McKerlie and Repatriation Commission
[2009] AATA 718
•22 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 718
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2809
VETERANS' APPEALS DIVISION ) Re TREVOR DESMOND McKERLIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date22 September 2009
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – post-traumatic stress disorder – ischaemic heart disease – hypertension – diagnosis of PTSD – severe stressor – decision affirmed
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 120(1), 120(3), 120A(3)
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364REASONS FOR DECISION
22 September 2009 Mr J G Short (Member) background
1. On 6 October 2005, Mr McKerlie lodged a claim for Disability Pension. He sought acceptance of “post-traumatic stress disorder – alcohol dependency” together with ischaemic heart disease and hypertension, as war-caused.
2. On 3 July 2006, the Repatriation Commission (the Commission) answered the claim by determining post-traumatic stress disorder (PTSD), ischaemic heart disease and hypertension not to be relevantly related to service. It was conceded in the present proceedings by the applicant’s counsel that PTSD is the appropriate diagnosis for the claim for “PTSD – alcohol dependency”. The applicant conceded that, at least during the assessment period, he had not suffered from alcohol dependence. It was however suggested that if PTSD were to be accepted by the Tribunal as war-caused, then, through the agency of a previously existing alcohol dependence, Mr McKerlie’s ischaemic heart disease and hypertension should also be accepted. If PTSD is not found to be war-caused, then ischaemic heart disease and hypertension would also fail to be accepted to be war-caused.
3. On 27 March 2007, the Veterans’ Review Board (the VRB) affirmed the Commission’s decision.
4. Mr McKerlie served in the Royal Australian Navy (the Navy) from 27 July 1959 until 26 July 1979. His eligible war service (which is also operational service) was from 4 October 1971 to 14 October 1971 and from 6 December 1971 to 11 December 1971 in South Vietnamese waters. His defence service, as defined in Part IV of the Veterans’ Entitlements Act 1986 (the VE Act), was from 7 December 1972 until 26 July 1972. There was no contention that Mr McKerlie’s defence service was in any way relevant to the claim.
5. The appeal proceeded by way of an exploration of a discreet issue, that is, whether HMAS Swan (the Swan) anchored in Vung Tau Harbour on 8 December 1971. A finding in respect of this issue proved determinative of the issues before me as the applicant contended that he experienced a severe stressor on that day and as the asserted stressor necessarily involved the Swan anchoring. The VRB had determined that the Swan did not anchor on 8 December 1971 and consequently rejected Mr McKerlie’s claim.
6. The applicant’s contention can be summarised as follows. The Swan, escorting HMAS Sydney (the Sydney) in Vung Tau Harbour on 8 December 1971, had dropped anchor and that Mr McKerlie had been alerted to bubbles emanating from around the anchor line and had, in company with others in the ship’s tender vessel, investigated the bubbles and that while doing so, the tender vessel had been secured by an occupant of that vessel to the anchor chain. Mr McKerlie had been the first diver to enter the water alongside the anchor chain to investigate the source of the bubbles. It was asserted that when Mr McKerlie was approximately three feet under water, he felt a force which he momentarily considered may have been an attack from an enemy diver. He then concluded that the force had come from above and was the force of another of the Swan’s divers falling on top of him. Mr McKerlie asserts that this incident satisfies the diagnostic criteria for, and the relevant Statement of Principles definition of, a severe stressor which led to him developing PTSD, a period of alcohol abuse, and through that agency, hypertension and ischaemic heart disease.
7. The Commission accepted that Mr McKerlie suffered from ischaemic heart disease and hypertension during the assessment period. However, it disputed the assertion that Mr McKerlie suffered from PTSD. The Commission also argued that if Mr McKerlie did suffer from PTSD, that condition was not relevantly related to his war service.
evidence of mr mckerlie
8. Mr McKerlie said that he had first joined the Navy in 1959 and in 1969 had been assigned to the Swan. At that time, the Swan was still a hull in dock. Mr McKerlie said that in about 1969 he also undertook diving training in Sydney.
9. Mr McKerlie said that Captain I B James was the captain of the Swan while that ship was in South Vietnam and that Lieutenant Commander Barry Nobes was the executive officer. Mr McKerlie said that Lieutenant Commander Nobes had first joined the ship shortly before the ship was ordered to sail to the Far East.
10. Mr McKerlie said that on the Swan’s first entry into Vung Tau Harbour on 6 October 1971, the ship’s personnel had closed up for special sea duties. This meant that those crew members with special duties were to attend their stations. Mr McKerlie said that this was the standard procedure when the Swan entered harbour. On this occasion, the Swan performed sonar sweeps of the harbour, remaining in the harbour and sweeping for approximately 30 minutes. Captain James was the commander of the ship, however rather than the executive officer being Lieutenant Commander Nobes, it was a Mr Nicholls. Mr McKerlie said that Lieutenant Commander Nobes had left the ship in Singapore in about September 1971.
11. Mr McKerlie said that on the Swan’s second visit to Vung Tau Harbour on 8 December 1971 the ship’s crew were again ordered to close up. He said that the Swan performed sweeps of the harbour, but on this occasion anchored on the port side of the Sydney. Mr Nicholls was the second in command. When the ship came to anchor, a modified Operation Awkward was in effect. This meant that no bottom searches were performed, but in other respects, a standard Operation Awkward procedure applied.
12. Mr McKerlie said that the ship’s tender vessel was lowered and prepared to travel to the Sydney to deliver and receive mail and personnel. Mr McKerlie said that Captain James was on board the ship’s tender and proceeded to the Sydney. At this time, Mr McKerlie was at the diving station on the quarter deck and could see the tender as it was prepared to leave. Mr McKerlie said that he had heard the anchor chain dropped and that the Swan had been placed at “short anchor”, that is just touching the bottom.
13. Mr McKerlie said that the ship’s tender had been away for about 15 to 20 minutes and when it returned to the Swan, the coxswain and bowman had been on board, but that Captain James had not returned. He said that the mail had come aboard the Swan and that other members of the tender crew who were not required for diving duties, had also come aboard. The tender vessel had then been prepared for diving.
14. Mr McKerlie said that he, along with another diver, had been in the tender with the coxswain and the bowman. They had circled the Swan 10 to 12 times, dropping thunder flashes (scare charges).
15. At this time, a sentry on the fo’csle noticed bubbles from the area around the anchor chain and had called the tender to investigate. The bowman had taken a hand hold on the anchor chain and all occupants of the tender could see the bubbles.
16. Mr McKerlie said that he was the lead diver and that normally the lead diver would enter the water followed, approximately a minute later, by the second diver. Mr McKerlie said that the officer of the day was not present and consequently he took the initiative to enter the water. He said that the second diver held a rope which was attached to Mr McKerlie.
17. Mr McKerlie said that he slid from the side of the tender vessel into the water and was about three feet below the surface when he felt a crash on top of him and a flurry of water. He said that “all hell broke loose”. He said he thought he was being attacked by the source of the bubbles. He said he felt terrified and “you were fighting for your life”. Mr McKerlie said that he went for his knife and managed to clear the knife of its sheath on his second attempt. It was his intention to protect himself or kill whoever was attacking him. He said he then realised that the attack was from the wrong direction to have been from an enemy diver. The force he had felt had come from above.
18. Mr McKerlie then surfaced. He had taken water into his mask and was unable to clear it. He demanded to be taken back to the Swan.
19. Mr McKerlie said he then went to the showers and that Petty Officer Brown had helped him out of his wet suit. He sat in the showers for a few minutes preparing himself to present well to the crew.
20. Mr McKerlie said that he then walked to the petty officer’s mess, looking for the petty officer of the day. He was unable to find him there and consequently proceeded to the bridge. The bridge was deserted. He recalls looking at the ship’s log in order to identify the officer of the day. He believed that at the time he looked at the log, the last entry was at 5:00 or 5:30am. He was unable to determine from the log who the petty officer of the day was. He returned to the mess. He said he believed the ship had been anchored for between 1½ to 2 hours. He then said the ship’s tender vessel then again travelled to the Sydney to pick up Captain James and Lieutenant Commander Nobes. He said that it was approximately 30 minutes after he had gone to the bridge that he saw the ship’s tender return from the Sydney with Captain James and Lieutenant Commander Nobes on board. Mr McKerlie said that he had not seen Lieutenant Commander Nobes since the Swan had left Singapore.
21. It is Mr McKerlie’s belief that Lieutenant Commander Nobes had been performing special operations and that one of the reasons the ship’s tender had travelled to the Sydney was to collect Lieutenant Commander Nobes. He said that the following day Lieutenant Commander Nobes resumed his duties as executive officer and that Mr Nicholls probably returned to his posting as an information officer.
22. Mr McKerlie said that he had telephoned Captain James on 4 July 2003. Captain James’ wife answered and Mr McKerlie had told her he wished to speak with Captain James in relation to his ability to confirm that the Swan had anchored in Vung Tau Harbour on 8 December 1971. Captain James did not return his call. Mr McKerlie said that he again telephoned in the afternoon on 4 July 2003. He said that Captain James had told him that his memory was not good and consequently Captain James had called Captain H Josephs, the author of a Writeway Research Services Pty Ltd (Writeway) report dated 14 June 2003, in order to find out whether the Swan had anchored. He said that Captain Josephs had told Captain James that the Swan had not anchored. However, Captain James had advised Mr McKerlie not to rely on the ship’s Records of Proceedings as they were often issued weeks later and events were often missed. He referred Mr McKerlie to the ship’s log.
23. Mr McKerlie referred to a document (Exhibit A4) detailing the service of Navy members in South Vietnam. Mr McKerlie said that this document made no mention of Lieutenant Commander Nobes. He also referred to a book “Vietnam Remembered”, updated edition (Exhibit A5). He said that this book purported to list every naval member who had served on the Swan and that Lieutenant Commander Nobes’ name did not appear in the general list in that book, but on page 256 under a heading “Visits to Vietnam” the book did list Lieutenant Commander Nobes. Mr McKerlie then referred to a book entitled “The Vung Tau Ferry (HMAS Sydney)” (Exhibit A6). He said that this book also purported to list the ship’s company on visits to Vietnam and that Lieutenant Commander Nobes’ name did not appear at all in this book. Mr McKerlie concluded his evidence-in-chief by saying that he believes that the Swan anchored in Vung Tau Harbour on 8 December 1971 because the ship was to pick up Lieutenant Commander Nobes from the Sydney and that Lieutenant Commander Nobes had been late returning to the Sydney by helicopter. He said that this is why the Captain of the Swan had made a decision to short anchor. He said that the Swan left Vung Tau Harbour after Captain James and Lieutenant Commander Nobes had returned from the Sydney. He said that this belief has been the result of his research. At the time, he had only been aware that Lieutenant Commander Nobes had not been on the Swan since the Swan set sail for Vung Tau Harbour.
24. In cross-examination, Mr McKerlie said that he had gained his impression that Lieutenant Commander Nobes had been on special duties, rather than on board the Swan, through research and through reunions and the submarine fraternity. Mr McKerlie declined to answer a question as to who had advised him of this circumstance. He said that he refused to answer due to national security reasons.
25. Mr McKerlie said that the Swan had been the first ship he had served on after 10 years of Navy service. At the time, he was 27 years of age.
26. Mr McKerlie said that on 8 December 1971, he had remained in the transmitting room for a time after the announcement to close up had been made. He said that he could not see outside the ship and that his awareness of what the ship had been doing was limited to piped messages. He said that he had walked to the quarter deck because a modified Operation Awkward had been in effect. The ship had only just anchored by the time he arrived at the quarter deck. He said that he and others were getting into their diving gear, but that the ship’s tender vessel had not at that stage returned from the Sydney. When the tender vessel returned, he had seen people alight from the vessel and that he and another diver, together with the coxswain and bowman, then entered the ship’s tender.
27. Mr McKerlie said that he had been told that when he entered the water it had caused the tender vessel to rock, which in turn caused the second diver to fall into the water. He described the visibility as being approximately one foot and he remembers feeling arms and legs and something knocking his mask.
28. Mr McKerlie said that after the diving incident, he did not do anything to investigate the bubbles. He re-boarded the Swan from that ship’s aft. He thinks that other divers remained in the tender and continued dropping scare charges. He said that he discussed the incident with Petty Officer Brown in the shower area. He also said that he found it very strange that when he eventually arrived at the bridge, it had been deserted. He assumed that the officer of the day may have vacated the bridge in order to investigate the bubbles. Mr McKerlie returned to the mess. He said that he never sought out the officer of the day again to advise of the incident.
29. Mr McKerlie was referred to a report of psychiatrist Dr Marty Ewer dated 24 May 2001 (T10/69-75). Mr McKerlie was referred to page 2 of that report, particularly a paragraph numbered one. This paragraph records Mr McKerlie as having told Dr Ewer that the Swan had anchored in Vung Tau Harbour near the Sydney and that “Information came forward that the enemy were nearby and in particular that there were enemy divers nearby. A sentry thought he saw enemy divers in the water and Mr McKerlie was the first diver to be sent into the water to investigate”. Mr McKerlie said that he had told Dr Ewer that a sentry had reported seeing bubbles near the anchor line and probably assumed enemy divers had been in the area.
30. Mr McKerlie was also referred to the paragraph numbered two on page 2 of this report. This paragraph reads as follows:
“Mr McKerlie told me that he dived on a number of other occasions looking for underwater mines. On each occasion he was intensely frightened as the waters in Vung Tau Harbour were very murky and the visibility was very poor. He recalls feeling frightened as he searched for underwater bombs.”
31. Mr McKerlie denied telling Dr Ewer that he had dived on other occasions looking for underwater bombs or had dived in Vung Tau Harbour on any other occasion.
32. Mr McKerlie was then referred to an alcohol questionnaire which he confirmed he had completed in his handwriting in June 2001 in relation to another claim (T11). At question 6 of this questionnaire, Mr McKerlie wrote that:
“After operational service in Vietnam my alcohol consumption did increase considerably. After Vietnam and while the ship was still in Asian waters, it was a definite relief from the traumatic incident and experiences (as related to, and documented by the DVA psychiatrist Dr Martyn Ewer on Wednesday 23rd May 2001)”.
It was suggested to Mr McKerlie that the information he provided in the alcohol questionnaire implied that he had read Dr Ewer’s report and had accepted the information contained therein, including Dr Ewer’s record of the information Mr McKerlie had provided and the assertion that Mr McKerlie had dived on a number of occasions looking for underwater mines.
33. Mr McKerlie said that he did not read Dr Ewer’s report of 24 May 2001 until after an earlier AAT hearing involving the same asserted event. He later said that he did not know the appropriate procedure to correct faults in Dr Ewer’s record of events. Mr McKerlie acknowledged that he had never subsequently sought to correct Dr Ewer’s suggested misunderstanding.
34. Mr McKerlie said that he can recall hearing the Swan’s anchor being raised. He said that this was at about 9:00am and that at that time he was on the mess deck. Mr McKerlie said that after the anchor was raised, the ship travelled outside the harbour and then patrolled up and down the coast for the rest of the day until again returning to Vung Tau Harbour to pick up stores and mail from the Sydney. Mr McKerlie said that on this second entry into Vung Tau Harbour on 8 December 1971, the Swan did not drop anchor.
35. Mr McKerlie was referred to a statement by the ship’s captain, now Commodore James, to the effect that the Swan had not anchored on either visit to Vung Tau Harbour on 8 December 1971 and that Lieutenant Commander Nobes had been on board the Swan after leaving Singapore on its passage to Vietnam.
36. Mr McKerlie suggested that Captain James and Lieutenant Commander Nobes were both wrong and that the ship’s log, which also failed to record an anchoring on 8 December 1971, had been deliberately falsified, perhaps through omission, in order to keep secret the fact that Lieutenant Commander Nobes had been on a covert mission and that the Swan anchored for a few hours in order to recover Lieutenant Commander Nobes from the Sydney. Mr McKerlie suggested that “they” did not want the ship’s log to record the fact that the Swan had anchored in Vung Tau Harbour. Mr McKerlie said that he would not elaborate further on his understanding of Lieutenant Commander Nobes’ covert operation as his training had instilled in him an understanding that he was prohibited from discussing anything of national security and that Lieutenant Commander Nobes’ covert operation fell within this prohibition.
evidence of mr kenneth hudson
37. Mr Hudson said that he had known Mr McKerlie since 1969 when he and Mr McKerlie had first joined the Swan. He and Mr McKerlie had both lived in Frankston and shared a car pool and consequently he saw Mr McKerlie very regularly. He said that while at sea, he and Mr McKerlie had eaten in the same mess as both had been petty officers.
38. Mr Hudson said that he could not recall the Swan’s first visit to Vung Tau Harbour in October 1971, but did recall the second visit in December 1971. He said he recalled the ship being at short anchor and that he had seen divers preparing their equipment. He said that about a quarter hour later, there was “one hell of a hullaballoo on board”. He then said that “a lot of this is hearsay”. He said that he had travelled to the shower area to see Mr McKerlie as other people had told him to “come and have a look at Trevor”. When he saw Mr McKerlie in the shower area, he asked him what had happened. He said that Mr McKerlie had told him that someone had fallen on top of him in the water.
39. Mr Hudson said that he could not recall who had told him to go and have a look at Mr McKerlie in the shower area. He said that he had been with perhaps two other people when he went so see Mr McKerlie and that Mr McKerlie was being helped out of his wetsuit by another person. He said that Mr McKerlie appeared white. He said that the incident had become a widely known event on the ship, a matter of public humour.
40. Mr Hudson said that at the time the Swan had been preparing to travel to South Vietnam, Lieutenant Commander Nobes had been the executive officer and the commander had been Captain James. Mr Hudson then said that he knew things now that he did not know then. Mr Hudson said that at the time he had believed that the ship had been at anchor so that Captain James could travel to the Sydney.
41. Mr Hudson said that divers had been in the water to clear a passage for the tender vessel to travel to the Sydney. He said that he recalled seeing the ship’s tender leave with the commanding officer on board. He was not sure if Lieutenant Commander Nobes had been on board that day. He said that he assumes that Lieutenant Commander Nobes had been on the Sydney on the way to Vung Tau Harbour, but he cannot recall seeing him during the ship’s passage.
42. Mr Hudson said that he would have thought it unusual that the ship’s company had not been told that the ship was going to anchor. Mr Hudson again said that some of his memory has been freshened by later discussions. He said in relation to the discussions, that they would say to him “do you remember this?” and he would say “yes I do”.
43. At paragraph 5 of Mr Hudson’s statement (Exhibit A2), Mr Hudson had indicated that his memory had been triggered after talking to other seamen. At hearing he said that these discussions had added to his memory. He said that perhaps these conversations had triggered his memory of anchoring and that he had previously forgotten. He said that it was not necessary for the ship to anchor for the commanding officer to leave the ship in the tender vessel.
44. Mr Hudson said that he is now aware that the ship’s log does not record an anchoring. He said he does not understand this as everything must be recorded in the ship’s log.
45. He said that the commanding officer’s boat had travelled to the Sydney and that the divers used the ship’s inflatable. He said that the incident had occurred towards the stern on the port side of the Swan.
evidence of mr lionel amos
46. Mr Amos said that he had served on the Swan with Mr McKerlie, but left the ship’s company in 1970 (the year before the Swan’s trip to Vung Tau Harbour in October and December 1971). He said that he had been Mr McKerlie’s boss. He said that at one time Mr McKerlie and he owned adjoining farming properties and that they had shared labour and equipment.
47. Mr Amos said that in 1975 Mr McKerlie had described to him what had happened and that there had been no mention of the ship anchoring, recorded in the ship’s log.
48. Mr Amos said that on one occasion he had been serving on HMAS Yarra and had been told by a superior officer not to record the fact of an anchoring in the ship’s GYRO log. He said that this was out of the ordinary as the GYRO log was very important and the first thing looked at in the event of an accident.
49. Mr Amos said that since that time he had served with the Department of Defence and learned that an anchoring may not be recorded if something secret were happening, a covert operation. Mr Amos said that he would not discuss the incident on HMAS Yarra further as he was still subject to the Official Secrets Act.
evidence of mr geffrey lowe
50. Mr Lowe said that he served on the Swan from 1969 until New Years Day 1972. He said that he was a petty officer, responsible for internal communications, including maintenance of the ship’s GYRO. Mr Lowe said that he recalls the Swan being at anchor in Vung Tau Harbour during daylight hours and that he was relieved from his station for a brief time which allowed him to take photographs. He said that he has been unable to locate any of those photographs. Mr Lowe concluded his written statement (T28/207) by saying “If the ship went to anchor, I would have recorded this in the gyro log book (which was kept in the gyro room)”.
51. Mr Lowe said that he believed the Swan did anchor about 200 metres from the Sydney. He said that if the ship is not anchored, he would not have been free for a brief time to walk to the upper deck to take photographs of the Sydney. If the ship had anchored, he could have taken a 5 to 10 minute break. He said that he recalls being told he could take a 5 to 10 minute break and that this would not have happened if the ship was not at anchor.
52. Mr Lowe said that he never saw the anchor or anchor chain in the water. He said that he does not recall recording the fact of an anchoring in the GYRO log, but if the ship had been at anchor he would have recorded it. He said that he has not seen the GYRO log since he left the ship.
53. Mr Lowe said that he was not aware that the ship’s log did not record an anchoring and had no explanation as to why the anchoring was not recorded.
evidence of mr barry brown
54. Mr Brown said that he was serving on board the Swan as a petty officer on 8 December 1971 and that he was in charge of dropping and raising the ship’s anchor. He said that he recalls the Swan being at anchor in Vung Tau Harbour. He said that he also recalls divers being put in the water. He said that the ship was at anchor “from about 6 am to about 4 pm”. He said that it was routine for any ship that he was on to anchor when the ship that it was escorting anchored.
55. Mr Brown told the Tribunal that he was on the fo’csle and received an order to drop anchor. He thinks that the ship had gone to “short anchor”.
56. Mr Brown said that divers had been put into the water early in the morning and remained there until about one hour before the ship left harbour. Mr Brown also said that he recalled seeing Mr McKerlie in the showers (after the alleged incident) and that Mr McKerlie looked pale. He said that Mr McKerlie told him that he had been in the water when he thought an enemy diver had attacked him. He also said that he thinks that the ship’s captain and another officer had travelled to the Sydney in the ship’s tender vessel. In cross-examination, Mr Brown repeated that the Swan had spent about 10 hours anchored in Vung Tau Harbour. Mr Brown was referred to the ship’s log. He said that he had no explanation as to why the log should indicate that the ship had been underway for all of its time in and outside Vung Tau Harbour.
57. Mr Brown also said six divers had been put in the water and that they had entered from the ship’s boat and been distributed from different points around the ship. He said that this included the area of the anchor and that it was probably Mr McKerlie who was diving at the anchor. He said that Mr McKerlie had told him that he was at the anchor chain.
58. Mr Brown also said that he was responsible for the sentry located at the front of the ship and that the sentry did not report anything unusual to him. He said that the only mention of bubbles that he could recall had been made by Mr McKerlie.
59. Mr Brown said that he was as certain as he could be that Lieutenant Commander Nobes had been on board the Swan from at least the time the Swan left Singapore on route to Vung Tau Harbour. He said that Lieutenant Commander Nobes had been responsible for mustering all seamen to watches in the mornings and he was “pretty sure” that Lieutenant Commander Nobes had been on board.
60. I note that Mr Brown’s evidence that the Swan had anchored from between 6:00am and 4:00pm in Vung Tau Harbour on 8 December 1971 differs from that of all other witnesses. No witness asserts that the Swan had anchored for more than a few hours.
evidence of mr alan ryan
61. Mr Ryan said that he was a technician in charge of the electronic maintenance of missiles. He said that he had been on board the Swan in Vung Tau Harbour in both October and December 1971. Mr Ryan said that he recalls the Swan dropping anchor on one of its two visits to Vung Tau Harbour. He said that he could not say whether this was a visit in October 1971 or the relevant visit in December 1971. He said that he recalls Mr McKerlie entering the water as a diver while in Thailand and that he was not sure whether Mr McKerlie entered the water in Vung Tau Harbour.
62. In reference to the one of two occasions when the Swan was in Vung Tau Harbour, that is an occasion when he recalls the Swan dropping anchor, he said that he could hear the anchor being dropped. On the occasion he heard the anchor being dropped, it had been in the water for perhaps one or two days or as little as five to six hours. He said the anchor would not be dropped if the Swan was only going to be there for a few hours. He said that he did not recall the Swan leaving Vung Tau Harbour and returning on 8 December 1971.
63. I note that Mr Ryan is unable to say that it was the visit of 8 December 1971 that the Swan dropped anchor.
evidence of commodore (formerly captain) james
64. Commodore James said that the statement he provided dated 12 June 2009 was correct. In that statement Captain James stated:
“…
·Lieutenant Commander Nobes remained in HMAS SWAN throughout the ship’s deployment to the Far East from September 1971 to April 1972, including both visits to Vung Tau.
·HMAS SWAN did not anchor in Vung Tau Harbour in either October or December 1971, nor did I leave the ship to visit HMAS SYDNEY in Vung Tau in either October or December 1971.
·Lieutenant Commander R H Nicholls was the ship’s officer throughout HMAS SWAN’s 1971/1972 deployment. He did not act, at any time, as Executive Officer in place of Lieutenant Commander Nobes.
…”
65. Commodore James had been asked to comment on assertions made by Mr McKerlie in these proceedings.
66. Commodore James said that he was in command of the ship and knew everything that was going on at the time. He repeated that he never left the Swan and never went to the Sydney.
67. Commodore James said that there were no security provisions which limited his answers in relation to the issues considered by this Tribunal.
68. In cross-examination, it was put to Commodore James that he had a conversation with Mr McKerlie on 4 July 2003, after Mr McKerlie initially spoke to Commodore James’ wife, who told Mr McKerlie that Commodore James had been out walking their dog. Commodore James said that they did not own a dog in 2003. It was put to Commodore James that he had told Mr McKerlie in 2003 that one cannot believe the ship’s log. Commodore James denied making this statement.
69. Commodore James said that his recollection is, in part, based upon an inspection of the ship’s log, but that, even without the benefit of perusing the log, he had no recollection of the ship anchoring. He said that the log is completed contemporaneously and is accurate. He said that he was completely responsible for the accuracy of the log, although the officer of the watch fills in the log. He said that important events were recorded in the log and that entering Vung Tau Harbour was certainly an important event. He said that important events are never left out of the log. He said that he never had irresponsible people (who may leave things out of the log) on the bridge of a warship at sea.
70. Commodore James said that the first time Mr McKerlie’s name had registered with him was in approximately October 2008. He said that his recollection had been refreshed only and that he recalls the escort duty in Vung Tau Harbour and that the Swan did not anchor.
71. In cross-examination, Commodore James said that the Swan had travelled to the entrance to Vung Tau Harbour. A reference in the Sydney’s log at 0635 hours on 8 December 1971 indicates that the Swan swept the Vung Tau anchorage. Commodore James agreed, but he said that this is likely to have referred to a visual and radar sweep.
72. Commodore James said that the Swan was still underway when the Sydney’s cutter came across. He said that the Swan may have been dead in the water.
73. Commodore James said that perhaps something might not be included in the log for security reasons, but that if that had been the case, he would have remembered. He said that he was sure that there were no security issues in relation to the relevant trip.
74. Commodore James seemed unaware that the log had indicated that the Swan had entered as far into Vung Tau Harbour as it did. However, his evidence that the Swan did not anchor was unshaken.
evidence of captain (formerly lieutenant commander) nobes
75. Captain Nobes affirmed the accuracy of his statement dated 10 June 2009. That statement reads as follows:
“I was the Executive Officer of HMAS SWAN throughout the ship’s deployment to the Far East from September 1971 to April 1972. In particular I was in the ship when it escorted HMAS SYDNEY to Vung Tau in October 1971 and December 1971 and during the intervening period.
The claims that:
·I left HMAS SWAN in Singapore before the October 1971 Vung Tau visit, to undertake a task relating to national security;
·I returned to HMAS SYDNEY in Vung Tau in December 1971 by helicopter, before transferring to HMAS SWAN with the Captain in his boat;
·I was relieved during this period by a Lieutenant Commander Nicholson or similarly named officer;
are fanciful nonsense.”
76. Captain Nobes said that prior to 1971, he had been a sub-mariner and had only undertaken one small intelligence mission which he described as being south of Tasmania and two years earlier. He said that at a later stage of his career, he became the operating commander of the submarine squad and in that capacity was engaged in some intelligence missions. He said that if his name is not recorded in either of the books “Vietnam Remembered” or “The Vung Tau Ferry”, he could not explain why. He said he believes he is listed in the book relating to the Swan. He said that in relation to Swan’s visit to Vung Tau Harbour on 8 December 1971, he did not recall the Swan anchoring at all. He said that whenever a ship enters or leaves harbour, special sea dutymen were required to fall into stations. He said that he had a recollection of visiting Vung Tau Harbour on board the Swan on two occasions, the first in October and the second in December 1971. He also said that he did not recall Captain James leaving the Swan at any time. He said that he recalls confirming with Captain James that the ship should remain underway. He said that he could not now recall how far into Vung Tau Harbour the Swan had travelled with the Sydney. He said that it was most unlikely that the ship’s log would be incorrect.
77. Captain Nobes was referred to the absence in the ship’s log of a reference to special sea dutymen falling in. Captain Nobes said that it should have been recorded. He said that it looked to him as if the officer in charge had forgotten to enter that order.
78. Captain Nobes said that his recollection of events was not based upon what he had been told.
evidence of commodore phillip mulcare
79. Commodore Mulcare was the author of a Writeway report dated 16 June 2009. Commodore Mulcare was taken through various entries in the Swan’s log and said that he considered the officer of the watch should have recorded the falling in of special sea dutymen just before 6:00am.
80. Commodore Mulcare was referred to an earlier Writeway report prepared by Commodore Josephs. Commodore Josephs was described as now retired and this explains why Commodore Mulcare had prepared the most recent report. He agreed that the earlier report had been clearly wrong in asserting that Captain James had been deceased. However, he explained that this was a simple case of mistaken identity as another Captain James had died.
81. Commodore Mulcare said that he had not attempted to locate the ship’s GYRO log. He said that GYRO logs are not retained.
consideration
82. Mr Crowe, for the Commission, referred to Dr Ewer’s report of 24 May 2001 as recording Mr McKerlie’s alcohol abuse as being in remission. He said that as alcohol dependence or abuse has not been recorded as existing during the assessment period, it is not before this Tribunal. He said however that alcohol dependence may form a relevant link between PTSD and hypertension which in turn can lead to ischaemic heart disease. Both parties confirmed that there was no suggestion that alcohol dependence has existed during the assessment period.
83. Mr Crowe said that of critical importance in determining this case was whether the Swan anchored in Vung Tau Harbour on its visit on 8 December 1971.
84. Mr Crowe said that anchoring was intricately involved in the asserted stressor, which founds the claim for acceptance of PTSD.
85. Mr Crowe said that the Swan’s log, relevant to 8 December 1971, clearly indicates that the Swan was underway during its entire visit to Vung Tau Harbour. He pointed out that between 6:00am and 7:00am, the Swan is recorded as running a distance of 6.1 nautical miles. The log also records an entry at 6.00am of “CO and SP as required to sweep Vung tau anchorage”. I understand CO and SP to mean “course” and “speed”.
86. Mr Crowe suggested that Commodore James and Captain Nobes should be believed in their statement that the Swan did not anchor on 8 December 1971 in Vung Tau Harbour and that as these accounts are consistent with the ship’s log, I should find, beyond reasonable doubt, that the Swan did not anchor and consequently that Mr McKerlie did not experience the alleged stressor, at least on 8 December 1971 during operational service.
87. Mr Crowe referred to the assertion that Commodore James and Captain Nobes have misled the Tribunal for security reasons. He said that both of these gentlemen confirmed they were not restricted in the evidence they could provide for any security reasons or at all.
88. With reference to the witnesses called by the applicant, Mr Crowe first said that Mr Ryan was only able to say that the Swan had anchored on one of two visits. He pointed out that Mr Ryan could not recall which of the visits, that is whether it was October or December 1971. He said that Mr Ryan had also indicated that the Swan had dropped anchor on two occasions in Vung Tau Harbour and that this is inconsistent with Mr McKerlie’s evidence.
89. In reference to Mr Brown’s evidence, Mr Crowe said that Mr Brown’s evidence that the Swan had anchored for all 10 hours in Vung Tau harbour on 8 December 1971 was inconsistent with that of Mr McKerlie. Mr McKerlie said that the anchor had been dropped for about two hours. He also pointed out that Mr Brown had given evidence that it was his understanding that Lieutenant Commander Nobes had been on board the Swan ever since the Swan had left Singapore.
90. In reference to Mr Lowe’s evidence, Mr Crowe referred to Mr Lowe saying that he did not see the anchor, but heard the anchor being dropped. He took pictures.
91. Mr Floreani, counsel for the applicant, said that I should accept Mr Brown’s evidence that he spoke to Mr McKerlie after the event and that he recalls letting go of the anchor. He also said that Mr Ryan’s evidence was significant as he suggested that the anchor had been dropped on either the October or December 1971 visit and that as the log did not record a dropping of the anchor in October, the anchor may have been dropped in December.
92. Mr Floreani suggested that Commodore James’ evidence was substantially reconstructed from reference to the log.
consideration and relevant legislation
93. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
94. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
95. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
96. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
97. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“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.”
98. In considering whether there is an hypothesis connecting Mr McKerlie’s condition with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
99. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkel JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
100. Diagnosis is an issue which is to be determined to the Tribunal’s reasonable satisfaction.
101. Mr Crowe submitted that it was not open for the Tribunal to find that Mr McKerlie suffered from PTSD as the diagnosis of an injury or disease was a determination to be made by the Tribunal to its reasonable satisfaction which has been determined to mean beyond reasonable doubt. Mr Crowe said that if I found it more likely than not that the Swan did not anchor and consequently Mr McKerlie did not experience the asserted stressor, at least on 8 December 1971, then I could not find the diagnosis established to my reasonable satisfaction.
102. In some circumstances, it may, in my view, be open to make a finding in respect of the existence of an injury or a disease in circumstances where one or more of the elements may not be established to my reasonable satisfaction. However, in relation to the claimed condition of PTD, the diagnostic criteria recorded in DSM IV clearly require the experience of a severe stressor.
103. I have been unable to be satisfied that Mr McKerlie experienced a severe stressor on 8 December 1971. No other stressors were asserted. In the circumstances, I am not reasonably satisfied that Mr McKerlie has suffered from PTSD at any time during the assessment period and consequently his claim must fail.
104. I have reached the view that the Swan did not anchor in Vung Tau Harbour on 8 December 1971 and consequently Mr McKerlie did not experience a severe stressor as alleged by considering all of the evidence before me. That evidence includes the evidence of the ship’s then captain, Commodore James, and that of his then executive officer, Lieutenant Commander, now Captain Nobes. Both of these retired officers were firm and unshaken in their evidence that the Swan did not anchor on 8 December 1971 and this evidence is consistent with that recorded in the Swan’s log.
105. While it has been argued that Commodore James’ recollection of the Swan’s visit to Vung Tau Harbour in December 1971 may have been refreshed from a perusal of the log, I am satisfied that had the Swan anchored in Vung Tau Harbour in December 1971, its captain and executive officer would be aware of that circumstance.
106. The reasons suggested by Mr McKerlie as to why the Swan may have anchored in December 1971 were undermined by the evidence of Captain Nobes. I accept that Captain Nobes would be aware whether he left the Swan on a covert mission prior to the Swan’s deployment from Singapore to Vung Tau Harbour and I accept that the Captain does not feel inhibited in any way by security concerns in providing his evidence.
107. Perusal of the Swan’s log fails to record any anchoring on 8 December 1971. I was referred to what appeared to be an apparent omission of a direction that special sea dutymen be closed up on entering the harbour. The log however does record the distance travelled on an hourly basis from 1:00am on 8 December 1971 and records that during each hour the ship travelled at least 6.1 nautical miles, and during some hours, 16 nautical miles, during the entire period until midnight. If the Swan had been at anchor for between two and three hours, then this should have been recorded in the log. If it were not recorded, then it could be seen as a mistake or omission. However, because the ship’s run distances were recorded for each of the 24 hours of 8 December 1971, if the Swan had anchored for two to three hours (as alleged by Mr McKerlie) then the ship’s run distance would have had to be incorrectly recorded rather than omitted. I am satisfied that this did not occur.
108. The provision of evidence by all witnesses is made more difficult by the passage of time. Nearly 40 years have passed since these events. This may explain some of the apparent inconsistencies in the evidence provided by the witnesses called by the applicant.
109. Having considered all of the material before me, I accept the evidence of Commodore James and Captain Nobes, that is the Swan’s captain and executive officer on 8 December 1971. Where that evidence differs from that of the applicant or his witnesses, I reject the evidence of the applicant and his witnesses.
110. As mentioned, an anchoring of the Swan on 8 December 1971 is an integral part of the applicant’s account of the asserted severe stressor. Having found that this did not occur, I am not reasonably satisfied that Mr McKerlie suffers from PTSD. His claim must fail.
111. If I had found that Mr McKerlie did suffer from PTSD during the assessment period, and noting the concessions made by the Commission, I would have been satisfied that steps one, two and three of Deledio would be established. However, when considering the fourth step as enunciated by Deledio, I would be satisfied, beyond reasonable doubt, that Mr McKerlie did not experience a severe stressor as asserted and consequently his claim would then fail at this point.
I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: ...........J Coulthard..........................................
AssociateDates of Hearing 26 March 2009, 6-7 August 2009
Date of Decision 22 September 2009
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr A Crowe
DVA
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