Marshall and Repatriation Commission
[2003] AATA 691
•9 July 2003
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2003] AATA 691
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/199
VETERANS' APPEALS DIVISION ) Re WILLIAM MARSHALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date9 July 2003
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – whether applicant’s conditions of depressive disorder and alcohol dependence are war-caused or defence caused – whether applicant experienced severe stressors during operational service – whether clinical onset of alcohol dependence occurred within 2 years of these stressors – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120, 120A
Statement of Principles Instrument No 58 of 1998
Statement of Principles Instrument No 76 of 1998
ORAL REASONS FOR DECISION
9 July 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 12 July 2001, which refused the applicant’s claim for Disability Pension for the conditions of alcohol abuse and dependence and depressive disorder. The Veterans’ Review Board (the VRB) affirmed the decision on 7 March 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower was counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Crowe represented the Commission, which called Mr H Josephs, war-time researcher, as a witness by way of telephone link-up.
3. The applicant, who is aged 58, served with the Royal Australian Navy (the Navy) for nearly 12 years from 24 September 1962 until 20 June 1974, when he was discharged at his own request. He joined the Navy as a Recruit Writer and had attained the rank of Petty Officer Writer prior to his discharge. He has 4 periods of operational service in Vietnam aboard HMAS Sydney (the Sydney) as follows:
27/05/65 to 26/06/65 30 days (3 days in Vung Tau Harbour)
14/09/65 to 20/10/65 36 days (2 days in Vung Tau Harbour)
22/04/66 to 18/05/66 26 days (2 days in Vung Tau Harbour)25/05/66 to 11/06/66 17 days (2 days in Vung Tau Harbour)
4. The applicant asserts that his conditions relate to his operational service and the appropriate standard of proof is that of reasonable hypothesis in accordance with section 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…”
5. Section 120A provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that his conditions of alcohol dependence and depressive disorder, relate to his operational service, in that on the whole of the material, the traumatic events which he experienced connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles, at least one of the Factors set out in clause 5 of the respective Statement of Principles, must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
7. The current Statement of Principles for alcohol dependence or alcohol abuse, is Instrument No 76 of 1998 (the Alcohol Dependence SoP). It was in force also, at the time of the primary Commission decision. The applicant contends that Factor 5(b) of the Alcohol Dependence SoP is satisfied:
“experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
“Experiencing a severe stressor” is defined in the Statement of Principles as:
“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
8. The appropriate Statement of Principles for the condition of Depressive Disorder is Instrument No 58 of 1998 (the Depressive Disorder SoP). The applicant contends that Factor 5(d) of the Statement of Principles is satisfied:
“Having a major illness or injury within the two years immediately before the clinical onset of depressive disorder;”
“Major illness or injury” is defined in the Statement of Principles as:
“… a serious illness or injury, that is life-threatening or seriously disabling”.
9. The major illness or injury the applicant asserts he suffered, is alcohol dependence.
10. In relation to his alcohol dependence, he maintains that he only started drinking heavily and regularly after his experiences on his first trip to Vietnam in June 1965, and by the time the Sydney docked in Perth on 26 June 1965, he was abusing alcohol and had become dependent on alcohol. This abuse and then dependence on alcohol, in turn, led to him being withdrawn and depressed, and by 1968 he was suffering from a depressive disorder.
11. The Commission contends that at no time during his operational service did the applicant experience a "severe stressor", as defined in the Alcohol Dependence SoP. Even if he had experienced a severe stressor there is no evidence that within 2 years immediately after he experienced such a stressor he satisfied the definition of dependence in accordance with the Alcohol Dependence SoP. The Commission concedes that, although the applicant was suffering from alcohol dependence within the 2 years immediately before the clinical onset of his depressive disorder, this is not a major illness or disease and, in addition, the applicant currently does not suffer from the condition of alcohol dependence as defined in the Alcohol Dependence SoP. He does not suffer a condition which answers the claim for alcohol dependence.
12. I have outlined only briefly in these oral Reasons for Decision the parties' lengthy and carefully prepared submissions. I do not intend to set out in detail those submissions which, in the light of my findings of fact in this matter, I consider I do not need to address.
13. The applicant submits that during his operational service he experienced a number of severe stressors which satisfy the definition, and which can be summarised as follows:
(a) Gunfire on mainland incident
Being on deck while the Sydney was anchored in Vung Tau Harbour, the applicant watched helicopters and gun ships firing weapons towards the mainland. He said he feared greatly for his safety.
(b) Lack of sleep incident
During his operational service, he suffered sleep deprivation. He had to sleep on a stretcher in the Sydney's small office with a number of other seamen, the main problem being the noise of the Sydney's lift which worked 24 hours a day and was next to the office.
(c)Scare charge incident
While the Sydney was anchored in Vung Tau Harbour, the applicant says he heard a loud explosion whilst he was below the waterline on deck 5. He did not know where it had come from, and thought the Sydney had been hit by the enemy. He was intensely frightened. It was not until he went to the deck above that he discovered the explosion was a scare charge.
(d)Air raid warning incident
The applicant recalls an occasion when there was an air raid warning and the ship went to action stations. It was not until 30 minutes later that the crew was stood down. He thought they were under attack or about to be attacked.
14. The applicant gave lengthy oral evidence. It must have been difficult for him to remember the detail of incidents which occurred nearly 30 years ago, but I consider that he tailored his evidence in an attempt to satisfy the relevant Statements of Principles, and on occasions his evidence was recent invention. This does not mean that I disregard the whole of his testimony, but that I prefer other more reliable evidence in areas of dispute in the evidence.
15. Dr Ewer relied upon the applicant's version of events being credible when reaching his opinions, and I take that into account when deciding upon the weight to be given to his evidence and opinions. I consider Mr Josephs a witness of truth, and prefer his evidence to that of the applicant in any area of dispute in the evidence.
16. Dr Ewer, who interviewed the applicant on 8 December 2000, reported on the same date, that the applicant was suffering from alcohol abuse and dependence and a major depressive disorder. He reviewed the applicant on 30 November 2001, and reported on 18 December 2001, that the applicant continued to suffer from these conditions. On 11 April 2003 Dr Ewer reported that he had reviewed the applicant on 10 April 2003; that the applicant had been attending the Repatriation General Hospital on a regular basis for psychiatric treatment; that his condition had improved considerably; that he was no longer abusing alcohol, and that his major depressive disorder was in remission. Dr Ewer's psychiatric diagnosis reads:
“Alcohol Dependence (In Remission)
Major Depressive Disorder (In Remission)”
17. In the course of his oral evidence, Dr Ewer reiterated these views of the applicant's present situation. Dr Ewer said in evidence also, that in his view the applicant's condition of depressive disorder, in remission, continues to be within the diagnosis of depressive disorder in accordance with the diagnostic protocol in DSM-IV for that condition. The range of options in the protocol, Dr Ewer said, includes "in remission".
18. Turning to the alleged stressors:
(a) Gunfire on mainland incident
The applicant said in evidence that although he was a writer/pay clerk on the Sydney, he possessed a Naval driver's licence, and while the Sydney was anchored in Vung Tau Harbour, he was required, in addition to his daytime duties, to drive a fork-lift at night loading stores and ammunition on to the lift in the hangar deck, travelling in the lift to the flight deck, and unloading. He said that he could see firing and flares on the shore; most of the firing came from helicopters. He could not estimate how far the Sydney was from the shore. He thought it might be attacked by the enemy, and he feared for his safety. They had been warned about enemy divers and, in addition, he thought the Sydney was within rifle range of a ..303 rifle.
Dr Ewer said in evidence that, in his opinion, the applicant's emotional response to this stressor was that he feared for his safety, but Dr Ewer considered that this response did not meet the subjective test for a severe stressor in accordance with the Alcohol Dependence SoP. In his closing submissions, Mr Ower indicated that he would not be addressing this alleged stressor.
(b)Lack of sleep incident
In the course of his evidence Dr Ewer said the applicant told him that he found sleeping difficult; and, in Dr Ewer's view, this stressor did not satisfy the subjective reaction required by the definition, nor the objective test of a “severe stressor” in the Alcohol Dependence SoP. Mr Ower made no closing submissions in relation to this incident.
(c)Scare charge incident
The applicant said in evidence that he had not received any information nor training on board the Sydney between early 1965 and his first trip to Vietnam in May/June 1965, regarding the use that would be made of scare charges whilst the Sydney was at anchor in Vung Tau Harbour, and hence he was intensely frightened when he heard the explosion. When, however, he had gone to the deck above, and the process had been explained, he was reassured, and when scare charges were detonated subsequently, he was startled, but as he knew what they were, he could "handle it".
Dr Ewer said in evidence on the basis of the applicant telling him that he was intensely frightened, and that he genuinely thought the ship was under attack, it was Dr Ewer's opinion that this incident satisfied both the subjective and objective elements of the definition of severe stressor in the Alcohol Dependence SoP.
Mr Josephs said in evidence that the applicant would have received briefings on the way to Vietnam that covered procedures when "Operation Awkward" came into effect, such as the detonation of scare charges, and the presence of the Sydney's divers. In addition, Daily Orders were prepared by the Captain's office and all personnel, if they took notice of briefings and Daily Orders, should have been aware of the anticipated use of scare charges in Vung Tau Harbour.
On the applicant's own evidence, he was intensely frightened when he first heard the scare charges, and although startled by the noise of subsequent scare charges, he was not frightened, as he knew what they were. I do not consider, on the whole of the evidence, that the scare charge incident was an event which might have evoked intense fear, helplessness or horror, nor that the applicant perceived that there was a threat to his life or a threat of injury. I am satisfied, on the evidence, and find as a fact, that the scare charge incident does not satisfy the definition of a "severe stressor".
(d) Air raid warning incident
The applicant gave evidence that this incident occurred on the first or second trip to Vietnam, that is, in May/June 1965 or September/October 1965. He said in evidence initially that he heard the words "air raid warning" over the Sydney's loudspeaker system as action stations were called. Later in his evidence he said that the warning was "aircraft alert" and the ship remained “locked down” for 30 minutes.
Mr Josephs gave evidence that there is no record in the Sydney's Record of Proceedings of any air raid during the applicant's periods of operational service. In addition, there is no record of any occasion when an unidentified aircraft, or any other event occurred sufficient for action stations to be called. The Viet Cong had no aircraft; there was no threat. Mr Josephs said in evidence that the only time action stations was called was during Naval exercises for crew training. He said that action station exercises were conducted by the Sydney 2 days before she entered Vung Tau Harbour. She went to defence stations the night before Vung Tau Harbour, and there would have been no action station exercises until she had sailed from Vung Tau Harbour. I accept Mr Josephs' evidence. I am satisfied on the evidence, and find as a fact, that no such air raid warning event occurred in the manner described by the applicant.
19. I am satisfied on the evidence therefore, and find as a fact, that the applicant did not suffer a “severe stressor” during his operational service, and Factor 5(b) of the Alcohol Dependence SoP is not satisfied.
20. In the light of my findings of fact, it is not necessary for me to make a finding in this matter as to the date of the clinical onset of the applicant's alcohol dependency. I consider it appropriate, however, in view of the considerable volume of evidence devoted to this topic in the course of the Hearing, that I state the following. Had I been satisfied that that the applicant had experienced a “severe stressor” during his operational service, I would not have accepted his evidence that, by the time of his arrival in Perth on 26 June 1965, upon return from his first trip to Vietnam, he was suffering from alcohol dependency. In addition, I would not have been satisfied, on the whole of the evidence, that the clinical onset of the applicant's alcohol dependence occurred within 2 years of the occurrence of either the alleged scare charge incident, or the alleged air raid warning incident. Factor 5(b) of the Alcohol Dependence SoP would not have been satisfied in any event.
21. I am of the opinion that the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. I am satisfied, on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of alcohol dependence and depressive disorder were war-caused.
22. For these reasons, the Tribunal affirms the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 30 June 2003, 1 & 9 July 2003
Date of Decision 9 July 2003
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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