Maier and Repatriation Commission
[2001] AATA 117
•16 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 117
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/902
VETERANS' APPEALS DIVISION )
Re GRAHAM ALAN MAIER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr JD Campbell, Member
Date16 February 2001
Place Sydney
Decision Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant: a) has a psychoactive substance dependence disease (alcohol); and b) this disease is war caused; and c) the war caused disability entitled the Applicant to be paid a pension at 80% of the general rate with date of effect being 4 May 1997.
[Sgd] Dr JD Campbell
Member
CATCHWORDS
Veterans Affairs – operational service – stressor – nature of post traumatic stress disorder – alcohol dependence –service pension – capacity to work – Intermediate or Special Rate.
Veterans' Entitlement Act 1986, Section 23, 24, 120, 120A, 120B
Mackay and Repatriation Commission (2000) AAT 16 June 2000
REASONS FOR DECISION
Dr J D Campbell, Member
Mr Graham Maier ("the Applicant") in this matter seek a review of the decisions of the Repatriation Commission ("the Respondent") dated 18 February and 21 February 1990 which refused the Applicant's claim for post traumatic stress disorder with alcohol abuse and confirmed the disability pension at 40% of the general rate respectively. These decisions had been reviewed and affirmed by the Veteran's review Board in the decision of 5 May 1999.
A hearing was held before the Tribunal on 21June 2000 at which the Applicant was represented by Mr Dawson of Counsel. The Respondent was represented by Ms Breuer, an advocate from the Department of Veterans' Affairs. Oral evidence was given by the Applicant and Dr Walden. Written submissions were obtained from the Applicant on 18 September 2000 and from the Respondent on 11 December 2000.
The following material was placed in evidence before the Tribunal: Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit Number T1-T32 A1 A2 A3 A4 R1 R2 R3 R4 R5 R6 R7 R8 Description Documents pursuant to section 37 of the Administrative Appeals Tribunal Act Statement of Applicant Medical report of Dr Dinnen Statement of Mr Kerr Applicant's statement of facts and contentions Medical report of Dr Walden Clinical report of Dr Mattick Medical report of Dr Burns Report of Mr Tilbrook Clinical Notes of Dr Kam re the Applicant Employment records of the Applicant DSM IV Criteria for post traumatic stress disorder Respondent's statement of facts and contentions Date 20 September 1999 25 October 1999 25 October 1999 11 November 1999 21 September 1999 15 May 2000 23 December 1999 24 May 2000 15 June 2000
ISSUES
The relevant issues before the Tribunal are:
a)whether the Applicant's conditions of post traumatic stress disorder and alcohol abuse are war caused; and
b)whether, if they are war caused disabilities, what is the assessment for these disabilities; and
c)whether the Applicant is entitled to payment of pension at intermediate or special rate.
LEGISLATION
The relevant legislation in this, matter is the Veterans' Entitlement Act 1986, ('the Act'), and in particular ss 23,24,120,120A,120B.
PRELIMINARY MATTERS
The Applicant's periods of operational service are:
·27 May 1965 to 26 June 1965
·14 September 1965 to 20 October 1965
·16 March 1971 to 11 October 1971
The Applicant's period of eligible defence service is from 7 December 1972 to 4 April 1976.
The relevant standard of proof for:
a) determining whether a disease exists is that of reasonable satisfaction;
b) operational service is that of reasonable hypothesis pursuant to ss 120(1), (3), and 120A of the Act;
c) eligible defence service is that of reasonable satisfaction; and
d) matters of assessments that of reasonable satisfaction.
The earliest date of effect, if the Applicant is found to be successful, is 4 May 1997.
APPELANTS EVIDENCE:
The Applicant told the Tribunal that he was born in Belmore on 24 May 1941, and after leaving school at age 15 he commenced but did not complete a fitter and turner's apprenticeship. After this he tried several jobs including storeman, bootmaker and electrical traders. In 1964 he joined the navy and after receiving training he was allocated to engineering where he was trained in watch keeping for all machinery, damage control equipment and refrigeration. The Applicant stated that in 1965 he served on the HMAS Sydney as a watch keeper on evaporators in the boiler room during two operational tours of duty to Vietnam. The Applicant stated that the boilers were on decks well below the water line and were entered by way of air locks.
In 1971 the Applicant served as a watch keeping petty officer in the boiler rooms, located well below the water line on HMAS Brisbane during its tour of operational duty in Vietnam. In normal duty circumstances he would work four hours on and eight hours off, but when in a war zone, it would be four hours on, four hours at a defence station, and four hours off, a work activity which he undertook for 58 days. During periods of firing it was noisy with the sound of firing more muffled in the boiler room. The noise was evident in the sleeping quarters, although sometimes he slept through it. The work in the booiler room was physically demanding and hot with temperatures ranging from 100 – 175°F. At the end of each boiler room shift his overalls were wet and he was physically exhausted, and after four hours of rest he felt as though he had not slept at all.
The Applicant confirmed to the Tribunal that what he had stated in his statement of 20 September 1999 was his best recollection. The following is an extract taken from his statement relating to an incident in which HMAS Brisbane was stated to be deployed in the waters of the First Military Region:
"…
I can't remember the date or the exact position to where we were, except that we were in the First military region, this also took in the DMZ. Most of our targets often required us to be as close as a quarter of a mile from shore. I was the Petty Officer in charge of the watch in number one firing room, from memory it was the middle watch.
We were close in shore at the time, I can remember the engine room orders half ahead thirty revolutions.
I heard a horrifying loud metallic bang on the ships hull about where the bilge keel is. I knew we had hit something, a mine, and I waited for the sea to rush in. We were dead. Time seemed to stand still. I ordered a damage report and a check on the bilge depth. During this time I rang the engine room as was told they had heard the bang as well. I reported the incident to the bridge and told the bridge there was no apparent damage. I then logged the incident in the fire room incident log.
For the remainder of the watch I was still waiting for the sea to rush in, it may have had a timing device fitted. My crew was the same as I was; all waiting to die. After being relived [sic] by the morning watch I went to my defence station at repair 3. The thought of the mine exploding was worrying me.
Two days later the nightmares started, I was trapped in the mess as the ship sank, the water pouring in and the door to the mess was jammed and I could not move my legs. I started to spend as much time as possible on the upper deck and began to fear going down the fire room.
Even today [sic] I can still see the horrified look on my crew, my water tender was L M E Barter, but I can't remember who my stokers were. My smoking increased from less than a pack a day to sixty a day and it still is.
…" (Exhibit A1)
In further comments to the Tribunal, the Applicant indicated that he continued carrying out duties in the boiler room and when the ship returned to Sydney, and was dry docked, he went to inspect the hull and found nothing. The Applicant stated that he stayed on the Brisbane until December 1973, following which he served for 12 months at the apprentices' training school, before rejoining HMAS Brisbane in Darwin as an automatic combustion controlled maintainer. He remained with the ship until April 1976 when he left the Navy.
The Applicant stated that he was employed by the gas company for a short term after discharge, before joining the meter reading branch of the electricity company. Initially he was employed as a meter reader but later became a supervisor, which involved supervising groups of men in both inside and outside work.
The Applicant stated that in 1997 he was unable to handle the work situation; that he would abuse and accuse people of taking things; that he was unable to cope and that he would disappear from work by taking his car keys and driving off. When he found he could not take it any more he left work in June 1997, and because of recent dreams of being trapped and his ship sinking, he went and saw his local doctor, Dr Kam who, in time, referred him to Dr Altman, who prescribed Zoloft for the Applicant. The Applicant stated that he had received some valium in 1976, for similar symptoms while still serving in the Navy, and apart from discussing his problems with an old navy colleague and trying to discuss them with his two ex-wives, he had not discussed them with anyone else.
The Applicant indicated that since leaving his employment he had been registered with Centrelink and that apart from the interviews prior to leaving his former employment, one of which was terminated during the interview because he expressed views that the interviewer was not running his business in the correct fashion, he has not been to any further work interviews. The Applicant, while confirming that after treatment with Zoloft he felt totally different, considered that he would not last five minutes in the work situation, as he would disagree with somebody; that he would be a slow worker and trip over and that he is unable to bend over or straighten up.
The Applicant indicated that he lives alone and has done so for 10 years. He carries out the normal domestic tasks, works on his model railway, sees a couple of his ex-navy mates and his mother and goes fishing occasionally. The Applicant further indicated that he has been married twice and has three children and two stepsons, contact being maintained with one child and one stepson on a regular basis. The Applicant indicated that he preferred to visit other people rather than have visitors, because they will not go when he does not want them there. The Applicant also stated that he does visit his two neighbours as they are both ex-servicemen and does visit ex- service colleagues at the model railway club, which he visits of a weekly basis. He also used to visit the Vietnam Veterans Association on a weekly basis, but has ceased doing so.
In relation to alcohol consumption, the Applicant stated that prior to going to Vietnam he would consume about three middies on a Saturday evening; that during his service on HMAS Sydney he was having two cans a night; that after the incident in 1971 on HMAS Brisbane he was drinking as much as six cans a night and when on shore he would write himself off. On his return to Australia he would drink up to a case of beer (24 cans) on a daily basis reverting to two cans of beer when at sea. After leaving the Navy the Applicant stated that he would drink a dozen stubbies on a weekday and a case a day on the weekend. At the time of the hearing, the Applicant said that he was consuming some 12-24 stubbies of home made beer per day and that he eats breakfast and occasionally an evening meal. The Applicant indicated that he has tried to cut down on his consumption of beer, but when he becomes upset and stressed he reverts to his previous habits. He further stated that he has had a few accidents with his work car and that on occasions he had been caught drinking and driving while in the Navy. Currently he drives mainly around the Central coast, except when he drives his mother to Greystanes and back about once every six weeks.
In response to questions in cross examination, the Applicant stated that he underwent basic training at HMAS Cerberus, after which he was posted to HMAS Sydney, where he was given briefings concerning floating objects, mines, under water divers and swimmers. The Applicant stated that his sea duties were associated with the engine room, while when the ship was berthed he would join a cargo party, loading and unloading stores. When loading and unloading the HMAS Sydney in the Mekong Delta (Vung Tau) armed sentries were posted, and the Applicant confirms that training for emergency procedures was undertaken.
The Applicant stated that he joined HMAS Brisbane in March 1971, and for the full year his normal station was the fire room, where there was a high level of noise at all times. His action station was one deck above water. The Applicant stated that in relation to the incident, he does remember being in Da Nang Harbour, and that the mine incident occurred not long after riding out Typhoon Freda in 1971. He also recalled a single episode of "R and R" leave in Subic Bay after the event and before the ship returned to Sydney, during which the gun barrels were replaced.
The Applicant confirms that after hearing the loud noise he rang the engine room and he waited for water to rush in, expecting the mine to blow at any moment. Further he states that he reported the incident to the Bridge and logged it in the engineering incident log that there was no apparent damage after the episode. The Applicant stated that he went to repair 3 (action station) where he sat and continued to wait and think about the mine exploding even though he was aware that a sweep of the ships hull had been undertaken. In his opinion this was not evidence that there was no mine attached to the hull. The Applicant confirms that the hull was not checked in Subic Bay, and that his first opportunity to view the hull was on the return of the ship to Sydney, but he continued to believe that a mine had stuck to the ship and may have remained attached.
The Applicant responded to evidence collated by Mr Tilbrook, and in particular to statements made by Lt. G Prass, who served on the bridge of HMAS Brisbane for much of the 79 days in Vietnam waters. The latter stated that he "is certain that at no time during that second deployment did HMAS Brisbane hit any suspected sea mine or any other submerged object." The Applicant stated that such comments are taken from the monthly reports and that the engineering incident log had not been examined; that Lt Prass may not have been on the Bridge at the time and that it may have been written in the ship's rough log. In essence the Applicant states that he disagrees with Lt Prass.
In further responses the Applicant stated that he had never raised with the commanding officer his fears that a mine may remain attached to the hull, as it was not his place to do so. Nor did he suggest to anyone that the hull be inspected while in Subic Bay, as there was beer to be drunk.
Further the Applicant stated that he has never stopped thinking about this incident since it occurred in 1971. He talked about his feelings only to a few mates, including Mr Barter, well after he returned from Vietnam, however he did talk to his fellow stokers immediately after he got off watch. The Applicant stated that he first started telling doctors of the incident in 1997, because the dreams were driving him insane. In recounting the history of his dreams the Applicant stated that these commenced immediately after the incident and grew in intensity over the ensuing years until they occurred nightly. He spoke to doctors as late as 1997, believing that they would not have been interested any earlier. The Applicant also stated that he had tried to talk to his two wives but they were not interested.
In response to questions about his redundancy the Applicant indicated that it occurred as a result of reorganisation and that it was suggested that he take it.
The issue of redundancy had been raised as early as June 1996 when he complained of stress to his local General Practitioner, Dr Kam, which he believed to be associated with the increased frequency of his nightmares. Work was "getting him down" and he was becoming irritable. The Applicant stated that he told Dr Kam of his nightmares in June 1997, because he wished to tell someone about them. Dr Kam referred him to Dr Altman, who he first saw in August 1997. As a consequence of what Dr Kam told him, and some decisions made by people from the Vietnam Veterans' Association, the Applicant lodged a claim with the Respondent on 31 July 1997 for post traumatic stress disorder/anxiety.
The Applicant further stated that he had every intention of seeking work after his voluntary redundancy and after one interview with Centrelink staff, during which there was an argument, he remained registered for work but never returned because his doctor put him off work with a certificate, pending receipt of a psychiatric opinion. The Applicant stated that it was after he saw Dr Altman and a diagnosis of post traumatic stress was made, that he was told by Dr Altman that he would be unable to work. In response to further questions the Applicant certified that he had sought work prior to leaving the electricity company, that the newspaper work advertisements were scanned, but that he did not apply for any jobs listed as he did not believe he had the relevant skills. The Applicant further stated that he did not apply for any jobs after seeing Dr Kam in April 1997.
In relation to marital problems in 1976, the Applicant indicated that he was consuming a lot of alcohol and that he argued frequently with his wife. He struck her and was asked to leave, resulting in divorce a short time later. The Applicant stated that he had discussed the domestic situation with a Navy doctor in January 1976, but did not mention any issues relating to the mine incident. During his employment with Energy Australia, as a special meter reader and later as a supervisor, the Applicant indicated that he had to travel an hour each way to and from work as he lived in Umina and worked in Five Dock, and that he took one day informal sick leave in 1997, and prior to that sick leave in 1994. The Applicant stated that he used his redundancy payment to pay off his house and that he is currently receiving a service pension and disability pension at 40% of the general rate. The Applicant does not believe he would be able to work as a meter reader or a clerk because of his irritability arising from his psychiatric condition. The Applicant also stated he suffered from asthma and bronchitis, with shortness of breath causing him some day to day difficulties. He has had a previous head injury while serving in the Navy and some back pain for many years, which permits him to stand for some 15 minutes, walk for one kilometre at a slow pace and causes him some difficulties in bending and squatting. Further the Applicant indicated that he had been diagnosed with tennis elbow, which when acute creates difficulties in picking items up. He also stated that he has irritable bowel syndrome, diarrhoea and incontinence, which caused him to take time off work in the past. In other comments he stated that he used the train when visiting Dr Altman (once a month) and the Vietnam Veterans' Association (once a week) in Gladesville and that he still has approximately $1500 remaining from his redundancy payment.
OTHER EVIDENCE
Mr Kerry Kerr in a statement dated 25 October 1999, confirmed that when he was a leading hand stoker on board the HMAS Brisbane on the gunline of the coast of Vietnam in 1971, a large bang on the ship's hull was heard by all personnel on watch. This was thought to be the result of an underwater explosion or the ship hitting an unidentified object (Exhibit A3). Similar written evidence of the incident was provided by Mr Clark in his statement of 5 February 1999 (T24), Mr Barter (T25) and Mr Wilson (T28).
In his report dated 24 May 2000, Mr Tilbrook, a naval researcher, concluded that no evidence could be found in the report of proceedings for HMAS Brisbane of any significant shipboard events or any traumatic incident during its operational tour of duty in Vietnam between 16 March 1971 and 11 October 1971. Further Mr Tilbrook noted that the then Commanding Officer of HMAS Brisbane in Vietnam in 1971 had submitted a statement to Department of Vietnam Affairs, Sydney, in which he states "I do not remember any device exploding against the hull of the RAN Ship". Similarly the researcher, having spoken with Lt Cr Prass who was on the bridge of the HMAS Brisbane during the deployment in question, was unable to confirm that the Brisbane hit any suspected mines or any other submerged object during the period in question. It was further established that it was normal practice for RAN ship to operate some 10,000-12,000 yards offshore, as the costal water were very shallow (Exhibit R4).
MEDICAL EVIDENCE
Dr Altman:
In a medical report dated 11 February 1998, Dr Altman, a consulting psychiatrist, summarised his findings in relation to the Applicant in the following manner:
"…
In summery, in my opinion as a result of his Vietnam experience, Mr Maier suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence. In my opinion his psychiatric impairment according toTable 4 from the Guide to the Assessment of Rates of Veterans' Pensions related psychiatric disorders alone he is totally and permanently unfit to work in my is 45 points. Furthermore in my opinion as a result of the above mentioned war- opinion he should be paced on a T&PI "disability pension." (T11, P43)
In a further medical report dated 18 February 1999 to the Veterans' Review Board, Dr Altman confirmed his diagnosis and assessed his psychiatric impairment at 50 points and that the stressors nominated, namely the "loud bang at the ship's hull" and "I thought we were dead", were sufficient to cause a Post-traumatic Stress Disorder. (T21, P81)
Dr Dinnen:
Dr Dinnen, a consultant psychiatrist, examined the Applicant on 24 September 1999 and in a report dated 25 October 1999, made the following comment in relation to the incident of the metallic bang and summarised his opinion in the following terms:
"…
Comment: Nothing appears to have been considered in all of these paper wars about the nature of the experience of a stoker on board a vessel at war. I have examined many stokers through the years. All of the have told me about the constant feeling of tension in the boiler room, no doubt engendered by the noisy and dirty and dangerous conditions. Working in a confined space with machinery is always potentially lethal, but the reality is that should any significant damage occur to the ship, they are the ones most likely to be killed. The admittedly rare incident of the Westralia of the coast of western Australia last year is such an example. Little weight appears to have been given to the emotional impact of having spent 12 years, perhaps half of them at sea, working in such an environment. There is absolutely no doubt in my mind that the incident must have occurred, whether it was reported or logged or not, for I believe this gentleman is a witness of truth.
Opinion: The patient does suffer from chronic post traumatic stress disorder associated with alcohol dependence. The condition dates from his service on the gun line in the waters of Vietnam during the Vietnam War, on HMAS Brisbane.
It is my considered opinion that he patient's condition would under all circumstances in which I have encountered through 30 years of assessing and treating war veterans, be normally accepted as a consequence of that service.
The Statements of Principles are not so narrow I believe as to exclude from the acceptance of his claim. However, that may well be an argument for lawyers and I do not wish to venture into that territory.
In any event, it is quite clear that the patient's incapacity causes him to be totally incapacitated for work. I do not believe he is capable of working up to 8 hours a week because of his chronic psychiatric disorder."
Assessment of Impairment: (See attached work sheet) The score of 49 is consistent with his chronically severe level of disturbance."(Exhibit A2)
Dr Walden:
Dr Walden, a consultant psychiatrist, assessed the Applicant on 16 September 1999 and in a report dates 21 September 1999 detailed the following summary and opinion.
"…
Mr Maier fulfils the DMS-IV Criteria for Alcohol Dependency. He exhibits tolerance, drinks more than is intended and has been unsuccessful in attempts to control his alcohol use. Whilst he states he has been told he drinks excessively, but never told it may be the cause of other health problems, I would find it surprising if his treating psychiatrist has not pointed out that alcohol is likely to make him feel more depressed and exacerbate his irritability. Mr Maier states that his alcohol consumption increased markedly after an event in 1971 in which he believes that a mine hit the side of the ship on which he was serving but did not explode. He had consumed alcohol prior to this point, but denied that it was problematic.
I note there is some dispute over the alleged incident in 1971. The 'T' documents include copies of letters from Mr Ray Clark and others stating that such an incident happened, although the exact date and time is unclear. Official naval historical records have no record of this event.
Even assuming that the event occurred, as Mr Maier recollects, I doubt that this would qualify as 'a severe stressor' as outlined in the Statement of Principles concerning Alcohol Dependence and Alcohol Abuse. Mr Maier may indeed have been very frightened transiently by this event, but it would soon have been evident that here was no threat to his safety. I don not consider that he was suffering from any other psychiatric disorder at that point.
I note Mr Maier's treating psychiatrist, Dr Altman, has also diagnosed Post-Traumatic Stress Disorder and Major depression. This diagnosis required a severe trauma in which events involved actual or threatened death or serous injury. I cannot satisfy myself that Mr Maier's description of the events in 1971, even assuming it was as he recollects, actually satisfies this criterion.
He describes recurrent thoughts and nightmares about the incident. Most of his nightmares however are of incidents that did not actually happen but are more an expression of fears about what might have happened. Symptoms such as difficulty with his sleep and irritability are not specific to Post-traumatic Stress Disorder and are well accounted for by his alcohol dependence.
He states he avoids stimuli that remind him of the war. There is some inconsistency in these reports in that he has a lot of contact with Vietnam Veterans' Association and states he enjoys this very much. Whilst he denies that the veterans ever discuss war- related matters, I find it surprising that he does not find contact with the veterans a reminder of his war experience.
Mr Maier does not describe symptoms I consider consistent with a Major Depressive Disorder. I note that he is currently on an antidepressant medication and this may have ameliorated possible depressive symptoms, though he does not particularly describe them in retrospect.
…"(Exhibit R1)
Dr Walden in her report considered that the Applicant's mental state examination showed some difficulties on formal testing which she considered to be more consistent with exaggeration that an organic memory deficit. Dr Walden assessed the impact of the Applicant's diagnosis of alcohol dependence under GARP V to be a score of 26 and a lifestyle rating of 2. In relation to the Applicant's work capacity, Dr Walden believed that there were other factors involved in his cessation of work apart form the alcohol dependence and that the latter condition alone would not prevent him from undertaking remunerative work for more than 20 hours per week.
In oral evidence before the Tribunal, Dr Walden, in confirming her opinion that the Applicant did not respond to the "mine incident", stated that a practical and rational response as described by the Applicant was not consistent with a response of intense fear, horror or helplessness. In considering whether a threat had to be realistic or whether it can be the apprehension of an event, Dr Walden was of the view that for a meaningful diagnosis, the threat should generally be a realistic threat. Dr Walden also commented that the Applicant's inability to remember the time and date of the event, and his state of continuing fear for a few months until the ships hull was examined at Garden Island point to be an unrealistic assessment by the Applicant of the threat. Further, Dr Walden reiterates her concerns about the applicants response to memory assessment and his ability to remember in fine detail particular events relating to the "noise incident" and thereafter. Similarly, Dr Walden noted that the varying content of the Applicant's nightmares were not consistent with an individual suffering post traumatic stress disorder. The Applicants stated aversion to heights and enclosed spaces were inconsistent with his actions and that the Applicant is very likely to exaggerate his symptoms, as evidenced by both her examination and that of Professor Mattick. When the Applicant completed self-assessment inventories, which presented a clinical picture of severe depression and anxiety, it was clearly inconsistent with the Applicant's level of functioning.
Professor Mattick:
Professor Mattick, a consultant clinical psychologist in both anxiety disorders, alcohol dependence and abuse and other addictive disorders, examined the Applicant for four and a half hours on 15 May 2000 and in his report of the same date summarised his findings in the following terms:
In summary he claims total disability.
16.12.1 He claims post-traumatic stress disorder. There is opinion that he suffers such a disorder. There is also opinion that he does not. I tend to agree with Dr Walden that the noise in the hull of the ship was not a suitable qualifying event. Others obviously take a different position. My view is based on the fact that for many years there is no record of any episodes of anxiety or depression despite the fact that he saw his general practitioner very frequently. My view is also partly based on the fact that although these events are supposed to be very stressful and cause such ongoing emotional disturbance currently that he can not work, he was able to talk about them to me without any apparent emotional distress. The clear mismatch between his presentation to me and his claim that discussing such events causes emotional distress makes me believe that he is overstating any symptoms he may have because of the event. I would not be surprised if he has not had any such symptoms.16.12.2 I think the most reasonable hypothesis in this case is that his heavy drinking over many years caused him to perform poorly at work and/or to become irritable at work. He may have some subjective problems with memory and difficulty organising his day to day activities because of this excessive drinking. This, in turn, may have caused difficult interactions in the workplace. Subsequent to these difficulties he was offered redundancy, presumably because he was not an efficient or valued worker. Thereafter, he sought a DVA pension. It would be interesting to obtain the employment records from Energy Australia to comment further.
16.12.3 He does meet criteria for alcohol dependence. If one takes this report at face value the stressor on HMAS Brisbane caused his to drink heavily and that drinking led to subsequent alcohol dependence. The alcohol dependence is mild and not disabling.16.12.4 In terms of his vocational capacity, he has a variety of supervisory and clerical skills. I believe that he is able to work in clerical job for at least 8 and up to 20 hours per week. I suspect that he is able to work more than this but he can work at least 8 hours in a clerical capacity."
(Exhibit R2)
Dr Burns:
37. Dr Burns, a consultant occupational physician, examined the Applicant on 23 December 1999 and in his report of the same date stated the following conclusions.
"…
Mr Maier is not incapacitated from working due to his accepted disabilities alone. Certainly his two accepted disabilities would have minimal effect on his capacities to work.With respect to his psychological problems, which have been diagnosed as post-traumatic stress disorder, they would have significant impact upon his work. He would not be able to cope very easily with stress. In the past he had had outbursts of anger and has become quite aggressive. I do not believe that he would be capable of working more than 20 hours per week in a job with any stress. I do believe, though that he may be able to work in a clerical capacity from 8 to 20 hours per week, which is less stressful. I believe if is unfortunate that even though he registered with Commonwealth Employment Service that he has never actually attempted to do any other work. Certainly his previous job was inappropriate as he was in a fairly high stress situation. I do not believe he would be capable of returning to his previous employment.
In conclusion, I believe that he may be able to return to some light clerical or administrative work for between 8 and 20 hours per week. I believe, though that it is highly unlikely that Mr Maier will apply for such work. Even if he did so there is no hundred per cent guarantee that he would be able to carry it out."
(Exhibit R3)
SUBMISSIONS
The Applicant:
38. Counsel for the Applicant submitted that the Applicant does suffer from post-traumatic stress disorder with alcohol dependence as nominated by Doctors Altman and Dinnen, and Doctors Walden and Professor Mattick in relation to alcohol dependence. In relation to the issue of the stressor, it was submitted that the event, described by the Applicant as the "noise incident" and corroborated by his navy co-workers at the time, constitutes a stressor and that the Applicant's subsequent symptomology meets all the requirements demanded for a diagnosis of post traumatic stress disorder to be made, together with alcohol dependence. In making such a contention the Applicant relies on his own evidence, that of his boiler room navy colleagues and the opinion of Doctors Altman and Dinnen.
39. Counsel also submitted that the Applicant suffered from war caused alcohol dependence and in this regard relied upon the opinions of Dr Altman, Dinnen, Walden and Professor Mattick.
40. It was Counsel's contention that his war-caused disabilities alone were preventing the Applicant from working and would continue to do so. As such it was the Applicant's primary submission that he was entitled to a special rate pension, in the light of the particular GARP assessments by Doctors Altman and Dinnen in relation to his post-traumatic stress disorder and his alcohol dependence giving rise to a 90% disability pension rate, as well as their opinions that the Applicant was unfit to work more than eight hours a week because of his war-caused disabilities alone.
41. Alternatively Counsel submitted that in the absence of a war-caused psychiatric disability, and in turn relying upon the opinions of Doctors Walden, Burns and Professor Mattick in relation to the issue of war cause alcohol dependence, the Applicant would be appropriately assessed at an 80% disability pension rate, and that at best could have an ability to work between 8 and 20 hours per week, with Dr Walden being of the opinion that the Applicant would be able to work more than 20 hours per week. Counsel submitted that at worst the Applicant in such circumstances should be entitled to payment at an intermediate rate.
The Respondent:
42. The advocate for the Respondent submitted that the diagnosis of post traumatic stress disorder had not been properly established, as it was evident that on proper analysis of the Applicant's evidence and the opinions of Dr Walden and Professor Mattick in relation to the clinical assessment of the Applicant, all the criteria within DMS IV and the appropriate Statement of Principles for post traumatic stress disorders had not been met. Further the Respondent contended that the issue of whether the "noise incident" had ever occurred must be questioned in light of reports submitted to the Tribunal (Mr Tilbrook , Rear Admiral R G Loosli), the evident exaggeration and inconsistencies of the Applicants symptoms noted by Dr Walden and Professor Mattick, the nature of his nightmares and subsequent statements and actions.
43. In such circumstances the Respondent contends that a reasonable hypothesis has not been constructed in relation to the post traumatic stress disorder and the matter should end as regards to this condition.
44. In relation to the Applicant's alcohol dependence, the Respondent is satisfied that the diagnostic criteria for the psychoactive substance abuse is established as provided by clause 4 of Instrument No 5 of 1994 on the balance of probabilities (report of Dr Walden (Exhibit R1 and her oral evidence), the reports of Professor Mattick (Exhibit R2), Dr Dinnen (Exhibit A2) and Dr Altman (Exhibit A1)) The Respondent however contended that the Applicant neither satisfies factor 1(b) or factor 1(a) of the Statement of Principles, Instrument No 5 of 1994, in that he did not have a psychiatric disorder prior to the onset of alcohol dependence, nor has he experienced a stressful event as defined by clause 4 and accordingly a reasonable hypothesis has not been raised.
45. In relation to assessment the Respondent contends that the Applicant has been correctly assessed at 40 percent of the general rate for his war caused disabilities and relies upon the report of Dr Burns. If the Applicant's alcohol dependence is found to be war caused the Applicant's appropriate assessment for this condition is 26 points (reliance upon Dr Walden), and that an overall assessment for his war caused disabilities would be 45 points under GARP V with an average lifestyle of 3. This would result in a pension being paid at 80% of the general rate. Here the Respondent relies upon the reports of Drs Walden and Burns.
46. In relation to the special rate, the Respondent would agree that ss24(1)(a) of the Act is satisfied with the assumption that alcohol dependency has been found to be war caused. In relation to ss24(1)(b) the respondent contends that the Applicant has a capacity to undertake remunerative work for at least eight and up to 20 hours per week (Doctors Walden and Burns and Professor Mattick), or more (Dr Walden). Further, despite the granting of a service pension, with the only evidence before the delegate being the report of Dr Altman, the Respondent contends that the Tribunal must itself be satisfied that the Applicant cannot work more than eight hours per week, and in this regard less weight should be given to the opinions of Doctors Altman and Dinnen, as they did not seek to justify their opinions with reasons.
47. In further submissions the Respondent notes that the Applicant raised a number of other issues, which caused him difficulty in undertaking, work. These included loss of balance, inability to bend or straighten, not being able to cope with work, being closed in, suffering frequent and prolonged bouts of diarrhoea. Further because of his smoking, his ability to work efficiently is effected by his shortness of breath and lack of fitness. The Respondent further notes that all of these conditions are not considered to be war caused and as such any inability to work is due to both war caused and non war caused disabilities. As such the Respondent contents that ss24(1C) is not satisfied.
48. Further the Respondent contends that the Applicant has made no meaningful attempt to look for work since his redundancy and as such the ameliorating provisions provided by ss24(2)(b) are not applicable.
49. Finally, in relation to an intermediate rate, the Respondent, on the assumption that the alcohol dependence is war caused, concedes that the Applicant satisfies ss23(1)(a), 23(1)(b) and 23(2) of the Act, but does not satisfy 23(1)(c).
CONSIDERATION AND FINDINGS
50. The Tribunal in preliminary comment notes that the issues raised in this matter require the Tribunal to explain in some detail the factual matters involved and a consideration of those factual matters against the diagnosis outlined for post traumatic stress disorder and psychoactive substance abuse or dependence. The Tribunal notes that the relevant Statements of Principles relevant in this matter are:
1) Post Traumatic Stress Disorder – Instrument No 15 of 1994 as amended by Instrument No 225 of 1995; and
2)Psychoactive Substance Abuse or Dependence - Instrument No 5 0f 1994.
51. The Tribunal further notes the relevant definition of post traumatic stress disorder contained within paragraph four of the Statement of Principles Instrument No 15 of 1994 as amended by instrument No 225 of 1995:
"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 threatening death or serious injury, or a threat of 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 awaking or when intoxicated;
iv.intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
v.physiological reactivity on exposure to internal or external cues that symbolise 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 thought, 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 diminishing interest in participation in significant activities;
v.feelings of detachment or estrangement from others;
vi.restricting range of affect (eg unable to have loving feeling;
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 increase arousal (not present before the trauma)), as indicated buy 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 paragraph (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."
52. The Tribunal also notes comments concerning the diagnostic features of post traumatic stress disorder contained within DSM-IV, from which the definition contained within paragraph four of the Statement of Principles Instrument No 15 of 1994 is derived, and in particular the following extracts.
"…
"the essential feature of post traumatic disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor...the full symptom picture must be present for more than one month (criteria E) and the disturbance must cause clinically significant distress or impaired in social, occupational, or other important areas of functioning (criteria F).
…
Events may be traumatic events experienced personally, witnessed events, or events experienced by others that are learned about.
…
In post traumatic stress disorder, the stresses must be of an extreme nature (ie life threatening). In contrast in adjustment disorder the stresses can be of any severity.
…"
53. The Tribunal in considering the facts in this matter notes that here are a number of statements from fellow mariners who were aboard HMAS Brisbane at the relevant time, which serve to corroborate the Applicant's evidence in relation to the "noise incident". There is further evidence compiled by Mr Tilbrook and a statement by the then ship's captain Rear Admiral Loosli that does not corroborate the Applicant's evidence. The Tribunal, while noting the differences between the two bodies of evidence, accepts that an incident where a loud noise was generated and apparently arising from the hull externally did occur while the Applicant was on the HMAS Brisbane on the gun line in open seas in the vicinity of DMZ sometime in the middle third of 1971. The Tribunal also notes that neither the Applicant nor his fellow sea men, who provided statements to the Tribunal, were able to be specific as to the date, time or month, and while the Applicant identified the noise as relating to a mine striking the hull, others were less specific and spoke only of a loud noise.
54. The Tribunal further observes that at the time of the incident, the ship was on a gun line, was engaged in combat with the enemy, albeit at a distance of some miles, with the ship manned for action.
55. The Tribunal notes the evidence of the Applicant in relation to hearing a loud metallic bang on the ships hull and his specific response to the event, including ordering a damage report and a check on bilge depth, ringing the engine room and reporting the incident to the Bridge and telling them there was no apparent damage. The Tribunal also notes that the Applicant remained at his station for the rest of the watch, moved to his defence station for the next watch and later to his mess. The Tribunal observes that there is a discrepancy between his written statement concerning the commencement of nightmares (two days later) and his oral evidence in which he states that the nightmares commenced on the evening of the incident.
56. The Tribunal further acknowledges the Applicant's service and post service employment and social history. In relation to his service employment the Tribunal notes that despite the continuance of nightmares of varying content, the Applicant continued to serve in the boiler room for the remainder of the tour of duty in Vietnam and for another year, and did join the HMAS Brisbane again in a different capacity in his final year of service. The Tribunal notes the Applicant's fixation with the mine being attached to the hull, with this fixation being extinguished only when he was able to observe the hull in the dry dock in Sydney some months later.
57. The Tribunal observes that the Applicant was treated with valium by a naval medical officer in 1976, at the time he was experiencing marital problems. It is evident to the Tribunal that between 1971 and 1997 the Applicant did not speak to any medical practitioner about his nightmares, and that when he did do so to Dr Kam, it was at a time during which his employment with Energy Australia was being curtailed by way of redundancy.
58. In assessing the medical evidence in this matter the Tribunal notes that both Dr Altman and Dr Dinnen believe that the Applicant has post traumatic stress disorder. Further, as a consequence of the Applicant's stated symptomology and Dr Altman's report, a service pension was granted to the Applicant in 1997 on grounds, apparently, of invalidity.
59. From the evidence of Dr Walden and Professor Mattick, the Tribunal draws the clear inference that the Applicant exaggerated his clinical symptoms as evidenced by the result of the self assessment inventories for both anxiety and depression conducted by Professor Mattick. Further the two clinicians clearly demonstrate inconsistencies between what the Applicant states what his symptoms are and what he actually does do. In this regard both clinicians allude to the issue of confined spaces complained of but not avoided; requirements for low standing building structures with ready exit and his use of lifts and presence for some hours in high rise office and Tribunal facilities; avoidance of stimuli and his weekly visit to the Vietnam Veterans' Association in Gladesville.
60. In considering the issue of alcohol dependency the Tribunal notes that Doctors Altman, Dinnen and Walden and Professor Mattick all agree that the Applicant suffers from alcohol dependence. Dr Walden concludes that all the Applicant's psychiatric symptoms are associated with and/or explained by the presence of alcohol dependence syndrome.
61. In considering the necessary criteria for a diagnosis of post traumatic stress disorder to be made, the Tribunal turns to an examination of the Applicants symptomology and events against the definition of the disorder combined with paragraph four of the Statement of Principles Instrument No 15 of 1994. The Tribunal, following such a consideration details the following:
a)In relation to paragraph 4(a)(i), it is the evidence that the Applicant heard a large metallic bang on the hull and that nothing else occurred. The Tribunal concludes that in the circumstances such a noise heard by the Applicant could constitute an experience in which death or serious injury could have occurred. In the Tribunal's view this particular occurrence requires an objective evaluation of the circumstances, and it is the Tribunals finding that the events described, when placed in the war zone environment and the Applicant's function in the boiler room, satisfies such an evaluation.
b) In relation to paragraph 4(a)(ii), the Tribunal finds that the Applicant's evidence, in particular the manner in which he continued to function and the activities he described as undertaking both as an immediate consequence of hearing the noise and thereafter, is inconsistent with a response involving intense fear, helplessness or horror. The Tribunal recognises that the Applicant may have entertained immediate thoughts for his safety, but his response was in his own evidence, both specific and particular. The Tribunal accordingly finds that the Applicant does not satisfy paragraph 4(a)(ii).
c)In relation to paragraph 4(b), the Tribunal concludes that the Applicant satisfies these criteria, although noting that his nightmares appear to be a composite of these different scenarios, and that these existed for a period of 26 years in which the Applicant did not seek medical assistance for such symptomology.
d)The Tribunal finds that the Applicant does not satisfy these criteria for paragraph 4(c), as there was no evidence advanced which would allow the Tribunal to find that he satisfies two of the criteria nominated. In this regard the Tribunal paid particular attention to the Applicants relatively stable employment history post service, his weekly visits to the Vietnam Veterans, his railway hobby, his friendship with ex-navy people and his satisfactory relationship with his two ex-service neighbours. As such, the Tribunal concludes that the Applicant does not satisfy paragraph 4(c)(i),(ii), (iii),(iv),and (vii). Of particular significance is the ability of the Applicant to recount to doctors the history of events without showing signs of avoidance of stress.
e)In relation to paragraphs 4(d)(e), and (f), the Tribunal is satisfied that the Applicant meets the diagnostic criteria nominated, following an examination of his evidence and the various clinical and documented reports.
As a consequence of the Tribunal's preliminary findings, the Tribunal concludes that the Applicant does not satisfy the criteria for post traumatic stress disorder as he fails to meet the requirements of particular criteria, namely 4(a)(ii) and 4(c).
In conclusion, and as a result of its earlier findings, the Tribunal finds that as the criteria for diagnosis of post traumatic stress disorder have not been found to exist, a reasonable hypothesis has not been raised in accordance with ss120 (3) of the Act.
In a further finding, the Tribunal in noting the definition of "experiencing a stressor" contained within paragraph 4 of the same Instrument No 15 of 1994, concludes that the Applicant does not satisfy this definition for the very reason that it was found that he did not satisfy paragraph 4(a)(ii) of the criteria for diagnosis of post traumatic stress disorder. As a consequence, and not surprisingly, because of the definitional elements contained within the two definitional statements, a reasonable hypothesis has not been raised in accordance with ss120(3) of the Act.
The Tribunal, in noting the clinical opinions of the consultants in this matter turns to a consideration of Statement of Principles Instrument No 5 of 1994, and in particular paragraph 9(a) and the definition of a stressful event:
"'Stressful event' means an incident in which there were external stimuli (such as combat) that would result in psychological stress and where there were significant symptoms of increased stress."
The Tribunal, having its attention drawn to the matter of Re McKay &Repatriation Commission [2000] AATA 483 argues that congruence should exist between the objective definition of experiencing a stressor within instrument No 5 of 1994 and a "stressful event". The Tribunal would however note that the two elements of the definition "experiencing a stressor" would appear to indicate an objective definition of the incident and a subjective response to that objective incident. This too would appear to be the circumstances in the "stressful event" definition.
The Tribunal has already concluded that the "noise incident" did occur in a situation where the ship and crew were on the gun line, that is, in an active combat situation. As a consequence of the "noise incident" the Tribunal has already concluded that the Applicant's subjective reaction was a not one of intense fear, helplessness or horror, that being the subjective element of "experiencing a stressor" definition. Nevertheless, on the evidence of the Applicant, the Tribunal concludes that the incident would result in objective psychological stress for the Applicant and that there is evidence of the Applicant demonstrating subjective symptoms of increased stress, namely his particular concern at the time, his subsequent dwelling on the incident and the commencement of nightmares within a short time of the event.
The Tribunal is satisfied that a reasonable hypothesis has been established, and further, after a consideration of all the evidence, that there exists no other material which would disprove beyond reasonable doubt the facts that go to constructing the hypothesis or the existence of other facts which by their existence would displace the existence of material facts.
The Tribunal finds that the Applicant's psychoactive substance abuse, namely alcohol, is a war caused disability.
ASSESSMENT
The Tribunal, having considered the Applicant's evidence, the clinical opinions of Doctors Walden, Burns and Professor Mattick concludes that the Applicant has the following impairment ratings:
Condition Table Rating
Bilateral Sensori Neural Hearing Loss Table 7.1 14
Tinnitus Table 7.1.11 10
Malignant Melanoma Right Upper Limb Table 17.1 5
Psychoactive Substance Dependence (alcohol) Table 4 26The Tribunal, in arriving at an impairment rating of 26 under table 4 considered the various reports and the Applicants evidence, and concluded that the Tribunal had no disagreement with the impairment allocation made by Dr Walden under the various sub tables for the war caused disease of alcohol dependence. Similarly, the Tribunal concludes that the Applicant has lifestyle rating of 3, having assessed the Applicant's evidence and other clinical findings against the lifestyle effects categories.
As a consequence of the Tribunals findings, the Tribunal finds that the applicant, with impairment rating under GARP V of 45 impairment points and a lifestyle rating of 3, is entitled to a general rate pension of 80% for his war caused disabilities.
In further consideration the Tribunal, having found that the Applicant is entitled to a general rate pension of 80% for his war caused disabilities, moves to the issue of payment at either the special or intermediate rate. The Tribunal notes that both Doctors Altman and Dinnen considered the Applicant unfit for work because of his post traumatic stress disorder with alcohol dependence, and that a service pension was granted as a result of Dr Altman's report. Further, it is noted that since the granting of his service pension and while awaiting such a grant the Applicant was receiving income support benefit as a result of medical certificates and has not worked or indeed looked for work. Indeed it is to be noted that the Applicant has not seriously looked for work apart from registering at Centrelink, since his redundancy in April 1997.
The Tribunal also notes the clinical opinions of Doctors Walden and Burns and Professor Mattick, which would indicate that the Applicant has a capacity to undertake immediate work for between eight and 20 hours per week, with Dr Walden and Professor Mattick being of the opinion that he could work even longer than 20 hours per week. The Tribunal in assessing all the evidence concludes that the Applicant is able to undertake remunerative work of between eight and 20 hours per week. In so finding the Tribunal prefers the opinions of Doctors Walden, Burns and Professor Mattick in that their opinions in this respect tend to be derived from a more detailed evaluation of the Applicant's symptomatology, his non war caused conditions and his ability to work.
Further the Tribunal finds there is much evidence to suggest that the Applicant does exaggerate his clinical symptomatology, and indeed consequent to both Dr Walden's and Professor Mattick's reports is of the view, and does so find, that as regards his clinical symptomatology the Applicant does exaggerate in the form of over-reporting his clinical condition.
The Tribunal further notes, from Dr Burns' report and from the evidence of the Applicant, that there are a number of other medical conditions which are non war caused, and for which he has had to receive treatment from Dr Kam. Such conditions have caused him to take time off work over the years prior to his redundancy. These conditions include asthma, for which he is treated with Ventolin and Pulmicort, and which causes him to wheeze at night and gives rise to a shortness of breath. The Applicant is able to walk at a slow pace for up to a kilometre, but is unable to walk up hill and inclines. He is able to mow the lawn with some shortness of breath occurring. The Applicant has an enlarged prostate with minimal symptoms, and chronic diverticulitis, which has caused, and continues to cause, personal hygiene inconvenience. He also has right intermittent lateral epicondylitis, which causes him difficulty in repetitive and fine use of the right arm and hand at times. The Applicant also considers that he would be a slow worker, prone to trip over and that he is unable to bend or straighten up.
From the description of the Applicant's non war caused disabilities the Tribunal concludes that such are significant and would directly impinge upon the Applicants ability to undertake remunerative work, and do contribute to the limitation of his work ability and capacity.
In addition to the issue of payment at a special rate, the Tribunal finds that as a result of the earlier conclusion that the Applicant
a) does satisfy subsections 24(1)(aa)(aab) and 24(1)(a)(i), in that his degree of incapacity from war-caused disease and injuries has been determined at 80% of the general rate; and
b) does not satisfy subsection 24(1)(b) as he is able to work more than eight hours a week, despite his war-caused disability, and further it is both his war caused disability and non war caused disabilities that contribute to his work capacity; and
c) does not satisfy subsection 24(1)(c) as his war caused disease and/or injury does not alone prevent him from continuing to undertake remunerative work that the veteran was undertaking, as it is the Tribunal's finding that his inability to undertake remunerative work is a result of both his war caused and non war-caused disabilities.
As a consequence the Tribunal finds that the Applicant is not entitled to payment of a pension at a special rate, as he has failed to satisfy the particular statutory requirements nominated.
In relation to the issue of payment at an intermediate rate, the Tribunal finds that as a result of its earlier conclusions, the Applicant
a) does satisfy subsections 23(1)(aa) and (aab) and 23(1)(a)(i); and
b) does not satisfy subsection 23(1)(b) as the Tribunal has concluded that both his war caused and non war caused disabilities contribute to the limitation of his work capacity, namely more than 8 hours but less than 20 hours per week; and
c) does not satisfy subsection 23(1)(c) as it is both his war caused and non war caused disabilities that prevent the Applicant from continuing to undertake the remunerative work, which he has previously undertaken.
As a consequence the Tribunal finds that the Applicant does not qualify for payment at the intermediate rate in that he fails to satisfy the particular statutory requirements nominated.
DETERMINATION
The Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant:
a) has a psychoactive substance dependence disease (alcohol); and
b) this disease is war caused; and
c) the war caused disability entitles the Applicant to be paid a pension at 80% of the general rate with the date of effect being 4 May 1997.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 21 June 2000
Date of Decision 16 February 2001
Counsel for the Applicant N Dawson
Solicitor for the Respondent S Breur