Lide and Repatriation Commission
[2004] AATA 1120
•28 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1120
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. V2001/1370
VETERANS' APPEALS DIVISION ) V2002/1009 Re KARL HELMUT LIDE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Dwyer
Mr Ermert, MemberDate28 October 2004
PlaceMelbourne
Decision 1. The Tribunal affirms the reviewable decision of the Repatriation Commission (“the Commission”) made 7 June 2002, as to post-traumatic stress disorder (“PTSD”).
2. By consent, the Tribunal sets aside the reviewable decision of the Commission made 15 November 2001 as to hypertension and in substitution decides that hypertension is a war-caused disease with effect from 2 August 2001 and that the impairment rating for that condition on the Guide to the Assessment of Rates of Pension (“GARP”) is 5 impairment points on Table 2.1.1.
3. The Tribunal sets aside the decision of the Commission made 5 June 2001 in respect of alcohol abuse and in substitution decides that alcohol dependence is war-caused with effect from 2 April 2001, but that the impairment rating for that condition is covered in the increased rating of 25 on Chapter 4 of GARP from 2 April 2001.
4. The Tribunal sets aside the decision as to assessment made 3 May 1999 and remits the question of assessment to the Commission for reconsideration in accordance with the direction that the reconsideration take into account:
i. The decision in paragraphs 2 and 3 above, as to hypertension and alcohol dependence;
ii. The finding in paragraph 169 of the Tribunal’s reasons for decision that the appropriate impairment rating for psychiatric impairment is 25 from 2 April 2001 until 20 October 2001 and 26 from 21 October 2001.
iii. The finding in paragraph 223 of the Tribunal’s reasons for decision, that from 21 October 2001, Mr Lide is entitled to the intermediate rate of pension under s 23 of the Veterans’ Entitlements Act 1986.
5. Liberty is reserved to the parties to apply to the Tribunal if there is any difficulty in implementing this decision.
[sgd] Joan Dwyer
Senior Member
VETERANS’ ENTITLEMENTS – application for review of four decisions – whether post traumatic stress disorder (“PTSD”) a war-caused disease – whether veteran suffers PTSD – reference to DSMIV criteria – consideration of medical evidence – consideration of claimed stressors witnessed while serving in South Vietnam and Borneo – distinction between onus of proof as to diagnosis and as to causation – finding that veteran’s response to events did not involve “intense fear, helplessness or horror” – finding that veteran does not suffer PTSD – whether alcohol dependence a war-caused disease – hypothesis raised that veteran commenced consuming alcohol on regular basis due to stresses associated with his service in Vietnam – easier test to satisfy than as to diagnosis of PTSD – evidence pointing to reasonable hypothesis – Tribunal not satisfied beyond reasonable doubt that alcohol dependence not war-caused – assessment of rate of pension – levels of impairment on GARP tables – whether intermediate or special rate of pension applicable – whether veteran’s war-caused diseases alone prevent him from working more than 8 or 20 hours or half normal working hours a week – Tribunal not satisfied that veteran unable to work part-time or intermittently up to 20 hours per week – entitlement to intermediate rate of pension.
Veterans’ Entitlements Act 1986, ss 9, 15, 20, 21, 23, 24, 120, 120A.
Benjamin v Repatriation Commission (2001) 64 ALD 411
Benjamin v Repatriation Commission (2001) 70 ALD 622
Chambers v Repatriation Commission (1995) 129 ALR 219
Delahunty v Repatriation Commission [2004] FCA 309
Hill v Repatriation Commission (2001) 66 ALD 293
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Bushell (1992) 109 ALR 30
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Smith (1987) ALR 537
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission [2004] FCA 633Woodward v Repatriation Commission (2003) 200 AR 332
REASONS FOR DECISION
28 October 2004 Senior Member Dwyer
Mr Ermert, Member1. This was the hearing of an application under the Veteran’s Entitlements Act 1986 (“the Act”) for review of four decisions of the Repatriation Commission, all of which were affirmed by the Veterans’ Review Board (“VRB”).
2. The first decision, made on 27 August 1999, continued Mr Lide’s disability pension at 50% of the general rate in s 22 of the Act.
3. The other three decisions related to entitlement to pension for conditions which Mr Lide claimed were war-caused under the Act.
4. On 5 June 2001, the Repatriation Commission rejected a claim for pension in respect of alcohol abuse or dependence on the ground that it was not war-caused.
5. On 15 November 2001, the Repatriation Commission rejected a claim for pension in respect of hypertension. At the commencement of the hearing, Mr Rudge said that the Repatriation Commission conceded that hypertension is a war-caused disease. During the hearing it was agreed that the appropriate impairment rating on the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”) in respect of hypertension was 5 impairment points on Table 2.1.1 (trans, p153).
6. The third entitlement decision was made on 7 June 2002. The Repatriation Commission determined that Post Traumatic Stress Disorder (“PTSD”), which it had previously accepted as a war-caused disease, was not a war-caused disease.
7. In his reasons for decision the delegate of the Repatriation Commission explained that, on the basis of research reports obtained, he was satisfied beyond reasonable doubt that Mr Lide was mistaken in his account of stressful incidents during his operational service, and that the events described by him to the psychiatrist who had diagnosed him as suffering from PTSD, had not occurred. The delegate noted that Mr Lide may have witnessed the collision between HMAS Melbourne and USS Evans (“the Melbourne-Evans collision”) and suggested that, if he suffered PTSD, it could well be attributable to that collision, which did not occur during service covered by the Act.
THE HEARING
8. Mr M Croyle of Counsel appeared for Mr Lide. Mr K Rudge, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission. The Tribunal had before it two bundles of documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to for convenience as the “Entitlement” and the “Assessment” “T Documents”. The Tribunal also received in evidence the exhibits tendered during the hearing. References in these reasons to “T documents" refer to the Entitlement T Documents, unless otherwise stated. After the conclusion of the hearing Mr Rudge sent to the Tribunal a letter from Commodore Mulcare, with an attachment from the September 1965 Navy List setting out details of the service of Lieutenant Cartwright who served in HMAS Sydney at the relevant period. Reference had been made to his recollection of that service in Commodore Mulcare’s report of 13 May 2002 (T27 pp159-185 at 161). There was no objection to the receipt of that correspondence as an exhibit. It was marked as exhibit R16.
9. Evidence was given by Mr Lide and by his wife, Mrs Lide. Evidence for Mr Lide was given by Mr Rankin and Mr White, who served with Mr Lide on HMAS Sydney. Medical evidence for Mr Lide was given by his treating general practitioner, Dr Moffitt, and by Dr Epstein, a psychiatrist. The Respondent called Commodore Mulcare, a naval historian, and Dr Byrne, a psychologist.
SERVICE
10. Mr Lide, was born on 23 November 1947, and served in the Royal Australian Navy (RAN) from 28 November 1964 to 27 November 1973.
11. Mr Lide has “operational service” as defined in the Act from 27 May 1965 to 26 June 1965 and from 19 August 1966 to 8 September 1966. He also has “eligible service” from 7 December 1972 to 27 December 1973. Although Mr Lide said in his statement (A1) and in evidence (trans, p24) that he had two tours of Vietnam, he did not dispute that the report by Commodore Mulcare (T11, pp60-63) which was compiled from Naval records, accurately recorded his service. It describes his two voyages which were operational service, as follows (T11, p61):
HMAS SYDNEY 27 May 1965 to 26 June 1965 This period encompassed SYDNEY’S first trooping voyage to Vietnam and the ship was at anchor in Vung Tau from 0700 on 8 June to 1020 on 11 June 1965.
HMAS PARRAMATA 19 August to 8 September 1966 Although Confrontation with Indonesia officially ended on 12 August 1966, PARRAMATTA sailed from Singapore for Borneo on 19 August for a tour of duty as Tawau guard ship. She had three uneventful nights on patrol before her tour was foreshortened by an agreement that Malaysia would take over responsibility for patrolling Malaysian territorial waters from 6 September. She returned to Singapore on 8 September 1966.
THE ISSUES
12. Mr Lide has the following diseases accepted as war or defence caused: sensory neural deafness, generalised anxiety disorder (“GAD”), and hypertension, as conceded at the commencement of this hearing. The further conditions in issue in this matter are alcohol abuse or dependence and PTSD.
13. In these reasons, we will consider PTSD first, as most of the emphasis during the hearing was on that condition.
Does Mr Lide suffer from post traumatic stress disorder?
14. The Full Court of the Federal Court established, in Repatriation Commission v Cooke (1998) 52 ALD 1, that the issue whether a disease exists is to be decided on the reasonable satisfaction standard of proof.
15. In order to appreciate the reasons of the Full Court it is necessary to set out s120(1), (3) and (4) of the Act. They provide as follows:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…
16. The Full Court in Cooke explained that s120 (1) and (3) of the Act specify the standard of proof for the determination whether or not a disease relates to operational service. Section 120(4) of the Act requires the civil standard of proof to be applied to the question whether there is a disease. Cooke was approved by the Full Court of the Federal Court in Repatriation Commission v Budworth (2001) 66 ALD 285.
17. Issues of diagnosis are usually determined on the specialist medical evidence. The Statements of Principles issued by the Repatriation Medical Authority are not relevant to the question of diagnosis (Benjamin v Repatriation Commission (2001) 70 ALD 622). The relevant diagnostic criteria for PTSD are set out in the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (“DSMIV”) (R15) as follows:
Diagnostic Criteria for 309.81 Posttraumatic Stress Disorder
A. The person has been exposed to a traumatic event in which both of the following were present:
1. the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
2. the person's response involved intense fear, helplessness, or horror.
Note: In children, this may be expressed instead by disorganized or agitated behavior
B. The traumatic event is persistently reexperienced in one (or more) of the following ways:
1. recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
2. recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
3. acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.
4. intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
1. efforts to avoid thoughts, feelings, or conversations associated with the trauma
2. efforts to avoid activities, places, or people that arouse recollections of the trauma
3. inability to recall an important aspect of the trauma
4. markedly diminished interest or participation in significant activities
5. feeling of detachment or estrangement from others
6. restricted range of affect (e.g., unable to have loving feelings)
7. sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
1. difficulty falling or staying asleep
2. irritability or outbursts of anger
3. difficulty concentrating
4. hypervigilance
5. exaggerated startle response
E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor
18. A number of psychiatrists have diagnosed Mr Lide as suffering from PTSD, but, as Mr Rudge pointed out in his closing address, some have made that diagnosis on the basis of histories which Mr Lide conceded are, to some extent, inaccurate.
MEDICAL EVIDENCE
Dr Moffitt
19. Dr Moffitt was the first doctor to consider that Mr Lide was suffering from PTSD. He wrote a report dated 14 December 2003 (A7) and gave evidence. He diagnosed Mr Landells as suffering PTSD. In 1971, Dr Moffitt was a Navy surgeon attached to the Army, working at Vung Tau at the First Australian Field Hospital. He met Mr Lide as a fellow Vietnam veteran at the Vietnam Veterans’ Motor Cycle Club (“the Club”) in 1990. In informal discussion over four years, Mr Lide mentioned various psychiatric symptoms to Dr Moffitt. Dr Moffitt said Mr Lide “would tend to be off his face a lot of the time and this would allow his emotions to come to the top and he would discuss things when he was drunk that he may not otherwise discuss when sober” (trans, p176).
20. Dr Moffitt explained, in his report of 14 December 2003 (A7), that he advised Mr Lide to seek specialist advice through his general practitioner Dr Rush. However, that did not occur, and in November 1994, after seeing Mr Lide as a patient at his professional address, Dr Moffitt referred Mr Lide to Dr Douglas, a psychiatrist.
21. As far as can be ascertained from his report of 3 November 1994 (T5 p27), Mr Lide did not describe to Dr Douglas any particular stressors during his Vietnam service, although he did give a history of nervous symptoms going back to that service. He told Dr Douglas that his forehead tic and winking had first appeared during Navy service in Vietnam and had been chronic since. The other symptoms described by Dr Douglas in that report were excessive startle reflex, excessive alcohol use over weekends and feelings of tension and anxiety. Dr Douglas diagnosed Mr Lide as having GAD precipitated by Navy service in Vietnam.
22. In 1996, Dr Moffitt referred Mr Lide to a second psychiatrist Dr Morris, who did diagnose PTSD, but on an inaccurate history (see paragraphs 26 – 28 below). Dr Moffitt described Dr Morris as “the top man for post traumatic stress disorder for Australia at the time” (trans, p184).
23. Dr Moffitt, in his report, explained the basis of his diagnosis of PTSD, by reference to the relevant DSMIV criteria. The traumatic stressors he identified were (A7, p2-3):
(1)He was fearful of Viet Cong scuba divers attaching limpet mines to the hull of his ship – whilst anchored in Vung Tau harbour.
(2)He was fearful of concussion scare charges dropped over the side of his ship at anchor were the enemy assaulting his ship.
(3) He witnessed a US Helicopter being shot down with the subsequent death or injury of those onboard.
(4)He witnessed Napalm bombs being dropped on plantations in Vietnam with subsequent death as a result.
24. In his evidence, Dr Moffitt described how he had seen Mr Lide exhibit a startle response and a nervous tic in the social setting of the club. He said he had also observed symptoms of reaction to external cues, regarding his war experience, with sweating, inappropriate laughing and pressured speech. Dr Moffitt said that he considered Mr Lide’s excessive drinking to be a way of attempting to numb the experience of talking about Vietnam at the club. Dr Moffitt said he believed that Mr Lide stopped going to the club in about 1998 to avoid the people and activities associated with Vietnam. He said there was much paraphernalia, such as guns, canisters and grenades, in the club rooms.
25. Mr Lide’s evidence about ceasing to go the club was different. He said he left because a group of younger veterans, to whom he referred as “outlaws”, took over the club. He also said that they have now moved on so he is thinking of rejoining the club (trans, pp74-75).
Dr Morris
26. Dr Morris was the first psychiatrist to diagnose PTSD. He did so in a report to Dr Moffitt dated 20 December 1996 (T5 p 29). That was the report on which the Repatriation Commission accepted the condition of PTSD as war-caused, in its decision of 30 July 1999 (T7). Dr Morris, in his report, set out the following history:
This patient is a former member of the Australian Navy from 1964 to 1973. He had four tours of Vietnam and one of Borneo during the confrontation with Indonesia. He worked as a navy engineer and spent most of his time in the engine room of navy ships. On a number of occasions during his tours of Vietnam and Borneo his ship was under fire but fortunately took no casualties. In Vietnam he saw a napalm bombing of a village and was involved in evacuating alive and dead burned villagers. When his ship was under fire or ‘at action stations’ he was locked downstairs in the engine room of the ship and this created quite high levels of anxiety and fear. Since returning from Vietnam the patient developed chronic hyperarousal symptoms including insomnia, startle reactions, hypervigilance and chronic irritability and the fear of anger rage outbursts. Over the years he has also experienced emotional numbing but no avoidance. He has intrusive memories from time to time that relate to his being sent to Indonesia on a navy ship in order to test a blockade of waterways by the Indonesians. He believes that his ship was to be offered as a sacrifice in order to start a war and these memories create frustration and anger and emotional outbursts when they are experienced.
27. When Mr Lide gave evidence, he agreed that the history set out by Dr Morris was inaccurate in a number of respects. First, he said he had two tours of Vietnam, not four (trans, p24). In fact, as set out in paragraph 11 above, he had one tour of Vietnam, although on a second voyage he sailed close to Vung Tau harbour (trans, p91). Secondly, his ship was never under fire during his tours of Vietnam, or Borneo, although Mr Lide believed that on the Borneo voyage, he was told to take cover. Thirdly, he was never ashore in Vietnam, and played no part in any evacuation of burned villagers. He said he did observe a napalm bombing of a village, using binoculars from the deck of HMAS Sydney. Fourthly, Mr Lide agreed that he was not locked downstairs in the engine room of the ship and unable to get out, but he said the hatches were in a closed position although they could be opened from the inside. Fifthly, Mr Lide said he did not know where Dr Douglas got the history that on the Borneo voyage his ship was to be offered as a sacrifice in order to start a war.
28. The major events set out in Dr Morris’ report, such as Mr Lide’s ship being under fire, and him being involved in the evacuation of alive and dead burned villagers after a napalm bombing of a village, would clearly be sufficient to form the basis of a diagnosis of PTSD. However, as Mr Lide did not claim that those events occurred, we do not regard the report of Dr Morris as of assistance to us in supporting a diagnosis of PTSD.
Dr Holwill
29. Dr Holwill, in a report dated 22 March 1999 (T8 p37), diagnosed moderately severe PTSD. He described Mr Lide’s service in South Vietnam and Borneo as “a very anxiety provoking time”. The history Dr Holwill obtained, once again, was of four voyages to Vietnam, and that Mr Lide “experienced a deal of incoming fire”. As already explained, Mr Lide did not claim in the hearing that he experienced any incoming fire, and he said that he only had two voyages to Vietnam.
30. Dr Holwill, in his report, wrote:
Overall Karl found the experience very frightening, and he also found his service in the navy quite difficult. He told me that he was subject to constant belittlement, and he, like a number of his colleagues, were often on charges for trivial matters resulting in loss of leave or pay. He also described his navy service as ‘9 years of bastardisation’.
31. In concluding that Mr Lide had clear cut symptomatology of chronic moderately severe PTSD, Dr Holwill referred to reported symptoms of persistent middle insomnia associated with nightmares of navy service, ruminative intrusive thoughts of navy service, and mild to moderate loss of energy, drive, interest and libido. Dr Holwill did not describe the content of the nightmares or intrusive thoughts. He wrote that Mr Lide reported persisting irritability. Dr Holwill noted lowered mood, and marked and constant anxiety of at least moderate severity. He also reported that Mr Lide had a prominent startle response, hypervigilance and avoidance of reminders of service in the Navy.
Dr Collier
32. Dr Collier provided a first report on 18 December 2000 (T docs p 123-127). The history Dr Collier obtained was much more consistent with the evidence Mr Lide gave at the hearing. Mr Lide described to Dr Collier seeing a village “get napalmed” and seeing a helicopter being shot down, but he did not claim to have been involved in any evacuation, or to have been under fire. Mr Lide also told Dr Collier about being present in the area of the Melbourne-Evans collision and “described his sense of horror on later realising that 84 men had just died”.
33. In a second report, dated 11 February 2002 (T24 149-153), Dr Collier addressed the issue of whether the historical events recounted to him by Mr Lide were accurate. Dr Collier noted that Mr Lide had given a very clear account of the two traumatic events of the napalming of the village and the destruction of the helicopter. Dr Collier suggested that Mr Lide’s version of events may have been accurate, in spite of historical research doubting those events. He also wrote that, in his opinion, Mr Lide did manifest a PTSD syndrome “in terms of re-experiencing, avoidance/numbing, and hyperarousal symptoms”.
34. Dr Collier added that Mr Lide had described to him his experience of traumatic dreams about helicopters being shot down and that Mr Lide had told him that this evoked “memories of mates involved in helicopters who were killed during their service”. Dr Collier was impressed by the fact that Mr Lide became somewhat tearful during the interview while relating that material. He wrote that this did not convey to him the impression that Mr Lide was malingering or seeking to exaggerate his symptoms.
Dr Epstein
35. Dr Epstein diagnosed Mr Lide as suffering from PTSD when he first saw him on 11 March 2003. In his report (A4), Dr Epstein based his opinion on a history that Mr Lide had experienced stressful wartime incidents while at anchor in Vung Tau harbour. He wrote:
He was on HMAS Sydney from 27th May 1965 to 26 June 1965. The HMAS Sydney was at anchor in Vung Tau Harbour from 8th June 1965 to 11th June 1965 three days to disembark troops and their supplies. He cites a number of stressful wartime incidents that took place during those days in Vung Tau Harbour. He heard a rumour that there was a land-based gun that fired [on] vessels whilst anchored in Vung Tau Harbour and he was fearful that Viet Cong divers would attach limpet mines to the vessel’s hull. Depth charges were regularly dropped from the ship whilst they were in the harbour to deter any saboteurs. He also witnessed US planes dropping napalm bombs.
He contends that he saw the incidents through binoculars in daylight hours and at night. Nigel Rankin, a fellow seaman, who served on HMAS Sydney during the same tour of duty, reported he was constantly fearful and anxious with the buzzing of helicopters overhead, witnessing tracer flares at night and listening to scare charges while he was in the engine room. Nigel Rankin stated he was unable to identify the difference between the scare charges and an explosion form an enemy attack and was constantly alert, hypervigilant and anxious. Barry Wright also served on HMAS Sydney at that time and reported that he saw a helicopter explode and plummet to the ground while they were anchored in Vung Tau Harbour.
36. Dr Epstein wrote that Mr Lide had told him that he was fearful while in Vung Tau harbour, and that he was horrified by what he believed to have been the crash of the helicopter. Dr Epstein summarised a number of medical and psychological reports which had been provided to him. Dr Epstein set out his opinion as follows (A4, p8-9):
Karl Lide was a member of the Royal Australian Navy between November 1964 and November 1973. During that time he was involved in at least three situations in which he witnessed a possible threat to himself or to others and actual injury and death or was told about this.
His response, particularly with the short period in Vietnam, was to experience fear and he was also horrified by seeing the crash of a helicopter or what he believed to have been the crash of a helicopter.
Since that time he has had recurrent intrusive thoughts about what occurred together with distress with reminders of it and has avoided such reminders. He has felt detached from others at times and felt a sense of bleakness.
He has had difficulty sleeping, he has had outbursts of anger, difficulty concentrating, an exaggerated startle response and has been hypervigilant.
All these factors suggest that he has developed a Post Traumatic Stress Disorder according to the Statement of Principles concerning Post Traumatic Stress Disorder. It is difficult to see any other factors in his life that could have contributed to this situation.
37. The factors set out in the report were the fear while in Vung Tau Harbour, the dropping of bombs by US planes, the helicopter incident and attending the scene of the Melbourne-Evans Collision.
38. Dr Epstein saw Mr Lide again, and wrote another report dated 25 November 2003 (A6). At that second consultation on 20 November 2003, Dr Epstein obtained a history of current symptoms and concluded that his impression that Mr Lide was suffering from PTSD had been reinforced with the further interview. Dr Epstein wrote that Mr Lide had been diagnosed as suffering from PTSD by Dr Douglas, Dr Holwill and Professor Morris. He added, “These are all experienced competent psychiatrists and Dr Douglas and Professor Morris have specific expertise in the area of Post Traumatic Stress Disorder”.
39. Dr Epstein seems not to have realised that, as set out in paragraph 21 above, Dr Douglas did not diagnose Mr Lide as suffering from PTSD.
40. Similarly, Dr Epstein seems either to have not been aware, or else not to have regarded as significant, the fact that the accounts of stressful incidents given by Mr Lide to Dr Holwill and Dr Morris were quite different to the account given to him. The histories given to Dr Douglas and Dr Morris included traumatic events of such a character as to clearly provide a basis for a diagnosis of PTSD, such as being under fire when in Vung Tau harbour, and evacuating villagers burned in the napalm bombing of their village. Dr Epstein seemed not to give any weight to that distinction between his opinion and those of Dr Holwill and Dr Morris.
41. When he gave evidence, Dr Epstein was asked why he had given such emphasis to Mr Lide’s Vietnam experience. Mr Rudge asked whether Dr Epstein did not agree that the time when Mr Lide was on HMAS Stuart, which arrived at the scene shortly after the Melbourne-Evans collision, would not have been a more stressful factor. Mr Rudge explained that Mr Lide had told Dr Byrne that there were no injured sailors to be picked up out of the water, because the sharks had already finished them off.
42. Dr Epstein replied that he had not treated the Melbourne-Evans collision as a stressor because Mr Lide had not emphasised it in that way in his consultation. Dr Epstein said he had diagnosed PTSD due to Mr Lide’s Vietnam experiences, because the symptoms mentioned to him by Mr Lide, such as dreams, ruminations, and intrusive thoughts, all related to his experiences while HMAS Sydney was in Vang Tau harbour between 8 and 11 June 1965, rather than to the later Melbourne-Evans collision. He said Mr Lide, in his account to him, had referred to his Vietnam experiences and had described explosions. He did not believe there had been explosions at the scene of the collision at sea.
43. Dr Epstein said that he would not change his opinion that Mr Lide suffered PTSD, even if it were established that none of the events relied upon by Mr Lide as stressful had occurred (trans, p105-6):
If it were the case that the crash of the helicopter, for instance, and if it were the case that the - his evidence today was that the napalm bombing was of a village which he could see, and he saw the hutches on the stilts of the village. He could see a plantation by the village and he could see rows of trees in the plantation, and he said there were flames for five or six minutes in this attack on the village. If that didn't occur, the two incidents didn't occur - - -? --- You mean if there was no record of that occurring?
MRS DWYER: No. He means if it didn't occur? --- Yes.
MR RUDGE: Would you change your opinion? --- No.
If you add to that that the Parramatta and the Sydney were never fired upon, would you change your opinion? --- No.
No? If you add that scare charges were dropped, but they weren't dropped close to the [Sydney] because there were civilian craft unloading on both sides of the Sydney, they were dropped from cutters at some distance from the Sydney, would that lead you to alter your opinion? --- No.
Is there another stressor that you are relying on? --- No. Just the matters that I have described in that report.
But I put to you if they didn't occur you would change your opinion, would you not? --- Well, as I said when I first started giving evidence, the - this is the information provided to me by the applicant in the matter, and it - in my view he had a genuine belief that these things occurred. He - there seems to me two possibilities. One is that he - that he is a liar, and that is a possible; and the other is that he has a genuine belief that these things occurred, and that he was certainly in a situation where there was military activity going on. I accept what you are saying, that the particular events that he described may not have occurred in the way that he described them, or that things may have happened which he misinterpreted. I accept that.
Right? --- And yet, in my view, what is relevant is what he perceives to be the situation. Not what is the objective reality to somebody else. That has certainly been my experience in dealing with people over the years who have suffered from post traumatic stress disorder.
Dr Byrne
44. Dr Byrne, the psychologist relied on by the Repatriation Commission, saw Mr and Mrs Lide in July and August 2003 and wrote a report saying that in his opinion Mr Lide did not suffer PTSD (R1).
45. Dr Byrne had seen Mr Lide on two occasions and Mrs Lide briefly on one occasion. He provided a report dated 3 October 2003 (R1) and a supplementary report dated 11 December 2003 (R2).
46. In his first report, in dealing with description of service, Dr Byrne set out a number of points showing that Mr Lide had seen his time at sea on the trip to Vietnam as difficult, but not as frightening or causing him to feel “intense fear, helplessness or horror”. Dr Byrne’s report stated that when he asked Mr Lide to comment on the trip to Vietnam, Mr Lide replied (R1 paragraph 4.4), “It was pretty scary all the way – we were pretty overcrowded and didn’t get to eat much – we were the last to get fed – the army blokes got fed first – sometimes they just tossed us a can of 1943 ‘Bully Beef”.
47. Mr Lide told Dr Byrne about seeing a helicopter shot down. Dr Byrne reported Mr Lide’s responses to him on this issue (R1, p5):
4.14 (Can you tell me about this?) “Three helicopters flew over us – I heard a great crash – then I saw a cloud of smoke and pieces falling – someone said ‘a helicopter got shot down’”. (What did you do next?) “Oh well, what can you do…” On further enquiry he said this was about half a mile away and the helicopter was “… back over land when it happened”.
48. Dr Byrne reported that Mr Lide mentioned an air raid warning which occurred a couple of days before HMAS Sydney got to harbour. Mr Lide said nothing came of it, and nothing was ever explained about what set it off. On further inquiry he said, “I was feeling a little exposed…I was the only one assigned there – it was pretty fearful – we were closed up for half an hour – I was alone in this space about the size of this room” (R1 paragraph 4.10). Dr Byrne said that when he asked Mr Lide about how he reacted he said, “Not real happy but it was part of the job”.
49. In regard to the account of napalm bombing, Dr Byrne wrote (R1, paragraph 4.17):
When asked about the bombing he had referred to the veteran said “It was on the other side of the bay – I came off watch, you could see quite clearly – probably a couple of miles away – I borrowed binoculars to have a look – it looked like they were bombing a village – the bomb dropped and there were huge flames and knowing there were people over there…”. (What do you recall thinking?) “I hoped they were bombing the right people – the Viet Cong – but still a hell of a way to go”. The veteran said that he saw more than one such incident but “…that’s the one that sticks in my mind”.
50. Dr Byrne reported Mr Lide’s comments about the scare charges (R1, paragraph 4.18):
Pretty often – there was no set pattern – we knew they would drop scare charges. (How did it affect you?) You heard the affect (sic) through the hold – you never knew if it was a scare charge or if a diver got through and placed a mine.
(Did this ever cause difficulty in getting your work done?) I might stop and think ‘Christ, I’m glad the bulkhead is still there’ and then get on with the work.
51. Dr Byrne, in his report at paragraphs 13 – 13.9, set out the answers he said Mr Lide had given to specific questioning about the symptoms of PTSD. He wrote that Mr Lide did not avoid reminders of the Navy but often spoke with former sailors he worked with or those he met at the RSL. Mr Lide described having seen the movie “Full Metal Jacket”. Dr Byrne wrote that Mr Lide told him he had dreams, but did not recall what they were about.
52. In reference to the symptoms of hypersensitivity to reminders of service, Dr Byne noted that Mr Lide had told him that he had been attending the RSL for 30 years and had attended ANZAC day marches over many years. Dr Byrne concluded that Mr Lide did not avoid stimuli associated with Vietnam or demonstrate diminished interest in significant activities.
53. As to other symptoms, Dr Byrne set out that Mr Lide was close to his family and to two mates, one in Queenlsand and one in Wodonga, and stayed in touch with them. He said Mr Lide told him he also had close mates in Melbourne.
54. Dr Byrne wrote that Mr Lide had told him that, as to the future, he looked forward to doing some interstate travel, but also worried about his health due to liver problems.
55. It was Dr Byrne’s opinion that Mr Lide did not have a restricted range of effect, but he accepted that Mr Lide was irritable without medication and reported difficulty sleeping. It was Dr Byrne’s opinion, on the basis of the two consultations, that Mr Lide had no difficulty concentrating.
56. In the opinion section of his lengthy report, Dr Byrne set out the four stressors referred to by Mr Lide in his consultations with Dr Byrne, namely the helicopter being shot down, the scare charges, the air raid warning and the napalm bombing of the village. He wrote that, in each case, when questioned about his reaction, Mr Lide indicated that there was “no significant degree of distress or upsetment [sic]”.
57. Dr Byrne relied on Mr Lide’s satisfactory career in the Navy after Vietnam, until he chose to leave because of the high divorce rate among the Navy. Dr Byrne also pointed out that Mr Lide had then worked successfully for BHP and its predecessor for almost twenty-eight years. He wrote that Mr Lide had only begun to have problems when circumstances changed there due to a change of ownership.
58. Dr Byrne wrote that, after the change of ownership, Mr Lide began to have problems at work and became more irritable and began drinking in the morning. Dr Byrne noted that the symptom of the facial twitch and being easily startled had been with Mr Lide since he was 18 or 19, but Dr Byrne did not mention that they started when Mr Lide was in Vietnam. He said they were the only psychological difificulties Mr Lide reported before the change of ownership at work. He reported current symptoms of claustrophobia and irritability.
59. Dr Byrne wrote that, in his opinion, on the balance of probabilities “having reviewed numerous SoPs”, Mr Lide did not suffer from PTSD, but did suffer from long-standing depression and anxiety of mild to moderate severity. In his evidence, Dr Byrne said that in making a diagnosis, he relied primarily on DSMIV, but he pointed out, as did Mansfield J in Benjamin v Repatriation Commission (2001) 64 ALD 411 at paragraph 25, that the diagnostic criteria in DSMIV and the relevant SoPs are so close as to be almost interchangeable. Dr Byrne said that he also relied on medical records made available to him, on the way Mr Lide described events, and on his own observations at interview.
60. Dr Byrne explained that, in his opinion, even if the events described by Mr Lide occurred exactly as he had described them, his description of his reactions was not one of “intense fear, helplessness or horror” to the stressors he encountered. Dr Byrne also explained, by reference to his report, how he had concluded that the criteria B, C and D of the DSMIV diagnostic criteria were not satisfied.
61. In cross-examination, Dr Byrne acknowledged that he had been in error in paragraphs 4.14 and 4.17 of his report, where he had stated that Mr Lide’s response to the helicopter crash and the bombing “was not a response of someone in fear of their life”. He said that he should have said that the responses did not seem to be those of someone “who was in a state of intense fear, helplessness or horror” (trans, p147).
62. Dr Byrne agreed with Mr Croyle that Mr Lide could be a person who has a tendency to play matters down, rather than speak about his true feelings. But Dr Byrne said that he based his opinions on his two interviews of over 1 ½ hours each, and on the other material before him.
Does Mr Lide suffer from PTSD?
63. We derived less assistance than we would have hoped from the medical evidence before us. The reports of Dr Morris and Dr Holwill, which are based on histories which Mr Lide says he did not give, are of no assistance. Dr Epstein seemed to us to have adopted a somewhat entrenched position on a limited history, and to have given too little weight to the fact that the other psychiatrists who diagnosed PTSD had been given a different history, with more clearly traumatic stressors. Dr Moffitt attempted to give evidence in three capacities, as an expert medical witness, as a friend and fellow club member, and as an expert as to the Vietnam experience, e.g. as to the sound of scare charges. That made it somewhat difficult to evaluate his evidence. At times, Dr Moffitt demonstrated the partiality one would expect from a friend, rather than the objective analysis of an expert witness.
64. Dr Byrne provided a detailed history and had covered all the issues raised in the DSMIV criteria, and in the other medical reports. At times, for instance as to the content of Mr Lide’s dreams, there was an issue raised as to whether Dr Byrne’s report was correct.
65. There is no dispute that Mr Lide suffers from a psychiatric disorder, GAD, as a result of his experience in Vietnam. That is an accepted war-caused condition. There is conflict on the medical evidence as to whether Mr Lide also suffers from PTSD as a result of his Vietnam experiences. We consider it appropriate, in deciding which of the medical evidence to accept, to consider the evidence as to the stressors relied on by Mr Lide as satisfying criteria A(1) and (2) of the DSMIV diagnostic criteria for PTSD. In order to decide whether we are reasonably satisfied that Mr Lide suffers from PTSD, we need to decide whether we are reasonably satisfied that Mr Lide was exposed to a “traumatic event” as defined in criterion A(1) and whether his response “involved intense fear, helplessness or horror” so as to satisfy criterion A(2).
66. In his statement taken on 16 October 2001 (A1), Mr Lide referred to his service in Vietnam as follows:
Whilst anchored at Vung Tau harbour we were fired upon by a land based gun. I was also fearful at the time of Viet Cong Divers attaching limpet mines to the hulls of our vessel. I recall that scare charges were regularly dropped whilst we were in the harbour. I also witnessed a US helicopter being shot down and also the dropping of Napalm bombs by US planes over a plantation.
67. In these reasons we will discuss Mr Lide’s evidence, and that of the other witnesses, in relation to each of the relevant incidents, to which we will refer as follows:
(i)Being fired on one night from a shore installation
(ii)Fear of limpet mines and use of scare charges while in harbour
(iii)Being closed up in ‘action stations’ (this matter was raised in evidence)
(iv)The helicopter crash
(v)Napalm bombing of a village
(i) Being fired on one night from a shore installation
68. In his statement (A1), Mr Lide described this as happening while HMAS Sydney was anchored in Vung Tau harbour. In evidence, Mr Lide said that he believed the incident occurred when he was on HMAS Parramatta, not HMAS Sydney. He believed HMAS Paramatta had been fired upon from shore in Borneo. He said that he was told to take cover because there were tracers (trans, p30). He believed that HMAS Parramatta veered away, but he could not vouch for that. He said there were no announcements over the loudspeaker. Towards the end of his evidence, when asked about it again by the Tribunal, he said (trans, p92):
We were told to keep well away from the upper deck and that was it.
[Were you off watch at the time?] --- I had just come off watch, yes.
[Right. And what did the other people do - what did you physically do at that time?] --- I don't know; I was probably having a cup of coffee and said, "What is all the excitement about," and - - -
[So did you say you had a cup of coffee then to - I missed the end of the sentence?] --- I probably had a cup of coffee when I came off watch and asked someone what all the excitement was about, you know.
69. Commodore Mulcare gave evidence that he had checked the relevant reports of proceedings, and there was no account of any firing at either HMAS Sydney or HMAS Parramatta during either of Mr Lide’s voyages. Mr Lide agreed that it would be surprising if HMAS Parramatta had been fired upon, and that was not recorded in the reports of proceedings at the HMAS Parramatta.
(ii) Fear of limpet mines and use of scare charges while at Vung Tau harbour
70. Mr Lide said he was fearful about enemy limpet mines and he was afraid when he heard the noise of scare charges, that they may have been explosions of limpet mines. He agreed with Commodore Mulcare, that the scare charges were dropped from boats alongside HMAS Sydney, but he said that did not reduce the noise of the charges because sound travels very well under water. He said that he understood that the purpose of the scare charges was to scare off or kill enemy divers who might have been attempting to attach limpet mines to the hull of HMAS Sydney. He did not know whether the noises were of mines or scare charges and so he was afraid. He said the engine noises did not diminish the noise of the scare charges, because you become very used to engine noises and pick up a strange noise.
(iii) Being closed up while at ‘action stations’
71. In his evidence, Mr Lide explained that when he was down in the engine room and it was “Action Stations” or “Defence Stations”, they “dog[ged] down the hatch on the outside, and there is no way you can open it up from the inside” (trans, p95). He explained that, “dogging down is like a big - a butterfly nut, a great big one on a thread, they dog down four corners of the hatch” (trans, p97). When the Tribunal put to him that it had been told in other hearings that you could open the hatch to get out from the inside, for instance if you were the last one in that engine room, he agreed that there was a manhole in the middle of the hatch that could be opened, but he said that “whether you would have enough time to get through it or not [wa]s a totally different thing” (trans, p95).
(iv) The helicopter crash
72. Mr Lide described the helicopter crash as follows (trans, p28):
We had a flight of American helicopters come over us, I think there was about three, three or four. I watched them for a little while and then I – my attention was diverted, and I heard a bang. And I looked up the other helicopters had scattered, but one was just a dark smudge in the sky, I saw pieces falling into the jungle. Someone told me that it had been hit, I can’t verify that, I can’t verify what happened to it, but there was men on that helicopter, they don’t fly themselves, the men on there had been just instantly killed.
How did that affect you? --- Shock. I was shocked.
73. Mr Lide’s evidence was supported by Mr Wright who served on HMAS Sydney with Mr Lide. He stated in his statement A3:
I recall an incident which occurred whilst we were anchored at Vung Tau Harbour when a helicopter exploded and plummeted to the ground. I recall that four helicopters had flown overhead whilst I was off duty and on deck. The helicopters flew straight overhead. Their close proximity was a novelty to me. I remember looking at the helicopters and as they cleared the shoreline one of them suddenly exploded and then plummeted to the ground. I actually saw the helicopter explode.
74. Mr Wright said that seeing the helicopter explode was unnerving, even though it was well away from the ship. He said that he did not believe that what he saw was simply smoke and dust caused by a helicopter landing. He explained ‘Well there was four helicopters in, I suppose what you would call formation, and what I observed was flame and smoke and one of those dropped out of that formation’ (transcript 164).
75. The Tribunal asked Mr Wright what discussions took place on HMAS Sydney, after he had seen the helicopter explode. He said he had been on deck alone but there had been other people in the vicinity at the time. He said he was sure that he mentioned it to the others. The Tribunal asked (transcript 167) ‘…and what was the atmosphere of the discussion?’ Mr Wright replied, ‘it was just discussed. You know, we were – I guess in reality we were in a war zone so I suppose things like that happen, there is no big deal about it”. Mr Wright said that he did not use binoculars to look at the helicopter and he was not aware of anybody doing do. He said, “certainly not on the decks where we were, maybe on the bridge, I don’t know”. (transcript 167).
76. The Respondent engaged Writeway Research Service to investigate details of Mr Lide’s service in Vietnam (T11). One issue was whether there had been a helicopter shot down while HMAS Sydney was in Vung Tau Harbour, and, if so, whether it would have been visible to the crew of HMAS Sydney. The Writeway reports for this hearing were prepared by Commodore Mulcare (T11, T27, R9, R10, R16). He obtained records showing that on 10 June 1965 a US army helicopter UH1D was hit while in descent at 500 feet by small arms fire from Viet Cong forces (T27, p169, R10). Commodore Mulcare said Dhong Xoai is 60 miles north-west of Saigon. He gave evidence that, in his opinion, it would not have been possible for Mr Lide and Mr Wright to have seen that helicopter crash from the decks of HMAS Sydney, which was even further from the site of the helicopter crash.
(v) Napalm bombing of a village
77. Mr Lide said of this incident (trans, p42):
There was a bombing across the bay from where we were anchored. I mean, it was a clear, clear day. I had good eyes back then, I was only a kid. And you could see very clearly that they were bombing a plantation. They went at it for quite a while, you knew people – they don’t drop bombs for no reason at all, so you knew people were being killed in that plantation.
Did that affect you? ---It did, yes.
78. In cross examination, Mr Lide said that he could see a fishing village of hutches on stilts, because he borrowed binoculars. He agreed that HMAS Sydney was four nautical miles from the shoreline in the north-west direction from where he said the bombing took place. Mr Lide said, “you have got to remember I was young in those days, I had good eyes. It was a clear day, you could see a lot across water on a clear day and I had binoculars” (trans, p51).
79. When Mr Lide was asked how he knew that it was a napalm bombing, he said that it did not look like what he supposed a normal bomb would look like, but he acknowledged that he had never seen a normal bomb dropped over land. He also said that he believed someone had told him it was napalm, during the incident.
80. In cross examination, Mr Rudge pointed out to Mr Lide that he had not described having seen a village being bombed when he had given evidence before the VRB. When he was asked, by a Member of the VRB, whether he had seen what was being bombed, he had said (R5, p28):
Well there is a village further down the coast but that had nothing to do with the bombing. I don’t know. I imagine maybe there might have been another village where the bombing was, I have no idea.
81. Mr Lide said that he had felt pressured by the VRB so that “you pretty well agree to anything they more or less put in your mind’ (trans, p72).
82. In answer to questions from the Tribunal at this hearing, Mr Lide said that he saw what looked to him like bombs bouncing but maybe it was just fragments of the casing coming off. He said he saw “lots of flame, lots of smoke” (trans, p93). When the Tribunal asked what he did after that incident, he replied (trans, p94):
I don’t really recall, I think I probably sat down and thought about it for a while before I did anything.
Did it have other effects? ---Fear. I don’t really know. It was a time when you just carried on and did what you had to do. You had [to].
You were off watch at the time? --- Yes, but you still had to be places and be doing things so you were always busy. There was always something to do. So I don’t – I can’t recall the whole day – I don’t know.
Right. I thought that you said that you had just come off watch? --- That is right.
And you can’t recall what you did immediately after that particular incident? ---No, no.
Can you recall any physical effects at all? --- No, but it stayed with me most of the day. I remember it replaying in my mind but how I reacted physically I really don’t – I couldn’t tell you.
Did you talk about it with other people? ---Some of the sailors, yes, in the mess deck.
Had they seen a similar incident? ---Some of them had, yes.
What was the effect on them? --- I suppose the same as it was on me; I really don’t know. We were only a bunch of kids.
83. Commodore Mulcare investigated whether any napalm bombs had been dropped by US planes over a plantation in a location which would have been visible to Mr Lide while serving on Sydney. He concluded that it was highly unlikely that napalm bombing occurred, as described by Mr Lide, but that he could not totally rule it out.
84. Commodore Mulcare was not able to establish that there had been any American bombing anywhere within sight of HMAS Sydney while it was in Vung Tau harbour during Mr Lide’s voyage there from 8 – 11 June 1965. As part of his research, Commodore Mulcare contacted Air Vice Marshall Roser, who flew F4 Phantom aircraft in Vietnam in 1969 on exchange service with the USAF. Commodore Mulcare said Air Vice Marshall Roser explained that it would be very difficult, at the distance Mr Lide would have been from the aircraft, to see whether they were dropping napalm or a 500 pound bomb. There was no record of any napalm bombing as described by Mr Lide, but he could have seen some explosions.
85. We note that Navy News, 23 June 1965 (T11, pp78 – 79 and R7) does contain reference to bombing over the Mekong Delta being visible at night from the decks of HMAS Sydney during that first voyage to Vietnam. It states:
NEAR SHOOTING WAR
During the unloading of Army equipment DUCHESS and PARRAMATTA anchored nearby to provide the necessary cover if required.
Those members of the Ship’s Company working the night shifts were treated to several displays of bombing, rocketing and general mayhem by both the South Vietnam and Viet Cong forces, with obviously the latter on the receiving end of most of the shooting.
Most of this activity took place on the MEKONG DELTA about 4 mils from our anchorage, but several bursts of gunfire and activity were observed much closer than that.
86. Mr Lide’s evidence as to the dropping of napalm was supported by Mr Rankin, who served with him on HMAS Sydney. Mr Rankin said it was around the Mekong Delta area in his statement (A2):
I do recall that whilst I was off duty and on the deck of HMAS Sydney I witnessed planes dropping Napalm bombs around the Mekong Delta area. The area being bombed was a few miles away and the bombing … occurred around the shoreline. It was too great a distance for me to be able to identify people although I understood that such bombing must have been directed against humans.
87.
Mr Rankin gave telephone evidence. He described the incident of seeing the napalm bombing as happening at night. He said that at night he used to sit up on the upper deck and have a beer to get some fresh air. He said “quite often we would say that we were glad we were not where bombs seemed to be dropping” (trans, p153). He said they could see quite clearly because the area was lit up by star flares. Mr Rankin said, in cross examination, that he could distinguish the napalm from the flares because the napalm was orange and the flares were a bright white phosphorous. In re-examination, Mr Rankin said that he thought that there was napalm during the day as well, but it wasn’t as visible at day time. He said there was
black smoke coming up from time to time which they would “just sort of have to guess that that was napalm” (trans, p157).
88. The Tribunal asked Mr Rankin what the reaction was amongst his group when they saw what they believed to be napalm bombing. Mr Rankin replied (trans, p157):
Well, much sort of surprise when it went off and then general comments about, you know, it wasn’t very nice to see, realising that it must be doing some damage somewhere and sort of – just sort of knowing the reality we were in an area where there was a battle going on.
Findings as to Diagnosis of PTSD
89. In Delahunty v Repatriation Commission [2004] FCA 309, Tamberlin J discussed the application of Stoddart v Repatriation Commission (2003) 197 ALR 283 and Woodward v Repatriation Commission (2003) 200 AR 332. His Honour said at paragraphs 26 – 28:
[26] In my view, the AAT reasons indicate that there was an incorrect understanding of the relevant principles. On the criteria adopted by the Woodward Full Court, it is necessary to ask whether there was an event. In my opinion, there was an objective event, namely the violent destruction of a sampan or junk. This is an objective fact. The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran’s position and knowledge was. The answer is that he associated these vessels with families of women and children because of his observations on relation to similar vessels in Asian ports. At that time he had the position of a relatively junior member of the ship’s contingent. He had a limited education. He perceived a vessel of a type that he associated with women and children, from a distance in circumstances where similar vessels were suspected of laying mines. He said that if he had believed, contrary to his evidence, that there were men and not women on board, then he would not have regarded the sinking of the vessel as an atrocity, and nor would he have been shocked.
[27] The term “stressor” denotes something which leads to stress. It is inherent in the notion of “stress” that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. It is clearly not a purely objective construct such as is applied in negligence cases. It is not a case of deciding how “the man on the Clapham omnibus” might react. There is more. The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
[28] There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.
90. We are also assisted by White v Repatriation Commission [2004] FCA 633. At paragraphs 29 and 30, Spender J said:
[29] The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
[30] In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
91. In this matter, we accept for the purpose of deciding whether Mr Lide suffers from PTSD, that the events he described in evidence were or could have been objective events. There was a helicopter crash which Mr Lide may have seen. He may have observed bombing over the Mekong Delta while anchored at Vung Tau harbour. Those events did involve or could reasonably have been perceived by Mr Lide to involve death or a risk of death or serious injury. He may well have been fearful about enemy limpet mines, and about whether he would be able to get out of the engine room in an emergency.
92. Similarly, we accept that it would have been an uncomfortable and worrying time for Mr Lide being in the engine room at Action Stations or Defence Stations, even though he could open the manhole in the hatch from inside.
93. The reasons why we are not reasonably satisfied that Mr Lide suffers from PTSD are that we find that the events were not of their nature such as to evoke, in someone with Mr Lide’s background, training and experience, a reaction of “intense fear, helplessness or horror”, and looked at subjectively, on Mr Lide’s own evidence, we are reasonably satisfied that they did not do so. Further we did not find the medical evidence that Mr Lide suffers from PTSD persuasive.
94. As we have explained, at paragraph 16 above, the standard of proof in deciding whether a veteran suffers form a specified disease is the “reasonable satisfaction” civil standard. That is understood to require satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) ALR 537). In contrast, where a veteran who has operational service suffers from disease and the issue is whether that disease is war-caused, s 120(1) and (3) of the Act provide for the application of a beneficial, and more generous, reverse onus standard of proof. If the veteran raises a reasonable hypothesis that the disease is war-caused, it shall be found to war-caused, unless the Repatriation Commission, the VRB or this Tribunal is satisfied beyond reasonable doubt that the disease is not war-caused.
95. In Benjamin, Whitlam J, at paragraph 28, explained the distinction between the onus of proof as to diagnosis and the onus of proof as to causation. He noted he had wondered about the fairness of the Tribunal having to determine, at the initial diagnosis stage, whether a veteran experienced a traumatic event by the application of a less generous standard of proof than that which is provided for in s 120(3) of the Act, which would apply if the diagnosis were accepted, and the only issue was whether the PTSD was war-caused. The Full Court did not refer to those observations, but found no error in the Tribunal’s decision that Mr Benjamin did not suffer from PTSD (Benjamin v Repatriation Commission (2001) 70 ALD 622).
96. The use of scare charges and Mr Lide’s situation at Action and Defence Stations were normal naval procedure. We are not satisfied on the balance of probabilities that they were events of such a nature objectively as to be expected to evoke a response involving “intense fear, helplessness or horror”. Nor are we satisfied that they did evoke such a response in Mr Lide. Because of the many different histories Mr Lide has apparently given to different psychiatrists, and the confusion in his evidence at the hearing, for instance as to how many voyages he had to Vietnam, or as to what he saw of the napalm bombing, we do not find him a very reliable witness. But in any event, even on his own evidence, he wondered if the noise he heard was a scare charge or an enemy mine, and might, as he told Dr Byrne have thought “Christ I’m glad the bulkhead is still there” (R1, paragraph 4.19). He said, although he was very frightened, nobody else appeared troubled and he got on with his work (trans, p26). That evidence does not suggest that he felt “intense fear, helplessness or horror”.
97. Those alleged stressors are of a similar nature to those relied on in Stoddart. However, so far as we can tell from those decisions, Mr Stoddart gave much more detailed and persuasive evidence as to the effect of those incidents on him. Also, in Stoddart, there was no dispute about the fact that Mr Stoddart suffered from PTSD and alcohol abuse. The issue was as to causation and not as to diagnosis.
98. As to the time when Mr Lide thought he might have been told to leave the deck of HMAS Sydney or HMAS Parramatta because there was a suspicion of enemy fire, it is clear from his description of that incident that it was not an event in which Mr Lide’s response “involved intense fear, helplessness or horror”. It was not accompanied by the steps that would have been taken, if those in command had any real apprehension that the vessel was about to be fired upon. Further, Mr Lide’s description of the incident was that he took little notice of it, and there was no indication of it evoking any reaction relevant to criterion A(2) of the diagnostic criteria for PTSD.
99. In regard to the two incidents when Mr Lide saw or believed he saw events which involved actual death of American helicopter crew and of Vietnamese villagers, in neither situation did he say he saw any of the people he believed to have been killed. They both occurred many miles away from him and on or over land while he was on the deck of HMAS Sydney in Vung Tau. We find that the incidents were too remote to cause Mr Lide to respond with “with intense fear, helplessness or horror”. In Hill v Repatriation Commission, (2001) 66 ALD 293, von Doussa J, at paragraph 30, upheld a Tribunal decision that the word “intense” qualified “helplessness” and “horror” as well as “fear”. The Tribunal is therefore bound in this case to consider the intensity of the fear, helplessness and horror in the situations that Mr Lide has described.
100. The only recorded helicopter crash was many miles away from HMAS Sydney. Even if there was another unrecorded helicopter crash over land, it was still remote from the crew of HMAS Sydney. Neither Mr Lide nor Mr Wright said the helicopter was in the vicinity of the ship when it appeared to be hit, nor did they say that they saw the helicopter hit the ground. The situation is not similar to that in Delahunty, where Mr Delahunty was serving on HMAS Tobruk and witnessed it blowing up and sinking a junk/sampan. In this matter, HMAS Sydney had no connection with the US helicopter, or with the bombing over the Mekong Delta. All that Mr Lide saw, or believed he saw, in the distant sky was wreckage from one of three helicopters. He said he felt “shocked” by what he saw (trans, p28). Commodore Mulcare doubted that the only reported crash would have been visible from the deck of HMAS Sydney, but even if it or another helicopter crash were visible, they were still very far away. Mr Lide did not describe, and objectively one would not expect him to have felt, “intense fear, helplessness or horror”, such as to cause him to suffer PTSD.
101. Similarly, even if Mr Lide did see some napalm bombing or other bombing of the Vietnamese coast, where he believed there would have been a fishing village, he did not see any villagers, or have any idea of the target of those bombs. His evidence was that he thought bombs would not have been dropped unless there was a purpose in doing so. While he no doubt felt sympathy for people, particularly civilians, killed by the dropping of napalm, Mr Lide’s evidence as to his reaction did not lead us to find on the balance of probability that he felt “intense … helplessness or horror”, as explained by von Doussa J in Hill.
102. Although Mr Wright and Mr Rankin gave evidence supporting Mr Lide, they did not give evidence of the events on which he relied evoking “intense fear, helplessness or horror” amongst the crew of HMAS Sydney. Mr Wright said that witnessing the helicopter crash was “unnerving even though it was … well away from us” (trans, p161). He said the distance of the helicopters was such that they blended with the background jungle (trans, p164). He said that there was “no big deal” about the helicopter crash because “in reality we were in a war zone so I suppose these things happen” (trans, p167). Mr Wright described the effect of scare charges when you were on watch in one of the machinery spaces as making you “a little twitchy… nervous”.
103. Mr Rankin said he was anxious and fearful during the time at Vung Tau harbour (trans, p148). He said he was an ordinary seaman engineering mechanic, like Mr Lide, and was below the water line a fair bit. He heard the scare charges and was “startled and frightened”. He said he was “on edge the whole time” (trans, p150). He said that if no alarm was raised, you would realise it was a scare charge, but “you get the explosion, immediately it frightens you and then you try to work out now, what has happened here, has the ship been hit?” (trans, p155).
104. Mr Rankin said that he remembered witnessing bombing from the deck at night. He said “you would have to assume it would be a human target of some sort” (trans, p152). He said the conversation following the napalm was about it not being very nice to see, but “we were in an area where there was a battle going on”. He said that “rammed home the fact that we were in a war zone and it was not a nice place to be” (trans, p158).
105. We are not satisfied on the balance of probabilities that Mr Lide suffers from PTSD. As we have explained, medical opinions making that diagnosis, based on histories which are inaccurate, and which Mr Lide now says he did not give, are of no assistance. Dr Epstein seemed to derive support from the fact that other psychiatrists had made the same diagnosis, but he did not take into account the fact that they had been given more colourful histories, which would be more likely to cause PTSD. Once that was pointed out to him, he seemed determined not to change his diagnosis, but we found his evidence unpersuasive.
106. Dr Moffitt also diagnosed PTSD, but in our view, he lacked the objectivity we would have expected, had he seen Mr Lide as a treating medical practitioner, rather than in the joint capacities of fellow club member/friend/confidant/doctor. We felt that lack of objectivity was shown by his dismissal of the views of Dr Douglas, the psychologist to whom he had referred Mr Lide, who diagnosed an anxiety disorder and not PTSD. It was also shown by his approach to giving evidence. He gave evidence as to his own experience of the noise of scare charges, but he did not say what Mr Lide had told him about the effect of that stressor on him. In regard to some issues Dr Moffitt gave evidence which contradicted that of Mr Lide. Dr Moffitt said Mr Lide could not associate with other Vietnam veterans because they reminded him of his time in Vietnam. Mr Lide said he preferred to work with other veterans because of their shared experience. Similarly, in giving evidence as to Mr Lide’s work capacity, Dr Moffitt relied on an assault by Mr Lide as showing an incapacity for work. But the evidence of Mr Lide was that the assault had happened five or six years earlier. Mr Lide had continued working without problems for some years after that. Even when he left, his employer said in his employment record that he had constantly given satisfactory job performance and that he had been a positive influence within his Department (R6, p17).
107. We accept the opinion in Dr Byrne’s report and find that Mr Lide does not suffer from PTSD. We prefer Dr Byrne’s opinion in this matter, to those of Dr Epstein and Dr Moffitt because we find that he took a careful history and considered not only the nature of the stressors described by Mr Lide, but also Mr Lide’s response to those stressors, as required by the DSMIV criterion A(1) and (2). We have concluded that we are reasonably satisfied that the relevant incidents were not traumatic events to which Mr Lide’s response involved “intense fear, helplessness or horror”.
IS ALCOHOL DEPENDENCE WAR CAUSED?
108. There is no dispute about the fact that Mr Lide does suffer from alcohol abuse or dependence. Dr Epstein diagnosed him as suffering from “alcohol dependence or alcohol abuse”. He noted that Mr Lide had “continued with alcohol use despite knowledge of physical symptoms, there has been some difficulty in his marital relationship because of his alcohol use”. Dr Byrne accepted that Mr Lide suffered from alcohol abuse, although he said it was in remission when he saw Mr Lide. On the evidence it was no longer in remission as at the date of the hearing.
109. Mr Lide said he had given up alcohol in 2002, when he was told “if I went on drinking the way I was I would be in a box in six months” (trans, p41). He said he gave up altogether for three months, “got a good report, everything had more or less come good so I hit it again”. A few months later he had another bad blood test and was back where he had been. He said at the hearing that he had been “off the grog for three months again now”.
110. However, on closer questioning Mr Lide explained what he described as being “off the grog”. He said (trans, p41):
[Off the grog completely?] --- Not completely but certainly nowhere near the way I was.
[But you are still drinking?] --- Yes.
[Are you prepared to tell us what you are drinking at the moment?] --- Yesterday I had two pots for lunch. After I met you I had another pot before I got on the train, called into the pub at Carnegie, had another couple of pots there and a couple of cans when I got home.
[And that is not drinking?] --- That is pretty light.
[That is pretty light, okay. If you get a good report again what are you going to do about drinking?] --- I will keep it light. I won't go back the way I was.
[Do you think you could do that?] --- It is hard. It is not easy
111. Presumably because it was not in issue that Mr Lide suffers from alcohol abuse or dependence, we did not have the DSMIV criteria before us in evidence. However, the relevant SoP (No. 76 of 1998) is in the T documents (T3, xxxiii – xxxviii). The definition of “alcohol dependence” in clause 2 of the SoP states “the diagnostic criteria for alcohol dependence are those specified in DSMIV and are as follows”. The SoP then sets out the criteria, which include criterion 7. It provides:
(7)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.
112. On the evidence, Mr Lide clearly satisfies that criterion. Thus, he does not satisfy the diagnostic criteria for alcohol abuse, because criterion B for alcohol abuse as set out in clause 2 of the SoP is as follows:
B The symptoms have never met the criteria for alcohol dependence.
113. Neither Mr Rudge nor Mr Croyle addressed the Tribunal as to how it should consider the question whether alcohol dependence or alcohol abuse is a war-caused disease. Nor is the matter dealt with in the parties’ Statements of Facts and Contentions, except that in the applicant’s Statement of Facts and Contentions at paragraph 7 it is submitted that:
It is submitted that if the Tribunal finds that the applicant does suffer alcohol abuse or alcohol dependence then the relevant factors in the instrument are satisfied. At the least, the accepted war caused condition of generalised anxiety disorder was a “psychiatric disorder” within the meaning of the definition in Instrument No. 76 of 1998. If the Tribunal finds that the Applicant does not suffer frank alcohol dependence or alcohol abuse then it is submitted that the applicant does nevertheless drink heavily and it is submitted that those drinking habits are war caused as being part and parcel of his PTSD or anxiety disorder.
114. We find that Mr Lide does and at all relevant times has suffered from alcohol dependence. Thus, it is necessary to consider the relevant legislative provisions as to how the Tribunal is to decide whether alcohol dependence is a war-caused disease, within the meaning of that term in the Act.
Relevant Legislative Provisions
115.Section 9 of the Act, so far as is relevant, provides as follows:
War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
. . .
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
116. It is not in dispute that Mr Lide has two short periods of “operational service” as defined in s 6 of the Act, and thus that, in respect of those periods, the relevant standard of proof is that found in s 120(1) and (3) of the Act. He attributes his psychiatric condition including his alcohol dependence to his operational service. Section 120(1) and (3) of the Act provide:
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
…
Special rate of pension
24 (1) This section applies to a veteran if:
…
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
187. The evidence is that Mr Lide ceased working for BHP, where he had worked for 29 years, ever since his discharge form the Navy, on 20 October 2001. He said in his statement (A1):
On discharge form the RAN I joined BHP at Western Port as Services Operator. My duties were to operate the boiler and other plants (such as acid regeneration and water treatment). I was transferred through various Departments at BHP but was always able to cope with the physical aspects of my duties.
I do suffer pain and discomfort in the low back and both legs and I have had intermittent short periods off work after aggravating those symptoms. The last time that I was off work for pain in the back or legs to the best of my recollection was a number of years ago. The fact is that I was able to cope with the physical nature of my duties at BHP. My duties were light and essentially I was required to inspect instrument panels and, by operating controls, I was required to open and shut valves, control pressures, pump flows and the like. The duties were not physically strenuous.
I have suffered flashbacks and nightmares about my war experiences ever since. I have had problems with concentration and memory ever since service. I have had problems coping with stress and I have found that if subjected to stress that I have difficulty coping. This problem has worsened over the years. By October 2000 I was having great difficulty coping at work. At that stage I was working 12 hour shifts which (although making for a long day) gave me more days off work to recover. Accordingly, 12 hour shifts were for me easier. Even so, I became so stressed at work that I took my long service leave. My supervisor, Bruce Howden, was aware that I was taking my long service leave in the hope that I would recover sufficiently from my anxiety to be able to cope at work on return. I was off work on long service leave from October 2000 until mid February 2001. On return to work I quickly found that I was still not coping.
I consulted my LMO. Dr R Moffit of South Morang Medical Centre, 31 Gorge Road, South Morang. He certified that I was unfit for work on account of my PTSD in May 2001. He has given me medical certificates off work as a consequence of my PTSD ever since and I have not resumed work since then. My sick leave now has been used up and I have consequently given notice of resignation and this will take effect on 20 October 2001.
188. Mr Lide said there were many veterans working at BHP in the early years. He and the other veterans could understand each other, but as the years went by younger people came into the workplace and they did not understand the feeling that other veterans had. He said he felt he would “blow up”, so he dealt with it by retreating to himself.
189. Mr Lide said he did not take much time off during the 17 years he worked in the water treatment area of BHP because there was a close-knit feeling between him and the other veterans who worked there. When he was transferred to the paint line, he did not have the same feeling, that he would be letting the team down if he was absent. No-one knew you were missing there, and so he took time off “all over the place” because he was drunk, as he did not want to go to work, because he was not interested in what he was doing. He then went back to the water treatment branch for five or six years and had only a few days off, before he took three or four months of long service leave.
190. Mr Lide explained how he came to stop working at BHP (trans, p40). He said after his long service leave, he had a certificate from Dr Moffitt saying that he could not work full time, but could possibly work 20 hours a week. He said he asked if that were a possibility but, as everything is shift work in a steel mill, it was not possible. He said, “So they persuaded me to go back full-time and see how I would go. So I lasted three months and that was it, I just couldn’t cope anymore” (trans, p40). Mr Lide said that he took his long service leave from October 2000 to February 2001 because it was just getting too much for him. He said he could not cope with things like “pressure, attitudes, things like that”. He gave an example of the amount of paper work that was required if you needed someone else to assist you with a task (trans, p82):
Well, it used to be when we had a job to do, we had an emergency or something, we would just go and shut down whatever machinery was required to be worked on, go and drag a maintenance man over and he could start work on it. But now with all these safety laws and goodness knows what else, it takes for it - what would take a 10 minute job you have got to do about three hours of paperwork before they can even start.
191. Mr Lide said he went back to Dr Moffitt who gave him a month off and then another month and he was off on five months of sick leave until he retired on 20 October 2001.
192. Mr Lide’s evidence was that he has difficulty concentrating. He said he does not think he could work in a team, he would find that too confronting. It could just take someone to say the wrong thing and he would more than likely attack them verbally. He said "I wouldn't want to hang around with a bunch of people. I just couldn't do this" (trans, p44). He said he does not relate well to supervision or to being told what to do. He has his own opinion of doing things. He said he thinks an engineering job, like he had at BHP, would be the only sort of job he could do. He said he could not sit in an office, and could not do a driving job.
193. In cross examination, Mr Lide said that that he often worked long shifts, and occasionally double shifts, when he was working at BHP (trans, p77). He said a double shift would be a 16 hour shift. When he ceased work he was doing 48 hours a week in four 12 hour shifts.
194. Dr Moffitt gave evidence on the issue of work capacity, but we found his evidence was again less helpful than it should have been because of his advocacy for Mr Lide. That was apparent when Mr Croyle asked him (trans, p181) to comment on Dr Byrne’s view in his report (R2) that Mr Lide has some residual capacity for work. Mr Croyle read the following passage from Dr Byrne’s report (trans, p181):
Some possible jobs which might fit the criteria above could be working in a small factory which included outdoor work or working in a nursery as part of a small team, working as a meter reader for a water or gas company, working as a courier using his motor cycle, particularly if his work were limited to the local area or delivering advertising materials to homes
195. Mr Croyle asked Dr Moffitt to comment about observations. Dr Moffit replied (trans, p181):
Yes, I don't think he could do any of those, particular seeing he fell off his bike three times in front me in one day, courier work would be out. I don't think he can any longer work with other people let alone have the ability to look after his own affairs because of his decreased concentration and poor memory, his anger relating to the public and anybody else. He has already grabbed somebody by the throat in a hotel in an anger rage. I think this person is totally unemployable. Would you employ him?
196. Dr Moffitt did not explain why or when Mr Lide fell off his bike three times in one day in front of him. Mr Lide said that the incident in the hotel occurred five or six years ago (trans, p42).Mr Lide continued to work after that until 2001. He said that when he asked BHP to put him on restricted hours, in February 2001, they persuaded him to go back to full time work. Although Mr Lide said he drank heavily throughout the many years he worked at BHP, there is no evidence that his drinking interfered with the performance of his duties, except perhaps in leading to some days of absence from work. BHP did not regard Mr Lide as unemployable. His employer would have liked him to continue working.
197. Further, Dr Moffitt gave evidence that Mr Lide could not work with people who were Vietnam veterans because that would be a trigger to memories of Vietnam. That contradicted Mr Lide’s evidence. He said he found it easier to work with veterans than with younger people, because the veterans knew what he was feeling.
198. Dr Moffitt agreed that Mr Lide had said that the problems at work were concerned with a change in culture when BHP took over management from Lysaght in the 1980s, and more recently with the increased amount of paperwork required by the work procedures. Dr Moffitt added (trans, p191-192):
I agree that he stated all that, but I think the main reason was because if you do any job for long enough, whether it is in the Navy or when he left the Navy and went to work with Lysaght/BHP, the nature of the work in all those environments has changed. New things come out, new things come in, in my job as well as yours as well as his, and this is part and parcel of the evolving nature of your ..... jobs anywhere where you work, and in the early phases he has coped with that change, but because of his PTSD related symptoms I believe that he could not - no longer cope with change and got irritable and couldn't work with others and became arrogant and couldn't cope for that reason. Not because change was there and he didn't want change, and that was the reason why he got angry, I think it was the other way around. Because of his anger, aggression, he couldn't cope with any change, whether it was that job or any other job.
199. When Mr Rudge asked Dr Moffitt why he said that Mr Lide had no capacity for work at all, immediately after he had been working 48 hours a week, Dr Moffitt replied that he had considered whether Mr Lide could work part-time. He continued:
But his statement to me was that he was unable to cope because of emotional issues at work and he felt that he was going to do himself or somebody else some damage. And I have a lot of people, you know, school teachers and police in very responsible jobs, where emotionally they reach an end point where they can no longer cope at all and the best thing to do is pull them out of the environment and get treatment for that particular illness. Now, in this particular case we are talking emotional illness and a lot of people reach an end point where they feel that they can no longer cope and will walk out. It happens in marriage, it happens at work and I don't see why this cannot happen with Mr Lide in this situation. It happens to other people a lot that you may or may not be aware of. The WorkCover books are full of them at the moment, veterans with emotional experiences. They hang on and hang on and hang on until they reach a cruncher and that is it.
200. We have Dr Moffitt’s notes covering an attendance when he first certified Mr Lide as unfit for work for one month (R3). The notes read (R3, p2):
3/5/01 Unable to cope with work work [sic]
… because [?] of emotional issues
certificate for being ‘unable to work at all’
C [certificate] 3/5 – 3/6
Discussion with his advocate regard increase …and to … query TPI
The following attendance was on 25 May 2001. It reads (R3, p2):
25/5/01 Cert[ificate] 25/5 – 3/7
Advised I do not have any letter from his advocate.
Those notes give very little indication as to the emotional problems which made Mr Lide consider himself “unable to cope with work”.
201. The BHP employment records (R6, p2) include a medical report which states that Mr Lide had problems with stress and disability in June 1995. The employment termination record (R6, p17) indicates:
EVALUATION OF EMPLOYEE: (Please tick appropriate box)
JOB PERFORMANCE
P Constantly satisfactory job performance
PERSONALITY
P A positive influence within the Department
ATTITUDE
P Good – Cooperative most of the time
ATTENDANCE
P Frequent absences due to sickness
RECORD KEEPING
P Satisfactory
…
WOULD YOU REEMPLOY HIM IN YOUR DEPARTMENT?
Under the following conditions: Medical clearance P
202. The documents also show that Mr Lide stated that he was providing a medical certificate with his letter of resignation. He gave his reason for resignation as “war related disabilities”. The only 2001 medical report on file was from Dr Kemp, a rheumatologist, dated 6 July 2001. Dr Kemp reported to a RSL advocate on Mr Lide’s physical conditions. He also wrote (R6, p29):
He states that his nerves are the main problem, as he is irritable, anxious and depressed. He is treated with Cipramil and he consults a Psychologist, Dr D Tierney. He has been off work since May 2001 due to his nervous symptoms.
203. It was Dr Kemp’s opinion that Mr Lide was mainly troubled by his persistent nervous symptoms. He concluded (R6, p31):
In my opinion his incapacity for work is due to the generalised anxiety disorder and post-traumatic stress disorder alone and from the level of his symptoms, I would consider that he is unfit to work 20 hours or more each week. There would appear to [be] no standard or recognized working week for shift workers at BHP Hastings, but I would consider that he is able to work for less than half of his usual working week. His occupational experience is limited and as he is now 53 years of age, I would consider that he is unsuitable for retraining for light work.
204. Dr Epstein, in his report (R5), concluded that Mr Lide’s war-caused conditions alone prevented him working more than 8 hours a week. When Mr Rudge asked him if, in his opinion, Mr Lide could not undertake 2 hours of work per day, Dr Epstein said (trans, p115):
Well, it very much depends on the type of work he is doing and the work context, and I say that because if he is doing work that involves pressure, that involves responsibility, that involves particular timeframes, that involves safety issues for others, responsibility for others in what he perceives to be an unsupportive working environment, I think he would have great difficulty doing that, and I think his psychiatric symptoms would rapidly increase. If he was in a supportive working environment doing work within his emotional capacity, I think he would be much more likely to function on a regular basis doing part-time work.
205. He said further (trans, p116-117):
I think he could only do work that did not involve a great deal of pressure and responsibility including responsibility to be there consistently for two hours, five days a week - three hours, five days a week, whatever, because in my experience, clinically, people's capacity varies from day to day and sometimes they can work longer and sometimes they can't work at all. And it is an unusual employer that can cater for that sort of work capacity.
206. In his report, Dr Byrne wrote (R1, p45):
9. What is the effect of any diagnosed psychiatric condition(s) diagnosed [sic] on the Applicant’s capacity to undertake remunerative work?
The depression and anxiety noted above would have some impact on this man’s ability to work. For example, it is very unlikely that he could work in a position which required even a moderate degree of contact with others, and he would certainly have difficulty in a job which required any performance pressure.
10. Does this condition/do these conditions alone prevent him from working more than eight (8) hours or twenty (20) hours per week?
In theory, Mr Lide could work up to twenty hours per week, if a suitable job were available.
11. Do factors other than the diagnosed psychiatric condition(s) prevent the Applicant from working more than eight (8) hours or twenty (20) hours per week?
This man’s age and relative lack of job skills would make it exceedingly difficult if not impossible for him to gain employment in the competitive job market.
12. Why did the Applicant cease work?
As closely as I can determine he stopped work because of an aggravation of his depressive and anxiety disorder in response to a change in working conditions.
13. Did the Applicant cease employment for reasons other than the diagnosed psychiatric condition(s)?
No.
207. In his second report, Dr Byrne wrote (R2, p1-2):
1.Given Mr Lide’s psychiatric condition, what characteristics would a job have to have in order for him to be able to work up to 20 hours per week.
As alluded to in my initial report (page 45, number 9) it is unlikely he could work in a position which required even a moderate degree of contact with others. Therefore, a job in which he were serving the public would be unsuitable. I also noted that a job which had any significant degree of performance pressure would be difficult for him.
On the other hand, he may be able to work at a job which had the following characteristics: working alone or as part of a small team of people with whom he had things in common and got along, for example, a group of ex-Navy service people; being managed by a generally friendly and supportive boss; an environment which did not have undue performance pressures; and an environment which did not require him to be in a small room or enclosed space throughout the day.
I’m unable to comment on how his complaint of shoulder pain (see 6.3) would impact on his ability to work.
Some possible jobs which might fit the criteria above would be working in a small factory which included outdoor work; working in a nursery as part of a small team; working as a meter reader for the water or gas companies; working as a courier, using his motorcycle, particularly if his work were limited to the local area; or delivering advertising materials to homes. You will appreciate that this is by no means a comprehensive list. Further information could be obtained from a psychologist who specialises in vocational assessment.
2. Given his psychiatric condition and the types of jobs his work skills, qualifications, experience and/or aptitude would encompass, what is the practical likelihood of him finding a job with the required characteristics?
It is difficult to answer this question with real precision. One of the major factors will be the veteran’s desire to obtain work. To the extent that he sees himself as being disabled, it will make it exceedingly difficult for him to find such employment. On the other hand, if he were to find himself bored with sitting around at home, and were keen, there is some likelihood – though not great – that he could obtain suitable employment.
208. We find that remunerative work that Mr Lide was undertaking, for the purposes of s 23(1)(c) and s 24(1)(c) of the Act was engineering work at BHP Hastings site. We find that Mr Lide was prevented from continuing to undertake that work by reason of his war-caused psychiatric impairment alone. We find that, were it not for his incapacity from war-caused disease alone, Mr Lide would have continued working at BHP Hastings. He had worked there for approximately 28 years, ever since his discharge from the Navy. He was in a familiar environment there and his work was valued by his employer. There is no evidence that he left work for any reason other than because he could not cope with it any longer due to his nerves, irritability, anxiety and depression. His employer would still have kept him on if he could have worked full time (R6, p2). Mr Lide tried a return to full time work but after some three months or so felt he could not cope.
209. The war-caused psychiatric impairment from GAD does seem to be the only factor preventing Mr Lide from continuing to undertake his work with BHP. Dr Kemp did not consider that the physical problems Mr Lide suffered prevented him from continuing to work. He wrote (R6, p30):
In my opinion he is mainly troubled by his persistent nervous symptoms, which were the reason that he stopped work in May 2001.
He is obese and has mild hypertension and mild generalized osteoarthritis affecting both knee joints, ankle joints and feet and there is some intermittent low back pain after lifting a heavy weight. None of these conditions cause any significant physical impairment or disability for his normal work and I would not consider that there is any physical reason for occupational restriction.
210. There is no dispute about the fact that Mr Lide is suffering a loss of salary wages or earnings that he would not be suffering if he were free of his incapacity for work.
211. The only remaining question is therefore whether Mr Lide is unable to work 8 hours or more a week, or whether he could work 20 hours or up to half the hours normally worked in his sort of employment.
212. Dr Kemp was of the opinion that Mr Lide could work for less than half his normal working week.
213. Dr Byrne acknowledged that Mr Lide’s depression and anxiety meant that he would have difficulty in a job which required even moderate contact with others or which involved any performance pressure. He suggested that Mr Lide could work up to 20 hours a week if a suitable job were available, but he accepted that Mr Lide’s age and relative lack of job skills would make it exceedingly difficult, if not impossible, for him to gain employment in the competitive job market.
214. Dr Moffitt and Dr Epstein both expressed the opinion that realistically Mr Lide was unable to work more than 8 hours a week after he left BHP.
215. There is no evidence that Mr Lide attemped to find part-time work anywhere but at BHP Hastings. Both Mr Croyle and Mr Rudge relied on the decision of the Full Court of the Federal Court in Chambers v Repatriation Commission (1995) 129 ALR 219. Mr Rudge said (trans, pp186-7, 22 January 2004):
Our submission, based largely on the explanation of the law in Chambers v Repatriation Commission, a Full Court case, is that section 24(1)(b) is given a very broad interpretation. You are not confined to looking at the job the veteran was doing when he ceased work, but you look at his skills, qualifications, experience, indeed general aptitude gained in employment, and in one's life over really the whole of one's working life. Yes, if you say to somebody to go out there and look for a job for 10 hours a week they are not going to find a job at all.
So you are faced with the question, "Well, what does that the Act mean? It can't just mean that everyone who can't work full time therefore qualifies for a special rate, because they are not going to find a job in that low number of hours." The answer to that is that the Act is positing a test of capacity to work, not whether he can then go out and find a job. Otherwise the test would be like the social security test with disability support pension, but you have to look at it realistically to see whether if this person went out there would he be able to find a job?
The fact that the Veterans Entitlements Act posits an eight hour test and a 20 hour test means it must be actually testing the capacity of the person to do work, to undertake remunerative work, not what the market says about somebody who says to them, "I only want to work, I only can work 10 hours or 12 hours." It is positing quite an objective test of that person's capacity. On that basis we say that he retains a work capacity to work in lower stress, shorter hour jobs than he worked in the past.
He did work extraordinarily long hours, a minimum of 48. He said a maximum of 70 [hours], albeit some years previous, but when he went back to work in early 2001 he said in the evidence that he took a medical report, I think it may have [been] from Dr Collier. He went to BHP and asked whether they could reduce his hours, and the answer was no, and therefore that led to retirement. So he tried to see if he could have a reduction in his hours. Understandably employers are not generally conducive to such things. So he felt that if there was a chance that they would reduce his hours he may have continued. I think that is the - - -
[MRS DWYER: I think he would have given it a try anyway.]
MR RUDGE: Yes. So on the issue of 24(1)(b) we say that there is a residual capacity, and it is probably a capacity for, say, a job of two or three hours per day, which would see him within the intermediate rate pension, but not the special rate of pension.
216. There is evidence that Mr Lide was working 48 hours a week when he ceased work and that he asked BHP for part-time work. There is no evidence that satisfies us that he could not have worked part-time, up to 20 hours a week, if that work had been available to him, either at BHP or elsewhere.
217. The Full Court in Chambers pointed to s 28 of the Act, which provides:
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)
218. Their Honours, Moore and Sackville JJ, referred to the operation of s 28 only in regard to s 24(1)(b), because that was the only section relevant to that hearing. In this matter, the operation of s 28 is relevant in regard to both s 23(1)(b) and s 24(1)(b). Their Honours said at p231:
It may be accepted that s 28 focuses the inquiry that s 24(1)(b) would otherwise require. As Davies J pointed out in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 (AAT), at 430–1, in relation to the equivalent provision in the 1973 Act, the effect of s 28 is to exclude a number of matters which otherwise might have been relevant to the determination required by s 24(1)(b). Such matters as depressed labour market conditions are excluded from consideration for the purposes of s 24(1)(b) (although some of these may be relevant to the separate determination required by s 24(1)(c) of the 1986 Act as to whether the war-caused incapacity has prevented the veteran from continuing to undertake remunerative work).
219. In this matter, there was no specific evidence as to Mr Lide’s vocational or trade qualifications. However, he must have vocational and trade skills and experience in the engineering field, both from his naval service where he was an engineering mechanic and from his many years working with BHP at the Hastings plant. We find that it would have been reasonable for Mr Lide to undertake any form of light engineering work.
220. There is no evidence which satisfies us that Mr Lide could not have undertaken his work at BHP or similar work on a part-time basis or intermittently (s 23(1)(b) of the Act), up to 50 percent or more of the time ordinarily worked by persons engaged in work of the that kind (s 23(2)(a) of the Act) or up to 20 or more hours per week (s 23(2)(b) of the Act).
221. There is medical evidence that Mr Lide could not work more than 20 hours a week after 20 October 2001, but the medical evidence does not persuade us that he could not have worked up to 20 hours a week, if BHP had agreed to that proposal.
222. Mr Lide, so far as the evidence reveals, did not seek any other part-time work appropriate to his vocational trade and professional skills, qualifications and experience. He had been working 48 hours a week up until taking his five months of sick leave. We find that, after 20 October 2001, Mr Lide could have continued to work for BHP or another employer part-time or intermittently up to 20 hours a week, if that work had been available to him. There is no evidence that part-time engineering work is not available at all. The evidence is simply that it was not available at the BHP plant at Hastings.
223. We find that Mr Lide is entitled to the intermediate rate of pension under s 23 of the Act, from 21 October 2001.
DECISION
224. We will affirm the reviewable decision of the Commission made 7 June 2002, as to PTSD.
225. By consent, we will set aside the reviewable decision of the Commission made 15 November 2001 as to hypertension and in substitution decide that hypertension is a war-caused disease with effect from 2 August 2001 and that the impairment rating for that condition on GARP is 5 impairment points on Table 2.1.1.
226. We will set aside the decision of the Commission made 5 June 2001 in respect of alcohol dependence and in substitution decide that alcohol dependence is war-caused with effect from 2 April 2001, but that the impairment rating for that condition is covered in the increased rating of 25 on Chapter 4 of GARP from 2 April 2001.
227. We will set aside the decision as to assessment made 3 May 1999 and remit the question of assessment to the Commission for reconsideration in accordance with the direction that the reconsideration take into account:
i. Our decisions as to hypertension and alcohol dependence;
ii. Our findings that the appropriate impairment rating for psychiatric impairment is 25 from 2 April 2001 until 20 October 2001 and 26 from 21 October 2001.
iii. Our finding that from 21 October 2001, Mr Lide is entitled to the intermediate rate of pension under s 23 of the Act.
228. We will reserve liberty to the parties to apply to the Tribunal if there is any difficulty in implementing this decision.
I certify that the 228 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer and Mr Ermert, Member
Signed: Josephine McKay
AssociateDate/s of Hearing 12 & 15 December 2003 & 22 January 2004
Date of Decision 28 October 2004
Counsel for the Applicant Mr Croyle
Solicitor for the Applicant Williams Winter Solicitors
Advocate for the Respondent Mr Rudge
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