McKerlie and Repatriation Commission
[2004] AATA 736
•13 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 736
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/256
VETERANS' APPEALS DIVISION ) Re TREVOR DESMOND McKERLIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date13 July 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – veterans' entitlements – Disability Pension – if applicant’s conditions of PTSD, alcohol dependence or alcohol abuse, hypertension and ischaemic heart disease are war-caused – did applicant experience a severe stressor during operational service – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986 ss 120, 120A
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 31 of 2001
Statement of Principles Instrument No 38 of 1999REASONS FOR DECISION
13 July 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 24 July 2001 which refused a claim for payment of Disability Pension in relation to the applicant’s conditions of post-traumatic stress disorder (PTSD) with alcohol abuse, ischaemic heart disease, and hypertension. The Veterans’ Review Board (VRB) affirmed the decision on 15 May 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower was counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist. He called also Messrs Amos, Brown, Lowe, and Simm, former fellow seamen, as witnesses. Messrs Brown, Lowe, and Simm gave evidence by way of telephone link-up. Mr Crowe represented the Commission, which called Captain H Josephs, Historian, as a witness. Captain Josephs gave his evidence by way of telephone link-up.
3. The applicant, who is 61 years of age, joined the Royal Australian Navy (the Navy) on 27 July 1959 at the age of 17, and served for 20 years, until 26 July 1979. He has two periods of operational service aboard HMAS Swan (the Swan) in Vietnam, as follows:
4 October 1971 to 14 October 1971 11 days – the Swan visited Vung Tau Harbour on 6-7 October 1971
6 December 1971 to 11 December 1971 6 days – the Swan visited Vung Tau Harbour on 8-9 December 1971
4. The applicant enlisted, upon his discharge, in the Naval Reserves for the next 18 years, and on 8 May 1995 the service became full-time. He was discharged finally, more than 2 years later, on 27 June 1997, when he was 55 years of age.
5. The applicant maintains that his conditions relate to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
6. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
7. The hypothesis propounded by the applicant is that his conditions relate to his operational service, in that on the whole of the material, the severe stressor which he experienced in Vung Tau Harbour during his operational service (the enemy diver incident) connects his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the Factors set out in clause 5, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
8. The relevant Statement of Principles for the condition of PTSD is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that Factor 5(a) of the PTSD SoP is satisfied:
“(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;”
9. “Experiencing a severe stressor” is defined as:
“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
10. The relevant Statement of Principles for alcohol dependence or alcohol abuse is Instrument No 76 of 1998 (the Alcohol Abuse SoP), and the applicant contends that Factor 5(a) or 5(b) of the Alcohol Abuse SoP is satisfied:
“(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;”
The psychiatric disorder he maintains is PTSD.
“Experiencing a severe stressor” is defined in the Statement of Principles as:
“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
11. The appropriate Statement of Principles for the condition of hypertension is Instrument No 31 of 2001 (the Hypertension SoP). The applicant contends that Factor 5(b) of the Hypertension SoP is satisfied:
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension;”
12. The relevant Statement of Principles for ischaemic heart disease is Instrument No 38 of 1999 (the Heart Disease SoP). The applicant contends that Factor 5(a) of the Heart Disease SoP is satisfied:
“(a)the presence of hypertension before the clinical onset of ischaemic heart disease;”
13. On 6 March 2001 the applicant lodged a claim for pension in respect of “diabetes, heart condition, hypertension and emotional behaviour disorder”. The diagnoses of “diabetes mellitus, ischaemic heart disease, hypertension and PTSD with alcohol abuse” were recorded in answer to the claim, and on 24 July 2001 the Commission rejected the claim. On 15 May 2002 the VRB affirmed the decision in respect of ischaemic heart disease, hypertension and PTSD with alcohol abuse, and consented to the withdrawal of the applicant’s claim for diabetes mellitus.
14. The applicant trained as an electronic technician, specialising in radar and electronic warfare. On 19 January 1970 he joined the newly commissioned ship, the Swan. He had been promoted to Petty Officer Electrical Communications prior to joining the Swan, and was put in charge of damage control aboard the vessel. He submits that during his operational service he was exposed to a severe stressor which occurred in Vung Tau Harbour, on his second visit to Vietnam on the Swan, on 8 December 1971. He says that the Swan was anchored in the Harbour near HMAS Sydney (the Sydney). He was a diver in the ship’s boat which was circling the Swan whilst it was anchored. They had to drop scare charges into the water, and generally keep surveillance of the water around the Swan. Some bubbles were reported near the Swan’s anchor chain and they were sent to investigate. They were ordered to put a diver in the water to see if there was an enemy diver, and the applicant was nominated. He was to be followed one minute later by another diver. He says that he slid into the water holding on to the anchor chain. The visibility was extremely poor, and he could not see more than one foot in front of him. He had only been submerged for a relatively brief period of time, and was about 3-4 feet below the surface with his head and face under the water, when he felt a body on top of his left shoulder.
15. The applicant says in statements in support of his claims that he did not know who the person was, or where they came from, but thought it was an enemy diver, and went to grab for his knife which was located on his left ankle. He also took a firmer hold of the anchor chain with his right arm. He says that he initially missed grabbing his knife, and his goggles filled up with water. During training, he had not successfully been able to clear his goggles if they filled with water whilst he was under water. He decided then to rise to the surface, and followed the anchor chain back up. When he got to the surface, he saw that there was another diver from the Swan in the water, and realised that this was the person who had made contact with him. They both got out of the water and did some further searching around the area from the boat. He mentioned nothing to the other diver, or to anyone else on the boat. The applicant says that this was the first and only time he was in the water whilst the Swan was in Vung Tau Harbour. He said in evidence that he did not dive again whilst serving in the Navy; and was not part of the dive team which undertook exercises subsequently, in Hong Kong, in December 1971.
16. Dr Ewer, Psychiatrist examined the applicant, on 23 May 2001. In his report of 24 May 2001, Dr Ewer states that the experiences the applicant spoke to him about were:
“1.On the first occasion the Swan was anchored in Vung Tau Harbour near the Sydney. 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. He jumped into the water which was murky and he said visibility was less than a foot. The normal protocol was for Mr. McKerlie to swim downwards and then a “buddy” would enter the water. Soon after Mr. McKerlie jumped into the water he was jumped upon. Mr. McKerlie felt intensely frightened as he thought he was being attacked by an enemy soldier. He immediately reached for his knife but he was so frightened that he panicked and he said “I froze”. Mr. McKerlie recalls breathing very quickly during this episode. Mr. McKerlie subsequently discovered that his “buddy” had jumped too early and had landed on top of him
2.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.” [T7/156]
17. The Commission contends that at no time during his operational service did the applicant experience a “severe stressor” as defined in the PTSD SoP, and that Factor 5(a) of the PTSD SoP is not met; that at no time during his operational service did the applicant experience a “severe stressor” as defined in the Alcohol Abuse SoP; and that even if he did experience such a stressor, there is no evidence that within the 2 years immediately after he experienced such a stressor, he satisfied the definition for alcohol dependence or alcohol abuse in the Alcohol Abuse SoP. The Commission maintains also, that neither Factor 5(b) of the Hypertension SoP, nor Factor 5(a) of the Heart Disease SoP is met, as neither the applicant’s alcohol dependency, nor his hypertension is related to his operational service.
18. The Commission asserts that the Swan did not anchor in Vung Tau Harbour on either of its visits in October 1971, or December 1971. It argues also that as the fact of the Swan anchoring in Vung Tau Harbour on 8 December 1971, is necessary to support the applicant’s hypothesis, the Tribunal should be satisfied, beyond reasonable doubt, that the Swan did not anchor in Vung Tau Harbour, and thus the applicant’s claim cannot succeed. If the Tribunal was satisfied, on the other hand, that the Swan anchored on 8 December 1971, then the Commission submits that the alleged incident did not occur in the manner described by the applicant, and it did not occur during his operational service, nor on the date he alleges it occurred.
19. The applicant gave lengthy oral evidence. He was an unsatisfactory witness. Much of his evidence was contradictory, and he impressed me as a person prepared to change the tenor of his testimony according to the benefit he was attempting to obtain; and to tailor his evidence in an attempt to satisfy the relevant Statements of Principles. This does not mean that I disregard the whole of his testimony, but that I prefer to rely on other more acceptable evidence in areas of dispute.
20. Dr Ewer proceeded on the assumption that the applicant’s version of events was reliable. I take that into account when deciding upon the weight to be given to his evidence and opinions. The applicant’s former ship mate, Mr Amos, impressed me as a witness of truth, and I accept his evidence. Messrs Lowe and Brown did their best to recall incidents, and their observations at the time, which occurred more than 30 years ago; but in my view their recollections were flawed. In any area of dispute on the evidence I prefer to rely on other evidence. In his oral evidence, Mr Simm recalled that there were two trips to Vung Tau Harbour, but was unable to specify which events occurred on each journey. His evidence was of little assistance. I consider Captain Josephs to be a witness of truth, and I prefer his testimony in any area of dispute in the evidence.
21. The applicant said in evidence that during his initial training he had become friendly with another recruit, Ray Hunt. Mr Hunt was aboard HMAS Hobart in 1968, when he was killed by “friendly fire”. The applicant said that although he was excited at the prospect of joining his first warship, the Swan, he worried about his wife and 5 children if he was killed as his friend had been. The applicant’s treating general practitioner, Dr Stolz, in his report of 2 February 2001 [T5/148] stated that the applicant had witnessed his friend, Mr Hunt, “being cut in half by missile and then having to serve on this ship for prolonged period …”. It is clear on the applicant’s own evidence that the statement he provided to Dr Stolz was not true.
22. Turning to the alleged stressor – the “enemy diver incident” – the applicant said in evidence that the Swan did not anchor during its first visit on 6 October 1971. The applicant asserts that the “enemy diver incident” occurred during his second visit to Vung Tau Harbour on 8 December 1971. The Swan, he says, entered the Harbour after “operation awkward” was adopted; and as the ship was entering enemy waters “special seaman’s duties” and “cable parties close up” were implemented. The Swan did a sweep of the Harbour, and anchored near the Sydney at buoy 12 or 13. He said in evidence that as his control station was on the fo’c’sle he was on the front deck and heard the anchor drop. One of the Swan’s boats took the Captain across to the Sydney, and when it returned, the applicant and other crew entered a boat to circle the Swan, and to drop scare charges, randomly, and to keep surveillance of the Swan.
23. The applicant said in evidence that when bubbles were reported near the anchor chain, he was the first diver into the water; and when he had slid 3-4 feet into the water he felt a body on top of his left shoulder, and attempted to draw his knife. He says that he was terrified, and wanted to get away as quickly as possible. He rose to the surface, raised his hand, and was hauled into the boat. Once he was in the security of the boat, he was less terrified. The other diver raised his arm, and was hauled into the boat. The applicant said nothing to him, or to the other crew members. When he returned to the Swan, he went to the Petty Officer’s showers, and sat down on a stool, and had a longer than usual warm shower. Petty Officer Brown came to see him while he was in the shower, and the applicant told him that one of the divers had fallen, there had been an accident. He said that he told no one else aboard of the incident as he felt it was a naval blunder, and not to be talked about. Nor did he discuss with anyone else the search for the enemy diver, nor enquire as to any follow up action, nor as to whether the perceived threat was real – this he said was because it was “not his role to report”. He was worried, but had faith in his fellow officers.
24. The applicant however told the VRB on 15 May 2002 that he believed initially it was an enemy diver, but after some 20-30 seconds, he realised that the diver had come down on top of him, and was a fellow diver from the Swan. He said that he was very upset at the time and could not see any funny side of it at all. It was later, back on the Swan, after everything had settled down, some half to one hour later, that he saw the funny side of it.
“…
MR PARK: Yes, but when did you see the funny side of it?
MR McKERLIE: It was later back on the ship after everything had settled down, probably half an hour, an hour later.
MR PARK: And that is back on the Swan, was it?
MR BLAIKIE: Was that a laugh like a release of shock or ---
MR McKERLIE: I think it was, it was a release of tension and I guess you’re happy you’re still there.
MR BLAIKIE: Yes.
MR McKERLIE: You’re back on board the ship and not floating around the harbour somewhere.
…” [Exhibit R3/7]
25. Mr Amos, who left the Swan in late 1970, a year before the occurrence of the alleged stressor, had been the applicant’s superior officer, and had released him in October 1969, so that he could undertake the ship’s diving course. Mr Amos said in evidence that he left the Navy on 2 January 1971, and met the applicant again socially, in the mid-north of South Australia in 1975. The applicant had outlined to him the details of the alleged incident, saying that he had never been so frightened in his life, that he shot to the surface and stayed there, and that whilst in the shower it took him some time until he regained his composure.
26. Mr Brown, who was also a petty officer on the Swan, gave evidence that the Swan was anchored near the Sydney for the full period of its visits in both October and December 1971; that early in the morning on 8 December 1971 at about 5.30-6.00am the ship’s divers entered the water. He said that when he came off watch the applicant was in the shower area, having trouble getting out of his wet suit – he had not had a shower as yet, and he was visibly shaken. Mr Brown said also that the applicant continued to be a member of the Swan’s diving team when it was in Hong Kong in December 1971.
27. Mr Lowe, who was a petty officer responsible for internal communications, sonar, gyro and radio work, gave evidence that the Swan did not anchor in October 1971, but anchored for the full period of the visit on 6 December 1971.
28. Mr Simm, who was chief engineering mechanic, provided a statement of 29 July 2003 in which he said that the Swan was at anchor in Vung Tau Harbour on 6 December 1971. He was unable to specify the length of time it remained in the Harbour. In the course of his oral evidence however, he recalled visits to Vung Tau Harbour, but he cannot remember details of the two separate visits in October 1971 and December 1971. The Swan could have anchored in October 1971 or December 1971.
29. Captain Josephs provided a report however, of 14 June 2003, which reads in part:
“…
HMAS SWAN visits to Vung Tau
6. Copies of the Monthly Reports of Proceedings (ROP) of HMAS SWAN for October and December 1`971 are enclosed at Attachments 2, and 3. Her movements during the two relevant visits to Vung Tau as escort to HMAS SYDNEY were as follows:
·Trip 21, 6-7 October 1971. SWAN entered Vung Tau harbour ahead of SYDNEY to ensure that SYDNEY’s anchor berth was clear for the latter to anchor at 0700 on Wednesday 06 October 1971. SWAN did not anchor, but immediately returned to sea and patrolled outside the harbour until just before SYDNEY was ready to depart at 0020 on Thursday 07 October. SWAN then re-entered the harbour briefly and escorted SYDNEY to sea, remaining with her until 1000 on 07 October when she was detached and SYDNEY set course for Adelaide. SWAN did not anchor in the vicinity of Vung Tau at any time during this visit. These movements are confirmed by entries in SWAN’s Ship’s Log, copies of the relevant pages of which were obtained from the National Archives Office and are enclosed at Attachment 4.
·Trip 23, 8-9 December 1971. SWAN entered Vung Tau harbour ahead of SYDNEY to ensure that SYDNEY’s anchor berth was clear for the latter to anchor at 0645 on Wednesday 08 December 1971. SWAN did not anchor, but immediately returned to sea and patrolled outside the harbour until 2200 that night, when she re-entered the harbour briefly to effect a transfer of personnel, stores and mail by boat, prior to carrying out a departure sweep ahead of SYDNEY for the latter ship’s departure at 0030 on Thursday 09 December. SWAN rejoined SYDNEY outside the harbour and was detached shortly before 0100 to proceed on passage to the Philippines. SWAN did not anchor in the vicinity of Vung Tau at any time during the visit. These movements are also confirmed by entires in SWAN’s Ship’s Log, copies of the relevant pages of which are enclosed at Attachment 5.
7. For correlation, copies of SYDNEY’s ROPs covering the two visits are enclosed at Attachments 6 and 7.
8. SWAN would have gone to Defence Stations off the coast of Vietnam and during her brief periods under way in Vung Tau harbour, but since she did not anchor at any time she would not have implemented Operation Awkward, nor would she have had opportunity or a necessity to use her ship’s divers.
…” [Exhibit R1]
30. In a supplementary report of 30 September 2003, Captain Josephs stated, in part:
“…
Advice from key officers
5. SWAN’s Commanding Officer at the time was Commodore I.B. James RAN, who then held the rank of Commander and is now deceased. He was consulted in February 2000 in relation to the claims of another applicant, ABWM S E CRANAGE (DVA File No. VSS08440) and provided advice which was included as paragraph 20 of a Writeway report dated 20 February 2000. An excerpt from this report reads “…CDRE James did not recall having ever anchored in Vung Tau on either visit to Vietnam, as to do so would have necessitated adoption of Operation AWKWARD measures, whereas by remaining under way HMAS SWAN could not be targeted by ‘possible’ enemy underwater miners.”
6. Captain B. NOBES RAN Rtd was Executive Officer (Second in Command) of SWAN and now resides in Sydney. He had advised that he also does not recollect SWAN having anchored in Vung Tau. As Executive Officer he was not party to the decision that the ship would remain under way, but feels it was taken simply because it would have been deemed easier in the circumstances at the time for SWAN to patrol off the coast, rather than to anchor and have to implement the measures prescribed by Operation AWKWARD. Captain NOBES agreed that he would have been closely involved if the ship had anchored, both in the procedure of coming to anchor and in the conduct of the ships routine whilst at anchor. Captain NOBES may be contacted by telephone on 02 99183491.
…” [Exhibit R2]
31. The Sydney’s Report of Proceedings for October 1971 reads, in part:
“4. … At 0001H on Tuesday 5th October, a rendezvous was made with HMAS SWAN, and TIDEPOOL fuelled both ships at 0815H before detaching.
5. Defence watches were closed up at 0350H on Wednesday, 6th October, and shortly afterwards SWAN was detached to proceed ahead into Vung Tau harbour to ensure that SYDNEY’s berth was clear before proceeding on patrol. SYDNEY entered harbour at 0615H and anchored in position 286º Point Janh Rai Light 1600 yards at 0700H.
…
7. At 0020H on Thursday 7th October, SYDNEY weighed anchor and proceeded from Vung Tau in company with SWAN for passage south. At 1000H, after a jackstay transfer of personnel and stores, SWAN was detached and the ship proceeded on passage to Adelaide. At 1930H on Friday 8th October, the ship transitted Jaspar Strait, and subsequently Sunda Strait at 0600 on Saturday, 9th October.
…” [Exhibit R1/Attachment 6]
32. The Sydney’s Report of Proceedings for December 1971, reads, in part:
“…
7. Defence watches were closed up at 0350H on Wednesday 8th December and shortly afterwards SWAN was detached to proceed ahead into Vung Tau harbour to ensure SYDNEY’s berth was clear before proceeding on patrol. SYDNEY entered harbour at 0600H and anchored in position 271 degrees Point Ganh Rai Light 1800 yards at 0645H.
…
10. At 2200H SWAN re-entered harbour to effect a personnel, stores and mail transfer by boat prior to carrying out a departure sweep. At 0030H on Thursday 9th December, the ship weighed anchor and proceeded from Vung Tau harbour. SWAN joined on clearing harbour and was detached shortly after 0100H to proceed on passage to the Philippines; SYDNEY continued on passage to Australia.
…” [Exhibit R1/Attachment 7]
33. It is the applicant’s assertion, inter alia, that as the Swan’s log of 8 December 1971 makes no reference to the implementation of “special seaman’s duties”, “cable party close up”, which Captain Josephs said in evidence would have been implemented in enemy territory, then it follows that the failure of the log to record that the Swan anchored on that day, is yet another error. The applicant, in his oral evidence at the conclusion of his cross-examination, went so far as to state his belief that the log had been deliberately falsified, and written after the event, and that thus our Naval history had been falsified, and that the Swan was anchored between 6.00am and 7.02am.
34. Captain Josephs, in his supplementary report provided some further explanation in relation to the Daily Log terminology, as follows:
“…
Explanation of Daily Log terminology
2. The abbreviation “Co and Sp as required to …” appears on several occasions in the copies of pages from SWAN’s Daily Log which were provided with Reference B, and means “Courses and speeds various, as required to …”. This term is used when the Officer of the Watch anticipates that a particular navigational operation or evolution will require numerous alterations of course and speed in a limited time frame, and to log each alteration would be unnecessary and distracting. Examples which can be found in SWAN’s log pages for 08 December 1971 are:
·0600 Co and Sp as required to sweep Vung Tau anchorage.
·0702 Co and Sp as required to leave Vung Tau and take up patrol line.
·0750 Co and Sp as required to patrol (3 to 5 miles along a line bearing 335-155 degrees) from Cap St Jacques.
·2059 (Special Sea Dutymen) and Cable Party closed up. Co and Sp as required to enter Vung Tau harbour.
·2156 Stopped both engines. Engine movements as required to be off SYDNEY in anchorage B12 for personnel and mail transfer.
·2210 Transfer completed. Co and Sp as required to clear Vung Tau harbour.
·2340 Co and Sp as required to maintain previous racetrack (patrol line).
…” [Exhibit R2]
He stated also:
“…
Chart plotting key fixes from SWAN’s Daily Log
3. As requested in Reference A, a copy of an Admiralty Chart of Song Sai Gon, including Vung Tau has been provided with this report, upon which the key fixes recorded in SWAN’s Daily Log for 08 December 1971 have been plotted. All of the recorded fixes during the 13 hours she was on her patrol line could not be plotted because to do so would have produced a very confused picture, but checks confirmed that the fixes which were not plotted were all consistent with patrol requirements.
Significance of entries not found in the Daily Log
4. Had SWAN anchored at any time during her operations off Vung Tau the time and anchor berth position would have been entered in the log, and there would have been an entry some hours later to the effect that she had weighed anchor. In between there would have been other entries which could only have been related to a ship at anchor, involved with such activities such as the implementation of “Operation Awkward”, diving operations and movements of ship’s boats. There are no circumstances under which such log entries could have been deliberately or inadvertently omitted, and the fact that they do not appear contributes to confirmation that SWAN did not anchor.
…” [Exhibit R2]
35. Captain Josephs said in evidence that the omission of a reference to “special seaman’s duties”, “cable party close up” which is simply a record of closing up of people in their positions, is not unusual, nor does it affect navigation. He outlined in his oral evidence the lengthy and detailed naval instructions for log keeping in relation to anchoring. He said that it was a requirement that each and every detail of the anchoring be entered contemporaneously, that is at the time of its occurrence. Other log entries he said may be made immediately after the event, while the facts are still fresh in the mind. The failure to record an anchoring is a very serious matter. Captain Josephs said that the Swan did not anchor at 6.00am, but was sweeping the Harbour, moving the 8 miles north and south between the Sydney’s anchorage, altering course frequently, and at 7.02am, after the 2 minute mail transfer with Sydney’s No 1 motor cutter, she left the Harbour to take up patrol line. The Swan re-entered the Harbour at (20:59 hours) 8.59pm, and stopped both engines as required, to be off Sydney, in anchorage B12 for personnel and mail transfer at (21:56 hours) 9.56pm. I accept Captain Josephs’ evidence.
36. It is clear on the evidence that the Swan did not anchor in Vung Tau Harbour on 6-7 October 1971, contrary to the recollections of Mr Brown. The other witnesses, Messrs Lowe and Simm recalled that the Swan was anchored for the whole period that the Sydney was anchored on 8 December 1971. In my view, as stated earlier in these Reasons for Decision, their recollections are flawed. I am satisfied on the whole of the evidence, beyond reasonable doubt, that the Swan did not anchor in Vung Tau Harbour on 8 December 1971, and I so find. As it is an essential fact in relation to the applicant’s claim that the alleged “enemy diver incident” occurred whilst the Swan was anchored in Vung Tau Harbour, his claim cannot succeed; but in any event, I would not have been satisfied that the alleged incident satisfied the definition of a “severe stressor” in either the PTSD SoP or the Alcohol Abuse SoP.
37. The applicant says that he entered the water, close to the anchor chain, that he was between 3-4 feet below the surface when he felt the impact from above, and thought that it must be an enemy diver; but within seconds he came to the surface, was helped into the boat and the other diver came to the surface immediately thereafter. He said nothing to the other diver, or to the crew members. He told the VRB that he was able to laugh about the matter some half hour later, and said in evidence that when he returned to the Swan he told no one in authority about the incident, nor did he make inquiries as to whether an enemy diver had been located, nor the results of any enquiries. In my view, this could not be regarded as an event being a “threat of serious injury or death” in accordance with the definition of a “severe stressor” in the PTSD SoP; nor an event involving actual or threat of death or serious injury “which might evoke intense fear helplessness or horror” in accordance with the definition of a “severe stressor” in the Alcohol Abuse SoP. In any event I am satisfied on the evidence, beyond reasonable doubt, that the alleged “enemy diver incident” did not occur in the manner in which it was described by the applicant. It is not necessary therefore to address Dr Ewer’s evidence and opinions which relied upon the veracity of the history provided by the applicant.
38. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe stressor” during his operational service, and that Factor 5(a) of the Post-Traumatic Stress Disorder Statement of Principles is not satisfied, nor is Factor 5(b) of the Alcohol Abuse Statement of Principles. His PTSD is not related to his relevant service, and therefore Factor 5(a) of the Alcohol Abuse Statement of Principles is not satisfied. In relation to the applicant’s hypertension, I am satisfied on the evidence, and find as a fact, that the applicant’s alcohol abuse is not related to his relevant service; and Factor 5(b) of the Hypertension Statement of Principles is not satisfied. In relation to the applicant’s ischaemic heart disease, I am satisfied on the evidence and find as a fact that the applicant’s hypertension is not related to his relevant service and Factor 5(a) of the Heart Disease Statement of Principles is not satisfied. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of post-traumatic stress disorder with alcohol abuse, hypertension, and ischaemic heart disease were war-caused.
39. For these reasons the Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 8/9 March 2004
Date of Decision 13 July 2004
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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