Lipscombe and Repatriation Commission
[2004] AATA 79
•30 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/804
VETERANS' APPEALS DIVISION )
Re ARTHUR LIPSCOMBE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date30 January 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant suffers from war-caused post traumatic stress disorder, alcohol dependence and alcohol abuse.
The matter is remitted to the respondent for assessment of pension payable to the applicant in accordance with the Tribunal’s reasons for decision, with date of effect of 18 May 2000.
...................(Sgd)......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – post traumatic stress disorder and alcohol dependence / abuse – whether conditions caused by applicant’s war service – hypothesis - applicant suffered severe stressor – meaning of “severe stressor” – applicant suffering from psychiatric condition prior to clinical onset of alcohol dependence / abuse - reasonable hypotheses raised – hypotheses not disproved – decision set aside
Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B
Stoddart v Repatriation Commission [2003] FCA 334
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Re Briggs and Repatriation Commission [2003] AATA 603
Re Ellis and Repatriation Commission [2003] AATA 252
Roncevich v Repatriation Commission [2003] FCAFC 146
Re Ballantyne and Repatriation Commission [2003] AATA 1186
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
30 January 2004 Mr I R Way, Member 1. This is an application by Arthur Lipscombe for review of a decision of the Repatriation Commission, dated 29 March 2001 and affirmed by the Veterans’ Review Board (VRB) on 8 August 2001, which determined that the applicant does not suffer from war-caused post traumatic stress disorder (PTSD), or alcohol dependence or abuse.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T6) and other documentary evidence as follows:
· Exhibit A1 - Statement of Arthur Lipscombe, dated 11 February 2002
· Exhibit A2 - Statement of Arthur Lipscombe, dated 22 October 2002
· Exhibit A3 - Statement of Bryan Burdett, dated 9 September 2002
· Exhibit A4 - Report of Dr Anderson, dated 5 March 2003
· Exhibit R1 – Transcript of VRB hearing on 8 August 2001
· Exhibit R2 – Writeway Research Report, dated 21 January 2003
· Exhibit R3 – Report of Dr Leong, dated 8 May 2003
· Exhibit R4 – Medical documents and Navy Policy on Venereal Disease
· Exhibit R5 – Maps of Sebarang Prai – Penang
3. The applicant was represented by Mr A Harding, instructed by Gilshenan and Luton and the respondent was represented by Mr D McAninly, Departmental advocate. The applicant and Commodore P Mulcare gave oral evidence. Evidence was given by telephone by Mr B Burdett, Dr B Anderson and Dr M Leong.
4. The applicant was born on 10 February 1937 and served in the Royal Australian Navy from 19 March 1954 to 9 January 1961, including operational service in the Far East Strategic Reserve (FESR), for a total of 315 days. The applicant’s operational service in the FESR was over various periods from 27 October 1954 to 16 June 1960 on HMAS Arunta, HMAS Quickmatch, HMAS Queenborough and HMAS Melbourne. Relevant to this matter is the applicant’s operational service in Quickmatch in Malaya in early January 1957 and subsequent periods of service on the same ship in Singapore (a total of some 28 days spread over seven different periods from January to June 1957).
5. The applicant has no service-related disabilities. His non-service related disabilities are hypertension, alcohol dependence or alcohol abuse and PTSD (the applicant being eligible for treatment of the latter).
6. The applicant’s hypothesis is that he suffers from PTSD and that this condition was caused by him experiencing a stressor during that “race riots” which occurred in Penang in early January 1957. Furthermore, the applicant contends that his PTSD was aggravated by a stressful event he experienced in Singapore in a subsequent period of operational service. The applicant also claims that he suffers alcohol dependence as a result of the Penang incident or alternatively as a result of war-caused PTSD.
Legislative Framework
7. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
8. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
9. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
10. The RMA has, pursuant to section 196B(2) of the Act, determined SoPs in respect of PTSD, alcohol dependence or alcohol abuse. It is common ground between the parties and the Tribunal accepts that the relevant SoPs in this matter are:
§Post Traumatic Stress Disorder – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999)
§Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
11. Instrument Number 3 of 1999 (as amended by Instrument Number 54 of 1999) relevantly states:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, ‘post traumatic stress disorder’ means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) 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; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(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:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
12. Instrument Number 76 of 1998 (Alcohol Dependence or Alcohol Abuse) relevantly provides:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles, “alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(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;
‘alcohol abuse’ means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(3)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence. The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse. Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;”
Applicant’s Evidence
13. In his written statements, the applicant stated:
“2. In respect of the race-riots incident, I have a lot of difficulty talking about this incident. This is why I have concealed it from people including Dr Anderson. I felt that my behaviour in running away reflects badly on me and is not the reaction a man should have had. This is why I put emphasis on the bosun’s chair incident as I am able to talk about this incident. I have a lot of difficulty discussing the race-riots incidents and I find recollections of this event to be extremely distressing. I have never wanted anyone to know about the race-riots incident and therefore until now I really haven’t spoken about it. Why I came up with two incidents is that Dr Anderson specifically asked me for two incidents and these are the two that I came up with and put more emphasis on the ‘Melbourne’ incident, as I felt more embarrassed of showing so much fear over the race riot incident. The incident on the Quickmatch affected me greatly. I was absolutely terrified by this incident, but I had difficulty communicating this to Dr Anderson.
3. When I had returned from my service on the Quickmatch (where this incident occurred), I was very difficult to live with. I was drinking very heavily and was spending almost all of my time in the pub. I was very unsociable. After this incident, I began to treat my wife very badly indeed. The incident which occurred on the Quickmatch is all that I can relate my behaviour back to.
4. How this incident occurred was I was on leave and basically was walking down the street with two fellow servicemen. A local person was riding on a bicycle coming towards us. All of a sudden a group of about 10 – 12 people attacked the person on the bicycle. We watched as he was stabbed and fell to the ground from the bicycle. This was quite terrifying and very distressing. The group then looked up straight at us. I was scared for my life at this time as I believed that they were about to come after us.
5. To get off the street, the three of us went straight into the picture theatre near-by. We payed for a ticket and went straight upstairs and sat in the balcony. We were in there for only about 5 minutes when the lights in the cinema came on. Basically, the downstairs section of the cinema had erupted into chaos and really was just a brawl. Up on the balcony there were a lot of Europeans. We were actually sitting next to a doctor who told us that we should get out of the area and back to our ship as quickly as possible and he offered to drive us back there.
6. On the way driving back, we saw other sailors and had to keep stopping to tell them to turn around. We were informed shortly after our return to the ship that a curfew had been put in place.
7. Throughout this whole incident I was absolutely terrified and feared for my life. I don’t like to admit how terrified I was or the fact that we ran away back to the ship. After this incident I did not like going far from the ship on my shore leave. I would go ashore to the wet canteen in the depot, but normally refused to go into town while on leave.
8. On either the next occasion where I actually did go into town or one very soon after (I can’t remember if it was a single occasion or the second or third time I had been into town after this incident) myself and another sailor by the name of ‘Wings Burdett” were in Singapore and we went into town into a bar.
9. A number of locals approached us and started to beat us. They were hitting us with stools and other implements. Basically we got out of the mob as quickly as we could and ran away as fast as we could. This incident was extremely frightening as I believed that I was in danger for my life at this time also.
10. After this second incident, I really just refused to go into town at all on shore leave. After this incident, I had even more flash backs of my experiences of the race-riots.
11. I have had flashbacks and nightmares of both these incidents since this time.
12. In respect of my drinking history prior to my Navy service, I didn’t drink other than to have an occasional drink given to me by my parents as I was underage.
13. I started to drink regularly when I was in the Navy. However, I did not drink heavily at this time. After the race-riots incident and the other incident, whenever I was on leave, I would normally just go to the canteen and stay there for as long as I could. I would even go the canteen by myself and drink alone which is something that I never would have done before I experienced these incidents. The only time I would have drunk before these incidents would have been in a social environment having a few beers with my mates.”
14. In respect of the Singapore incident, the applicant stated:
“1. I am making this statement in relation to a stressful event that was experienced by myself and Bryan Burdett while we were on service together.
2. I am sure that the incident that Bryan is referring to occurred in Singapore. It would be a guess, but I seem to recall that it was probably a couple of streets back from the Raffles Hotel. It was a long time ago and I cannot be sure.
3. I am not positive about the dates. I do know that it was on one of our operational tours.
4. We were out drinking and we were approached by two locals. They had befriended us for some unknown reason. In retrospect it seems to me that all the time they were guiding us into some kind of trap. I now believe this.
5. I remember that one of them had his arm around my shoulders. The next thing I know he hit me, but I can’t remember with what.
6. I also saw that Bryan was being thumped and within seconds there appeared to be many, and I mean very many locals attacking us. They were hitting us with sticks, stools and whatever else that they could get their hands on.
7. We were lucky to break free and a quick hundred yard dash brought us into a more lit up area, causing their pursuit to stop.
8. It was a very intense situation. We somehow managed to lose our hats and I don’t know what would have happened if we had not been able to break away.
9. I was terrified during and after the incident. I did fear for my life. It was not that I was afraid for my life during the bashing because it was so full on, but I certainly did feel very fearful as soon as we broke free and were running down that ally.”
15. In his oral evidence the applicant told the Tribunal about the circumstances leading up to him making a claim, principally that service in FESR had become recognised operational service and in the course of enquiring about service medals, he had discussed with service advocates the possibility of making claims for hypertension and alcohol abuse. After further discussion and with some reluctance, the applicant said he went to see a psychiatrist (Dr Bob Anderson) and as a result of this, the Penang incident (HMAS Quickmatch) and the bosun’s chair incident (HMAS Melbourne) were raised. The applicant said that, at this stage, he only told Dr Anderson “in a little way but not fully” about the race riots, being concerned and embarrassed about his behaviour at the time and having previously concealed the event from everyone. He said that after this he had talked about the events over a period of time and, in particular, with Dr Anderson during 2003, having some six to eight visits to him “to get the guilt out of his system”.. He said these interactions with Dr Anderson were not on a medico-legal basis and not related to his claims to Department of Veterans’ Affairs.
16. He said that as a result of consultations with Dr Anderson he had been helped “quite a bit” in working on his alcohol problem and getting the guilt out of his system. He said he had joined a gymnasium and was now playing bowls.
17. In cross-examination the veteran said the HMAS Quickmatch arrived at anchor in Penang on Thursday, 3 January 1957 and that, on Friday, 4 January 1957, he had taken part in the demonstration of a jack stay transfer which was part of a military tattoo staged for the Penang centenary celebrations.
18. It was the applicant’s evidence that the ship was anchored close to Penang and the esplanade could be easily seen. He said that access to the island was effected by liberty boats.
19. He said the stressful event occurred on the next Sunday afternoon, he thought about “twoish” but was not sure of the street in which things then occurred or exactly when it occurred. He could remember the street being pretty wide and open, being close to shore and a lot of Asian people being present. He said he was with Bryan Burdett, and he thought there were also two other sailors with them (Sherwell and Christenson) and that they were on shore leave and dressed in tropical white Navy uniforms. He described the incident in the same terms as in his written statement (paragraph 10 above) and said that all four sailors, the doctor, the doctor’s wife and two children were in the car (which he recalled not being a large car). He said he was back on ship well before 5 or 6pm. He said he wondered what was going on in the town and with binoculars could see the promenade deserted and troop carriers in place. He said the ship left Penang next morning.
20. With respect to the incident in Singapore, in addition to what he said in his written statement, the applicant said the incident took place a few streets back from the Raffles Hotel in an area that was not well lit. He said that he and Bryan Burdett had been out drinking (he mentioned the Royal Navy NAAFI Service Club), that they were fairly intoxicated and late at night had befriended local people who enticed them to go with them “to get women”, when they were suddenly and unexpectedly attacked. He said they were in uniform and with a quick sprint got away and got back to the ship okay but lost their hats. In cross-examination he said that he and Mr Burdett were where they should not have been and should not have let themselves get into such a situation.
21. In respect of the bosun’s chair incident, the applicant said he had always been terrified of heights and during the incident thought he could have been killed. He said he still dreams about the incident as well as the Penang incident.
22. The Tribunal notes that it was the applicant’s evidence that he had not associated with Mr Burdett after Navy service until recently, when they met at a Navy reunion. He said he has not discussed the Penang incident with Mr Burdett but had heard Mr Burdett talking about it and that subsequently his RSL advocate suggested that the veteran contact his solicitors to inform them that Mr Burdett may be of assistance in his case.
23. Mr Burdett provided a written statement dated 9 April 2002 (Exhibit A3) and gave evidence by telephone.
24. In his written statement Mr Burdett described the Penang incident and the Singapore incident as follows:
“3. I remember that when our ship came into Penang we were told to be careful because there were some problems there. To the best of my knowledge there were tensions between the Malays and the Chinese.
4. A group of us went into Penang for some recreation. In this group was able seaman Arthur “Bill” Lipscombe. Bill and I were part of the same group of friends. We served on the Quick match together for 10 to 12 months.
5. We had intended to have a drink, which is what we usually did, but on this occasion everything was closed up, so we decided to go to a cinema. Suddenly things started to happen. People started to push each other and there was a lot of shouting and commotion. The lights went up and there was scuffling and fighting going on all around us. We were told to get out.
6. We didn’t know what was going on, but a Dutchman quickly took us outside to his car. I think he was Dutch because of his accent. I am pretty sure that he was a Doctor. It wasn’t a great feeling to go out there in our white uniforms in the middle of this huge riot.
7. the Dutchman took us out to his car. There must have been 5 of us because I can remember that it was a small car and we were sitting on each others laps.
8. Outside people were running around with bike chains and machetes in their hands. They were all yelling ‘Merdeka!” It was something to do with independence. There was fighting and shouting going on all around us. It was a general riot.
9. When we were moving slowly through the crowd in the car we saw a terrible thing. There was a man running along side us with his bike about 20 yards away with blood streaming out him. He was covered in blood. He was pushing his bike because I don’t think that he could ride it. I saw him first because he was on my side of the car and I told the other guys.
10. There was a crowd of people chasing him. One guy laid this fellow open with a bike chain. Just laid his head open. Down he went and we shot off. 7 were killed that night.
11. I vividly remember that fellow getting his head laid open. It was a terrifying incident. I would not want to go through again. We could not wait to get out of the bloody place, it was terrible.
12. I remember another incident that Bill and I were involved in during the same period. I am not exactly sure where it happened. It could very well have been Singapore or another port that we called into.
13. We had been out drinking and we went into a bar. I don’t remember what we did wrong, but we had a few (not drunk) and young so we probably stepped on somebody’s toes.
14. We were suddenly attacked by a group of locals. I don’t know if they were Chinese or Malay. They started to hit us with sticks so we took off and ran down a very narrow alley with them chasing behind us. I remember that it was terrifying because as we ran they were calling out behind us and the people up ahead of us were picking up broomsticks to come and join in.
15. What I do remember vividly about that incident is that we lost our hats running for our lives. I don’t even know how we got out of that one.”
25. In his evidence by telephone, Mr Burdett said he felt the Penang incident was in the daytime, he thought about 5 pm but it could have been earlier. He said he thought the doctor was Dutch and that there was no wife or children present. He said he had been sitting in the right rear of the car, not going fast and he saw the person, about 20 yards away, hit with the bike chain. It was Mr Burdett’s evidence that the doctor dropped them at a club and that he stayed all night in the club. He said that he could not remember whether Mr Lipscombe did the same but there were two other fellows with him. He said he got back to his ship between 7.00 and 7.30 am the next day.
26. Insofar as the Singapore incident is concerned, he said he was 99% sure it happened in Singapore.
Medical Evidence
27. Dr Bob Anderson, the applicant’s treating psychiatrist, on 21 March 2001, diagnosed the applicant as suffering from PTSD and alcohol abuse and dependence. Dr Anderson related this to the applicant’s “susceptible service in the Navy”.. In his written report dated 5 March 2003 (Exhibit A4), Dr Anderson stated:
“I believe Mr Lipscombe when he stated that he downplayed the incident in Penang because he was very embarrassed about his behaviour there. Subsequently when he gave me an account of his intrusive symptoms (Criteria B for Post Traumatic Stress Disorder) he omitted to mention intrusive phenomena which related to that incident.
At the time I compiled my previous report I mistakenly assumed that the second incident that Mr Lipscombe mentioned, namely that relating to the bosun’s chair fall, occurred on eligible Navy service. If I believed at the time that the bosun’s chair incident was irrelevant to his claim I would not have focused so much on it and would have more adequately explored Mr Lipscombe’s eligibility based on the Penang Riot incident and another subsequent incident in a Singapore hotel which he has mentioned in his Statement dated 8 January 2002.”
28. In effect, Dr Anderson opined that the applicant’s PTSD had an onset after the Penang incident with some symptoms occurring immediately after the race riot and that both the Singapore incident and the bosun’s chair incident would have worsened his condition. With respect to alcohol abuse and alcohol dependence, Dr Anderson said the applicant abused alcohol after going to Korea (late 1954) when the opportunity arose and suffered alcohol dependence from 1957/58.
29. Dr Anderson was taken to the different accounts of the Penang incident given by the applicant and Mr Burdett. He said that, in his opinion, the applicant was not suffering from psychogenic amnesia and that the explanation for the difference was more likely to be because the veterans were reconstructing memories to action the flow of perceptions of what happened and maybe Mr Burdett was not so traumatised by the event and did not remember the incident as well as Mr Lipscombe.
30. Dr N Leong, Psychiatrist, interviewed the applicant on 28 April 2003 and provided an independent detailed written report dated 8 May 2003 (Exhibit R3).
31. In summary, Dr Leong diagnosed the applicant as suffering from chronic PTSD and chronic alcohol abuse and dependence. With respect to clinical onset, Dr Leong opined that it is likely that the applicant’s PTSD followed the race riots in Penang; and, although the applicant drank heavily while on leave, it was after he left the Navy that his alcohol consumption and pattern of drinking met the criteria of alcohol abuse. He opined that the applicant’s PTSD, and the Penang race riots, were likely to be significant contributing factors for his psychiatric condition.
32. The Tribunal notes the applicant’s service medical documents and Navy policy on medical treatment on Venereal Disease contained in Exhibit R4.
Submissions
33. In summary, the applicant submitted that the Tribunal would be reasonably satisfied on the medical evidence before it that the veteran suffers from PTSD and alcohol abuse and dependence.
34. With respect to PTSD, it was submitted that the veteran, during his operational service, experienced a severe stressor within the meaning of that term, while on shore in Penang in 1957.
35. The Tribunal was referred to Stoddart v Repatriation Commission [2003] FCA 334 in respect of the correct approach to the question of what events satisfy the definition of “severe stressor”.
36. It was submitted that the applicant’s hypothesis was a reasonable hypothesis and that pursuant to section 120(1) of the Act the Tribunal should be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s PTSD was not war-caused. It was further submitted that the applicant’s PTSD was aggravated by subsequent events in Singapore during a later period of operational service.
37. With respect to alcohol abuse or alcohol dependence, it was submitted that there is no inconsistency in the medical opinions before the Tribunal and that the opinions supported the applicant’s contention that he suffered from alcohol dependence and alcohol abuse caused by his PTSD. It was submitted, therefore, that if the Tribunal were to find that the applicant’s PTSD was war-caused, there is a reasonable hypothesis connecting the veteran’s alcohol abuse and alcohol dependence with his war service on the basis of developing or being aggravated as a consequence of his war-caused PTSD.
38. Mr Harding drew the Tribunal’s attention to the weight given by the VRB in refusing the applicant’s claim to the applicant falling from a bosun’s chair while not on operational service. Mr Harding pointed out that the evidence has moved on since the matter was before the VRB, particularly in respect of the Penang incident. It was submitted that the fact that another event may have contributed to the condition does not necessarily mean that the condition was not war-caused. In order for a condition to be war-caused the war-related factor does not need to be the sole, approximate or effective cause and it was submitting that following Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, it need only be a contributing factor.
39. The respondent, on the other hand, submitted that the necessary factors in the SoP for PTSD and alcohol dependence or alcohol abuse are not met, in that the veteran did not experience a severe stressor of the type required to meet the relevant SoP and that his reactions did not involve intense fear, helplessness or horror.
40. In so submitting the respondent pointed to a number of inconsistencies in the applicant’s evidence compared with the evidence of Mr Burdett. And in the light of the Writeway Research Report and the various extracts from The Straits Times about the situation in Penang at the relevant time, it was the respondent’s submission that the evidence before the Tribunal does not show that anyone was assaulted in the manner described by the applicant or Mr Burdett at the time they were in Penang.
41. Furthermore, the respondent contended that there was conflicting medical evidence about the onset of the veteran’s alcohol dependence and alcohol abuse and submitted that these conditions were an ongoing extension of the veteran’s alcohol abuse present from 1954 and were not related to the claimed stressors that were related to the availability of alcohol.
42. With respect to the two claimed incidents (in Penang and in Singapore) the respondent also submitted that the veteran was on an adventure of his own undertaking and in so submitting relied on the precedents of Re Briggs and Repatriation Commission [2003] AATA 603, Re Ellis and Repatriation Commission [2003] AATA 252, Roncevich v Repatriation Commission [2003] FCAFC 146, and Re Ballantyne and Repatriation Commission [2003] AATA 1186.
Consideration
43. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
44. In the first instance the Tribunal must consider whether the veteran suffers from PTSD and from alcohol dependence/abuse. In this case the psychiatric medical reports of both Dr Anderson and Dr Leong are consistent and both doctors have diagnosed the veteran suffering from PTSD and alcohol dependence and/or alcohol abuse. In view of this, and on the material before it, the Tribunal is reasonably satisfied that the applicant suffers from PTSD with clinical onset after the race riots in Penang in January 1957; and, furthermore, the Tribunal is satisfied that the applicant suffers from alcohol abuse and alcohol dependence, with a clinical onset in 1961.
45. The Tribunal after consideration of all of the material before it, is of the view that this material points to an hypothesis connecting the veteran’s psychiatric conditions with the circumstances of his particular service.
46. The Tribunal is satisfied that there are in force relevant SoPs, namely:
· Instrument No 3 of 1999 – PTSD (as amended by Instrument No 54 of 1999); and
· Instrument No 76 of 1998 – Alcohol Dependence or Alcohol Abuse
47. The question then before the Tribunal is whether the hypotheses raised fit the templates of the SoPs such that the hypotheses are reasonable.
48. Turning first to the applicant’s condition of PTSD. The applicant relies on satisfying factor 5(a), namely, experiencing a severe stressor prior to the clinical onset of PTSD.
49. The definition of “experiencing a severe stressor” is as set out in paragraph 11 above.
50. In Stoddart (supra) his Honour Justice Mansfield held:
“The language of the definition of experiencing a severe stressor caters for a person experiencing, or being confronted with, an event involving the threat – of death, serious injury, or harm to physical integrity – if the event said to constitute that threat – judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event – is capable of and did subjectively convey the threat.”
51. In Woodward v Repatriation Commission [2003] FCAFC 160, the Full Federal Court considered Stoddart and said:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.”
52. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by his Honour Justice Mansfield, clearly accepted the approach taken by Mansfield J (and adopted by the Full Court in Woodward’s case) in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J, namely “an indication of probable evil to come; something that gives indication of causing evil or harm”; and stated that the description “a risk of death”, “can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
53. Also of significance is the Full Court’s observation, in addressing what can be described as routine normal service duties, “that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time”.
54. The applicant contends that the event he experienced on Sunday, 6 January 1957 during the Penang centenary celebrations was a severe stressor.
55. After careful consideration of all the material before it and the submissions of both parties, the Tribunal accepts that the applicant experienced a severe stressor within the meaning of that term as defined and in accordance with the approach set out in Stoddart’s case.
56. In arriving at this view the Tribunal has accepted Dr Anderson’s explanation of the differing accounts of the event given by the applicant and Mr Burdett and furthermore has accepted the applicant’s account of the event. The Tribunal has also carefully assessed the various press reports in The Straits Times about events that occurred in the riots during the Penang centenary celebrations and is of the view that there is sufficient reporting to support the applicant’s account of what happened to him on 6 January 1957.
57. With respect to the respondent’s submissions about the applicant being on an adventure of his own undertaking, the Tribunal is satisfied that the veteran was on authorised leave, was in uniform, was not in an area where he should not be, was not drunk and as such his circumstances can be distinguished from those of the servicemen in the precedents relied on by the respondent.
58. The Tribunal therefore is of the opinion that the hypothesis raised connecting the applicant’s PTSD with his experience during the race riots in Penang in 1957 is a reasonable one and the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s PTSD is war-caused.
59. In respect of the applicant’s alcohol dependence and alcohol abuse, the applicant relies on satisfying factor 5(a) and 5(c) of the relevant SoP, namely suffering from a psychiatric disorder at the time of the clinical onset of these conditions or the clinical worsening of these conditions.
60. In view of the Tribunal’s finding that the applicant suffers from war-caused PTSD and that this condition had a clinical onset prior to the applicant’s alcohol dependence or alcohol abuse, clearly the applicant’s hypothesis fits the template of factor 5(a) of the relevant SoP and is a reasonable hypothesis; and the Tribunal so finds.
61. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s alcohol dependence or alcohol abuse are not war-caused and the Tribunal so finds.
62. In view of the above findings, further consideration of events subsequent to the race riots in Penang (namely, the claimed attacks in Singapore and the applicant’s fall from the bosun’s chair) is not necessary.
63. The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant suffers from war-caused PTSD, alcohol dependence and alcohol abuse.
64. The matter is remitted to the respondent for assessment of pension payable to the applicant in accordance with these Reasons for Decision, with date of effect of 18 May 2000.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: S Oliver
Associate
Date of Hearing 9 December 2003
Date of Decision 30 January 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr D McAninly, Departmental Advocate
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