Mann and Repatriation Commission
[2008] AATA 163
•27 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 163
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/02
VETERANS’ APPEALS DIVISION )
Re WILLIAM ROY MANN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date 27 February 2008
Place Brisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s conditions of generalised anxiety disorder, alcohol abuse and gout are war–caused with effect from 15 September 2003, and remits to the respondent the assessment of pension payable as a result of this decision.
.................[Sgd].............................
SENIOR MEMBER
CATCHWORDS
VETERANS’ ENTITLEMENTS – generalised anxiety disorder, alcohol abuse/dependence, gout – operational service in Far Eastern Strategic Reserve – application of statement of principles – severe stressor – category 1A stressor – decision set aside.
Veterans’ Entitlements Act 1986 (Cth), ss 9, 120, 120A
Mann and Repatriation Commission [2006] AATA 256
Deledio v Repatriation Commission (1997) 47 ALD 261
Woodward v Repatriation Commission (2003) 131 FCR 473
Lees v Repatriation Commission (2002) 125 FCR 331Roncevich and Repatriation Commission (2006) 91 ALD 662
Repatriation Commission v Stoddart (2003) 197 ALR 283
Repatriation Commission v Constable [2006] FCAFC 102
Fenner v Repatriation Commission [2007] FCA 406
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Brady [2007] FCA 1087
Collins v Administrative Appeals Tribunal [2007] FCAFC 111REASONS FOR DECISION
27 February 2008
MJ Carstairs, Senior Member 1. In 2003, William Mann claimed disability pension for three medical conditions – anxiety disorder, alcohol abuse[1] and gout. He claims that these conditions are related to his operational service in particular that part of it in which he served with the Far Eastern Strategic Reserve (FESR) during the time of the Malayan Emergency.
[1] The claim refers to abuse or dependence, but the medical evidence suggests abuse.
2. In a previous decision,[2] I affirmed the respondent’s decision rejecting Mr Mann’s claims. Mr Mann appealed that decision to the Federal Magistrates Court. The appeal was allowed by consent, and the Court ordered that the decision be set aside and the matter be remitted for determination according to law. The legal error identified was in requiring that Mr Mann had experienced intense fear, helplessness, or horror as a result of a stressful incident, whereas the factor in the Statement of Principles for alcohol dependence required no more than that the event relied upon might evoke intense fear, helplessness, or horror. The matter was reheard, with Mr Mann giving his oral evidence again and oral evidence was received from Dr B Anderson, Mr Mann’s treating psychiatrist, Dr F Varghese, consultant psychiatrist, and Mr P Mulcare, naval historian.
[2] Mann and Repatriation Commission [2006] AATA 256.
THE ISSUES
3. Given the contentions by the parties, and the statutory framework provided for in the Veterans Entitlements Act 1986, the issues I must consider are:
· what are the medical conditions?
· what is the legal framework: that is, whether the evidence raises hypotheses connecting the medical conditions with the circumstances of Mr Mann’s service; and whether his hypotheses contain one or more of the factors set out in Statements of Principles relating to the medical conditions?
· are the conditions war caused?
BACKGROUND
4. Mr Mann, enlisted in the Royal Australian Navy in 1960 when he was about seventeen years of age, and served until 1980, at which time he took his discharge having reached the rank of Chief Petty Officer. For the next twenty years Mr Mann worked in civilian employment at a signal station operated by the Department of Harbours and Marine, retiring in about 2001, just short of 60.
5. Mr Mann had married Cedrel Mann, in 1964, when he was 21. At the end of that year Mr Mann undertook the first voyage on HMAS Derwent. The ship was deployed on 5 months operational service as part of the FESR to deal with the Malay/Indonesian confrontation. From the written materials,[3] Mr Mann had 6 earlier voyages which he undertook between 1960 and 1964, but he placed no reliance on those earlier voyages. He has referred to them as “showing the flag” rather than involving any real action.[4]
[3] Exhibit A4.
[4] Transcript of Proceedings, Mann and Repatriation Commission (20 November 2005) at 6.
6. It was during this first voyage on HMAS Derwent that the incident which is described more fully below as “the boarding party incident” took place. It is confirmed in broad terms in the naval records as taking place on 21 December 1964. HMAS Derwent had arrived in Singapore Harbour a little earlier in December and then was tasked to carry out regular night time patrols in the waters off Tawau, a town close to the border with Indonesia on the south-east coast of Sabah. During these exercises HMAS Derwent intercepted suspicious Indonesian boats to prevent arms smuggling or incursions into Malaysian territorial waters.
7. As the case was presented, Mr Mann chiefly relied upon the boarding party incident as having had ongoing effects on his psychiatric wellbeing. I am mindful however that his claim has been stated in broader terms in submissions on his behalf prepared by his counsel, Mr N Jarro.[5]
[5] Applicant’s Outline of Submissions dated 20 November 2007.
THE BOARDING PARTY INCIDENT
8. Mr Mann has described the boarding party incident in a series of written statements,[6] in oral evidence before this Tribunal and before the Veterans' Review Board. On 21 December 1964 HMAS Derwent intercepted and investigated by boarding an Indonesian kumpit (a small trading vessel commonly used in the area).
[6] Exhibit A1 at 113–114, 122–123, 124 and 154.
9. In one of his written statements,[7] Mr Mann described the boarding party incident in the broader context of the crew of HMAS Derwent having arrived in Singapore Harbour from Australia in early December 1964, to see the damage that had been sustained by a Royal Navy minesweeper (probably HMS Fiskerton) in dock after grenades were thrown from an Indonesian junk which had been intercepted off Tawau.
[7] Exhibit A1 at 113.
10. In my previous decision[8] at paragraph 10, (Mr Mann’s evidence at the second hearing, being in substantially similar terms) I summarised Mr Mann’s evidence about the boarding party incident as follows:
t…As background Mr Mann said that before HMAS Derwent left Singapore Harbour they had observed a Royal Navy minesweeper that had been damaged when explosives were thrown from a junk that had been intercepted by the minesweeper. On the night of the boarding party incident, Mr Mann was part of the mortar crew defence watch, positioned towards the stern on the upper deck, from where he could see down into the vessel being boarded. Mr Mann said that HMAS Derwent travelled during night patrols with lights darkened. He said that during the boarding, a volley of gun fire broke out, which he said was quite terrifying, and he thought his life was under threat. He said that he moved quickly to the centre of the ship and crouched low, and could hear yelling of orders to cease fire and calls of who fired those shots? He stated that his thoughts were of the minesweeper they had seen at Singapore.
Mr Mann had told the Veterans’ Review Board…that he was out of sight of the boat when he heard the volley of 4-5 shots. He told them he was not sure where the shots came from but thought the Indonesian boat may have fired them. In his oral evidence to me he said that he got quite a start from the gun fire, and all he could think of was getting away from the side of the ship, and moving to a position of safety in the centre beside the bulkhead. He stated that he learned later that Malay police had asked the boarding officer, Leading Seaman Logan, to fire a volley into the air above the Indonesians’ heads as a warning.
[8] Mann v Repatriation Commission [2006] AATA 256.
11. A proper understanding of Mr Mann’s case requires an appreciation that he initially believed that the gunfire he heard had come from the kumpit. In general terms, the Report of Proceedings dated 1 January 1965[9] confirmed the occurrence of the incident on 21 December 1964 but without any mention of shots being fired. The entry for that date recorded that HMAS Derwent had approached a large trading kumpit, outbound from Tawau, and its crew put up resistance, refusing to explain to the boarding party the contents of certain documents found on board. The Report also confirmed that the crew and passengers were arrested and the vessel towed back to Tawau.
[9] Exhibit A1 at 139.
12. It was an essential part of Mr Mann’s case that he believed that the gunfire was directed at HMAS Derwent and he felt vulnerable and personally at risk. In his statement dated 30 October 2004[10] he described his positive belief that the shots came from the kumpit. He said he felt “terrified, helpless and isolated”. Mr Mann said he laid face down on the deck and was shaking. This, too, was the thrust of his evidence to the Veterans' Review Board. In his evidence to me, Mr Mann put it this way:
We were at sea, dark night, a boat alongside, supposedly enemy or unfriendly, shots – all I know is the shots were fired…I got quite a start and moved away from the side of the ship as quick as I could.[11]
….I found out the next morning the person that fired the shots was down in the boat alongside, because when I found out…I…had a go at him…he could have hit me.[12]
[10] Exhibit A1 at 154.
[11] Transcript of Proceedings, Mann v Repatriation Commission (Administrative Appeals Tribunal, SM Carstairs, 20 November 2007) at 14.
[12] Transcript of Proceedings, Mann v Repatriation Commission (Administrative Appeals Tribunal, SM Carstairs, 20 November 2007) at 14.
13. It was the following morning, as Mr Mann indicates, that he learned that the shots in fact had been fired by Leading Seaman Logan, who was part of the boarding party. According to Mr Mulcare, Commodore RAN (retired), who was commissioned to prepare a report on Mr Mann’s claims, the volley of shots was authorised by Derwent’s Commanding Officer. The officer-in-charge of the boarding party had sought permission to fire warning shots when the Indonesians were being uncooperative. Mr A Whitton, the ship’s Boarding Officer (now deceased), had told Mr Mulcare, on a previous occasion of research on this incident, that a short burst of machine gun fire came from well aft of the bridge superstructure, over the top of the kumpit.[13]
[13] Exhibit R2.
14. Colleagues of Mr Mann’s from HMAS Derwent, Mr V Elwell and Mr A Roberts, gave, in many respects, similar descriptions to that of Mr Mann.
15. Mr Mann also stated that when the crew and passengers from the kumpit were taken on board HMAS Derwent and placed under guard, he continued to feel apprehensive while they towed the kumpit back to Tawau. During the remainder of his watch he said he had to move around the area where the Indonesians were being held. He said that he feared they might have concealed weapons, or that he might be caught in crossfire if the guards had to take any action against them. He described his stomach at this time being “in a knot” and he needed to settle his nerves when he went off watch that night.
16. I note however Mr Jarro did not rely solely upon the boarding party incident. In written submissions, he referred more generally to a number of stressful incidents during his service as having, in a sense, a cumulative effect on Mr Mann (this indeed was a view propounded by Mr Mann’s treating psychiatrist Dr B Anderson). Mr Mann has canvassed a number of such incidents in various statements, with perhaps the most comprehensive summary appearing in his statement dated 15 December 2003.[14] In that statement he referred, in all, to 7 incidents which he now regarded as being significant to him,[15] including the boarding party incident. Mr Mann observed that at the time of their occurrence he did not realise that he was affected by these incidents. Dr F Varghese, consultant psychiatrist, drew attention in his evidence to these remarks as confirming that Mr Mann was in fact not suffering anxiety symptoms. Dr Varghese maintains that an anxiety state is revealed by subjective symptoms so that if a person is unaware of symptoms they are not experiencing anxiety.
[14] Exhibit A1 at 124.
[15] Exhibit A1 at 124.
17. Some of the other incidents which Mr Mann mentioned in this written statement occurred at times that are not relevantly covered by the legislation, so that the Act does not provide for pensions in regard to them. One incident which stood out from all others, and which did not occur during relevant service was the helicopter incident. This took place in 1968. Mr Mann was serving at HMAS Creswell at Jervis Bay, when a helicopter crash landed into the sea taking the lives of the crew on board. Mr Mann was involved for the next three days in the searches for the bodies. Mr Mann’s statement dated 2 September 2001,[16] gives a harrowing account of that search and his severe distress to the point of physical sickness when the last body was recovered, and he recognised it as being someone with whom he had earlier served. Both Mr Mann and Mrs Mann referred to the helicopter incident as the occasion of great stress for Mr Mann.
[16] Exhibit A1 at 122.
18. Dr Varghese clearly thought the helicopter incident was an event with much greater potential to cause ongoing psychiatric disturbance than would be expected as a result of the boarding party incident. Dr Varghese observed that Mr Mann remained distressed even now, 40 years later, when he spoke about the helicopter incident, but appeared unaffected by retelling the circumstances surrounding the boarding party incident.
WHAT ARE THE MEDICAL CONDITIONS?
19. Against this background I now turn to the first issue that I must address, which is to consider what, if any, medical condition(s) Mr Mann suffers. The standard of proof for determining matters of this kind is provided for in s 120(4) of the Act which requires determination of that matter to the Tribunal’s reasonable satisfaction, importing a civil standard of proof.
20. I should observe that it was part of the respondent’s contentions now, but not at the first hearing, that it was open for me to conclude on the evidence that Mr Mann does not suffer any disease within the meaning of the Act. I cannot agree however. Account must be taken of the evident broad agreement in the medical reports that Mr Mann suffers, or suffered in the past, from the condition of alcohol abuse. Gout also was an uncontested diagnosis.
conditon 1: alcohol abuse or dependence
21. With reference to the condition of alcohol abuse (alcohol dependence not being suggested on any reasoned basis in the medical reports), a number of reports indicate that Mr Mann has suffered from this condition. Mr Mann’s general practitioner identified that condition (alcohol dependence or abuse).[17] So did Dr J Gelb, consultant psychiatrist, Dr Anderson and Dr Varghese.
[17] Exhibit R5.
22. Dr Varghese observed at the hearing that Mr Mann’s ability to reduce his drinking indicated that he suffers alcohol abuse rather than fulfilling the criteria for alcohol dependence. Mr Mann has been able to control his drinking for short periods, especially at times when it has threatened his marriage. On one occasion in 1972, for instance, he sought help from Alcoholics Anonymous and refrained from alcohol for a period of 3 months. Dr Varghese clearly stated that he thought that Mr Mann’s history showed that “the principal clinical issue is alcohol abuse/dependence and…this is long standing”.
23. Dr Anderson[18] appears to have agreed with Dr Varghese. Dr Anderson referred in places in his written report and oral evidence rather loosely to both alcohol abuse and dependence. However the diagnostic criteria do not allow for a dual diagnosis. One criterion for a diagnosis of alcohol abuse is that the criteria for alcohol dependence have never been met.[19]
[18] Exhibit A1 at 105–106 and 147–149.
[19] Repatriation Commission v Brady [2007] FCA 1087.
24. It seems to me to be important when addressing any questions of diagnosis under this legislation, particularly in relation to psychiatric disorder, to take into account what is revealed by the person’s longitudinal history. It will ordinarily be the case that the events happened some time ago, and there will be limited medical evidence of them. In that regard, it is important that weight be given to what Mr and Mrs Mann have said concerning Mr Mann’s problematic drinking and its effects on their marriage after Mr Mann served on HMAS Derwent. With those matters in mind and taking into account Mr Mann’s history, his alcohol intake over many years, and the effects of alcohol on his domestic and working life, it is easy to understand that Dr Anderson was satisfied that the diagnostic criteria for alcohol abuse in DSM-IV (as adopted in the Statement of Principles for alcohol abuse) were met.
25. Those diagnostic criteria refer to a maladaptive pattern of substance use, having consequences on such matters as marriage or home life, or in causing interpersonal problems, occurring within a 12 month period. In regard to forming an opinion on such matters, I considered that Dr Anderson, who has the ongoing care of Mr Mann over a number of years, was in a much better position to assess the condition than was Dr Varghese, on the basis of one interview, conducted some four years after Mr Mann put in his claim. Dr Varghese saw Mr Mann only once in 2007, and so his written report was the most recent[20] of those in evidence. It seems that Dr Varghese did not interview Mrs Mann.
[20] Exhibit R1.
26. However, Ms E Ford, counsel for the respondent, submitted that Dr Varghese ultimately concluded that Mr Mann has now moderated his alcohol intake to the extent that the criteria for alcohol abuse are not currently met.[21] However, any claim must be addressed in the assessment period, defined by s 19 of the Act as starting with the date of claim and ending with the claim’s determination. The start of the assessment period for Mr Mann is 15 December 2003. Even if Dr Varghese were right about Mr Mann’s drinking not meeting the diagnostic criteria for alcohol abuse in 2007, he was not in a position to, and did not, address earlier parts of the assessment period. However I do not accept the submission that Dr Varghese concludes in clear terms that the diagnosis of alcohol abuse is inappropriate. It is not a conclusion consistent with Dr Varghese’s expressed opinion about the significant alcohol problems evident in this case.
[21] Respondent’s Outline of Submissions dated 5 December 2007.
27. Such a conclusion would be at odds with the opinions of Dr Anderson and Dr Mitchell, Mr Mann’s general practitioner, and indeed with the view expressed by Dr Gelb (albeit with reference to an earlier claim). I prefer the logic of the conclusions and the consistency of the opinions expressed by Dr Anderson, Dr Gelb and Dr Mitchell and was reasonably satisfied that Mr Mann suffers from the condition of alcohol abuse.
condition 2: generalised anxiety disorder
28. Also contentious was the diagnosis of generalised anxiety disorder. At the previous hearing this diagnosis was uncontested, relying on the reports prepared by Dr Gelb and Dr Anderson. After the matter was remitted for rehearing, the respondent commissioned the report by Dr Varghese, to which reference has already been made. Dr Varghese concluded that Mr Mann does not have a generalised anxiety disorder, but that he has suffered in more recent times from depressive episodes, unrelated to his Naval service. As the Tribunal pointed out, however, in Roncevich and Repatriation Commission (2006) 91 ALD 662, it is quite in order for the respondent to put in issue matters previously conceded, once a matter is remitted for re-hearing.
29. I shall however commence by setting out how Dr Anderson’s reached his opinion that Mr Mann suffers from generalised anxiety disorder now and has done so since about 1965. Dr Anderson has been Mr Mann’s treating psychiatrist since about 2003. Some support for a diagnosis of generalised anxiety disorder was already to be found in the 2001 report of Dr Gelb[22] although Dr Gelb was somewhat tentative, stating only that Mr Mann had “some signs”. In Dr Gelb’s opinion, the condition was related to personality rather than attributable to Mr Mann’s service.
[22] Exhibit A1 at 70.
30. Dr Gelb was not called to give evidence but I concluded that his report was consistent with a view for diagnostic purposes that the presenting symptoms were those of anxiety, in addition to, perhaps complicated by, an alcohol disorder. Dr Gelb’s opinion, which was that the condition was attributable to causes unrelated to service, does not lessen his ultimate commitment to this as his preferred diagnosis.
31. The criteria for generalised anxiety disorder are set out in DSM-IV, as reproduced in the Statement of Principles for anxiety disorder. Dr Anderson had prepared a report summarising the features or symptoms that Mr Mann experienced that indicated he suffers from generalised anxiety disorder.
32. Dr Anderson’s report might be criticised as simply a reiteration of the diagnostic criteria directly from DSM-IV rather than as providing any reasoned way how Mr Mann demonstrated them, relevantly supported by evidence in the history and reported symptoms. Nevertheless, I considered that Dr Anderson was giving, in this report, his honestly held opinion, drawing as best he could upon his observations of Mr Mann over the now quite lengthy time that he has been treating him.
33. Dr Varghese on the other hand concluded that Mr Mann does not suffer from generalised anxiety disorder. How does Dr Varghese reach this conclusion? Dr Varghese observed at the outset of his written report that it was difficult to make clinical sense of Mr Mann’s case. However, he thought it “not at all clear” that Mr Mann was suffering from “any psychiatric disorder” while he was in the Navy or in his 20 subsequent years of civilian employment. In addition, Dr Varghese was concerned about the validity of diagnosis of other psychiatric conditions in the presence of alcohol abuse.
34. Dr Anderson was made aware of Dr Varghese’s conclusions but was not prepared to alter or amend his diagnosis from that of generalised anxiety disorder. Dr Anderson agreed that Mr Mann’s psychiatric condition was now much improved, but did not accept that Mr Mann could be described as no longer suffering an anxiety disorder. In that regard he observed that Mr Mann’s symptoms improved once he commenced on medication in about 2005, which has the effect of reducing his symptoms.
35. It was quite apparent from Dr Anderson’s oral evidence that he was influenced in reaching his conclusions about diagnosing generalised anxiety disorder by his discussions with Mrs Mann and her (undated) written statement[23] which had been supplied to Dr Anderson before he prepared his report in 2005. It was Mrs Mann’s perceptions of the changes she observed in her husband to which Dr Anderson referred for fixing the date of onset of generalised anxiety disorder at about 1965.
[23] Exhibit A1 at 155–160.
36. I do note that Mrs Mann was not called to give oral evidence. She had known Mr Mann for some 3 years before they married in 1964. Mrs Mann observed in her statement that she found Mr Mann changed on his return from the 1964/1965 service on HMAS Derwent, and she described him then as controlling, drinking heavily, and abusive to her, quite different from how he was before he went away. She referred to ongoing marital problems and her feelings of being constantly threatened by his behaviour towards her.
37. Of course it is a difficult exercise, and one fraught with pitfalls, to attempt to ascertain what might have been happening to a person’s psychiatric state some forty years ago. However that is the nature of the task and decision makers must do there best with limited medical evidence. I had concerns about Dr Anderson’s approach to the task. Dr Anderson solidly maintained that Mr Mann’s excessive drinking resulted from his condition of generalised anxiety disorder in reaction to his experiences particularly while serving with the FESR. His view was that anxiety disorder arose first, and alcohol was a kind of self-medication to reduce anxiety. But Dr Anderson freely admitted that the way that he went about his diagnostic task was by first eliminating from consideration any matters that did not occur during Mr Mann’s operational service or other relevant service. Included in that category was the helicopter incident.
38. Dr Anderson said in his oral evidence that he was aware that Mr Mann did not bring up a lot of things that had happened because of what he referred to as “legal reasons”. Dr Anderson described this as tailoring his report to what was legally relevant. Mr Mann also said in his oral evidence that he had been given advice when he was preparing his claim that he should stick to matters that arose in his operational service. He agreed that it was for this reason that he had not told Dr Gelb about the helicopter incident.
39. The risk in such an approach on Dr Anderson’s part was that matters highly relevant to explaining the cause of any psychological de-compensation could be eliminated from consideration without giving them the appropriate causal significance. However I was satisfied that Dr Anderson had appropriately carried out the task of diagnosing Mr Mann’s condition based on relevant symptoms at the time of Mr Mann’s return from his operational service and based upon his current treatment of that condition. Furthermore, I concluded that Dr Anderson was in a better position to assess Mr Mann’s condition now, because he has had greater opportunity to observe him than has had Dr Varghese. I accept Dr Anderson’s evidence, and was therefore satisfied that Mr Mann suffers from the condition of generalised anxiety disorder.
condition 3: Gout
40. Gout was the least contentious of the three conditions. It was apparent that early reports had suggested that the condition might have been degenerative arthritis rather than gout. However, the better view, relying on the report of Dr S Cramb,[24] is that Mr Mann has gouty arthritis. The evidence, which did not appear to be in dispute, indicated that Mr Mann had suspected gout in 1976, during his service. I was reasonably satisfied that Mr Mann suffers from gout.
[24] Exhibit A1 at 33.
WHAT IS THE LEGAL FRAMEWORK?
41. The legislative provisions under which Mr Mann’s claim must be determined are to be found in the Veterans’ Entitlements Act 1986 which provides for veterans to be paid pension with respect to medical conditions if these are found to be war-caused. Section 9 of the Act provides for war causation where, amongst other things, injury or disease results from an occurrence during operational service, or where it arises out of or is attributable to war service.[25] Ultimately, the question of whether a condition is war-caused is governed by s 120 of the Act, which prescribes the standard of proof where a person has operational service, and by s 120A which deems the standard of proof met when a hypothesis conforms to a factor(s) set out in relevant Statements of Principles.
[25] Veterans’ Entitlements Act 1986 (Cth), ss 9(1)(a) and 9(1)(b).
42. Section 120(1) of the Act provides, in respect of claims that relate to operational service, that the decision maker must determine the disease or injury is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
43. This legislative framework was interpreted by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as requiring 4 steps to be taken by decision-makers when determining whether a condition is war-caused. The requirement is that a hypothesis or hypotheses must be reasonable. To be reasonable, the evidence in the case must fit with the elements as set out in relevant factors in Statements of Principles – in this case in factors in the Statements for anxiety disorder, alcohol abuse and gout.
44. The relevant Statements of Principles in force (step 2 of Deledio) relating to the three claimed conditions are:
§alcohol dependence: Statement of Principles No 76 of 1998;
§anxiety disorder: Statement of Principles No 101 of 2007. Mr Mann retains the right to have his case considered under the Statement of Principles as in force at the time of the claim, namely Statement of Principles No 1 of 2000 for anxiety; and
§gout: Statement of Principles Instrument No.11 of 2000.
Alcohol Dependence – experiencing a severe stressor
45. The factor in the Statement of Principles concerning alcohol abuse that Mr Jarro relied upon as connecting Mr Mann’s condition with his service was 5(b):
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
46. The analysis of experiencing a severe stressor involves a consideration of both objective and subjective elements.[26] The definition experiencing a severe stressor, provided for at paragraph 8 of the Statement of Principles, relates to an event that involves a person experiencing witnessing or being confronted by death, or serious injury (or the threat of these), or threat to a person’s physical integrity. There is no requirement that there be an actual threat.[27] This definition requires only that the event might evoke intense fear helplessness or horror. As the Full Federal Court pointed out in Repatriation Commission v Constable [2006] FCAFC 102, despite certain ambiguities in the definition of severe stressor in the Statement of Principles, the examples provided should be regarded as defining events which, if experienced, qualify as experiencing a severe stressor.
[26] Woodward v Repatriation Commission (2003) 131 FCR 473; Repatriation Commission v Stoddart (2003) 197 ALR 283.
[27] Woodward v Repatriation Commission (2003) 131 FCR 473 at 497-498, citing Repatriation Commission v Stoddart (2003) 197 ALR 283.
47. The evidence about the boarding party incident points to it as involving threat of serious injury or death, and/or being an engagement with the enemy and, as such, the incident qualifies as an event which might invoke intense fear, helplessness, or horror.
48. The factor at 5(b) also requires clinical onset of alcohol abuse within two years of the stressor. Mr Mann’s account of his drinking habit, as set out in answers to Alcohol Questionnaire in 2001,[28] identified 1960 as the date when he started drinking alcohol at a modest level. However, he indicated that he increased his intake in 1965, as a form of self medication. He also referred to further increases when he commenced a shore based posting to HMAS Creswell (1967).[29] Dr Anderson’s clinical notes[30] recorded Mr Mann as stating that he believed his alcohol intake worsened while he was serving on HMAS Derwent and continued at high levels when he was posted to HMAS Creswell.
[28] Exhibit A1 at 49.
[29] Exhibit A1 at 124.
[30] Exhibit A3 – entries at 11 March 2004 and 13 January 2005.
49. Elsewhere[31] Mr Mann referred to his overall lack of any appreciation that he had an alcohol problem, at least until he was drafted to the shore base HMAS Nirimba (1970-1972) where he was president of the Petty Officers’ Mess and had very ready exposure to alcohol. According to Mr Mann, his drinking increased, his marriage deteriorated, he was prone to violent outbursts, and he at times left the family home and lived on board ship. According to Mr Mann, Navy welfare officers had referred him to a social worker. There was no evidence about such a referral amongst the few service medical records that were provided for the hearing. According to Mrs Mann her attempts to get help within the Navy were rebuffed.[32]
[31] Exhibit A1 at 124.
[32] Exhibit A1 at 155–160.
50. Mr Mann’s evidence about consumption of alcohol and his recall of dates where his drinking increased was not without its inconsistencies, some of which can reasonably be explained with the passage of time since the events occurred. He said that between 1965 and 1966 his drinking had increased and had reached 20 standard drinks per day. As I understood his evidence it was that his alcohol intake, previously moderate, escalated during the first tour on HMAS Derwent[33] but truly became out of control when he was in charge of the officers’ mess. In his claim forms he has variously given the dates of 1965 and 1965/1966 as when he first became aware of signs and symptoms of his alcohol condition. Dr Anderson tended to agree, and placed great store in the observations of Mrs Mann in that regard.
[33] Exhibit A1 at 68.
51. Clinical onset refers to the point of time at which the symptoms or features would, if observed by a clinician, warrant a conclusion that the disorder is present.[34] Alcohol abuse bears a definition in the Statement of Principles consistent with that in DSM-IV. Mr Mann referred in written statements to occasions when he would not go home at all and would stay drinking in the mess from Friday afternoon until Monday morning. He told Dr Anderson that he started drinking heavily after his period of service on HMAS Derwent following a shore positing to HMAS Creswell at Watson’s Bay. Mr Mann noted that he had reduced his drinking to 8 standard drinks per day when his wife left him for about 6 months in 1967 but resumed drinking and was again drinking 20 standard drinks per day again by 1972 at which time he attended Alcoholics Anonymous briefly.
[34] Lees v Repatriation Commission (2002) 125 FCR 331.
52. In his oral evidence at the first hearing, Mr Mann said of his drinking habit in 1965, that if he was ashore he would drink until he collapsed.[35] He said that he made a serious attempt to cut down in 1967 when his wife left him the first time, taking the children with her.
[35] Exhibit A1 at 186.
53. A diagnosis of the condition of alcohol abuse/dependence is not confirmed simply on quantities of alcohol consumed. However, this factual information provides part of the detail which enables doctors to form a view and a diagnosis retrospectively. In that sense it forms part of the matrix of information for the task of diagnosis. In Mann’s case this evidence, taken with Mrs Mann’s evidence, was sufficient for Dr Anderson to conclude that Mr Mann had an alcohol disorder as indicated by his substantially increased alcohol consumption in the mid-1960’s, and his demonstrated failures to fulfil role obligations in his marriage as well as his continued alcohol use despite the development of interpersonal problems.
54. For a diagnosis of alcohol abuse (as provided for in the Statement of Principles) there must be evidence that points to a person having a maladaptive pattern of alcohol use leading to clinically significant distress occurring within a 12 month period. That would be evidenced, for instance, by continuing use of alcohol despite interpersonal problems. It seems that Dr Anderson considered that the history, as related by Mrs Mann, enabled him to form a conclusion that the diagnosis was satisfied soon after Mr Mann’s service on HMAS Derwent.[36] Dr Varghese agreed in oral evidence that the behaviours Mrs Mann described in her statement were consistent with alcohol abuse causing significant behavioural disturbance.[37] Overall, Dr Varghese attributed Mr Mann’s problematic behaviour to the results of alcohol abuse rather than anxiety.[38]
[36] Exhibit A3.
[37] Transcript of Proceedings, Mann v Repatriation Commission (Administrative Appeals Tribunal, SM Carstairs, 20 November 2007) at 57.
[38] Exhibit R1 at 10.
55. At this part of the process of decision-making, no question of fact finding arises.[39] The material before me accords with the template provided in the Statement of Principles for alcohol disorder, in that Mr Mann experienced a severe stressor in the boarding party incident. The evidence points to Mr Mann experiencing an event where he judged his life was at risk. Within 2 years of the event he had developed the condition of alcohol abuse. The hypothesis in relation to alcohol abuse is therefore a reasonable hypothesis.
[39] Collins v Administrative Appeals Tribunal [2007] FCAFC 111.
anxiety disorder
56. With respect to generalised anxiety disorder, Mr Mann’s hypotheses are threefold, according to Mr Jarro’s Outline of Submissions,[40] and reflected three factors in paragraph 6(a) of the current Statement of Principles for anxiety:
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
(v) experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; …
[40] Applicant’s Outline of Submissions dated 20 November 2007.
57. I shall not set out the definitional requirements for each of category 1A, 1B and 2 stressors. Suffice to say that I considered that the boarding party incident came within the definition of a category 1A stressor, for reasons that align largely with my observations already made with reference to that incident and considered under the Statement of Principles for alcohol abuse. However, I make two general observations about Mr Jarro’s submission as it relates to category 1B and category 2 stressors in Mr Mann’s case:
§ I doubt that the boarding party incident could be described as a category 1B stressor because this category of stressor is limited by definition to extreme events, and the boarding party incident is not like any of the examples provided in the Statement of Principles;[41] and
§ if it was Mr Mann’s case that he experienced a category 2 stressor, as defined, some evidence might usefully have been directed to that end at the hearing. It was not.
[41] Statement of Principles No 101 of 2007 at [9].
58. A category 1A stressor, however, is defined in paragraph 9 of the Statement of Principles as including experiencing a life-threatening event.This should be interpreted, consistently with the case law as set out above, as having a subjective and objective component. With that clearly in mind, it seems to me to follow that where a veteran is on operational service, the firing of shots which the veteran believes to be hostile fire, so that he feels his life is under threat, comfortably comes within the definition. Those are the circumstances here.
59. Some of the material, including the evidence of Dr Anderson, taken with that of Mr and Mrs Mann, points to the diagnostic criteria for generalised anxiety disorder being satisfied from 1965. The evidence from Dr Anderson points to the onset of generalised anxiety disorder as about 1965 and thus within five years of Mr Mann experiencing a category 1A stressor as provided for in factor 6(1)(a)(ii). The hypothesis relying on the boarding party incident is therefore a reasonable hypothesis.
60. In the previous decision, I had reached the conclusion in relation to the earlier Statement of Principles (No 1 of 2000) that step 3 of Deledio was met. That is, the evidence pointed to the boarding party incident being a severe psychosocial stressor. I remain of that view. It is not however necessary to determine the matter under the earlier Statement of Principles.
gout
61. I turn then to the Statement of Principles for gout, which provides as a factor that will underpin an hypothesis connecting this disease with relevant service:
(f) drinking at least 150kg of alcohol (contained within alcoholic drinks) within the ten years immediately before the clinical onset of gout; …
62. The respondent had conceded at the previous hearing that the necessary level of alcoholic intake was met and that issue was not revisited at this hearing. If the question of alcohol abuse being related to service was decided in Mr Mann’s favour, then the acceptance of his claim for gout would simply follow.
ARE THE CONDITIONS WAR–C AUSED?
63. It is appropriate, to proceed to the next and final issue of whether Mr Mann’s anxiety disorder, alcohol abuse and gout are war-caused. The conditions will be war-caused unless I am satisfied beyond reasonable doubt that one or more of the facts necessary to support the hypotheses are disproved or the truth of another fact inconsistent with the hypothesis is proved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564.
64. I note that with respect to the final step in Deledio, Mansfield J (in Fenner v Repatriation Commission [2007] FCA 406) observed that the requirement at this step of proof beyond reasonable doubt requires a high standard of disproof, once there is a reasonable hypothesis at step 3. I regard those remarks as relevant here.
65. In that regard, I do not consider that the evidence of Dr Varghese suggesting the helicopter incident was a more likely explanation for Mr Mann’s psychiatric symptoms, constitutes disproof beyond reasonable doubt of the causal links proposed in relation to the boarding party incident. Dr Varghese had observed that recounting in the helicopter incident some forty years after it had happened led Mr Mann to be visibly distressed, in a way that other incidents, including the boarding party incident, clearly did not. Mr Mann told Dr Varghese that his emotional state deteriorated after the helicopter incident and he was drinking heavily. However, this evidence does not bring into question the truth of the facts concerning the boarding party incident upon which Mr Mann’s hypotheses rest.
66. Mr Mann has claimed that he experienced fear as a result of his belief that the discharge of the machine gun was hostile fire and his life was at risk. The event was confirmed by naval records and through interviews with others who were present. I have no reason to doubt that what Mr Mann described as his reaction was a true account. I accept that he truly believed that he was at risk of being shot and this had a profound effect on him. I was not satisfied that Mr Mann’s reporting of his experience was exaggerated or unreliable so as to lead to a conclusion beyond reasonable doubt that he did not suffer the reaction he claimed. Nor am I satisfied beyond reasonable doubt that the boarding party incident did not result in the onset of generalised anxiety disorder and alcohol abuse within the relevant timeframes and leading in turn to gout.
67. In that regard I accept the evidence of Dr Anderson that the clinical onset of generalised anxiety disorder was at the time of Mr Mann’s service on HMAS Derwent and that the boarding party incident was one of several that had a cumulative effect on him. I accept Dr Anderson’s opinion that Mr Mann’s condition of generalised anxiety disorder led him to abuse alcohol as a way of self-medicating his anxiety symptoms.
68. As a result I am not satisfied beyond reasonable doubt that the conditions are not war-caused within the meaning of s 9(1)(a) and/or s 9(1)(b) of the Act.
DECISION
69. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s conditions of generalised anxiety disorder, alcohol abuse and gout are war-caused with effect from 15 September 2003, and remits to the respondent the assessment of pension payable as a result of this decision.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member
Signed …………[Sgd]…………………………
Joan Torbey, AssociateDates of Hearing 20 November 2007 and 21 November 2007
Date of Decision 27 February 2008
Counsel for the Applicant Mr N Jarro
Solicitors for the Applicant Haney Lawyers
Counsel for the Respondent Ms E Ford
Solicitors for the Respondent Australian Government Solicitor
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