therefore I didn't believe the diagnostic criteria were met but I would accept that that is an equivocal situation…
[62] Transcript, 83 [26]–[37].
EVALUATION AND FINDINGS
The evidence in these proceedings covered a lengthy period of time and it is to be reasonably expected that the Applicant’s recall of facts and events may be imperfect. Because of this, to the extent that the Applicant’s oral evidence contradicted information recorded contemporaneously, doubt arises about the reliability of some of the Applicant’s oral evidence.
The Tribunal does not make this statement as an indication that the Applicant was untruthful, but rather to highlight the difficulty that exists in arriving at the required state of satisfaction applicable in these proceedings. In this context, the Tribunal notes the relevant legal principles at [9] and [10] above.
The Tribunal had the opportunity to carefully and personally observe what the Applicant said about the service events relied upon and his demeanour when giving the evidence. The Tribunal finds that the following chronological events occurred either because of the evidence contained in various documents which broadly corroborated the Applicant’s evidence, or because his oral evidence was not contradicted:
1970 HMAS Sydney being off waters in Vietnam and not knowing what to expect— the Applicant was apprehensive;
Dec 1973death of sailor in dry dock, Applicant last person to see and speak with him;
1975close quarters situation with merchant ship in South China Sea;
November 1977 Singaporean Skyhawk pilot crash;
November 1978–
15 January 1979 “Dear John” letter and social worker counselling;
May 1983 separation from first wife; and
1984 divorce from first wife.
While the Tribunal accepts that the Applicant felt apprehension and did not know what to expect in the Vietnam waters, there is no evidence correlating this to be a severe traumatic event or negative life event, within the meaning of either a Category 1B or Category 2 stressor within the requirements of the SOPs.
The Tribunal accepts the Applicant’s evidence about the incident when he last spoke to the sailor who was subsequently found deceased in dry dock. However, it is clear the Applicant did not witness the sailor being killed, although he felt natural and expected regret and sadness afterwards given his interaction with him the night before. The Tribunal finds that this does not satisfy the SOPs requirements as category 1B stressor or any other category of stressor.
The Applicant’s evidence about the close quarters situation with a merchant ship in 1975 was convincing for the reasons stated at [52] above. But the events do not readily satisfy the meaning of either a category 1A, 1B or 2 stressor within the SOP. The Applicant’s counsel certainly did not submit otherwise.
The evidence given by the Applicant about the Skyhawk plane crash and what he saw of the ejecting pilot landing in the water is also accepted. His accounts about this have been largely consistent over a long period. The Respondent firmly challenges the evidence that the Applicant saw the pilot and his parachute enter the water, but the Applicant maintained that he certainly did despite his distance. The Applicant conceded, he did not see the pilot’s body after he and the parachute entered the water, only that he saw was his helmet. He agreed that the pilot’s body was recovered the next day and the Applicant did not witness its recovery.
The Tribunal was referred to the reasoning in Simos v Repatriation Commission[63] as support for the contention that whatever the Applicant saw, it does not qualify as “being an eyewitness to a person being killed”.
[63] (2013) 212 FCR 391.
The reasoning of Tracey J in Simos also dealt with an alleged Category 1B stressor, said to meet the meaning in subparagraph (b) of the definition, “viewing corpses or critically injured casualties as an eyewitness”.
The facts of Simos were that the claimant had observed body bags at an airport. Tracey J referred to uncontentious principles of statutory interpretation relating to beneficial construction of ambiguous provisions, and restraint being required to give fair meaning to the actual words used. His Honour then stated, referring to the meaning of a Category 1B stressor:[64]
Each of the events described in the definition involves the observation, by the veteran, of the infliction of serious physical harm or death or the subsequent observation of dead or maimed victims. The veteran is confronted with a dead or badly injured person. There is, in my view, no persuasive textual basis for extending the reach of the definition to cover observations made after a victim has been treated in hospital or has been embalmed and placed in a body bag or a coffin. Observations of this latter kind are removed from the close temporal proximity of the observation of the infliction of harm on the victim or of its immediate consequences which are the severe traumatic events comprehended by the definition [emphasis added].
[64] Ibid [44].
It is clear in the Tribunal’s view that the basis for concluding that viewing of the body bag did not satisfy subparagraph (b) of meaning of Category 1B stressor, was that the claimant saw the body bag well after the infliction of harm on the victim. Tracey J was not prepared to extend the meaning of the words used when there was an absence of temporal connection between the “seeing” by the claimant and “harm” to the victim.
The facts found by the Tribunal in this case are distinguishable to those in Simos. The Applicant was present at the time the plane was in the process of crashing, he saw the pilot and his parachute in the air after as he ejected and saw him enter the water. While the particular features of the pilot’s body were not seen at any time, it can be properly and reasonably inferred that some harm was likely to have been inflicted on the pilot. The temporal connection referred to by Tracey J in Simos is satisfied. There is no particular emphasis on the need to see up close the detailed nature of the harm inflicted on a person or body in the reasoning of the Court.
The following analogy is given to further explain the Tribunal’s conclusion. If a service member from some distance witnesses a person collapsing to the ground when gunfire is being exchanged in an attack, but does not view the person’s body following the collapse and later learns they died or were hospitalised with gunshot wounds, the temporal connection referred to by Tracey J is satisfied. Where the facts permit the inference of the killing, death or physical injury or harm, from what was seen first-hand, in the Tribunal’s view a Category 1B stressor is capable of being satisfied depending on the evidence and circumstances.
The Applicant also relied upon marriage counselling when his first marriage was in difficulty, separation and then divorce from his first wife as relevant stressors within the meaning of a Category 2 stressor for the purpose of the SOPs. The Tribunal finds that these events occurred at the times referred to in the reasons at [87], but for the SOP to be satisfied, the temporal connections provided in paragraph 6 and 9 of the respective SOPs need to be satisfied. This requires findings to be made about if and when the Applicant suffered GAD or AUD.
DOES THE APPLICANT SUFFER GAD AND IF SO, IS IT SERVICE CAUSED?
The diagnostic criteria derived from DSM-V and adopted by the SOPs for GAD has been considered carefully. In the Tribunal’s view the evidence fell short of persuading it that the Applicant suffered GAD either during his service or after it ended.
The Tribunal accepts and prefers the evidence of Dr Sale that there was and is an absence of excessive anxiety or worry in the presentation of the Applicant which is disproportionate to normal reactions. The Applicant’s presentation and demeanour before the Tribunal were not consistent with the features explained by the experts as representative of GAD.
Furthermore, the Applicant’s service in the Navy (including promotions); absence of disciplinary action; employment since discharge; and general capacity to undertake activities such as serving on the local RSL branch; in the Tribunal’s view, point to an absence of clinically significant anxiety.
The Tribunal accepts the views of Dr Sale and Dr Ratcliff which largely accord. Each opines that the Applicant’s presentation fails to demonstrate clinically significant GAD.
Although Dr Swift and Dr Hyde provided opinions that the Applicant does suffer GAD, it is difficult to understand their conclusions, which lacked convincing reasoning.
Dr Swift refers to two failed marriages and a problem of alcohol abuse to justify GAD.[65] But he also observes that the Applicant proceeded well in his naval career, rising to the rank of Warrant Officer. Dr Swift’s reasoning for being satisfied of the diagnostic criteria for generalised anxiety disorder seems to be in the statement:[66]
The strongest evidence for a second psychiatric condition beside alcohol abuse lies in his continued social, occupational and emotional deterioration despite the apparent kerbing of his alcohol abuse over the last two years. His generalised anxiety disorder is also evident in his clinical history and also on mental state examination using psychometric testing.
[65] T24, 143.
[66] Ibid.
The above statement conveys that he relies upon deterioration within two years of his assessment, from approximately 2008 to 2010, to arrive at the diagnosis of worsening of GAD. That is, occurrences and factors that are not defence force related.
The history taken by Dr Swift and his views above also appear to coincide with initial history taken by Dr Hyde about the Applicant’s mood disturbance and its sources when he was first assessed on 27 November 2014,[67] and the opinion that the Applicant had a predisposition to anxiety even prior to service and that it became clinically significant only after he left the defence force.[68]
[67] T32, 185.
[68] T37, 223 (27 August 2015).
Whether the Applicant is entitled to a pension under the VEA, requires the Tribunal to take the approach outlined at [11] above.
Dr Swift and Dr Hyde’s views may provide a basis for a hypothesis that the Applicant had a worsening of GAD related to defence service. However, the inference to be drawn from their opinions is that there was worsening of pre-existing non-clinically significant anxiety after defence service, likely around 2007/2008. The latest defence stressor capable of meeting the SOPs was in 1984, well over 20 years prior to the worsening of the Applicant’s condition.
Even on the most favourable view of Dr Swift’s and Dr Hyde’s opinions that the Applicant suffers GAD, the temporal requirements of the SOP are not satisfied. In any event, the Tribunal prefers the opinion of Dr Sale that the Applicant does not suffer GAD for the reasons already given.
Accordingly, the Applicant’s case fails at step 3 of the applicable approach referred to at [11] of these reasons.
DOES THE APPLICANT SUFFER AUD AND IF SO, IS IT SERVICE CAUSED?
The Tribunal is satisfied that the Applicant did his best to give evidence about alcohol use during service. However, his oral evidence lacked consistency and detail in relation to the amount of alcohol he consumed during service and if and when the level of use increased. This difficulty was amplified by variable written reports and statements that were included in the T documents about his alcohol use at various times.
Despite the above shortcomings, the Tribunal accepts that there was an increase in alcohol use after the Applicant enlisted. This was the tenor of the history taken by all the experts. However, beyond this, it is unclear precisely how much alcohol use increased and when.
Despite this, the views of all four psychiatric experts who have proffered opinions in this case had two common themes. First, that the Applicant drank little alcohol upon entry to the service and over time alcohol consumption became habitually higher but at times constrained by availability. Secondly, that there was a Navy culture of normalising use of alcohol, using alcohol as a means of tolerating events during service and potentially under-reporting use of alcohol. These common views establish a hypothesis of a problematic pattern of alcohol use, potentially capable of establishing AUD.
Dr Hyde did not take a specific history of the level of alcohol consumption during various times or events in service, but at the time he first assessed the Applicant in 2014 he said he was drinking six full strength stubbies per day (10 standard drinks). Dr Sale said he attempted to get a clear picture from the Applicant but did not. Dr Swift also did not take a very detailed history of alcohol use.
Dr Ratcliff took a specific history of alcohol use at the time of assessment in 2007 but did not enquire how much alcohol was being consumed at various times during service.[69]
[69] T13, 95.
In the background of all the evidence about the Applicant’s alcohol use over time, the Tribunal needs to consider whether the Applicant suffered the onset or worsening of AUD, within the requirements of the SOP.[70]
[70] Statement of Principles concerning Alcohol Use Disorder No. 49 of 2017 s 7, 8.
As to the existence of AUD, the applicable SOP provides that the meaning of the disorder is—
A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least four of the following, occurring within a 12-month period:
(f)Alcohol is often taken in larger amounts or over a longer period than was intended.
(g) There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(h)A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
(i)Craving, or a strong desire or urge to use alcohol.
(j)Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home.
(k)Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
(l)Important social, occupational or recreational activities are given up or reduced because of alcohol use.
(m)Recurrent alcohol use in situations in which it is physically hazardous.
(n)Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
(o)Tolerance, as defined by either of the following:
(i) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect; or
(ii) a markedly diminished effect with continued use of the same amount of alcohol.
(p)Withdrawal, as manifested by either of the following:
(i) the characteristic withdrawal syndrome for alcohol; or
(ii) alcohol (or a closely related substance, such as a benzodiazepine) is taken to relieve or avoid withdrawal symptoms.
The definition of alcohol use disorder excludes acute alcohol intoxication in the absence of alcohol use disorder.
Pursuant to the above meaning of AUD, an absence of perception of distress by the individual about his or her pattern of alcohol use does not necessarily exclude the diagnosis. The existence of clinically significant impairment alone satisfied by any four of the criteria occurring within 12 months warrants the diagnosis. The Tribunal emphasises this because the evidence of Dr Sale suggested that subjective distress was a requirement, but this is not necessarily the case based on the ordinary meaning of the words used in definition.
Noting the expert witness’ hypotheses and the Applicant’s evidence, the Tribunal must consider whether the hypothesis fits the template of the SOP for AUD. The evidence in the Tribunal’s opinion permits the following findings that:
(r)alcohol was taken in larger amounts than intended, as the Applicant stated he ended up drinking more alcohol than his issue.[71]
(s)the Applicant did not succeed in cutting down alcohol use despite his first wife raising his level of alcohol use as an issue of discord and his doctor advising him to reduce intake;[72]
(t)there was recurrent use of alcohol at a level not recommended by any health authority;[73]
(u)tolerance existed by diminished effect as the Applicant was a heavy alcohol user during service but still was capable of performing duties and being promoted.
[71] Reasons, [26], [37].
[72] Reasons, [34], [37]; Transcript, 16.
[73] Transcript, 84 [8]–[10].
However, the imprecision of evidence about when alcohol use increased and by how much means the Tribunal cannot make findings that onset or worsening of possible AUD was within 2 years of the occurrence of a Category 1B or 6 months of a Category 2 stressor.
Although the Tribunal has found that the Skyhawk pilot incident constitutes a Category 1B stressor, it is not satisfied that the Applicant suffered onset of AUD or worsening of it within 2 years after the incident occurred because of the imprecision and variation in the evidence about alcohol intake at various times.
While the Tribunal is satisfied the Applicant’s marriage counselling, separation and divorce are Category 2 stressors, it is not satisfied that there was onset of AUD or worsening of it within 6 months after any of these events.
If the Applicant suffers AUD, the preponderance of expert evidence tends to the conclusion that the onset of the disorder was after the Applicant left the defence force and after his second marriage ended.
It is notable that the Applicant gave evidence that the level of his alcohol consumption did not change during the first marriage, meaning the Tribunal cannot be satisfied that onset of AUD was within 6 months before marriage counselling, separation or divorce. Further, because of the Applicant’s variable evidence concerning his alcohol use, it not possible for the Tribunal to be satisfied that the temporal requirement of 6 months for a category 2 stressor is satisfied.
For the above reasons, the Applicant fails at the third stage of the required approach to determining if he has an entitlement for AUD.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of S Taglieri SC, Member.
.....................[sgd]............................
Associate
Dated: 18 March 2021
Date(s) of hearing: 7-8 December 2021 Counsel for the Applicant: Mr R Hart Solicitors for the Applicant: Ross Hart Law Counsel for the Respondent: Ms C Dowsett Solicitors for the Respondent: Australian Government Solicitor
0
6
0