McCormack and Repatriation Commission

[2005] AATA 60

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V2002/196

VETERANS'      APPEALS       DIVISION		)
Re		BRENDAN DERMOTT McCORMACK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date21 January 2005

PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED the applicant suffers alcohol dependence or abuse and anxiety which is war-caused.  The application is remitted to the respondent for assessment of pension in accordance with these reasons.

(Sgd)  John Handley

Senior Member

VETERANS’ ENTITLEMENTS – applicant conscripted into Army – previously an apprentice in Merchant Navy – prior consumption of alcohol – upon joining Army, engaged on “John Monash” – seconded as navigator on two voyages on Saigon River to Vung Tau with promotion to Sergeant – applicant felt isolated – was aware of vessels previously attacked with loss of life – aware of presence of mines and divers – alcohol consumption increased – access permitted to Sergeants’ Mess and access to alcohol – whether suffering a psychiatric disorder or experienced a severe stressor – whether clinical worsening of alcohol dependence or abuse – distinction between dependence and abuse – decision set aside

Veterans’ Entitlements Act 1986 s120(1)

Woodward v Repatriation Commission [2003] FCAFC 160

Stoddart v Repatriation Commission (2003) 197 ALR 283.

Repatriation Commission v Deledio (1998) 83 FCR 82

Benjamin v Repatriation Commission (2001) 70 ALD 622

Fogarty v Repatriation Commission [2003] FCFCA 136

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Bendy (1990) 18 ALD 144

Delahunty v Repatriation Commission [2004] FCA 309

REASONS FOR DECISION

21 January 2005 Mr J Handley, Senior Member      

1.       On 21 June 2001 the respondent refused claims made by Mr McCormack for acceptance of the conditions of alcohol abuse, anxiety attacks and post traumatic stress disorder.

2.       Upon review by the Veterans’ Review Board (“VRB”) on 24 January 2002, it was decided that the decision of the respondent, in so far as it related to alcohol abuse, was affirmed.  The VRB recorded in its decision that the Veteran had consented to the withdrawal of his claims in so far as they related to anxiety attacks and post traumatic stress disorder.  The applicant applies to review that decision.

3.       Mr McCormack is presently 58 years of age having been born on 29 April 1946.  He was a member of the Australian Army between 8 July 1970 and 7 January 1972.  The VRB recorded that the applicant’s eligible war service existed between 24 June 1971 and 4 August 1971 whilst he was on board the vessel HMAS John Monash (“the John Monash”).  Within this period of time the vessel was within Vietnamese waters.  During the hearing it emerged that the applicant had been engaged on another voyage on board “John Monash” which sailed in Vietnamese waters between 7 October 1971 and 12 October 1971.  This will be referred to later in these reasons.

4.       At the hearing, Mr Larkin of Counsel appeared on behalf of the applicant and Mr Purcell of Counsel appeared on behalf of the respondent.  The first day of hearing was occupied entirely by the applicant giving his evidence.  The hearing was adjourned until 18 December 2003 when evidence was again heard from the applicant, together with Drs Cole and Walton and Mr Hurst, a retired Lieutenant Colonel.

5.       Mr Larkin submitted that the applicant would rely upon Instrument No.76 of 1998 which has the dual title of “Psychoactive Substance Abuse or Dependence” and “Alcohol Dependence or Alcohol Abuse”.  The factors within that Instrument found at paragraph 5 are recorded as follows:

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

6.       The expression “psychiatric disorder” as it appears in factor 5(a) and (c) is defined at paragraph 8 in the following terms:

“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV.

7.       The expression “experiencing a severe stressor” is also defined in paragraph 8 in the following terms:

“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.

8.       Paragraph 4 of the Instrument provides that “at least one of the factors set out in clause 5 (paragraph 5) must be related to any relevant service rendered by the person”.  Paragraph 6 of the Instrument has application to paragraph 5(c) to 5(e) and it is reproduced in the following terms:

6.Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

brendan dermott mccormack

9.       Mr McCormack adopted a statement that he completed on 20 February 2002 which was received into evidence as Exhibit A.  Having regard to its content, and particularly to the cross-examination of Mr McCormack (on both days of hearing) the statement is reproduced as follows:

I was born on 29 April 1946.

I served in the Australian Army from 8 July 1970 to 7 January 1972. I served in Vietnam from 24 June 1971 to 4 August 1971. I also served in the RAAF from 29 May 1973 to 21 January 1977.

I am currently receiving a disability pension from the Repatriation Commission at 10% of the general rate. My only accepted disability is melanoma.

I had an unhappy childhood. My mother died when I was about 6 years of age and my father served in the Merchant Navy and was consequently away from home for long periods. I had 3 younger sisters and all 4 of us were spaced almost exactly 2 years apart in age from each other. My younger sister (Josephine) was therefore an infant when my mother died. As a consequence of the family circumstances I was sent to boarding school at the age of 6. Josephine was fostered and my 2 other sisters went to a different boarding school. When on holidays I would either stay with school friends or the family which was fostering Josephine. I was effectively institutionalised from the age of 6 with effectively no family life. Whilst I was able to make friends I nonetheless regarded my childhood as an unhappy one.

I left school at the age of 16 or 17 years having failed my leaving certificate year in Secondary School. On leaving school I commenced an apprenticeship as a Fitter and Turner. I left the apprenticeship after approximately 12 months and then had a succession of short term unskilled jobs until I commenced an apprenticeship to the Sea Service in the Merchant Navy. I was called up to the Army during the course of that apprenticeship.

My father died in tragic circumstances in August 1969. He drowned when his ship sank and his death upset me. His death occurred not long before my conscription.

I was extremely disappointed to be conscripted because by that stage I was very happy in my occupation and felt that I was achieving something significant in the Merchant Navy. I therefore regarded my conscription as a set back to my career. I nonetheless accepted my situation and adapted to training in the Army reasonably quickly.

I regarded myself as a bit of a loner and a person lacking in confidence. Furthermore, from time to time I did become frustrated during my training in the Australian Army at the fact that my career in the Merchant Navy was being interrupted. Otherwise, I did not suffer any emotional problems of which I was aware prior to my tour of Vietnam.

Prior to my tour of Vietnam I was drinking alcohol. I was not, however, consuming alcohol regularly. I was a beer drinker only. I was a social drinker and tended to only drink at social events with my mates. During training and prior to my service in Vietnam I suppose I was drinking on average one night per week. At most I was drinking on 2 nights in a week. I was consuming beer at the rate of not more than 6 stubbies at an outing prior to my service in Vietnam except that there had been some instances when I had consumed alcohol to the point of intoxication prior to my tour of Vietnam. These instances were not common.

In Vietnam I served on the John Monash (which was a cargo vessel manned by Army personnel). My position on the Monash was as a Navigator. Navigators were required to hold the rank of at least Sergeant (so that they had authority over Helmsmen). I was made Acting Sergeant to overcome the aforementioned requirement so that my marine knowledge could be properly used. As a consequence I became alienated from both the crew and the permanent Sergeants. I therefore had some feeling of isolation.

Soon after arriving in Vietnam our vessel was required to sail up the Saigon River from Vung Tau to Saigon. I was frightened during the voyage because I was aware that 2 allied vessels had been previously sunk by enemy fire or mines on the Saigon River and I was also aware that the Viet Cong (VC) controlled a large section of the river. I had also heard that the VC were known to man fishing vessels and take cover in floating debris etc from where they would attack. As a consequence I felt unsafe for the whole voyage and this was particularly so because the Monash was not well equipped. I knew that the forehead bofors gun was not operational and that the crew was not well trained to fire the two 50 calibre guns. I was accordingly fearful during the voyage.

Additionally, one of the soldiers on board the Monash was a frightening character named Corporal Mason. Mason was fit and strong and I understand he had unsuccessfully applied for the SAS. He was mentally unbalanced and he threatened a number of soldiers. His behaviour was unpredictable. He physically attacked other soldiers on a number of occasions. For instance, there was an incident when he came on board from shore leave in Saigon intoxicated and when challenged by the Quarter Master on the gangway, Mason grabbed his weapon and struck him on the throat with the butt of the rifle. He became uncontrollable and eventually a US Soldier pistol whipped him to bring him under control. I witnessed him rampaging on this occasion and was in fear for my own safety and that of others because he was unpredictable and had already taken a set against me (I believe because of my elevation to the rank of Acting Sergeant). I also recall that on the voyage back to Australia he went so far as to physically attack the Captain of our vessel (Major Hurst). I understand that Mason faced a Court Martial. I cannot recall for sure whether he was actually court martialled. Being on the same ship as Mason and knowing that he had a set against me also caused me a general fear and specific fear on occasions when I came across him.

Whilst in Vietnam I came to feel generally anxious and depressed and I relate these feelings to the feeling of general isolation amongst the ship's company, the fear of during [sic] the voyage up the Saigon River and feeling threatened by Mason. I felt constantly on edge. As it transpired I never saw actual enemy action except in the distance, save for one incident at Vung Tau when US Soldiers (who were patrolling the wharf) opened fire into the water around our vessel because they thought that they had observed a VC diver.

As a consequence of stress in Vietnam I came to drink to excess whenever the opportunity presented. I found that alcohol helped me to forget about my anxieties in Vietnam. Because I was allowed access to the Sergeant's mess my intake of alcohol was not rationed. I took to drinking at least 4 to 5 stubbies of beer every day following my watch in Vietnam. Frequently I drank well beyond that amount and drank myself to oblivion. I recall at least one occasion when I had consumed so much alcohol that I was unfit to report for duty and I was charged as a consequence.

I continued to drink heavily after my tour of Vietnam. I confined my drinking to beer. I continued to suffer from the feeling of constant anxiety and depression following my tour of Vietnam. I took to drinking beer on my own.

After discharge I returned to the Merchant Navy. I was warned about my excessive drinking habits on a few occasions by my Skipper on return to the Merchant Navy.

My drinking habits were at the rate of a whole slab of beer (24 small cans) on my own in an evening. Within a year following my discharge I came to realise that I was suffering alcohol dependence or abuse and I attempted to give up alcohol. I was admitted to Newcastle Psychiatric Clinic in about 1972. My employer (the Bank Line) subsequently suspended me and the Ministry of Transport suspended my Second Mates' Certificate until I could show that I had rehabilitated. It was at around this point that I enlisted in the RAAF.

I continued to drink excessively in the RAAF until about 1976 (i.e. about 3 years into my Air Force Service). At that stage, whilst I was in Perth, I smashed the window of Osborne Park Hotel. I related that incident to my over consumption of alcohol. I was charged with wilful damage. To the best of my recollection I was convicted and I had to pay a fine. I was threatened with discharge from the RAAF if my conduct did not improve. I did have to meet one charge involving alcohol abuse. As a result of the culmination of these events I decided to abstain from drinking alcohol until my discharge from the RAAF. At that stage I successfully re-applied for my Second Mates Certificate.

I have continued to consume alcohol since discharge from the RAAF. Certainly, I have reduced my intake but I nonetheless do not believe that my consumption of alcohol is ever under control. Even today my wife believes that I consume too much alcohol. Even after discharge from the RAAF I lost jobs (e.g. at the Harbour Trust) because of my drinking habits.

Currently I consume approximately 7 stubbies of light beer per day (i.e. about 2 slabs of light beer per week). The Veterans' Review Board has noted a discrepancy in the history recorded by Dr. Gelb of my drinking habits. Unfortunately, when Dr. Gelb asked me to provide a history of my drinking habits I did not properly reflect and did not appreciate the significance of being accurate with my history. The fact is- that my drinking habits are currently at the rate of approximately 48 small cans of beer per week. My wife remains unhappy about the quantity of alcohol which I drink and the way that it effects [sic] my personality especially on social occasions (to the point where my wife has strong hesitations about mixing socially).

My treating family doctor is Dr. J. Thompson of Golf Links Road, Frankston. Although he is my treating doctor I rarely see him and tend not to seek medical advice at all. I have no treating psychiatrist.

BRENDAN DERMOTT MCCORMACK

10.     In evidence Mr McCormack said that he enlisted in the Australian Army on 8 July 1970.  He had previously been employed by the Merchant Navy as an apprentice.  He completed basic training at Puckapunyal until 17 September 1970 and then completed Engineers training at Liverpool in New South Wales until 25 September 1970.  He then joined the 32^nd Small Ships Division of the Army by reason of his civilian qualifications as a former employee of the Merchant Navy.

11.     Mr McCormack was seconded to the vessel “John Monash” and first sailed on it from 22 November 1970 where it travelled to Singapore for a complete refitting.  Mr McCormack returned to Australia on 28 May 1971.  On 24 June 1971 the “John Monash” sailed to Vietnam and returned to Australia on 23 August 1971.  The vessel sailed again on 6 September 1971 and returned to Australia on 30 October 1971.

12.     Mr McCormack said that the vessel sailed in Vietnamese waters between 29 July 1971 and 4 August 1971 on its first voyage to Vietnam and from 7 October 1971 to 12 October 1971 on its second voyage.

13.     Upon returning to Melbourne Mr McCormack completed medical examinations and was formally discharged from the Army in January 1972.  He said that when he enlisted he had a “clean bill of health” but at the discharge medical examination on 10 December 1971 he was found to have abnormal “emotional stability” (refer T-documents, page 8).  The examining medical officer recorded that Mr McCormack had a “nervous tremor over 4 years”.  Mr McCormack said that he volunteered that he had a “nervous tremor” and that he had requested psychiatric treatment to “help me with the problem”, but he denied advising the medical officer that he had suffered the tremor for four years and denied that it had existed prior to enlisting in the Army.  He said that for part of the four years prior to December 1971 he had been an apprentice in the Merchant Navy at which time he did not suffer from any tremor.

14.     Mr McCormack said that seven or eight months after he was discharged from the Army he was admitted to a psychiatric clinic in Newcastle in New South Wales where he remained as an in-patient for two weeks.  He said that his admission was associated with his alcohol consumption which he described as an “alcohol problem”.

15.     As an indicator of the extent of the applicant’s consumption of alcohol during service, Mr McCormack was referred to a report found within a bundle of documents obtained by the respondent from the central Army records office of the Australian Army (“the Army records”) where at page 54 is a report dated 1 September 1971 concerning an offence alleged against Mr McCormack.  The report records that on 7 August 1971 (which would have been during the first voyage to Vietnam) Mr McCormack was charged with drunkenness whilst on watch of John Monash.  An investigating officer recorded that the charge could not be proved in the absence of medical evidence supporting a finding of drunkenness.  Nonetheless Mr McCormack conceded at the hearing before this Tribunal that the origin of this offence was his consumption of alcohol.

16.     Mr McCormack explained that he was given the temporary rank of sergeant whilst on board this vessel because of his prior navigation experience.  He said that he had been in conflict with the Executive Officer on board the vessel, Lieutenant Mitchell, who he said had been Army trained but did not have any marine knowledge.  Mr McCormack said that he was required to undertake Lieutenant Mitchell’s nautical duties and had also become responsible for navigation because “he [Lt Mitchell] was completely out of place”.  Mr McCormack said that the John Monash was a “small ship” and by reason of the rank given to him and the privileges he was able to enjoy in the Sergeant’s Mess, he found himself in an “awkward situation” and felt “inadequate”.

17.     Mr McCormack acknowledged that his statement (paragraph 10) only referred to the first voyage to Vietnam but said in relation to the second voyage he could recall United States personnel firing weapons into the water around vessels which were tied up at Vung Tau Harbour.  He said that he could recall “splashing near the ship” and recalled observing floating debris in the river.  He said there was a concern about the possibility of floating mines or mines being attached to the hull of ships.

18.     Mr McCormack was then taken to his statement where he referred to being frightened when sailing in the Saigon River between Vung Tau and Saigon because he “was aware that 2 allied vessels had been previously sunk by enemy fire or mines on the Saigon River and I was also aware that the Viet Cong (VC) controlled a large section of the river”.  In evidence Mr McCormack said that whilst he had been a member of the Merchant Navy in 1967 he had travelled on the Saigon River whilst on board the vessel Harold Sleigh which was then carrying jet fuel.  He said that his vessel was a cargo ship carrying a British ensign and which had been registered in Hong Kong.  He said that he was then an apprentice and recalled that an English speaking Vietnamese river pilot had spoken of a vessel being sunk in the most dangerous part of the river.  He recalled that the pilot had said that the vessel had been “hit” in order to “block the river”.  Mr McCormack said that the vessel sunk was a United States merchant cargo ship Batton Rouge Victory and that seven members on board that vessel had been killed.  He remembered the sinking of that vessel when he was on board the John Monash as it sailed along the Saigon River.

19.     Mr McCormack said that he felt vulnerable whilst on board John Monash.  He said that so far as he was aware, there was no record of the cargo manifest and he was unable to say whether his vessel was carrying ammunition but was aware that his vessel was “full of fuel” and was therefore exposed.  Mr McCormack also recalled that whilst travelling on the river there were helicopters travelling overhead, patrol boats were cruising the river and “napalm bombs were going off in the distance”.  He also recalled that fishing vessels were sailing on the river which he regarded as dangerous.  Mr McCormack said that the persons on board the fishing vessels could not be identified as south or north Vietnamese.

20.     In his statement, Mr McCormack also referred to bofors guns which were not operational and whilst two 50 calibre guns were on board the vessel the crew was not adequately trained to operate them.  Mr McCormack said that the bofors guns on board John Monash were an “irrelevant piece of equipment” because they were not operational and could therefore not defend the vessel.  He said the 50 calibre guns had been used but only to fire into the water in order to demonstrate to the crew that the guns were operational.  Mr McCormack said that he had used the guns on that occasion and operated one of the guns for about 20 seconds.

21.     With respect to the personnel on board the vessel, Mr McCormack said that the Master of John Monash (Captain Hurst on the first voyage and Captain Moyes on the second voyage) had been seconded from the Merchant Navy and had been given the rank of captain for the voyages.  Mr McCormack said that he doubted that those persons had the nautical experience to qualify them as a captain.  He said the rank and file on board the vessel were Army personnel who had either completed marine courses, or were national service personnel who had prior nautical experience.  Mr McCormack described the compliment of persons on board the John Monash as being a “mixed bag”.  He said that had the John Monash been used as a merchant navy ship it would have had a crew of 22 persons however on the occasions that it was used by the Army and when it travelled to Vietnam it had a complement of between 44 and 45 persons and was a crowded vessel.

22.     As to the reference to Corporal Mason in his statement, Mr McCormack said he was unstable and had attacked the Quartermaster and Captain Hurst on board John Monash.  He said that Mason was eventually court marshalled and punished.  He said that he had had a “lot of contact” with Mason who was a helmsman and he was in fear of him.

23.     Concerning access to alcohol, Mr McCormack said as an acting Sergeant he was entitled to Sergeant’s privileges which permitted him to occupy the Sergeant’s Mess where alcohol was readily and easily obtained.

24.     

In cross-examination Mr McCormack was initially taken to an alcohol questionnaire that he completed and which is found at pages 27 and 28 of the

T-documents.  Mr McCormack agreed that he had signed the document but it had been completed by an advocate either with the RSL or with the Vietnam Veterans’ Association.

25.     In answer to the first question which asked when did he “begin to consume alcohol on a regular basis” Mr McCormack recorded “in service”.  He said that he intended that answer to mean that he consumed alcohol on a regular basis whilst he was enlisted in the Army.  He agreed that he did drink alcohol whilst he was in the Merchant Navy but not on a regular basis.  When asked, in the second question, was there any “particular reason for doing so” (that is to begin to consume alcohol on a regular basis) Mr McCormack answered “peer pressure, reduced cost, lack of confidence in my abilities, the thing to do”.  Mr McCormack said that his reference to “peer pressure” was a reference to an accepted culture to drink alcohol and to “play up and be tough”.  He said there was a strong drinking culture when he had been in Singapore for six months before the first voyage to Vietnam.  He said that he had been drinking alcohol whilst on leave from the vessel but he had not then been entitled to the privileges as a sergeant.  He said that only whilst on board the vessel was he entitled to sergeant’s privileges which entitled him to access to the sergeant’s mess.  Whilst onshore he was largely confined to accommodation quarters where mess privileges were not readily available.

26.     The third question asked “how often did you drink at that time?” and the recorded answer was “once per week”.  Mr McCormack explained that he intended, by his answer, to refer to his consumption of alcohol prior to enlistment and acknowledged in the circumstances that he had misunderstood the question.  He said that after he completed his initial Army training and whilst on board the John Monash he was consuming alcohol on a daily basis.  This was consistent he said with his answer to question 5 which asked on average how much alcohol did he consume on each occasion and the answer that he provided was “one/two stubbies per day” which he said was the amount rationed on a daily basis.

27.     Question 6 asked whether there were significant changes in the consumption of alcohol.  Mr McCormack answered affirmatively and recorded that in 1971 he increased his consumption to an average of four stubbies per day “and binge drinking in Port”.  In 1973 he recorded that he increased his consumption to “half slab/day and binge drinking”.  At 1973 he agreed that he had returned to the Merchant Navy and it was in that year that he was admitted to a psychiatric hospital in Newcastle.  Mr McCormack said that he had been warned by a skipper on board a Merchant Navy vessel concerning his alcohol consumption.  He said that he “decided to stop, I jumped over the side of the ship in withdrawal, I was seeing pink elephants”.  It was at that time that he decided to admit himself to the psychiatric hospital.

28.     In 1977 Mr McCormack recorded that he had ceased consuming alcohol “due to military discipline and A/A”.  At that time he had enlisted in the Air Force and thereafter did not consume alcohol until 1982 where he answered that he then “increased binge drinking weekly; lost job”.  At that time, Mr McCormack was employed by the Melbourne Harbour Trust as a skipper but had lost his employment because of his alcohol consumption.  In 1984 he recorded “drinking light ale – under control due to family and myself”.  Mr McCormack said that in 1984 light ale became available and “was an excuse to drink”.  He agreed that in 1984, his alcohol consumption was not “under control”.  In 2001, when this questionnaire was completed, Mr McCormack recorded that his alcohol consumption was “light ale on occasions/weekly”.  At that time he said that he was employed as a taxi driver at 12 hours per day and working at six days per week.  At the present time he said that he consumes between six and seven stubbies of light beer on a daily basis.

29.     At the present time, Mr McCormack said that he is unable to control his alcohol consumption and said “I can’t stop it”.  He said that presently he is employed as a courier with a pathology laboratory and he is able to “maintain drinking at a safe level”:

30.     As to his service with the Merchant Navy, Mr McCormack said that he was at sea “for most of the time”.  He recalled that he made a number of trips to Vietnam from Singapore carrying fuel and there was a period where he travelled on one or two occasions per month for a period of eight months.  On one of those voyages he recalled observing the sunken vessel Batton Rouge Victory in the Saigon River.  At that time he was an apprentice and alcohol was rationed.

31.     Mr McCormack was then taken to a report completed by a consultant psychiatrist, Dr Chester, found at page 49 to 51 of the T-documents.  Dr Chester provided a report on 14 June 2001 following a psychiatric examination arranged by the Department of Veterans’ Affairs.  Dr Chester recorded on the first page that he had been given a history by Mr McCormack “that his main problem had been consuming excessive alcohol which he admitted had began before joining the army when he was in the merchant navy but said that it had increased during his period the services (sic)”.  Mr McCormack agreed that the history recorded was accurate “subject to what he means by “excessive””.

32.     Later on the first page Dr Chester recorded “….after leaving the army he had returned to the merchant navy but had resumed excessive alcohol consumption and although he had received numerous warnings and had ceased alcohol consumption he developed withdrawal symptoms and had entered a detoxification centre and his marine certificate had been suspended.  He had thereafter continued excessive drinking”.  Mr McCormack agreed that his was an accurate history.  He also agreed that a history found later on the first page of the report of abstinence from alcohol for a period five years was referable to the period of 1977 – 1982.

33.     The applicant was then asked to comment upon the history of alcohol consumption at the time of the examination in June 2001 where Dr Chester recorded that Mr McCormack was then consuming “around four or five light beers per day”.  Mr McCormack agreed that this history was accurate but when asked to explain that it was apparently different from the questionnaire that he had completed in 2001 (page 27), where he recorded that he was then consuming “light ale on occasions/weekly”, he said that there were some days in 2001 when he did not consume alcohol at all and there were other days when he would consume about six stubbies.  He said the answer that he gave in the questionnaire at page 27 was intended to be an “average” of his alcohol consumption.

34.     At page 51 of the report of Dr Chester, the word “excessive” is again used to describe the applicant’s alcohol consumption during his service in the Merchant Navy prior to enlistment and subsequent to service in the Army.  Mr McCormack said that he could not recall using the expression “excessive” and would not, in any event, have used that word.  He agreed that he may have drunk excessively on one or two occasions whilst in the Merchant Navy prior to enlistment in the Army but not to the degree that is suggested by the report of Dr Chester.

35.     Mr McCormack was then taken to a report completed by Dr Gelb, a consultant psychiatrist, who examined him at the request of an RSL advocate at the Bayside Veterans’ Centre.  The report is dated 18 October 2001 and is found at page 69 to 75 of the T-documents.  At page 70 Dr Gelb has recorded obtaining a history from Mr McCormack of increased consumption of alcohol after enlistment “because he was forced to divert from the career “that I truly loved”, into an area that “I had no real desire to go””.  Mr McCormack agreed with that history and said that he would have preferred to have stayed in the Merchant Navy and was unhappy during enlistment.  He also agreed that the history recorded by Dr Gelb, namely, “your are not a man unless you can drink”.

36.     At page 71 Dr Gelb recorded a history taken from the applicant of increasing his alcohol habits after he had been given the privileges of a sergeant’s mess.  The report records that Mr McCormack “found being in a war zone a very uneasy situation, and one which was “easily overcome with alcohol”.”  He also recorded that Mr McCormack was “not able to rely on the support of either the Sergeants or the rank and file National Servicemen because of the above situation” (a reference to Mr McCormack being promoted to the position of Acting Sergeant which apparently alienated him from other persons).  Mr McCormack was asked to explain his reference to being in a war zone and being in an “uneasy situation” in the context of having travelled to Vietnam whilst in the Merchant Navy on at least 16 occasions.  Mr McCormack said that he was then a young apprentice, he thought he was brave and was on board a large tanker carrying a British ensign which was regarded as being neutral.  He thought, on reflection, that his vessel probably was vulnerable but with the Army he was part of a “war unit”.

37.     When asked to consider that the vessel John Monash at least had weapons which the Harold Sleigh (the Merchant Navy vessel) probably would not have had, Mr McCormack said that the weapons on board the John Monash could not be used, that he and others did not know how to use them and there was a risk of being fired at.  He agreed that he had had SLR training at Puckapunyal and agreed that two photographs received into evidence portrayed 50mm guns with long magazines of ammunition and soldiers firing rifles into the water.  Mr McCormack said that there were persons on board the John Monash that had been trained by the Army to use weapons however he said that persons on board were not experienced in the use of 50 calibre guns.  He said on the occasion that the 50 calibre gun was used to fire into the water “bullets were going everywhere and some couldn’t control it”.

38.     The applicant said that he could not explain why Dr Gelb did not have a history of alcohol consumption prior to enlistment whilst he was an apprentice in the Merchant Navy.  He was also unable to explain why Dr Gelb did not refer to, or apparently obtain, a history from Mr McCormack of alcohol consumption because of his presence in a war zone during the two occasions that he travelled to Vietnam.  When asked to explain why Dr Gelb had a history of him drinking approximately one slab of light beer per week (refer report at page 73), which would have been in 1981, Mr McCormack said that he “didn’t think about this too much – I can’t be accurate – sometimes I drink 12 cans at night”.

39.     In reference to his evidence of being drunk on duty on 7 August 1971 (refer Army records at page 54) Mr McCormack said that he could not recall whether he was drunk whilst he was on watch or whether he had been drunk before he commenced his watch duties.  He acknowledged that on 7 August 1971 it would have been three days after he had left Vietnamese waters, during the first voyage, and was on his return to Australia.  Nonetheless he said that he was adamant that he did increase his alcohol consumption during the first voyage whilst on board John Monash.

40.     Mr McCormack acknowledged that the second voyage was not referred to at all in his Statement.  He said that he was “positive” that he did engage in a second voyage, with Captain Moyes in command of the ship.  He acknowledged that it was a possibility that he did not travel to Vietnam on the second occasion despite records purporting to show that he was on leave in October 1971.  However other records at page 32 and 33 of the Army records do show him being engaged in service in October 1971.  Mr McCormack said that he did not refer to the second voyage in his statement because at that time he could not provide the dates of it.  He said he referred to it in his evidence at the hearing because subsequent to the commencement of the proceedings he had obtained records to confirm the voyage and the dates of it.

41.     Mr McCormack was then taken to another bundle of documents obtained by the respondent from the RAAF, admitted into evidence as Exhibit 9 (“the RAAF records”).  At page 53 is a report completed by Corporal RS Bell, a service policewoman, dealing with an application Mr McCormack made for discharge in 1976.  At page 53 there was a reference to the applicant’s consumption of alcohol and at paragraph 3 it is noted:

He feels that the last 10 years of his life have been a waste because of his over indulgence in alcohol.  He has had several civil and service charges; they are:

a.‘locked up a few times’ for being drunk and disorderly in Melbourne, (prior to going to sea). The member could not elaborate further,

b.suspended driver’s licence in Melbourne,

c.while in Army NS, AWOL due to alcohol for less than 24 hours,

d.six months suspension of driver’s licence (due to alcohol) in Wagga,

e.unable to attend work due to an over indulgence in alcohol whilst at Wagga.  Awarded 14 days CB, and

f.damage to Osborne Park Hotel, Perth.  Awarded $40 costs and damages.

The member was very hazy concerning times, places and dates of his charges.

42.     Mr Purcell suggested to the applicant that the history found at page 53 and 54 of the RAAF records suggest a person who drank frequently and excessively.  Mr McCormack said that that interpretation was not appropriate.  He acknowledged that he did previously drink alcohol “to get drunk” because it was “the thing to do”.  He said that he did not like the taste of beer but he “just drank to get full”.

43.     At page 82 of the RAAF records is a report completed by Mr McCormack dated 16 September 1975 in support of an application for discharge from the RAAF.  At paragraph 4 (page 82) Mr McCormack recorded “At various times throughout my career in all three Services my conduct has been of a poor standard, mainly because of the effects of over indulgence in alcohol.  As the result of an incident whilst ashore at Newcastle, my Mate’s Certificate was suspended until my sobriety could be shown to have improved to the satisfaction of a medical practitioner. Following this suspension I decided to get away from the sea, and I subsequently enlisted in the RAAF.  Although my initial choice was for MTFITT training, I was subsequently selected for and underwent ELECFITT training.  As the result of a further incident in June 1975, I volunteered to undergo medical and psychiatric training to cure my alcoholism and now feel, as does the BSPEA Medical Officer, that I have successfully cured my problem.  I am now very interested in returning to sea”.

44.     In answer to some questions from me, Mr McCormack said that he left school at the age of 16 and first commenced consuming alcohol at the age of 19.  He was then drinking full strength beer with his friends mainly on weekends.  He said that he would then drink to “get full” and it would not be unusual to drink ten pots of full strength beer.  He said that there were some weekends that he might not drink any alcohol at all and he did not drink between Mondays and Fridays.  When he started at sea as an apprentice in the Merchant Navy, he had little income, was mainly at sea and a bar was not available.  He said he was able to purchase packaged beer when the Ship’s Master opened a bond where he might then purchase a slab of stubbies once per month.  He said whilst onshore “we could do as we like”.  He said that he would then be permitted to spend two or three days onshore once every two or three weeks and on those occasions might then consume up to ten stubbies at night.  He said he was able to purchase packaged beer onshore and bring it back on board his vessel but he “wasn’t interested”.  Mr McCormack recalled that he increased his consumption of alcohol towards the end of his apprenticeship because he learnt that he had been called up for National Service, he then had a problem having a marine certificate issued to him and at about that time his father died in tragic circumstances.

45.     With respect to his perception of enemy activity whilst in Vietnamese waters, Mr McCormack was then referred to a report completed by retired Lieutenant Colonel Conant dated 6 January 2003 and received into evidence as Exhibit 5.  Mr Conant referred to the Saigon River as a ““green” route possibly subject to minor isolated incidents”.  Mr Conant also referred to cables held by the Army headquarters from allied forces in Vietnam in July 1971 concerning provision of gun crews for the John Monash.  The cables described the Vung Tau shipping channel to be “adequately secured by land sweeps along banks…….. adequate armed surface patrol vessels and frequent surveillance from air.   Last reported attack on vessel in this area was eight months ago”.  The other cable describes the Long Tau shipping channel as being classified as “green”.  It refers to civilian use of the channel and by US vessels which were not attacked during voyage.  Another cable concludes that “provision of a 40 mm gun crew for John Monash does not appear to be warranted”.  Mr McCormack said that he was not necessarily reassured concerning the safety of passage along that river because “there was a war going on” and “I was in a war zone”.  He said that he did suffer heightened anxiety whilst he was on board the vessel in Vietnamese waters.

46.     With respect to the contents of his statement where he had referred to the sinking of a vessel (Batton Rouge Victory), Mr McCormack said that he was adamant that a second allied vessel had previously sunk but he could not recall its name.  Additionally he did not know when it was sunk.  He understood that the other vessel had been struck in error.  He recalled that the Batton Rouge Victory had seven persons killed and he understood that it was sunk by a floating mine.  He said that it was well known in Vung Tau that this vessel had been sunk by a floating mine and he recalled that he had also read about it in newspapers and heard about it from other persons.  He also confirmed that he had overheard an English speaking Vietnamese river pilot speak about it.

47.     As to the nervous tremor found at the discharge medical on 10 December 1971, Mr McCormack said that he could not recall how long he had suffered from it but he did recall that it was “affecting [him] badly”.  He said that he requested a psychiatric consultation because he could not understand why it was happening but that consultation was never provided.  In answer to some questions from me, Mr McCormack described the tremor as both of his hands shaking whenever he was anxious or under pressure.  He said that he would consume alcohol to “numb it” and the tremor would then stop.  He said there were occasions when the tremor was so bad that he was unable to hold a knife or fork or use a pen to write reports.  He said he had tremors in his hands until he commenced service with the Air Force.  Mr McCormack thought that he had had the tremors for about six months before December 1971 but conceded that it could have been for longer.  He denied that he had suffered from tremors for four years as the discharge medical report recorded because he had no recollection of ever having tremors whilst he was an apprentice in the Merchant Navy.

48.     The discharge medical report also refers to attending a neurologist approximately three years previously.  Mr McCormack denied this.  He said he only saw a neurologist when he was admitted to the hospital in Newcastle, after discharge.

49.     In re-examination Mr McCormack confirmed that upon enlistment he satisfactorily completed a medical examination (page 31).  He recalled that the discharge medical examination was “rushed” because he “wanted to get out of service”.  Nonetheless he acknowledged that he did volunteer the presence of his tremor and had asked for a referral to a psychiatrist.  Mr McCormack said that the tremor was then causing him a “great deal of concern”.

50.     Between the conclusion of the first day of hearing and the resumption, an Internet search was undertaken by the Tribunal with respect to “Baton Rouge Victory”.  This search was undertaken – in the exercise of the Tribunal’s inquisitorial responsibility – because the applicant did not identify that vessel in his Proof of Evidence lodged prior to the commencement of the hearing but its identity emerged during his evidence on the first day of the hearing.  There was no documented material at all before the Tribunal with respect to that vessel or it having sunk as alleged.

51.     The Internet search revealed the website which provided an extract from the “San Francisco Chronicle” dated October 20, 1997.  Under the heading “Remembering Vietnam’s Forgotten Seamen” the article recorded that the “Baton Rouge Victory” left port in San Francisco on 28 July 1966 carrying a load of military trucks and other equipment.  The article records that the vessel was privately owned but was leased by the United States Government as a supply vessel.  The article reports that on 23 August 1966, the vessel was proceeding along the Long Tao River approximately 22 miles south east of Saigon when a limpet mine, which had been placed on its hull, was electronically detonated by a person on the riverbank.  The article reports that several persons were killed, that “ships” had been attacked with small arms fire from February 1966 and two other freighters had been damaged by mines in May of that year.  It is reported that the “Baton Rouge Victory” was the first United States vessel sunk in the Saigon shipping channel.  This article was forwarded to both parties by a letter of the Registrar on 17 November 2003.

52.     On the second day of hearing, Mr Purcell tended a number of documents (including the above newspaper report) which were located after the first day of hearing.  One such document was Admiralty Chart No. 1016 which depicts the Long Tao waterway which was part of the Saigon River.  In anticipation that Mr McCormack would be asked questions concerning his voyages along that waterway, he was given the opportunity to refresh his memory of it by perusing the chart before his evidence resumed.

53.     When the hearing resumed, Mr McCormack confirmed that his written statement recorded that he travelled on the Saigon River between Vung Tau and Saigon whilst on board the John Monash and that he had been frightened during one such voyage because he had learnt that two allied vessels had previously been sunk by enemy fire.  He was also reminded that in evidence on the first day of hearing he had said that he had seen one of the vessels which had been sunk and had heard an English speaking Vietnamese river pilot referring to a part of the river as being dangerous.  Mr McCormack also confirmed that he had said in evidence, on the first day of hearing, that the occasion when he saw the ship which had been sunk by enemy fire was during his apprenticeship in the Merchant Navy and when he was on board the vessel Harold Sleigh.  In evidence he identified the vessel which had sunk as the Baton Rouge Victory, which was an American liberty ship.  Mr McCormack also confirmed that the Baton Rouge Victory was in the middle of the channel on a bend which was regarded as being notorious.

54.     In evidence, and by reference to the Admiralty Chart, Mr McCormack confirmed that both the Harold Sleigh and the John Monash engaged in the same passage along the Long Tao waterway.  He was then asked to identify the point in the waterway where he alleged that the Baton Rouge Victory had been attacked and said that he was unable to be sure – noting that his voyage on the waterway was more than 30 years previously – and it appeared that some of the place names had subsequently changed.  After further discussion, Mr McCormack though that the location of the Baton Rouge Victory, when he observed it, was at a place referred to on the chart as Les Quatre Bras.  Alternatively the location may have been at a position some distance to the north west of Les Quatre Bras at a place described as Coude de L’Est.  Mr McCormack thought that the Baton Rouge Victory had been possibly sighted at either one of those two locations.

55.     The applicant was then challenged upon his evidence that he observed the vessel located into the middle of the channel.  He was referred to his evidence on the first day of hearing where he had said that the Baton Rouge Victory was obscuring the channel and he understood that the intention of it being attacked was to block the river and obstruct shipping.  He was also referred to his evidence from the first day of hearing where he confirmed that the river was not straight but that it was windy and narrow and channelled in a number of different places.  He thought that the particular channel in which the Baton Rouge Victory was attacked was the St George’s Channel but on reflection, Mr McCormack could not recall where he had learnt of that name and he could not locate a channel by that name on the chart.

56.     Mr McCormack also confirmed his earlier evidence that he had travelled the river on a number of occasions with the vessel, Harold Sleigh, over a period of eight months and had undertaken the journey on one or two occasions of each month.  He agreed therefore that he would have completed between 8 and 16 voyages.  He could not remember however, or identify the voyage with Harold Sleigh when he observed the Baton Rouge Victory.

57.     Mr McCormack was then challenged as to whether he observed Baton Rouge Victory in the middle of the channel as he had said in his earlier evidence.  He said that he did see that vessel and it was in the channel.  He said the river was narrow and it was observed in a “very bad bend on the river” (Transcript, page 144) and it was difficult to manoeuvre around it “because it was positioned in the channel” (Transcript, page 145).  He said he was “positive” about his recollection.  He was then challenged as to whether that vessel had ever “sunk” because a report prepared from the Harbour Clearance Unit addressed to the Chief of Naval Operations in the United States indicated that after Baton Rouge Victory was struck, it was deliberately run aground to avoid the channel being blocked, that it was then partially off loaded and because of “lively” currents a decision was made to take the ship along the river to Vung Tau in an attempt to salvage it.  Mr McCormack said that irrespective of whether the vessel was grounded inside or outside the channel, that the river was still “manageable” but he disputed that the vessel was towed shortly thereafter to Vung Tau for repairs because he observed it on at least two voyages along that river.  He said he did not ever observe it at Vung Tau because Harold Sleigh did not travel to that port.

58.     As this questioning continued, Mr McCormack said that he could not recollect whether in fact he saw Baton Rouge Victory on two occasions but remained adamant that he did observe it on at least one occasion, it was either inside or outside of the channel, that it was “in the middle of the river” and that “may be” it had been run aground outside the channel (Transcript, page 147-148).

59.     The applicant was then referred to his statement where he recorded that he had been aware of two allied vessels previously being sunk by enemy fire on the Saigon River.  He said that he had heard that another ship had been “hit” but he did not see it.  Mr McCormack was referred to a report by a United States Naval Historian named Schreadley, who reported that mines were a principle threat to vessels on the Long Tao waterway.  In that report he also referred to a vessel known as Eastern Mariner registered in Panama and a French vessel Milos Delmar the latter of which had sustained damage by a mine.  When he was challenged by Mr Purcell that those vessels were not “allied vessels” and that they were neutral, Mr McCormack asked whether they were under American command.  There was then dispute between counsel whether those vessels would have been carrying flags of their country of origin – thereby signifying that they were “neutral”.  There was then discussion about the flags carried by vessels on this waterway.  Mr McCormack agreed that the vessel Harold Sleigh operating out of Hong Kong, flew the British red ensign.  It was suggested to the applicant that by reason of the Eastern Mariner and the Milos Delmar being attacked, despite them carrying “neutral” flags, he must therefore have been at risk whilst on board Harold Sleigh, whilst it was carrying a “neutral” flag.  Mr McCormack acknowledged whilst mines are indiscriminate and a vessel would not be protected from a mine (by the flag that it was carrying) he said that whilst on board the Harold Sleigh he did not regard himself as being vulnerable because, “initially I don’t think it (danger) really dawned on me” (Transcript, page 154).  He said this was despite being trained then as an officer in the Merchant Navy, being on board a vessel which was carrying fuel and where he would have been aware of the catastrophic effects to his vessel if it had struck a mine.

60.     Mr McCormack was then asked to consider that the threat to which he was exposed was greater in 1966 when he was on board the Harold Sleigh, than in 1971 when he was on the John Monash.  It was suggested that the threat to him in 1971 was “a very low level”.  Mr McCormack said, “Well they didn’t tell me that”.  He said the waterway remained in a war zone, that he and others were on look out and kept watch, and that guns had been issued.  He denied that his alcohol consumption and anxiety was affected by his experience in the Merchant Navy because he was given a “clear report” at the conclusion of his indentures and had he then been affected by alcohol it would have been recorded.  Nonetheless he acknowledged that the examining medical officer at the conclusion of his army service in 1971 recorded that he had a tremor for four years.  It was suggested that the commencement of the tremor would have coincided approximately with the completion of his Merchant Navy service.  Mr McCormack acknowledged that he had had a tremor but thought that the responses by him to the examining Army doctor at discharge “probably got a bit misconstrued”.  Mr McCormack said that he did have a medical examination prior to rejoining the Merchant Navy but his tremors had not been discussed and his recollection was that the doctor was principally concerned with an eyesight test.  He said he did not then seek any referral for medical or psychiatric “problems” at that examination (Transcript, page 158).

61.     In re-examination Mr McCormack was then taken to reports of psychiatrists completed during, and immediately prior, to his discharge from the RAAF.  The first report occurred at or about the time that Mr McCormack first applied for discharge which was not approved.  In November 1976, Mr McCormack recalled that he again attended a psychiatrist and did inform of his alcoholism together with tremors and blackouts.  Mr McCormack agreed with the proposition put to him by Mr Larkin that at 1976 he had been attempting to abstain from alcohol but had not been performing satisfactorily in the RAAF.  He understood that he was discharged for that reason.

62.     With respect to the cross-examination by Mr Purcell concerning the risk to vessels travelling along the Long Tao waterway, Mr McCormack was taken to Exhibit 15, being a report lodged by the respondent prior to the resumption of the hearing, which refers to 33 attacks on shipping vessels between Saigon and Vung Tau on the Long Tao waterway in 1969, being two years before he travelled on it on board the John Monash.  Mr McCormack said he was not aware of that rate of casualty but said that subsequent to the examination earlier by Mr Purcell he had recalled the vessel, Eastern Mariner, and he had observed it “aground” opposite the Nha Be jetty.

63.     Mr McCormack said that he could not remember whether he observed “Baton Rouge Victory” on one or two occasions but on the occasion, or occasions, that he observed it, it was either in the middle of the channel or some other part of the channel or the river and that the channel was in the same river along which the Harold Sleigh and the John Monash had travelled.

64.     This questioning precipitated further cross-examination by Mr Purcell who challenged the applicant upon his use of the word “aground” and suggested that if a vessel was outside of a channel it would necessarily be “aground”.  Mr McCormack agreed that the “Baton Rouge Victory” had not sunk and assuming the report of the Harbour Clearance Unit was accurate, the Baton Rouge Victory was deliberately driven aground, outside the channel, after it had been struck to avoid it sinking.  Mr McCormack acknowledged that Baton Rouge Victory had not “sunk” but rather it was partially submerged and the whole of its hull was visible.

stuart neil hurst

65.     Mr Hurst retired from the Australian Army in 1986 where he had held the position as Captain of a number of army vessels.  He provided a report at the request of Writeway Research Services on 29 October 2003 which was received into evidence as Exhibit 6.  The report comments upon specific propositions put to him by the respondent and by reference to the contents of a report of Mr Conant, of 6 January 2003, who also provided his report at the request of Writeway Research Services.

66.     Mr Hurst said that he “vaguely” remembered Mr McCormack who was a member of a crew of the John Monash which he commanded in 1971.  He said that the John Monash was fitted with bofors guns and were operational, but a gun crew was not on board the vessel.  He reported that there was “little threat in the Saigon River”.  Additionally Mr Hurst said in evidence that personnel on board the John Monash were experienced in, and had been issued with, SLR rifles, which were standard army issue.  Additionally he said that the vessel was fitted with a 50 calibre machine gun and that persons on board the John Monash had been trained in its use.

67.     Mr Hurst said that the John Monash did not carry ammunition on the Saigon River.  He said that ammunition was supplied by United States forces, whereas, the John Monash was carrying equipment for civilian aid comprising water reticulation equipment, cement and corrugated iron.

68.     With respect to the person Corporal Mason, Mr Hurst said that he was not aware that he had been responsible for assaulting any other person nor was he aware that he had been subdued by an American soldier.  He dismissed the suggestion that Mason had been “pistol whipped” because on a vessel the size of the John Monash, everyone would know about it.

69.     As to the applicant’s evidence that American troops patrolling the Vung Tau wharf had fired into the water because of the belief in a sighting of a Viet Cong diver, Mr Hurst said that he had heard of American soldiers discharging their weapons into the water but he could not remember it having occurred whilst he was at Vung Tau.

70.     With respect to the applicant’s contention that he had access to alcohol in the sergeants’ mess, Mr Hurst said that packaged beer was not allocated to sergeants as it was to other sailors but there was a limit on the daily allocation.  Mr Hurst said that beer was available in the sergeants’ mess, unopened, but at the rate of two cans per day per person and persons taking alcohol in those circumstances were required to sign for it in a book maintained by a Warrant Officer.  In effect, he said, there was an honour system existing, and in the event that a person took more beer than was permitted, others would know of it.  He said the only way that he could foresee that a person would consume more than two cans of beer per day were if they had been given the beer allocation of another person.

71.     With respect to the applicant’s nautical qualifications, Mr Hurst agreed that the officer in charge of the John Monash did not have any “nautical knowledge” and in those circumstances the applicant, by reason of his prior experience in the Merchant Navy, did undertake the officer’s responsibilities.  Mr Hurst said that Lieutenant Mitchell, being the Executive Officer, was a trained army officer, but did not have nautical experience but did maintain a 4.00 p.m. to 8.00 p.m. watch with Mr McCormack which achieved “a nice balance between military knowledge on the one hand, and technical knowledge on the other”.

72.     As to the contention of the applicant that there was a threat of mines being placed on vessels in Vietnamese waters accompanied by the sound of percussion grenades to prevent this occurring, Mr Hurst said that there was “little, if no threat, of mines in the Saigon River” in 1971 (Transcript, page 177).  He said that there had been a threat in 1966, but at 1970 to 1971 allied forces were withdrawing and the river was then “fairly quiet”.  He likened the voyage as “almost like a civilian operation”, yet he said, “the Americans were everywhere”.  He acknowledged that members of his crew continued to perform a nightly stand-to and were prepared to anchor but there was no need for any “special precaution” nor did his crew have “any concern”.

73.     With respect to the applicant’s navigation through the Barrier Reef on return to Australia, Mr Hurst agreed that Mr McCormack was qualified to keep watch because he held a certificate of competency as a second mate on a foreign vessel.  He said he had not ever been made aware of any concerns held by Mr McCormack or anyone else about his ability to keep watch.

74.     With respect to the vessel “Baton Rouge Victory”, Mr Hurst undertook a number of Internet searches in preparation for his report and supplied a number of documents to the respondent.  He obtained a copy of a photograph of the Harold Sleigh, the extract from the San Francisco Chronicle (refer earlier), a copy of a photograph of the Baton Rouge Victory aground at Les Quatre Bras on the Saigon River (which he said depicted that vessel “soon after it was put ashore by the Master”), some reports from the Harbour Clearance Unit of the United States Navy and an article on “Border Mine Warfare in South Vietnam”.

75.     Mr Hurst said that from his enquiries it would appear that upon Baton Rouge Victory being struck by a mine, it immediately commenced to flood.  However the Master of the vessel caused it to run aground to avoid the river channel being blocked.  He said the article reported that cargo was quickly off loaded but the vessel could not be held in its mooring because of a strong tidal current.  He said he understood the article to mean that there was a risk of the vessel breaking away from its mooring with a rising tide thereby exposing the vessel to the risk of sinking.

76.     Mr Hurst said that he did not ever see the Baton Rouge Victory on his voyage on the Long Tao waterway nor was he aware that the Baton Rouge Victory had been struck at the time he was on board the John Monash.  Mr Hurst said that he had heard of other merchant ships which had been damaged but he understood that had occurred some years prior to 1971 at which time he said “there didn’t seem to be any danger” (Transcript, page 182).

77.     In cross-examination Mr Hurst said that he was not involved in the redress of wrongs hearing where a conviction for drunkenness upon Mr McCormack was dismissed.  When informed that the charge against Mr McCormack was the consumption of alcohol, between 2130 hours and 2255 hours on 7 August 1971, Mr Hurst said that he had no memory of that nor did he have any memory of being on the bridge with Mr McCormack until 2130 hours.  Mr Hurst did acknowledge that he would have signed the night order book on that occasion as he did on every other night.  When it was suggested to Mr Hurst that if in fact Mr McCormack had been drunk when he was on watch with him that it would have been reported, Mr Hurst said that he had no idea of what had transpired during the redress of wrongs hearing because he was not called to give evidence and was not asked to provide any information.

78.     Mr Hurst said that he regarded Mr McCormack as being “technically competent” and he could not see any reason why, with further training and experience his abilities as an officer would not have improved.  In fact Mr Hurst confirmed that in December 1970 he recommended Mr McCormack be promoted to the rank of Corporal with a posting to the watch keeper deck.  Mr Hurst said however that he could not recall whether in his opinion Mr McCormack’s performance thereafter improved “or went backwards”.  He said that there was nothing about his performance on board the John Monash which gave rise to a belief by him that Mr McCormack had “a serious psychological problem” (as he recorded in his report of 29 October 2003).  Mr Hurst said that he subsequently believed that Mr McCormack did have a “serious psychological problem” because of information he learnt whilst carrying out investigations into the preparation of his report.

79.     Mr Hurst confirmed that the John Monash was not carrying ammunition but was carrying supplies intended for use in civil aid programs.  He agreed that “the enemy” would not have known the nature of any cargo being carried but did agree that the area travelled remained hostile, that it was in a theatre of war and vessels travelling towards Vung Tau were on heightened alert.

80.     Mr Hurst was then asked to comment on an extract from a book entitled, “The Vung Tau Ferry”, where a contribution was made by Commodore Mersan, formerly of the RAN, which stated that “there was always an underlying possibility” that HMAS Sydney (“Sydney”) could be under attack by either a swimmer or by rocket and that Naval Intelligence understood that Sydney was a “tempting target for the Viet Cong”.  Further Commodore Mersan reported “it is a pity that some authorities or historians have seen fit to minimise or discount the threat which undoubtedly existed”.  Mr Hurst said that he agreed that Sydney would have been a tempting target and that there was always the risk of threat or of attack.

81.     Mr Hurst agreed that there was always the possibility of a vessel in the Long Tao waterway being attacked and he could not negate the threat of a rocket or a shoulder missile being launched from onshore.  He said, “The main threat would have been put in some sort of mine in the water itself, in the river itself and wait until the vessel went over it”.  Nonetheless he thought “there are far more tempting targets than Monash” although he again confirmed it was a “possible target at any particular time” (Transcript, page 195).

edward cole

82.     Dr Cole is a consultant medico-legal psychiatrist who examined the applicant on 9 April 2002.  He provided reports dated 19 April 2002 (Exhibit F) and 27 November 2003 ((Exhibit D).

83.     In the report dated 19 April 2002 (Exhibit F), Dr Cole concluded:

OPINION:  I believe that Mr. McCormack’s condition would meet the requirements of the Statement of Principles for a diagnosis of alcohol abuse or dependence, while he is also suffering from a mild generalised anxiety disorder which would meet the requirements of the Statement of Principles for that diagnosis.  Needless to say, before either of these conditions can be related to his war service, it would be necessary to show that he had suffered a severe psychosocial stressor or a severe stressor in the case of alcohol dependence.  In my opinion, he did face a threat of serious injury or death and felt extremely apprehensive and helpless in the face of a situation about which he could do very little.  He acknowledged that he had been in the habit of drinking before he went to Vietnam but it had never presented a problem, nor had it interfered with his work, whereas it obviously presented a major problem in the years following his discharge.

84.     In evidence Dr Cole said that in forming his opinion as to whether Mr McCormack gave him an accurate account of details of service, he took into consideration the events as alleged having occurred 30 years earlier.  He said that when considering the applicant’s responses to events in service he recalled that other veterans in a similar situation had described events objectively but had given similar subjective responses, namely apprehension when involved in a “potentially dangerous situation”.

85.     With respect to the conclusions reached by Dr Cole in his first report as to diagnosis and the relationship between injury and service, he said that the alcohol abuse and generalised anxiety disorder should be regarded “in conjunction”.

86.     Dr Cole was taken to a medical examination of the applicant completed on 10 December 1971 (T-documents page 8).  The examination was recorded in anticipation of discharge from army service and records that “his emotional stability” was “abnormal”.

87.     The examining doctor, in notes to explain the finding as to his emotional stability being abnormal, recorded “nervous tremor over 4 years.  Neurologist NAD 3 years ago P.E.  Requested psychiatric consultation.  Examining medical officers do not think this request reasonable and have marked him FE.” (T-documents page 8).  In a further part of the record at page 8 under the heading of “Diagnosis of disabilities discovered” the examining officer recorded “Nervous tremor.  No Medical evidence produced.  Requests psychiatric consultation”.

88.     Dr Cole said that he was aware of the contents of that record and considered it when preparing his second report dated 27 November 2003.  He was then appraised of the evidence Mr McCormack gave that he had had a nervous tremor for about six months prior to the examination of December 1971 which manifested by shaking in both hands when he was under “pressure”.  Additionally the applicant had said that he would “shake all over” and alcohol would be consumed to calm him.  He had said that there were occasions when he was unable to write reports or hold a knife or fork or to shave because of the shaking in his hands but he did not recall that he had had tremors for four years prior to the examination and had no recollection of the tremors whilst he was a member of the Merchant Navy prior to enlistment in the Army.

89.     Dr Cole reported on 27 November 2003 (Exhibit D):

It would appear that Mr. McCormack had a drinking problem even before he enlisted in the Army, but this problem became worse during his service in the Army and if one accepts that his service in Vietnam, in particular, was perceived by him to be stressful then it could be argued that he had experienced a stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse in that, by the time he joined the Merchant Navy, his drinking was such as to cause him to lose his job.

90.     Dr Cole said that he assessed the applicant as having had a “drinking problem” before enlistment in the Army because he understood the applicant had been “locked up” when found to have been drunk on a number of occasions.  Additionally Dr Cole said that he understood the applicant had an inability to obtain appropriate clinical management because his request for treatment from a psychiatrist amounted to an inability to obtain appropriate clinical management thereby satisfying an applicable SOP.

91.     In cross-examination Dr Cole said that he maintained his opinion that the SOP with respect to alcohol abuse and generalised anxiety disorder had been satisfied by reference to the definition of those conditions as found within the SOP.  He said that in forming his opinion he also had regard to the diagnostic criteria of DSM IV.  He said the applicant suffered alcohol abuse currently because he obtained a history of the applicant consuming between one and two slabs of light ale per week.  However, he noted that the history obtained was that the applicant had “moderated” his drinking habit and he thought that Mr McCormack had “temporarily overcome the problem”.  Whilst he thought the applicant remained an alcoholic, he thought that Mr McCormack “might have difficulty meeting the requirements of the Statement of Principles”.  In effect he thought the applicant presently suffered from alcohol abuse or dependence either in remission or “in partial remission”.  On closer examination, Dr Cole agreed that his diagnosis of alcohol dependence or abuse was not made upon the basis of the quantities of alcohol presently consumed.

92.     Dr Cole was then referred to opinions expressed by Dr Walton, a consultant medico-legal psychiatrist, who examined the applicant at the request of the respondent.  Dr Walton concluded by way of diagnosis that Mr McCormack was “suffering from alcohol dependency in partial remission with a secondary anxiety disorder”.  Dr Cole said that he did not agree that the anxiety disorder was secondary to the alcoholism but did agree that it was associated with the alcoholism.  He said that it was arguable that the anxiety disorder occurred first and the alcohol dependency was a consequential symptom of it.  Dr Cole maintained this opinion despite the suggestion put to him by Mr Purcell that the applicant had “a drinking problem” before enlistment in the Army.  Dr Cole said that the applicant consumed greater quantities of alcohol after enlistment and his “anxiety symptoms preceded the aggravation of his alcoholic tendencies”.  He said that he did not consider whether the anxiety condition was a consequence of the alcohol abuse because he thought both conditions were associated with each other.  He said that the applicant’s alcohol abuse was “more symptomatic of his anxiety state than vice-versa” and he held this opinion because on the history that he obtained the applicant’s “anxiety disorder apparently began during the service in Vietnam at a time when he perceived himself to be in danger”.

93.     Dr Cole said that the symptoms of anxiety disorder that he learnt upon the history of Mr McCormack were that upon return from Vietnam he suffered from shaking, was easily startled and worried, was irritable and easily upset, that he had occasional nightmares and his wife had told him that he talked in his sleep.  He agreed that the shaking experienced by the applicant could possibly be an indication of alcohol abuse and he agreed that it was not “a clear indicator” of a pre-existing anxiety condition.  Dr Cole agreed that there could be a number of neurological reasons for a person shaking or suffering from tremors and whilst he had not considered possible neurological causes, Dr Cole said there would not have been a neurological reason for the tremors Mr McCormack endured.  He reaffirmed that he held the belief that the generalised anxiety disorder existed because of the events in service as described to him by Mr McCormack but if it were found that those events and experiences were “not quite as extreme” as described, they would be less likely to have been the cause of the anxiety state.

94.     With respect to the medical examination found at T-documents page 8, Dr Cole agreed that it recorded the applicant had had a tremor for four years and had attended a neurologist three years previously but an abnormality had not been detected.  Dr Cole agreed that it was possible that the nervous tremor may have been of an intermittent nature and if the tremors were due to the effects of heavy alcohol consumption starting to “wear off”, it would confirm the view that the tremors were intermittent in nature if indeed the alcohol consumption was also intermittent in nature.  Dr Cole conceded that if it were accepted as fact that the applicant had suffered a nervous tremor for four years, that it must have preceded his army service and if the tremors were associated with alcohol abuse or an anxiety disorder those conditions must have existed prior to enlistment.

95.     Dr Cole maintained the opinion expressed in his second report that the applicant’s alcohol consumption worsened during his enlistment in the Army.  He was advised that the applicant had given evidence that after he left school, at about the age of 16 or 17, there had been occasions when he would drink up to ten pots per session with friends on one or two occasions per week, had been found to have been drunk and disorderly and had lost his motor car licence because of alcohol consumption.  Dr Cole was then asked whether that history would indicate “a drinking problem” prior to enlistment.  He said that he was aware that when the applicant joined the John Monash he had been given the rank of Acting Corporal and later as a Sergeant which gave him privileges in the Sergeants’ Mess which exposed him to the ready availability of alcohol at a time when he was alienated from the “normal rank and file”.  Dr Cole agreed that these latter events would worsen his alcohol “problem” (transcript page 124).

96.     Dr Cole was then taken to a questionnaire completed by Mr McCormack found at T-documents pages 27-28 where he was asked to describe his history of alcohol consumption.  When Dr Cole noted that the applicant had recorded that he began to consume alcohol on a regular basis “in service”, he acknowledged the history obtained from the applicant and from the evidence he had given at the hearing was incorrect.  He agreed that the applicant had not recorded that a reason for commencement of consumption on a regular basis was stress or events associated with service but rather had recorded reasons of “peer pressure, reduced cost, lack of confidence in my abilities, the thing to do”.  Nonetheless Dr Cole said that he did obtain a history from the applicant of stressful events in service and the applicant himself had recorded stressful events in his written statement lodged earlier in the proceedings (which Dr Cole had read).

97.     Dr Cole also acknowledged that Dr Gelb had completed a report dated 18 October 2001 (T-documents pages 69-75) recording that the applicant was of the belief that alcohol consumption had been caused by an “ideology towards drinking” in the Army, his call up for National Service and his status as an Acting Sergeant.  Dr Cole agreed that there was no history obtained by Dr Gelb of stressful events in service other than his discomfort when serving as an Acting Sergeant.  Dr Cole volunteered that in that capacity the applicant was required to travel “up and down the river in a ship with a possibility of being fired upon”.

98.     With respect to the history that Dr Cole obtained as recorded in his report, he agreed that the only reference with respect to Corporal Mason was a sense of apprehension by Mr McCormack towards him.  He said that he obtained no other history with respect to Corporal Mason.  Dr Cole said that he was unable to identify any particular event or circumstance in service at which point the applicant increased his alcohol consumption.  He said that he understood that the applicant was in Vietnam between 24 June 1971 and 4 August 1971 on board John Monash taking supplies and ammunition from Vung Tau to Saigon.  He understood the applicant had been engaged in a five hour journey on the river and had been tied up in port for a few days whilst the vessel unloaded and loaded.  He said he did not obtain any history of how many journeys were undertaken in the period between 24 June and 4 August 1971.  It was suggested to Dr Cole that it would be difficult to conclude that the applicant increased his alcohol consumption by reason of his service between these dates – even allowing for a second voyage under Captain Moyes - in the absence of a history of a specific event or events in service which would precipitate and increase in alcohol consumption.  Dr Cole said “this was not the impression that I gained talking to him”.

99.     Dr Cole acknowledged that the applicant had been stationed at Singapore for approximately six months whilst his vessel was refitted during which time he had the opportunity – which he exercised – to drink alcohol on a consistent basis and during which time he had been found to be absent without leave.  Despite that period of six months occurring prior to the voyages on the Saigon River in Vietnam, Dr Cole said that history would not have affected his opinion because it would have reaffirmed that the applicant had an alcohol dependence prior to Vietnam service and he remained of the view that the alcohol consumption increased by reason of his Vietnam service.

129.   Dr Walton concluded by his report of 21 October 2002 that as the applicant “does meet the criteria in relation to alcohol dependence, diagnosis of alcohol abuse is excluded”.  He reported that the applicant did not suffer from any pre-existing psychiatric condition.  Upon review of the applicant’s anxiety symptoms, Dr Walton concluded that Mr McCormack suffered from a “psychological disturbance associated with . . . alcohol dependency” which “made a direct contribution to his anxiety condition”.

130.   Drs Cole and Walton gave evidence.  Dr Cole said the applicant suffered alcohol abuse and generalised anxiety disorder “in conjunction”.  He disagreed with an opinion expressed by Dr Walton that the anxiety disorder was secondary to alcoholism but said it was arguable that the anxiety disorder first occurred and the alcohol dependency was a consequence.  Dr Walton said in evidence that the applicant suffered from alcohol dependency in partial remission with a secondary anxiety disorder, but said that having reviewed additional documents subsequent to the completion of his first report he preferred a diagnosis of a pre-existing anxiety state with a subsequent development of an alcohol dependency.  The altered opinion of Dr Walton was similar to the alternative diagnosis put by Dr Cole in his evidence.  Dr Chester, did not give evidence but examined for the respondent and prepared a report dated 14 June 2001 (T8 pages 49 to 50).  He found the applicant’s history did not indicate any “significant anxiety or depression” and thought his “army service” did not cause or contribute to alcohol abuse.

131.   I thought that the evidence of Dr Cole was unhelpful and confusing.  The reports of Dr Gelb and Dr Chester appear, upon reading, to be superficial and generally unhelpful.  Either they did not take an adequate history or an adequate history was not given to them.  Whilst Dr Walton did not have a history as comprehensive as was learnt by the evidence in these proceedings – which is not surprising noting that the applicant was examined and cross-examined for more than one day – he was the only doctor who distinguished between alcohol dependence and alcohol abuse.

132.   Dr Walton found that the applicant presently suffered alcohol dependence in remission.  Dr Cole – having learnt that the applicant was currently consuming between one and two slabs of light ale per week – thought that his diagnosis of alcohol dependence or abuse could not be made out having regard to the quantities of alcohol presently consumed.  That opinion, expressed in evidence, indicates to me that Dr Cole has failed to distinguish between alcohol dependence and alcohol abuse.

133.   There would appear to be many occasions in the past where the applicant has suffered from alcohol abuse, having regard to the frequency and the quantities of alcohol that he consumed.  There is – to the credit of Mr McCormack – much to suggest that in recent years he has modified his drinking habit.  Whilst consumption of between one and two slabs of light beer per week suggests to me a considerable quantity of alcohol consumed – it would appear from the point of view of Drs Cole and Walton that that may not necessarily amount to “alcohol abuse”.  Consumption of between one or two slabs of light beer per week would amount to an average of between 3.5 to 7 cans per day.  3.5 cans of light beer might not amount to “abuse”.  Perhaps 7 cans of light beer per day might not amount to “abuse” but I am not qualified to say.  However a feature of the applicant’s consumption of alcohol (irrespective of the quantity of beer consumed and whether it is full strength or light beer) is his “dependency” upon it.

134.   I would not be confident in the circumstances of this review in making a finding of alcohol dependence and abuse but would prefer, and do find as a fact, that the applicant suffers from alcohol dependence or alcohol abuse.  I note that an SOP has been issued with respect to the condition of alcohol dependence or alcohol abuse (identified by the SOP also as psychoactive substance abuse or dependence) being Instrument No. 76 of 1998 and it also being the only SOP “in force” during the assessment period.  The factors under paragraph 5 of that Instrument apply whether a veteran suffers from alcohol dependence or alcohol abuse.

135.   Mr Larkin submitted that the VRB affirmed a decision to refuse a claim for generalised anxiety disorder.  This is not so.  The VRB noted a withdrawal by the applicant, from its review,, of a claim for “anxiety attacks” and “post-traumatic stress disorder”.

136.   As to whether the applicant suffers from an anxiety condition or state – however so described – Drs Cole and Walton (Dr Cole as an alternative diagnosis and Dr Walton as an altered diagnosis) concluded that the applicant suffered from a pre-existing anxiety condition with consequential alcohol dependency.  Dr Cole initially thought that the applicant suffered from anxiety and alcohol dependence or abuse “in conjunction” but I doubt on balance that this opinion can be maintained.  Similarly I doubt that the initial opinion of Dr Walton could have been maintained, being alcohol dependence prior to the manifestation of an anxiety disorder.

137.   I am satisfied therefore on the balance of probabilities that the diagnosis applicable to the applicant is “alcohol dependency or abuse and anxiety”.

138.   The four stages of analysis decided in Deledio are as follows:

“1.   The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.   If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.        The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

139.   As may be seen by the foregoing, the first two stages are satisfied.  There is a hypothesis advanced by the applicant namely that the circumstances of his service gave rise to anxiety and alcohol dependence or abuse.  The second stage is satisfied because a SOP does exist being Instrument No. 76 of 1998.

140.   Under paragraph 5 of the Instrument (refer paragraph 5 earlier) there are five factors recorded but only one needs to be satisfied.  I am satisfied that the hypothesis advanced by Mr McCormack is consistent with the template of factor 5(c) which exists as a minimum.  The hypothesis as raised (namely, suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependency or alcohol abuse), is in the circumstances, reasonable and for reasons which will follow, is related to the applicant’s service (refer paragraph 4 of the Instrument).

141.   The issue of significance in this application is whether the fourth stage of Deledio has been met namely, whether pursuant to s120(1) of the Act I can be satisfied beyond reasonable doubt that the illness or injury suffered by the applicant is not war-caused. For reasons which will follow I am not so satisfied and in those circumstances the claim will succeed.

142.   For reasons which will follow I am satisfied that the anxiety suffered by the applicant is a “psychiatric disorder” within factor 5(c) and as defined within paragraph 8.  Consistent with the evidence of Dr Walton, “anxiety” is an Axis 1 disorder of mental health under DSM IV.  Additionally I am satisfied that the applicant did suffer alcohol dependence or alcohol abuse prior to the commencement of operational service and in those circumstances the focus of this review will be upon the clinical worsening of alcohol dependence or alcohol abuse.  Whilst I found earlier that the anxiety preceded the alcohol dependence or alcohol abuse it follows that he would have been suffering from the anxiety (a psychiatric disorder) “at the time of” the clinical worsening of the alcohol dependence or alcohol abuse.  Consistent also with the provisions of paragraph 6 of the SOP, I am satisfied that the operational service of the applicant did cause a material contribution to his alcohol dependence or abuse and in making this finding I adopt the reasons of Davies J in Repatriation Commission v Bendy (1990) 18 ALD 144. In that decision at 146 it was decided that a material contribution must be more than de minimis and the word “material” applied legally is to be understood as meaning “pertinent” or “likely to influence”.

143.   I am satisfied that the applicant did consume alcohol to excess prior to the commencement of operational service and had become dependent upon it by reason of the evidence of his consumption of alcohol at or about the age of 17 or 18, shortly after he left school, often drinking 10 pots of beer on one or two occasions per week on weekends.  Thereafter there were occasions where the applicant was apprehended by the police and detained overnight for being drunk and disorderly and there was an occasion when he lost his motor car licence for driving above a permissible blood alcohol limit.  Mr McCormack agreed that a prevailing culture prior to operational service was to drink heavily with his friends with the intention of becoming drunk.  During his service in the Merchant Navy, Mr McCormack drank heavily when on shore and during the time that the John Monash was refitted in Singapore, prior to the commencement of operational service, he drank frequently and heavily.

144.   During the two voyages on John Monash that constitute the two periods of operational service in this review, the applicant spoke at some length of his worry and concern.  He sailed on a river which had been the subject of attack upon other vessels involving loss of life.  There was evidence that vessels of neutral countries had been attacked.  There was evidence that a vessel of United States origin namely, the SS Baton Rouge Victory had been attacked with loss of life.  There was an innuendo cast in the present application that John Monash was not at risk because it was not carrying ammunition or fuel.  There was nothing to indicate that persons who might have attacked that vessel would have restrained themselves if that knowledge had been possessed.  Additionally there was evidence from Mr Hurst that the Saigon River in 1971 was relatively safe and a civilian ship could have passed along the river with minimal risk.  Perhaps that was so but in 1971 the area was still considered a war zone and despite the report of Mr Conant describing the Saigon River as “green” (a reference apparently intended to describe the area as safe) his report recites extracts from two communications to Army Headquarters from the Australian Forces in Vietnam in July 1971 (being the month before the applicant’s first voyage) where the area surrounding the Saigon River was described as being secured by land sweeps, air surveillance and surface patrol vessels.  There was also a report of a ship being fired upon eight months earlier (refer paragraph 11 of report of Mr Conant and attachments 10 and 11 (Exhibit 5)).

145.   The applicant said that he had sailed on the Saigon River prior to the commencement of his operational service when he was in the Merchant Navy whilst on board Harold Sleigh.  It was then that he learnt of the attack upon SS Baton Rouge Victory.  He said he was mindful of that attack when he sailed on the Saigon River during operational service.  The applicant was examined as to whether any anxiety suffered by him during operational service was in fact related to his experiences in the Merchant Navy and he explained that he was then naïve and younger.  Perhaps he was then influenced by the bravado of youth.  Nonetheless during his period of operational service he was aware of the attack on Baton Rouge Victory and recalled during the hearing of the attack upon the other vessels of Panamanian and French origin.  He was entitled in those circumstances to be apprehensive and was fearful of the risk of his vessel being fired upon.  That belief in my view was not unreasonable in the context also of his evidence – which I accept as fact – that his vessel was on full alert, scare charges had been used, he heard the sound of scare charges and he had observed American personnel firing into the water apparently to deter Viet Cong divers believed to be in the proximity.

146.   The applicant was extensively cross-examined about whether SS Baton Rouge Victory had been “sunk”, whether it was attacked and had become disabled in “the middle” of a shipping channel or closer to the edge of the river away from the channel and whether it had been relocated to a neighbouring harbour for repairs.  Indeed there was cross-examination of the applicant as to the location within the river that he alleged the SS Baton Rouge Victory has been attacked.

147.   There was no doubt that SS Baton Rouge Victory had been the subject of enemy attack nor was there any doubt that there was extensive loss of life.  There was no doubt that this attack upon that vessel and the loss of life occurred within the Saigon River.  This was well documented.  The attack upon the applicant concerning his memory of the exact location, whether the attack was within a shipping channel or outside the channel and whether it had been sunk or disabled was unfair and did not in my view advance the respondent’s case.  Clearly the attack upon that vessel indicated the risk that other vessels were exposed when travelling along that river.  Those events occurred more than 35 years previous to the applicant giving his evidence and in the circumstances, the applicant did not deserve to be attacked for imprecise or poor memory.  There was nothing to suggest in my view that the applicant exaggerated or was being untruthful.

148.   As to events on board John Monash, the applicant was asked to assume navigation duties which permitted a promotion to the rank of Sergeant.  The undertaking of navigational responsibility on this waterway exposed him to stress but so also did the isolation that he endured from other rank and file members of the vessel and from other officers having regard to his promotion to the rank of Sergeant which was only granted so that he could navigate.  He was thereafter not subject to the issue to him by a Warrant Officer of a daily beer ration but was entitled to a provision of beer from the Sergeants’ Mess on an “honour system”.  Mr Hurst said that this system was honoured by Sergeants within the Sergeants’ Mess permitting consumption of two cans of beer per day and consumption in excess of that allocation would have been known to others.  Mr McCormack said that he was frequently drunk on board the vessel and there was an occasion when he was charged with an offence relating to drunkenness but the charge was later withdrawn.  In those circumstances he must have consumed beer greater than his daily allocation of two cans per day and I accept his evidence in those circumstances that during operational service he continued to drink to excess and his dependence or abuse, worsened.

149.   At the discharge medical examination, Mr McCormack was found to have a tremor which was described as having been present for four years.  Mr McCormack said that the tremor had commenced towards the end of his operational service and I accept that evidence as being truthful.  I am unable to explain why the tremor was recorded in the discharge medical examination as having occurred for a period of four years other than to speculate that there may have been misunderstanding between the applicant and the examining medical officer.  If the tremor had existed for four years, it would have been known or disclosed or detected at the pre-enlistment medical examination.  It might also be argued that Mr McCormack had a number of reasons to volunteer information of that type at the time of his pre-enlistment medical examination to avoid his National Service.  His call up for National Service occurred at a point in time when he had not completed his indentures in the Merchant Navy and at about the time that his father died.  Those reasons – it might be argued – might have been advanced to attempt resisting enlistment.

150.   It would appear from the medical evidence that in the absence of any neurological cause – as was recorded – that the tremors were consistent with attempts being made by Mr McCormack to resist alcohol consumption.  Those tremors, if upon that basis, might be relevant to the issue of alcohol abuse but they would not be relevant to the issue of alcohol dependence.  Indeed the manifestation of tremors might be said to be an indicator in fact of dependence which I am satisfied did worsen as a fact during operational service by reason of all of the above circumstances.

151.   Against a background of pre-existing anxiety (the “psychiatric disorder”), I am satisfied the alcohol dependence of the applicant worsened by the events, as outlined above, during his operational service.  Those events did, in my view, materially contribute to his alcohol dependence and abuse.  I am also satisfied that those events caused a degree of contribution which was more than “minimal” and they were “likely to influence”.

152.   Equally, I think that factor 5(d) has application and exists as a minimum.  It is a hypothesis which is consistent with the template of the SOP and accordingly, the first three stages of Deledio are satisfied.

153.   There have been a number of judicial interpretations and analysis of the concept of “experiencing a severe stressor” in recent years, most notably in Woodward  and Stoddart.  More recently in Delahunty v Repatriation Commission [2004] FCA 309, Tamberlin J discussed the need to find whether there was an objective event and the nature of a subjective reaction. His Honour decided that the perception of a stressful event will not encompass an “irrational perception or a baseless apprehension”, yet recognition needs to be given to “different degrees of stress” and “the definition (of “experiencing a severe stressor”) must be approached in a manner which is not unduly restrictive”.

154.   In the present case, the applicant witnessed the SS Baton Rouge Victory which had been attacked by enemy forces and there had been loss of life.  He was also aware of other vessels, carrying the flag of a neutral country which had been attacked.  He knew of the presence and risk of mines and divers.  This knowledge existed whilst he travelled on the Saigon River, in a war zone, when the river was under surveillance by US forces and whilst he was the ship’s navigator.

155.   Those events, in my view, satisfy the definition of “experiencing a severe stressor”.  They were events which, in fact, occurred.  The applicant’s reaction to them was not irrational.  The association between these objective events and his subjective reaction, manifesting in a worsening of his alcohol dependence or abuse, is directly consequential and a conclusion can reasonably be drawn that by his operational service, Mr McCormack experienced a severe stressor, more accurately, stressors.

156.   In concluding this part, I am satisfied that the clinical worsening of the applicant’s alcohol dependence or abuse occurred no later than his date of discharge.  The events causing him to experience severe stressors occurred within two years of that date.  The dependence, in my view, has been worsened by the relevant service.  For the reasons given earlier, the clinical onset occurred prior to operational service but there was no evidence of drinking alcohol on a daily basis.  Subsequently, the applicant did drink daily and to excess.  There have been modifications in his abuse subsequently, including a period of abstinence, but on the evidence heard, the applicant continues to drink and does so, now on a daily basis.

157.   In all of the circumstances I am not satisfied that the injury or illness as found earlier was not war-caused.  In making this finding I am not satisfied that the raised facts supporting the hypotheses have been disproved.  The decision under review must be set aside and the application is remitted to the respondent for assessment of pension in accordance with these reasons.

I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member

Signed:          Holly Weston
  Associate

Dates of Hearing  6 November and 18 December 2003
Date of Decision  21 January 2005
Counsel for the Applicant          Mr A Larkin
Solicitor for the Applicant           Williams Winter
Counsel for the Respondent     Mr G Purcell
Advocate for the Respondent   Department of Veterans’ Affairs