MICHAEL TRACEY RODSTED and REPATRIATION COMMISSION
[2009] AATA 658
•1 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200400235
VETERANS' APPEALS DIVISION ) Re MICHAEL TRACEY RODSTED Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Mr S Ellis AM (Member)Date1 September 2009
PlaceAdelaide
Decision The tribunal varies the decision under review by deciding that:
(a) the applicant is not suffering from post-traumatic stress disorder, but the tribunal otherwise affirms the decision under review in relation to that condition; and
(b) the applicant is not suffering from a depressive disorder, and his condition of alcohol dependence was not war-caused, and as a result, the applicant is not entitled to disability pension or medical treatment in respect of those conditions.
D G Jarvis
(Signed)
(Deputy President)
CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – operational service – claim that post-traumatic stress disorder, alcohol dependence or alcohol abuse and depressive disorder war-caused – whether applicant was suffering from claimed conditions – applicant assisted transfer of injured sailor from patrol boat to Naval vessel – applicant told sailor had gone berserk on another vessel and tried to shoot those on board – applicant seeing bullet damage to other vessel – applicant experienced scare charge event in Vung Tau Harbour – whether conditions were war-caused – consideration of Statements of Principles – date of clinical onset can be determined in the absence of medical evidence re that issue – conflict of psychiatric evidence – decision under review affirmed.
PRACTICE AND PROCEDURE – legal professional privilege – filing and service of witness statement – privilege re communications with lay witness not waived.
Meaning of “clinical onset”
Veterans’ Entitlements Act 1986 (Cth), ss 9, 119(1)(h)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) HC of A 175 CLR
Byrnes v Repatriation Commission (1993) 177 CLR 564
Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577
Elliott v Repatriation Commission (2002) 73 ALD 377
Gately v R (2007) 241 ALR 1
Gorton v Repatriation Commission (2001) 65 ALD 609
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
McKenna v Repatriation Commission (1999) 86 FCR 144
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4ALD 139
Mt Gibson Manager Pty Ltd v Commissioner of Taxation (1998) 81 FCR 335
Munt v Repatriation Commission (1986) FCA 255
O’Brien v Repatriation Commission (1985) 155 CLR 422
Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2008) 242 ALR 181
Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788
Re Rodsted and Repatriation Commission [2009] AATA 403
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Dr Christos Mantziaris “Client legal privilege in administrative “proceedings” : Killing off the adversarial/inquisitorial distinction” (2008) 82 ALJ 397
Cross on Evidence (4th Australian Edition, paragraph 25010)
REASONS FOR DECISION
1 September 2009 Deputy President D G Jarvis
Mr S Ellis AM (Member)1. The applicant, Michael Rodsted, served with the Royal Australian Navy from 5 June 1964 until 11 May 1970. He was engaged in operational service during 1966 on HMAS Derwent as part of the Far East Strategic Reserve, and also in Vietnamese waters.
2. On 26 August 1998, Mr Rodsted lodged a claim for a disability pension under Part II of the Veterans’ Entitlements Act 1986 (Cth) (the Act). His claim referred to post-traumatic stress disorder (PTSD) and to another disability or symptom that is not relevant to these proceedings. His claim was refused by a delegate of the Repatriation Commission on 28 April 1999. He applied for review of this decision to the Veterans’ Review Board (VRB). The VRB affirmed the decision.
3. Mr Rodsted then applied to this tribunal for review of the VRB’s decision, and following a hearing in 2002, Senior Member Purcell affirmed the decision of the VRB. Mr Rodsted appealed to the Federal Court, and on 15 April 2004, the Court ordered by consent that the tribunal’s decision insofar as it related to the condition of PTSD be set aside and remitted to the tribunal for determination in accordance with law.
4. Steps were subsequently taken to list the re-hearing on a number of different occasions, but for various reasons the hearing did not proceed on any of the dates arranged. During this period, further diagnoses were made that Mr Rodsted was also suffering from major depression secondary to PTSD and alcohol abuse or alcohol dependence.
Issues before the Tribunal
5. The issues before the tribunal are as follows:
(a) whether Mr Rodsted suffers from PTSD, and if so, whether it is war- caused;
(b)whether he suffers from a depressive disorder, and if so, whether it is war-caused; and
(c)whether he suffers from alcohol abuse or alcohol dependence, and if so, whether it is war-caused.
6. Because the conditions of alcohol abuse/dependence and depression were not diagnosed until after the first hearing in this tribunal, the claim for pension insofar as it relates to those conditions has not been considered by the Commission or by the VRB. However, by its amended statement of facts, issues and contentions dated 5 December 2006, the Commission accepted that the tribunal was obliged to consider the case raised by the evidence before it even if the further conditions had not been specifically claimed by the applicant. We are satisfied that this is the position, and that we have jurisdiction to determine the applicant’s claim insofar as it is based on the two further conditions in question: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47] - [51].
7. Our conclusions as to the above issues and our reasons for decision may be summarised as follows.
(a)The issue of diagnosis must be decided as a preliminary issue, on the balance of probabilities.
(b)Mr Rodsted has not suffered from PTSD or a depressive disorder during the assessment period referred to in s 19(9) of the VE Act, being the period between the date of lodging his application and the date of this decision, but was suffering from alcohol dependence between the date of lodgement until about November 2005, when this condition went into remission.
(c)In determining whether the condition of alcohol dependence was war-caused, we find that there is material before us that:
·is consistent with a factor in the relevant Statement of Principles (SoP) for alcohol dependence, because there is evidence before us that Mr Rodsted was suffering from clinically significant psychiatric conditions, namely PTSD and alcohol abuse, prior to the clinical onset of alcohol dependence;
·a factor in the relevant SoP for PTSD is met (thereby connecting his PTSD with his war-service), because there is evidence before us that Mr Rodsted experienced a traumatic event (namely an asserted specific event involving the explosion of a scare charge) in the course of his operational service, and prior to the clinical onset of PTSD; and
·further, the relevant factor in the relevant SoP for alcohol abuse is also met (thereby connecting his alcohol abuse with his war service), because there is evidence before us that he was suffering from PTSD before the clinical onset of alcohol abuse.
(d)As a result, there is a reasonable hypothesis connecting Mr Rodsted’s alcohol dependence with his war-service.
(e)However, after evaluating the evidence before us, we are satisfied beyond reasonable doubt that there is no sufficient factual foundation for the hypothesis, and so the claim that alcohol dependence was war-caused fails.
Our detailed reasons for our conclusions follow.
Background
8. Mr Rodsted enlisted in the Royal Australian Navy when he was 16 years of age. His operational service occurred on a single voyage to the Far East in 1966 on board HMAS Derwent.
9. Mr Rodsted’s claim for PTSD was based on his having been subjected to certain stressors during the course of his operational service. In his further amended statement of facts, issues and contentions dated 16 March 2008, being the document formulating his claim on the re-hearing before us, Mr Rodsted refers to two relevant incidents. The first such incident (the “Hawk event”) occurred on 29 March 1966 in waters off Borneo. According to Mr Rodsted, this involved his assisting an injured sailor by the name of Williams, who was serving on HMAS Hawk, to transfer to HMAS Derwent from a Malaysian patrol boat, and later witnessing extensive bullet damage to the Hawk when it tied up alongside the Derwent, and then learning from its crew that Williams had gone on a shooting rampage before being wounded and subdued. The second incident on which Mr Rodsted relied (the “scare charge event”) occurred in Vung Tau Harbour between 6 and 8 June 1966, when according to Mr Rodsted he was lying in his bunk dozing off to sleep when he heard a very loud explosion. He thought that the Derwent had been mined but then realised that the explosion had been caused by a scare charge. We will refer in detail to these asserted stressors later in these reasons.
10. At the hearing before Senior Member Purcell, the diagnosis of PTSD was accepted, but it was disputed that the condition was war-caused. In a statement prepared for that hearing, Mr Rodsted had referred to “a number of severe stressors” during his operational service. His statement referred to the Hawk event; to being involved with a lot of shelling on the mainland and on other boats during patrols, where he expected that there would be women and children on the boats and was uncertain as to whether all the people were removed from the boats prior to their being destroyed; being called upon regularly to bomb certain areas of the land that were positions where he assumed the enemy were based; being very concerned whilst in Vietnam that the Derwent would have mines attached to it; being considerably frightened by the sound of scare charges exploding when he was below the waterline, and presuming they were under fire; and scare charges exploding loudly while he rested in his bunk: see exhibit A2, tab 17.
11. In his evidence before Senior Member Purcell (exhibit R33), he referred to the destruction of the boats and being convinced that women and children and men were consequently killed, experiencing scare charges going off two or three feet away from the side of the ship when he would just have managed to get to sleep after several hours on watch, and not knowing if they had been mined.
12. In an earlier amended statement of facts, issues and contentions, namely the statement dated 19 January 2005, Mr Rodsted had referred to three incidents, namely the Hawk event, “(h)earing scare chargers detonate whilst below the waterline on the HMAS-Derwent” (sic), and destroying boats during patrols off Borneo when it was possible that there were still occupants on board those boats (see exhibit R4, paragraph 6). He repeated reference to these incidents in a further amended statement of facts, issues and contentions dated 28 June 2006.
13. A further amended statement of facts, issues and contentions dated 13 April 2007 referred only to the Hawk event and to the destruction of boats when it was possible that there were still occupants on board the boats.
14. It emerged during the hearing before us that Mr Rodsted had also experienced a traumatic event (the “Stalwart event”) on 2 July 1968, when a young boy fell through a gap between the top of the gangway and HMAS Stalwart, when it was at a wharf in Hobart. The boy was crushed between the ship and the tender and subsequently died. Mr Rodsted was the quartermaster on the watch at the time and had attempted to catch the boy before he fell but was unable to do so, and saw him crushed between the ship and the tender.
15. According to a report dated 11 November 2005 (exhibit A2, tab 15) Mr Rodsted also gave a history to his treating psychiatrist, Dr Furze, of having regularly seen prisoners on the quarter deck of the Derwent abused; that is:
“…tied up and hand-cuffed and treated violently by the Malay police guards, i.e. struck with rifle butts, forced to urinate and defecate on the deck and then struck on the head with the butts of the Malay rifles.” (exhibit A2, tab15, page 6)
16. Mr Rodsted gave evidence that after experiencing the incidents on the Derwent he “lost the plot”, had a lot of punishment, and eventually was discharged (transcript 01.04.08, page 52, line 32); and further, that he commenced drinking in the late 1960s, and became a heavy drinker and drank to excess until two or three years before the commencement of the hearing before us.
17. After he returned from the trip to the Far East, Mr Rodsted was posted at HMAS Cerberus in Victoria where he did an able-seaman’s course. He was then posted to HMAS Lonsdale in Port Melbourne from March to November 1967, then to HMAS Kettabul in Sydney until February 1968, and then to HMAS Stalwart, a fleet maintenance ship. In February 1970 he joined HMAS Nirimba. In the meantime, while he was still serving on HMAS Stalwart, he had been charged with two counts of car stealing, one on 25 July 1969, and the second on 25 October 1969. He pleaded guilty, and was sentenced to 18 months’ hard labour with a non-parole period of six months on each charge, with the sentences to run concurrently. After that, he was dismissed from the Navy because of his offending, and in a report dated 11 May 1970 recommending a Naval penalty, his commanding officer reported that he had been “a constant problem in NIRIMBA” (exhibit R29).
18. Mr Rodsted said that he proceeded to get into trouble at HMAS Lonsdale because he resented authority, was absent without leave, and did not like having a shore posting, and constantly drank until he became drunk; and when he was posted to HMAS Stalwart, he got into “real big trouble” (transcript 01.04.08, page 53, lines 29 - 30).
19. When asked whether he found work after leaving the Navy he said:
“I had probably a dozen, up to two dozen jobs a year, from operating in the North-West Shelf and Bass Strait on supply boats for oil rigs; working on gas pipelines, oil pipelines as a plant operator; eventually a projector manager (sic); driving; selling cars; selling boats; working in mines. I worked all over Australia.” (transcript 1.04.08, page 57, lines 1 - 5)
He added that he could not settle into any jobs and always thought that he knew more than the boss did, and he finished up not working there anymore.
20. He said that he has been married twice, the first time in 1972 or 1973, and that marriage lasted 13 or 14 years, but came to an end through his drunkenness and behaviour. He married for a second time, and is currently married.
21. He ceased work in 1998. He said that these days he runs a Veterans’ Information and Welfare Centre on Yorke Peninsula on a voluntary basis five days a week, and probably does 30 to 40 pension cases for veterans a year, and handles a dozen welfare cases for veterans a week.
22. We will refer further to Mr Rodsted’s evidence in relation to symptoms relevant to the three conditions on which his claim for pension is based, including his evidence as to his drinking.
Legislative Scheme
23. 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.
24. 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; …”
25. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that the stressors on which Mr Rodsted is relying occurred during his operational service.
26. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether Mr Rodsted’s asserted conditions are war-caused. That section provides 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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
27. Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
28. Section 120A(3) provides relevantly:
“(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
…
that upholds the hypothesis.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
29. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
30. Section 119(1) provides in effect that the Commission is not bound to act in a formal manner and is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks just, and shall act according to substantial justice and substantial merits of the case, without regard to legal form and technicalities. Further, under section 119(1)(h), the Commission must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including its effect on the availability of witnesses, and the absence of, or a deficiency in, relevant official records.
31. References to the Commission in the above sections apply to this tribunal in the present proceedings, and in reviewing the Commission’s decision we are considered to be “in the shoes” of the Commission, and we should regard ourselves as performing the relevant function of the Commission in accordance with the law as it applied to the Commission: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 143, per Smithers J.
Consideration
32. The question of whether Mr Rodsted is suffering from all or any of the conditions on which his claim is based must be determined on the balance of probabilities to the reasonable satisfaction of the decision-maker pursuant to s 120(4) of the Act: Benjamin (supra).
33. At the hearing before us, the Commission disputed that Mr Rodsted was suffering from PTSD and a depressive disorder, but conceded that he was suffering from alcohol dependence.
Diagnosis of PTSD – Hawk event
34. We first consider the question of whether the Hawk event gives rise to a diagnosis of PTSD.
35. We referred briefly to the Hawk event above. Mr Rodsted’s evidence as to this incident may be summarised as follows. He was on watch on the bridge of the Derwent in the early hours of the morning and was detailed to go aft and assist with the transfer of a person from a small boat on to the Derwent. He was told that he and other sailors were to bring on board a sailor who had been wounded. He and another two or three sailors assisted bringing the injured sailor on to the Derwent, and the sick bay attendant was there also. The sailor was handcuffed and strapped to a stretcher. He helped to carry the sailor on the stretcher to the sick bay. The sailor’s injuries were bandaged. There was a small amount of blood on the bandages. To the best of his memory the sailor was upset at the way he was being handled, and Mr Rodsted did not think that the sailor liked being handcuffed, and the sailor was incoherent and abusive. The stretcher was hoisted from the boat alongside to the main deck of the Derwent. The sailor did not use a jumping ladder or walk to come on board the Derwent or to go to the sick bay. He was bandaged on the shoulder and on the foot. Mr Rodsted did not know at the time that the sailor had been shot (see transcript 01.04.08, pages 38 - 39).
36. We note that in his evidence at the 2002 hearing before Senior Member Purcell, Mr Rodsted said in effect that he thought that they were alongside the Hawk when the sailor went berserk, but that he had since found out that that was incorrect, and that they were a mile away (see exhibit R33, page 4, line 14). It appears that certain psychiatric reports to which we will refer below might also have been prepared on the understanding that the shooting episode had happened whilst the Hawk was alongside or adjacent to the Derwent, due to Mr Rodsted’s initial incorrect recollection of the position of the Hawk.
37. In cross-examination, Mr Rodsted said:
“… I was frightened, I wasn’t petrified for my life. … I was 18 years old, a guy gets brought on board, handcuffed to a stretcher. Wouldn’t you be worried and frightened? … “ (transcript 02.04.08, page 116, lines 34 - 39)
38. He added that by then they had been in a war zone for two to four weeks, they had been told it was a war zone, obviously the sailor had been wounded, and he did not know how or why, and he was frightened and worried. He also said that he did not speak to the sailor, and the sailor was “incoherent” and “mumbling” and “upset” (transcript 02.04.08, page 114, line 33).
39. Later that day, the Derwent anchored in Tauwa, and the Hawk was tied up alongside the Derwent. Mr Rodsted gave evidence of further matters which we will refer to as the continuation of the Hawk event.The effect of his evidence was as follows. He saw that the hull of the Hawk was extremely badly damaged. There were bullet holes in the woodwork throughout the ship, in the funnel and in the deck, and it had been hit by about three to four hundred bullets. He spoke to some of the crewmen from the Hawk and they appeared to be extremely agitated and frightened. He was told that a sailor on the Hawk had stolen a weapon and a quantity of ammunition, and had then proceeded to try to shoot everyone on board the ship. The Hawk crew hunted the sailor down and shot him in “self-preservation” (transcript 01.04.08, page 41, line 4). Mr Rodsted said that he felt “[t]errified, frightened that the same thing could happen on board the Derwent” (transcript 01.04.08, page 41, line 9). He “constantly” thinks about what occurred on that day and has had nightmares about blood and bullet holes and has night sweats. In cross-examination however, he referred to having been “frightened” and “worried” about what had happened on the Hawk, and also because the same thing could happen on the Derwent (transcript 02.04.08, page 117, lines 41 and 44, and page 118, line 2).
40. Dr Tony Davis, a psychiatrist to whom the Commission referred Mr Rodsted for the purpose of obtaining a medico-legal assessment, first examined Mr Rodsted on 4 November 2004, and on three subsequent occasions prior to the hearing before us. He was provided with extensive documentation relating to the history of Mr Rodsted’s claim, and this included copies of earlier medical reports from other psychiatrists. He also obtained a history from Mr Rodsted to which he referred in his medical reports and in the course of his evidence before us. His history included Mr Rodsted’s description of the Hawk event and also of the scare charge event. Dr Davis concluded that Mr Rodsted did not meet the diagnostic criteria for a diagnosis of PTSD. He considered that the events to which Mr Rodsted referred did not satisfy the strict criteria for a severe stressor, and in addition, did not obtain a history that suggested acute experiences associated with intense fear, helplessness or horror. In expressing his opinion, Dr Davis referred in particular to criterion A of the diagnostic criteria for PTSD in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) (DSM-IV). This criterion reads as follows:
“A.The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person’s response involved intense fear, helplessness, or horror.”
41. Dr Davis accepted that Mr Rodsted suffered from some PTSD-like symptoms, but he considered that those symptoms, particularly sleep disturbance, agitation, anger, irritability, impaired work function and impaired social function, were primarily a consequence of Mr Rodsted’s extreme alcohol use and dependence and not PTSD (see transcript 29.05.09, page 1138, lines 29 - 35).
42. In relation to the Hawk event, Dr Davis said that even if he assumed that the sailor from the Hawk was distressed and abusive and was restrained on a stretcher with blood-stained bandages, this would not in his opinion be sufficient to meet criterion A of the diagnostic criteria, because it would not constitute a life-threatening horrific experience so as to give rise to a chronic psychiatric illness, or an event that anyone would find life threatening, horrific or a threat to integrity of self (see transcript 18.06.09, page 1274, line 41 to page 1275, line 17).
43. Dr Davis was also asked about the continuation of the Hawk event, that is Mr Rodsted’s claim that some 12 hours after the early hours of the morning when the sailor had been brought on board the Derwent, Mr Rodsted saw the damage to the Hawk when it tied up alongside the Derwent, and having been informed by the crew of the Hawk about what had happened when the sailor went berserk, Mr Rodsted became terrified and frightened that the same thing could happen on board the Derwent. Dr Davis said that in his opinion, that scenario, whilst traumatic in itself, would not satisfy criterion A, because it was not a life-threatening experience, or a threat to physical integrity or life that gave rise to feelings of shock, horror or helplessness (see transcript 29.05.09, page 1178, lines 35 - 40).
44. In the first report that Dr Furze provided to Mr Rodsted’s solicitors, namely his report of 11 November 2005, Dr Furze expressed the opinion that the Hawk event fulfilled criterion A for PTSD. However, when he was asked about this opinion, he said that he had assumed that the injured sailor had been distressed and that Mr Rodsted knew at the time of the transfer that the sailor had been shot, and also that he was aware of the circumstances of the shooting. Dr Furze acknowledged that if Mr Rodsted was not at the time of the transfer of the sailor aware of what had happened on the Hawk, and if the sailor was not distressed and the only apparent sign of any wound was his two bandages with some sign of blood on the bandages, then that scenario would not meet criterion A, even if the sailor had been hand-cuffed and strapped to a stretcher at the time of the transfer (see transcript 02.04.08, page 182, lines 20 - 34).
45. In the course of his evidence, Dr Furze expressed the opinion that the continuation of the Hawk event, that is the circumstances in which Mr Rodsted became aware of what had happened on the Hawk, and his fear that something similar might happen on the Derwent, was sufficient to satisfy criterion A.
46. Mr Rodsted’s solicitors also sought an opinion from another psychiatrist, Dr Ewer. He saw Mr Rodsted on one occasion for this purpose. In his resulting report of 17 June 2004, he narrated the history of the Hawk event that he had obtained from Mr Rodsted, and said that he did not believe that the Hawk event met the subjective part of the definition of a “severe stressor” as defined in the Statement of Principles concerning PTSD. He said that Mr Rodsted’s history insofar as that stressor was concerned was more of concern and upset rather than intense fear or horror or helplessness, and accordingly he did not think that the subjective part of the test for criterion A had been met (see transcript 25.05.09, page 928, lines 30 - 31).
47. The T documents (exhibit R1) include medical reports from two other psychiatrists, namely Dr Ryan and Dr Elaine Skinner. Neither of them were called, and we understand that Dr Skinner has retired. In a report dated 22 October 1998 to the Department of Veterans’ Affairs, Dr Ryan concluded that Mr Rodsted was suffering from chronic PTSD as a result of his experiences in the Royal Australian Navy (exhibit R1, T10, at page 126). He referred in the following terms to a history that apparently related to the Hawk event:
“While in Borneo waters he recalls one episode where a Chief Petty Officer ‘went berserk and threatened to shoot everybody’. He says that he found this a frightening experience and felt that his life was at risk.” (exhibit R1, T10, page 121)
Dr Ryan’s report makes no reference to the circumstances of the transfer of the sailor from the patrol boat to the Hawk, or to the continuation of the Hawk event, or the reaction of Mr Rodsted to those matters.
48. The second historical report included in the T documents is that of Dr Elaine Skinner of 5 May 2000. She had been Mr Rodsted’s treating psychiatrist during the year 2000. In her report, she refers to a history of Mr Rodsted having been on night patrols and blowing up boats and there being a lot of shore bombardments, and of Mr Rodsted having known that there were women and children in the boats that were blown up (exhibit R1, T23, at page 165). She also administered the Davidson’s structured questionnaire for PTSD. Her subsequent transcription of the hand-writing on the questionnaire contains an apparent reference to the Hawk event in the following terms:
“They were tied up next to a mine-sweeper, a guy had a ‘dear John’ letter and tried to shoot everyone on the ship. The official report was different, that the ship was five hundred metres away.” (exhibit R18, page 2)
Other information which she recorded relates to loss of life on the fishing boats being destroyed and includes a notation: “He saw people die from actions of his own group” (exhibit R18, page 1).
49. Other evidence contradicts Mr Rodsted’s account of the circumstances in which the sailor was transferred to the Derwent. The witness Barr gave evidence that he was a leading sick berth attendant on HMAS Hawk when the sailor who had gone berserk was treated, and was then transferred from the Hawk to a Malayan patrol boat, and from there to the Derwent. Mr Barr gave evidence that the sailor was not handcuffed and was walking with a limp when he was transferred from the Hawk on to the patrol boat, that he had been given medication while on the Hawk and had calmed down a lot and was not violent or abusive after he left the Hawk, and had drifted off to sleep during the voyage from the Hawk to the Derwent, which took a long time. He said that from what he could recall, the sailor made his own way up the ladder with assistance from the patrol boat to the Derwent, was walking with a limp on the Derwent, and a Robertson stretcher was not used to transfer him from the patrol boat to the Derwent. The executive officer on the Derwent at the time, Commander Ward, gave evidence that the sailor hobbled across a gangplank from the Malayan patrol boat on to the deck of the Derwent, and was attended by an escort and by Dr Passehl, but from Commander Ward’s memory the sailor was not restrained in any way, and was most cooperative throughout the transfer. Mr Barr and Commander Ward were impressive witnesses and gave evidence in a straightforward way, and we accept their evidence that the sailor was not handcuffed and strapped to a stretcher when he was transferred from the patrol boat to the Derwent.
50. Their evidence is consistent with a signed witness statement provided by Dr Passehl dated 19 September 2007. He was a surgeon lieutenant on the Derwent at the time of the event. He died before the hearing before us commenced, and the fact that his statement was not tested in cross-examination reduces the weight of this witness statement. However, his statement is consistent with evidence he gave to a Board of Inquiry which was held into the event on the Hawk in 1966 soon after it occurred. A copy of the transcript of Dr Passehl’s evidence to the Board of Inquiry is an annexure to exhibit R15, and a further copy is annexed to exhibit R12, being a report prepared by Commodore Mulcare dated 18 July 2002. The transcript refers to the sailor being “able to hobble with assistance from the bunk [on the patrol boat] to the ladder which led up top and from there across to the Sick Bay on H.M.A.S. DERWENT.”
51. Criterion A of the diagnostic criteria for PTSD referred to in DSM-IV is expressed in terms that are closely reflected in the definition of “experiencing a severe stressor” in the SoP concerning PTSD. The interpretation based on that definition by decisions of Full Courts of the Federal Court were conveniently summarised by Heerey J in Repatriation Commission v Norton [2008] FCA 1132 at [20] as follows:
“1. The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person’s knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart (2003) 134 FCR 392 at [22], [30].
2. It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31].
3. To be “confronted” with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission (2003) 131 FCR 473 at [123].
4. “Risk” is used in the sense of “an indication of probable evil to come: something that gives indication of causing evil or harm”: Stoddart at [36].”
52. Counsel for Mr Rodsted, Mr Roberts, contended that we should accept Mr Rodsted’s evidence in relation to the Hawk event because the account Mr Rodsted has given at different times as to the circumstances of the transfer of the injured sailor has been consistent. However, this does not explain other inconsistencies in the history or evidence he has given regarding other asserted events. For reasons to which we will refer in further detail below, we found Mr Rodsted’s evidence to be unreliable, and we accept the evidence of Mr Barr and Commander Ward in preference to that of Mr Rodsted insofar as their evidence relates to the manner of the transfer of the sailor from the patrol boat to the Derwent, and as to the sailor’s demeanour after he was on board the Derwent.
53. We find that neither Mr Rodsted’s participation in the transfer of the sailor onto the Derwent nor the continuation of the Hawk event to which we have referred above satisfies the objective requirements of criterion A, in that neither of those aspects of the Hawk event could reasonably be perceived by a person with Mr Rodsted’s knowledge and experience as an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. Further, his evidence in cross-examination, to which we referred in paragraphs 37 and 38 above, refers to a subjective reaction of being worried and frightened. We referred in paragraph 39 above to Mr Rodsted’s evidence of his reaction to the circumstances constituting the continuation of the Hawk event, but we do not accept his evidence that he was terrified. We find that Mr Rodsted’s reaction to the two aspects of the Hawk event does not satisfy the subjective requirements of criterion A. We accept the opinion of Dr Davis in relation to these matters, and note that his opinion in relation to the first aspect of the Hawk event is consistent with the opinions expressed by Dr Ewer. We do not accept Dr Furze’s opinion in relation to the Hawk event to the extent that it differs from the opinions of Doctors Davis and Ewer.
Diagnosis of PTSD – scare charge event
54. Mr Rodsted’s evidence in relation to the scare charge event may be summarised as follows. Precautions were taken on board Derwent when she approached and entered Vung Tau Harbour; the ship was at defence stations, closed up, in a blackened state, and with water-tight hatches closed. Mr Rodsted was aware that attempts might be made to mine the Derwent or the ship she was protecting, HMAS Sydney, while they were in Vung Tau Harbour. Everyone became hyper-vigilant and on edge, and in his case, extremely so. He was very young and had never been in a war zone before. When the ship was in Vung Tau Harbour, measures were taken to prevent the ship being mined, and these included the use of scare charges and armed sentries. Scare charges were used very frequently, probably every fifteen to twenty minutes if there were no divers in the water, and they were deployed randomly, without prior warning.
55. He gave evidence that the problem was one scare charge in particular. He described this as follows:
“I had been off watch for half an hour, 20 minutes, I was in my bunk on the verge of going to sleep. As I stated previously, my bunk was three or four inches from the ship’s hull. A scare charge went off which I believe was three or four feet from the ship’s hull. It was unlike anything I had heard before. Myself and several other sailors that were in the Mess deck, I thought we had been mined as we had been informed was going to happen to us; there was a high probability that it happen. I got out of my bed and headed for the ladder to get on to the upper deck before water started to come into the ship. I shit myself. Excuse me.” (transcript 01.04.08, page 47, line 21)
56. He went on to say that when he heard the noise he thought that the ship had been mined. He said: “The hull vibrated with a hell of a noise. Yes, I thought we were going to sink.” He said the other sailors jumped up from their bunk and were heading up the ladder so they could start swimming, and several of them were almost at the upper deck when one of the other men turned around and started laughing and said that they were silly and that a scare charge had gone off. They then realised that that was what had happened. He said that this scare charge was different from other scare charge experiences: it was right beside the ship’s hull, and he thought he was going to die.
57. He said that he had thought about the incident constantly since. He said:
“I have nightmares. I became dependent on alcohol to get through the nights and then through the days. I believe the whole experience led to my dismissal from the Navy and where I finished up in life.” (transcript 01.04.08, page 48, lines 24 - 27)
He said that loud noises bring back recollections of the event, and he does not go anywhere where there are a lot of people around, and has difficulty sleeping.
58. The first record of Mr Rodsted providing a history to the effect that one particular scare charge event constituted a stressor that led him to believe that the Derwent had been mined and resulted in his jumping out of his bunk and climbing the ladder to the upper deck together with a number of other sailors appears in the report of Dr Ewer of 17 June 2004. This was nearly six years after the date when Mr Rodsted lodged his claim. Dr Ewer made it clear that his diagnosis of PTSD was made on the basis of the history given to him by Mr Rodsted, but he agreed in effect that he had some concerns about the reliability of that history, and any doubts regarding such matters should better be determined by a judge (see transcript 25.05.09, page 945, lines 8 - 11).
59. We referred in paragraphs 10 - 13 and 15 above to the various “severe stressors” that Mr Rodsted had referred to in different contexts prior to the hearing before us. He referred to a number of events. In each case where he referred to scare charges, he referred to scare charges generally, and did not refer to one specific incident which led to his jumping up from his bunk and together with a number of other sailors climbing the ladder to the upper deck in the belief that the vessel had been mined. The histories that Drs Ryan and Skinner recorded make no reference to any such specific event (although we attach limited weight to this aspect in itself, since neither of those doctors were called, and we are unaware of the manner in which they elicited the histories they obtained, and the accuracy of those histories was not tested in cross-examination). More significantly, Mr Rodsted, in his evidence at the original hearing in 2002, referred to scare charges in general. He only referred to a particular scare charge when he was cross-examined about the first charge that exploded when he was sleeping, but he himself did not apparently attribute any particular significance to that scare charge compared with any other scare charge explosion, and did not describe any specific incident involving a number of sailors jumping up from their bunks and climbing the ladder to the upper deck in order to start swimming because they thought the ship had been mined.
60. A number of sailors apart from Mr Rodsted who were on the Derwent in Vung Tau Harbour at the relevant time gave evidence. Whilst we are mindful of the provisions of s 119(1)(h) of the VE Act, the difficulties inherent in witnesses trying to remember events that occurred more than forty years ago, and the concessions of various witnesses that the event might have occurred and they might not now be able to remember it, none of the witnesses could remember any event of the kind described by Mr Rodsted. Further, Mr Rodsted said that he could not recall the names of any of the other sailors who sought to climb up the ladder to the upper deck when the event occurred.
61. In the course of his evidence, Dr Davis said that on his understanding, Mr Rodsted did not have any thoughts about the scare charge for many years, and it was only over the last ten years or so that he had remembered the specific incident and had kept thinking about it, particularly after talking with other veterans about war experience (see transcript 18.06.09, page 1272, lines 42 - 44). He agreed in cross-examination that it was possible that there had been a delayed onset of PTSD or latent onset PTSD, that it was extremely difficult to piece together a history which was forty years old, and that memories were not simply carbon copies of events as they occurred previously. However, he said:
“That’s true, except in PTSD particularly in the face of overwhelming, life-threatening stressors, the recollections tend to be quite consistent over time. They can be distorted but the core experience … people relive those moments with some clarity.” (transcript 18.06.09, page 1273, lines 18 - 23)
He added: “… but to be a stressor – an event that really amounts to a major stressor that could conceivably cause four decades of illness … I’d be looking for quite an intense recollection of it.” (transcript 18.06.09, page 1274, lines 8 – 11)
62. We also found certain other aspects of Mr Rodsted’s evidence to be unreliable and incorrect, such as his evidence as to the manner of the transfer of the injured sailor from the patrol boat to the Derwent, and also his evidence in relation to the treatment of prisoners on the Derwent. Dr Furze had said in his report of 11 November 2005 that Mr Rodsted “did, however, regularly see prisoners on the quarterdeck of the Derwent abused; tied up and handcuffed and treated violently by the Malay police guards, i.e. struck with rifle butts, forced to urinate and defecate on the deck and then struck on the head with the butts of the Malay rifles.” (exhibit A2, tab 15, page 6). This history was contradicted by the evidence of Commander Ward, who described the claim that prisoners were brutalized on the Derwent as “fanciful” and having “no substance whatsoever” (exhibit R38, page 2). We accept Commander Ward’s evidence as to this matter. When Mr Rodsted was cross-examined about this topic, he admitted that he did not ever see any prisoner being physically abused or struck.
63. As we said above, Mr Rodsted also reported to Doctors Ewer and Furze, and apparently also to Dr Skinner, that he had seen the Derwent fire upon and sink small vessels and had referred variously to his assumption, concern or conviction that people were still on board when this occurred. He gave similar evidence as to this matter at the original hearing in this tribunal in 2002 (see exhibit R33, page 20, line 14 and page 35, lines 2 – 29). These matters were expressly refuted by Commander Ward, who provided specific information about the interception and the boarding of surface craft during the operations in the Tawau area. He said:
“There were no incidents during any of these boardings and the vessels, in the main barter traders, were allowed to proceed after their credentials were checked. Certainly no vessels were arrested or detained, no vessels were destroyed by towing at high speed or by any other means, no prisoners were taken and no-one was brought on board DERWENT.” (exhibit R38, page 2)
He said there was only one recorded incident, on 22 June 1966, when it was necessary to fire a burst of small arms across the bows of an unlit barter trader to persuade it to stop, but this boat was subsequently allowed to proceed.
64. Commander Ward’s evidence is supported by a research report prepared by Commodore Mulcare which had been tendered in the 2002 proceedings, and which is exhibit R12 in the proceedings before us. We accept the evidence of Commander Ward and Commodore Mulcare, and find that the accounts provided by Mr Rodsted in relation to this topic were incorrect.
65. Mr Rodsted admitted that he had consumed very substantial amounts of alcohol for many years until Dr Furze assisted him to overcome his alcohol problem, and that this had affected his memory. Both Dr Davis and Dr Furze agreed that it was likely that Mr Rodsted’s memory had been affected by his many years of heavy drinking, and that this might be one reason for the inconsistencies in the accounts he has given of relevant events. We also note that Dr Furze agreed in effect that Mr Rodsted might have incorrectly convinced himself over time that certain events had occurred (see transcript 02.04.08, page 186, lines 23 – 47). Another possible explanation is that Mr Rodsted deliberately falsified or exaggerated his evidence, in order to have his claim accepted.
66. After carefully considering all of the evidence before us relevant to the asserted scare charge event, and evaluating the reliability of Mr Rodsted’s evidence, we do not accept Mr Rodsted’s evidence in relation to the scare charge event. He was an unsatisfactory witness, and at times prevaricated in the course of his cross-examination. We find it unnecessary to determine whether his memory and resulting evidence was affected by some or all of the possible factors referred to by Doctors Furze and Davis, or whether he gave evidence that was deliberately untruthful. Insofar as the diagnosis of PTSD relates to the scare charge event, we must decide whether we are reasonably satisfied that the scare charge event occurred, and that Mr Rodsted had an intense subjective reaction to any event of that sort. We are not so satisfied. It was not suggested that the anxiety that Mr Rodsted felt during his time in Vung Tau Harbour constituted a severe stressor, and we find that he did not suffer from PTSD in consequence of his service in Vietnamese waters. Further, he did not give credible evidence before us of any other stressor that would support a diagnosis of PTSD that was war-caused.
Further considerations re diagnosis of PTSD
67. Quite apart from the above considerations, we prefer the opinion of Dr Davis to that of Dr Furze or Dr Ewer where their opinions differ, except in relation to one issue, namely whether the evidence before us as to the scare charge event as described by Mr Rodsted would meet the diagnostic criteria of a stressor in the context of the relevant SoPs for PTSD, a matter to which we will refer below. In assessing the competing opinions of Doctors Davis and Furze, we take into account that Mr Rodsted was distrustful of Dr Davis, but Dr Davis saw Mr Rodsted on four occasions, and he elicited a detailed history, and said that he further checked this where he had concerns about its accuracy. We found Dr Davis’ evidence to be careful, consistent, and objective. It is clear that Dr Furze has provided very supportive treatment and has greatly assisted Mr Rodsted. However, we find that Dr Furze’s evidence, whilst also careful and thoughtful, was less objective than that of Dr Davis, perhaps because of his clinical relationship with Mr Rodsted, as illustrated for example by his acceptance, apparently without question, of Mr Rodsted’s account of the “repetitive brutalization” of prisoners on the Derwent and of the destruction of small boats during the border patrols (see his report of 11 November 2005), his change of opinion regarding whether the asserted scare charge event satisfied criterion A of the diagnostic criteria for PTSD, and his expressing a personal opinion as to the likelihood of the mode of transfer of the prisoner from the patrol boat to the Hawk, notwithstanding evidence to the contrary. Further, Dr Furze did not refer to the Stalwart event when he first gave evidence before us, even though he had been aware of this since August 2007, and was aware that the diagnosis of PTSD was in issue; and in his later evidence he acknowledged in effect that it was impossible to untangle the three stressors (i.e. the Hawk event, the scare charge event and the Stalwart event) some 40 years later in order to determine which event might have been more significant to Mr Rodsted, and that it would have been therapeutically and forensically advantageous for him if Mr Rodsted had mentioned the Stalwart event to him at an earlier time. In addition, Dr Furze did not differentiate between alcohol abuse and alcohol dependence insofar as he referred to those conditions, notwithstanding the diagnostic criterion to the effect that the symptoms must never have met the criteria for alcohol dependence in order for alcohol abuse to exist.
68. We found Dr Ewer’s evidence to be of limited assistance, because he had only seen Mr Rodsted on one occasion, and he addressed only those specific questions that he had been asked by the referring solicitors, and so did not address the issue of whether Mr Rodsted suffered from alcohol abuse or alcohol dependence, or the possible relevance of any such condition to the symptoms reported. In addition, Dr Ewer did not know about the Stalwart event, and so did not take that into account as a possible explanation for his diagnosis.
69. We are mindful that Dr Ryan and Dr Skinner diagnosed PTSD prior to the original hearing in this tribunal. However, Dr Ryan addressed criterion A of the diagnosis of PTSD only briefly, and the refers only in brief general terms to the Hawk event (which we have found did not constitute a stressor) and to Mr Rodsted’s experiences generally in Vietnamese waters. Dr Skinner, in the context of identifying stressors, refers to various traumas, including what appears to be a reference to her understanding of the Hawk event, and a reference to grenades, which might have been a reference to the use of scare charges in Vung Tau Harbour. Other matters to which she refers are not relied upon as stressors by Mr Rodsted. As mentioned above, neither Dr Ryan nor Dr Skinner were called, and we attach limited weight to their reports, and do not accept their diagnosis of PTSD.
70. We referred above to the Stalwart event. Mr Rodsted does not rely on that event in support of his claim for benefits under the VE Act, and whilst the three psychiatrists who gave evidence accepted that that event satisfied criterion A of the diagnosis of PTSD, Doctors Furze and Davis did not consider that that event had caused PTSD. Dr Ewer felt unable to express any opinion about the relevance of that event without undertaking further investigations. Of course, even if the Hawk event or the scare charge event had had the effect of making Mr Rodsted predisposed to developing PTSD as a result of some later trauma, any such pre-disposition does not meet the diagnostic criteria for PTSD.
71. In summary, for all of the above reasons, we are not satisfied on the evidence before us that Mr Rodsted is suffering from PTSD, or that he has suffered from this condition at any time since he lodged his application for a disability pension.
Diagnosis of alcohol abuse or alcohol dependence
72. Dr Davis considered that Mr Rodsted was suffering from long-standing alcohol dependence which probably began as alcohol abuse but, with continued very heavy drinking, progressed to alcohol dependence (see transcript 29.05.09, page 1135, lines 13 - 21).
73. In his report of 11 November 2005, Dr Furze refers variously to “long-standing alcohol abuse/dependence syndrome (now in remission)” (exhibit A2, tab 15, page 3), PTSD with “secondary alcohol dependent (sic) syndrome” (page 13) and “alcohol abuse” (page 14). He also refers to his extensive use of alcohol and a “highly alcohol ridden life style for many decades” (page 15). When he was cross-examined about this aspect he said that he thought that Mr Rodsted definitely had alcohol abuse and there was a high probability of alcohol dependence (see transcript 25.05.09, page 878, lines 34 - 37 and page 882, lines 2 - 4).
74. Dr Furze’s opinion appears to be inconsistent with the diagnostic criteria of alcohol abuse to the extent that he refers to Mr Rodsted suffering from both conditions. That is because criterion B of the diagnostic criteria for alcohol abuse states that the symptoms of alcohol abuse “have never met the criteria for alcohol dependence.”
75. There is no dispute that the quantities of alcohol that Mr Rodsted was consuming were very significant. It was for this reason that Dr Davis considered that Mr Rodsted would inevitably have progressed from alcohol abuse to alcohol dependence. Having regard to this evidence, criterion B of the diagnostic criteria for alcohol abuse, and Dr Furze’s acknowledgment that alcohol dependence was probable or even highly probable, we find that Mr Rodsted was suffering from alcohol dependence when he lodged his claim for pension. We further find that this condition has been in remission, probably since about the date of Dr Furze’s report of 11 November 2005 when he said that Mr Rodsted’s alcohol consumption under medical advice, had “substantially moderated” in the last few months (exhibit A2, tab 15, page 8).
Diagnosis of depressive disorder
76. Dr Davis gave evidence that in his opinion, Mr Rodsted had experienced a number of symptoms of a depressive disorder, but did not have enough symptoms to meet a diagnosis of major depression, and Dr Davis attributed these symptoms in question to alcohol dependence (see transcript 29.05.09, page 1151, lines 32 - 36). We note that the diagnostic criteria of alcohol dependence in DSM IV-TR exclude a diagnosis of major depressive disorder and dysthymic disorder when the relevant symptoms are considered to be due to the direct physiological effects of a substance, such as alcohol or a drug of abuse (see report of Dr Davis of 9 November 2007, exhibit R56, page 61). In his report of 18 June 2007, Dr Furze expressed the opinion that a diagnosis of major depressive disorder could be made, but it was his view that Mr Rodsted’s depressive symptoms were secondary to PTSD and alcohol abuse, and he added that it was not “(his) view that this man suffers from an independent depressive disorder” (exhibit A2, tab 16, page 4).
77. We are not satisfied that Mr Rodsted has suffered from a depressive disorder since lodging his claim for pension. We find that his depressive symptoms are secondary to his alcohol dependence.
Was the applicant’s alcohol dependence war-caused?
78. We have referred above to the provisions of ss 120(1) and (3) and 120A(3) of the VE Act. The application of those sections was explained in Repatriation Commission v Deledio (1998) 83 FCR 82, where a Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) said at 97:
“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.”
79. An hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts: Bull v Repatriation Commission (2001) 66 ALD 271 at [17] and [38]. The material before us points to an hypothesis that connects Mr Rodsted’s alcohol dependence with his operational service. This material comprises his evidence that he experienced the Hawk event and the scare charge event and used alcohol to obtain relief from the symptoms he experienced as a result of those events, and also the medical reports of Doctors Ryan, Skinner, Furze and Ewer insofar as they relate to either or both of those events.
80. A SoP is in force in relation to alcohol dependence, namely Instrument No. 1 of 2009 (the 2009 Alcohol SoP). An earlier SoP is also potentially relevant in relation to that condition, namely Instrument No. 76 of 1998 (the 1998 Alcohol SoP). In addition, for reasons explained below, the following SoPs concerning PTSD must also be considered, namely Instrument No. 5 of 2008 (the 2008 PTSD SoP), and Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999 (collectively, the 1999 PTSD SoP). The earlier SoPs in respect of alcohol related disorders and in respect of PTSD are potentially relevant because if the SoPs currently in force do not uphold the requisite connection with Mr Rodsted’s service, he can rely upon any earlier SoP in force at the time of the Commission’s decision, if this is more favourable to him: Gorton v Repatriation Commission (2001) 65 ALD 609.
Relevance of the 2009 Alcohol SoP to alcohol dependence
81. The 2009 Alcohol SoP provides in clause 6 for a number of factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with the circumstances of a person’s operational service. The following factors are relevant:
“(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse;
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse…”
82. In considering whether the hypotheses to which we have referred are reasonable, we must consider all of the material before us, whether or not that material supports the hypotheses: Bull (supra) at [21], 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.
83. An hypothesis that (after taking into account all of the material before us) 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). We refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell 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 evidence, even though not proved on the balance of probabilities. The material must fairly raise or point to the hypothesis, and not merely leave it open or not exclude it: Repatriation Commission v Codd (2007) 95 ALD 619 at [12].
(a) Factor 6(a) of the 2009 Alcohol SoP – having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence
84. For reasons to which we will refer below, we have concluded that there is material before us that the date of clinical onset of alcohol dependence was some years after Mr Rodsted’s discharge from the Navy (which occurred on 11 May 1970), and not earlier than 1973 (see paragraph 118 below). The expression “a clinically significant psychiatric condition” is defined in clause 9 of the 2009 Alcohol SoP in terms that would include PTSD (but specifically excludes alcohol-related disorders). There is a SoP in respect of PTSD, and by virtue of clause 8 of the 2009 Alcohol SoP, the factors in the relevant SoP for PTSD apply in accordance with that SoP, and we must apply that SoP in order to determine whether it supports the hypothesis that PTSD, and so in turn alcohol dependence, was war-caused: McKenna v Repatriation Commission (1999) 86 FCR 144.
Factors 5(a) and (b) of the 2008 PTSD SoP – experiencing a category 1A or 1B stressor before the clinical onset of PTSD
85. We have previously considered PTSD in order to determine the preliminary issue of diagnosis, that is, whether we are satisfied on the balance of probabilities that Mr Rodsted has been suffering from PTSD during the period between when he lodged his claim for a disability pension, and the present time. We now consider PTSD from a different perspective, namely whether there is evidence before us that founds a reasonable hypothesis that Mr Rodsted is suffering from PTSD that was war-caused. In accordance with ss 120(3) and 120A(3) of the VE Act, as explained in Deledio (supra), we now turn to the question of whether there is material before us that fits the template of the SoP currently in force in respect of PTSD. That SoP is the 2008 PTSD SoP. It provides in clause 3(b) for the diagnostic criteria for PTSD.
86. Clause 5 of the 2008 PTSD SoP provides in effect that at least one of the factors set out in clause 6 of that SoP must be related to the operational service rendered by the veteran. Clause 6 then sets out a number of factors. The factors relevant to Mr Rodsted’s claim are as follows:
“(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or …”.
87. We have referred above to the conflict in the medical evidence before us as to whether Mr Rodsted suffers from PTSD. There is also some conflict, in the evidence that he was suffering from PTSD, as to the date of clinical onset of PTSD.
88. The purpose of SoPs and their relationship with s 120(3) of the VE Act was referred to by Weinberg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690. His Honour pointed out, by referring to the judgment of Heerey J at first instance in Deledio, that if an SoP applies to a particular kind of disease, an hypothesis will not satisfy the test of reasonableness merely because there is some expert evidence before the decision-maker supporting the medical-scientific aspects of the hypothesis. He added at [64] that where the SoP requires the presence of a number of symptoms:
“(u)nless the symptoms … are all present … it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that [the condition] was present.”
He proceeded to refer to s 120A and Part XIA of the VE Act (which provides for the introduction of the SoP regime) and said at [67] that they “were introduced in order to take the determination of ‘purely medical … issues’ out of the hands of bodies such as the Tribunal …”.
89. Similarly, in Lees v Repatriation Commission (2002) 125 FCR 331, Heerey, Moore and Kiefel JJ said at [16]:
“The purpose of the [SoP] definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from [the claimed condition] …”.
90. The expressions “a category 1A stressor” and “a category 1B stressor” in clauses 6(a) and 6(b) of the 2008 PTSD SoP are defined in clause 9 to mean one or more of a number of “severe traumatic events”. The events potentially relevant to the present matter are “experiencing a life-threatening event” (paragraph (a) of the definition of “a category 1A stressor”), and “viewing … critically injured casualties as an eye-witness” and “being an eye-witness to or participating in, the clearance of critically injured casualties” (paragraphs (b) and (e) of the definition of “a category 1B stressor”).
91. We referred in paragraphs 35 – 39 above to Mr Rodsted’s evidence in relation to the Hawk event, and in paragraphs 54 – 56 to his evidence in relation to the scare charge event. We have previously considered the relevance of those events to the issue of diagnosis, an issue that is to be determined by making findings of fact on the balance of probabilities. We now further consider the evidence before us in relation to a different issue, namely the reasonableness of the hypothesis connecting Mr Rodsted’s alcohol dependence with his war service. This involves deciding whether there was material before us that points to Mr Rodsted having experienced a category 1A or category 1B stressor before the clinical onset of PTSD by reference to the relevant SoP, but without making any finding as to whether that in fact occurred.
92. As mentioned in paragraphs 42 and 43 above, Dr Davis considered that the Hawk event, including Mr Rodsted’s realisation that a similar event could happen on board the Derwent, would not satisfy criterion A of the diagnostic criteria for PTSD, because it was not a life-threatening experience, nor a threat to physical integrity or life that gave rise to feelings of shock, horror or helplessness. Dr Ewer also considered that the Hawk event did not satisfy criterion A, because Mr Rodsted’s reaction to it did not meet the subjective requirements of the test: see the report of 17 June 2004 (exhibit A2, tab 14, paragraph 16.3), and transcript 25.05.09, page 913, lines 14 – 23 and page 928, lines 25 – 31. The apparent reference to the Hawk event in Dr Ryan’s first report is very brief, and does not explain the basis of Mr Rodsted’s reported subjective reaction to it. The description by Dr Skinner that (as we said above) apparently related to the Hawk event does not indicate that it was a life-threatening event as far as Mr Rodsted was concerned. There is contrary material before us, namely the opinion of Dr Furze in relation to the first stage of the Hawk event, but his opinion involved assumptions as to the circumstances that existed when the sailor was transferred to the Derwent, and there was material before us in the form of evidence from the witnesses Barr and Commander Ward and the statement of the late Surgeon Lieutenant Passehl that, as we have said above, contradicted Dr Furze’s assumptions. Further, the material before us indicates that Mr Rodsted’s reaction at the time of the transfer of the sailor is inconsistent with the event being a life-threatening event.
93. There is also some contrary material before us in relation to the continuation of the Hawk event. We refer to Mr Rodsted’s evidence-in-chief as to his subjective reaction (see paragraph 39 above) and to Dr Furze’s opinion (see paragraph 45 above), but in a witness statement, Dr Furze indicated that his opinion in relation to the Hawk event was not based on the 2008 PTSD SoP, and whether it met the diagnostic criteria of that SoP was “more problematic” (exhibit A2, tab 20, paragraph 5).
94. After considering all of the material before us in accordance with the approach referred to in the authorities discussed in paragraphs 82 and 83 above, we consider that the contrary material referred to in the preceding paragraph is too tenuous or not credible, taking into account the other material to which we earlier referred. We find that the material before us does not indicate that the continuation of the Hawk event was a life-threatening event, and so it does not fit the template of factor 6(a) of the 2008 PTSD SoP. Further, having regard to all of the evidence before us as to the nature of the sailor’s condition and his behaviour, it does not fit the template of factor 6(b), in that it is not consistent with the descriptions in paragraphs (b) or (e) of the definition of “a category 1B stressor”.
95. There is, however, material before us that is consistent with the scare charge event being a life-threatening event. We refer to the evidence of Dr Furze and Dr Ewer, and to the evidence of Mr Rodsted, including his evidence as to his reaction, and that of a number of other sailors, to this event. Once again, there is material before us to the contrary. Dr Davis did not regard this event as a life-threatening event, and considered that it did not meet criterion A, because it did not constitute an acute experience associated with intense fear, helplessness or horror. He considered that the circumstances were not of sufficient duress or stress to satisfy criterion A, having regard to the duration of the event, its intensity, and the context, because very quickly the sailors learned that it was not significant, the incident was resolved, and there was laughter and frivolity (see transcript 18.06.09, page 1278, lines 29 - 35).
96. In our view, the short duration of the event would not of itself prevent the event being perceived to be life threatening. It was held in Guy v Repatriation Commission [2005] FCA 562 that the tribunal had applied the wrong test in concluding that the veteran had not experienced a severe stressor because he had only suffered an anxious moment while he removed himself from the boiler room of a naval vessel and disconnected the electricity. We consider further that in evaluating the competing medical opinions, we should take into account the additional evidence before us of such matters as Mr Rodsted’s young age, his lack of experience of operational service, his heightened sense of anxiety while he was in Vung Tau Harbour, and his awareness of the risks to navy ships and personnel while they were there, being matters that are consistent with extracts from the book The Vung Tau Ferry that were tendered in support of his claim (exhibit A2, tab 8). Other witnesses also referred to their knowledge of the risks that existed while the Derwent was in Vung Tau Harbour, and of their own concerns. Further, there was evidence that Mr Rodsted’s bunk was (variously) either on, just below or just above the waterline, and that the sound of scare charges is much louder in compartments on and below the waterline, and could be startlingly loud in such compartments if the charge exploded close alongside (see exhibit R12, report of Commodore Mulcare of 18 July 2002, page 3).
97. After considering all of the material before us in relation to the scare charge event, again in accordance with the authorities referred to in paragraphs 82 and 83 above, we conclude that there is material before us that is consistent with Mr Rodsted having experienced a category 1A stressor.
98. We next consider whether there is material before us that the experiencing of a category 1A stressor, that is, experiencing the scare charge event, preceded the clinical onset of PTSD. The expression “clinical onset” is not defined in the SoP. In Repatriation Commission v Cornelius [2002] FCA 750, Branson J referred at [26] with apparent approval to a test adopted in a decision by Senior Member Dwyer of this tribunal to establish the date of clinical onset, namely:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …”.
Branson J’s interpretation of the concept of “clinical onset” was in turn cited, again apparently with approval, by the Full Court in Lees (supra).
99. There is no evidence before us that a doctor had diagnosed PTSD prior to the date of clinical onset of alcohol dependence, and so the second limb of the above test is not relevant.
100. The relevant “feature or symptom” referred to in the first limb of the test must refer to those symptoms which are described in the definition of the relevant disease in the SoP relating to that disease: see the authorities referred to in paragraphs 87 and 88 above.
101. Once again there is divergent medical evidence before us in relation to the date of clinical onset. Dr Davis did not diagnose PTSD, but in referring to Mr Rodsted having some PTSD-like symptoms, he said that those symptoms first emerged in the late 1990s (see transcript 18.06.09, page 1305, lines 5 - 15). Dr Ewer said in his report of 17 June 2004 that it was “difficult to be certain” when Mr Rodsted’s PTSD began but it was certainly, on the basis of the history he obtained, by the mid 1990s (exhibit A2, tab 14, page 9, paragraph 16.4).
102. On the other hand, Dr Furze said in his report of 11 November 2005 that Mr Rodsted had had PTSD since the late 1960s (see exhibit A2, tab 15, page 13), and he repeated this opinion in his report of 18 June 2007 (exhibit A2, tab 16, page 7). It was submitted on behalf of the respondent that Dr Furze had not expressed a detailed opinion regarding the date of clinical onset by reference to the diagnostic criteria for PTSD contained in the relevant SoPs. We do not accept that submission. In his report of 11 November 2005 at page 13, Dr Furze refers to Mr Rodsted meeting each of the criteria for PTSD with the exception of criterion F, and he then immediately concludes his summation by stating his opinion that Mr Rodsted had had PTSD since the late 1960s. And in his report of 18 June 2007, Dr Furze refers at page 6 to:
“… a history of marked increase in this man’s alcohol consumption and a deterioration in his naval conduct with an increase in charges for AWL (sic), insubordination, and taking time off with a doctor’s certificate when he was either going drinking or was recovering from binge drinking. This ultimately led to the incident with the stealing of the car, his gaoling and discharge from the navy. I would note that this contrasts with his previous pre-Borneo service record.”
103. One other aspect of Dr Furze’s reference to the diagnostic criteria being present by the late 1960s is less certain. He refers in his report of 11 November 2005 at page 13, to intrusive and distressive recollections and recurrent dreams of “these incidents”, and this is a reference back to other asserted stressors, namely the Hawk event and seeing the abuse of prisoners on the Derwent (an event which Mr Rodsted did not rely on in the proceedings before us as a stressor). Dr Furze’s report does not refer to intrusive recollections or recurrent dreams of the scare charge event. However, in re-examination the following question and answer appears:
“Now Doctor, is it possible, assuming those two incidents didn’t occur but the scare charge incident did occur, that what you have recounted on page 11 in terms of dreams, etcetera, relates to the scare charge incident? --- Some of this will.” (transcript 26.05.09, page 1012, lines 29 – 32)
104. In case we are wrong in our conclusion that there is appropriate medical evidence before us, in the form of the evidence from Dr Furze, that the clinical onset of PTSD occurred before the onset of alcohol dependence, we now turn to the question of whether we can consider lay evidence in relation to the date of clinical onset. Some authorities suggest that it is necessary for the tribunal to have evidence from a medical practitioner determining, for the purposes of assessing the date of clinical onset of alcohol abuse or alcohol dependence, that the condition was present at a particular time: see Repatriation Commission v Brady [2007] FCA 1087 at 36 – 37. In other cases, however, it appears that the Court has considered lay evidence as well as medical evidence. For example, in Lees (supra) a Full Federal Court held that the history of symptoms provided to a psychiatrist was material which the tribunal should have considered as bearing upon the date of clinical onset of the disorder in issue. And in Cornelius (supra) Branson J at [30] pointed out that there was no material before the tribunal which suggested that any medical practitioner had in fact said that a feature or symptom reported by the veteran within the specified time period enabled him or her to say that the veteran had the condition in question. Her Honour nevertheless then proceeded to examine whether there was other relevant material before the tribunal that pointed to the relevant feature or symptom, being material that did so by inference.
105. There is therefore some authority that suggests that we may, in applying the first limb of the test of clinical onset in Cornelius (see paragraph 98 above), consider the evidence before us as to the symptoms of which Mr Rodsted had become aware prior to the onset of alcohol dependence, and then decide whether those symptoms would enable a doctor to say that the disease was present.
106. Mr Rodsted gave evidence relevant to a number of the diagnostic criteria in the 2008 PTSD SoP. He referred to getting into a lot of strife after the incidents on the Derwent, particularly after he had been posted to HMAS Lonsdale and then to HMAS Stalwart; having received a lot of punishment; commencing to drink heavily in the late 1960s; starting to drink when he was in the Far East, constantly drinking to become drunk during his posting at Lonsdale, and drinking to excess at HMAS Cerberus, because the drink helped him to forget incidents that happened on the Derwent, including the Hawk event and the scare charge event; being dismissed from the Navy; being affected when he heard loud noises; and his difficulty in maintaining employment. It is clear that a number of these matters occurred before the onset of alcohol dependence.
107. We have also taken into account the file which records disciplinary proceedings taken against Mr Rodsted before his discharge from the Navy (exhibit R29). A report dated 29 May 1970 says that while he was in Nirimba (which was from February 1970) he had broken his leave on several occasions, and subsequently stated that he was sick on shore. As against this, there is a statement in a letter dated 1 May 1970 included in exhibit R26 that throughout his service, his “character was assessed annually as very good”, and Mr Rodsted himself said that he had received a good conduct badge and had not lost it by way of punishment (transcript 21.08.08, page 415, lines 24 - 38). In addition, there is further lay evidence before us that contradicts Mr Rodsted’s evidence as to the extent of his drinking while he was still in the Navy.
108. Having considered and evaluated all of the material before us we find that there is evidence before us that the clinical onset of PTSD occurred after the scare charge event and before Mr Rodsted was discharged from the Navy. This evidence is therefore consistent with factor 6(a) of the 2008 PTSD SoP, which refers to a veteran experiencing a category 1A stressor before the clinical onset of PTSD.
Factor 5(a) of the 1999 PTSD SoP – experiencing a severe stressor prior to the clinical onset of PTSD
109. The above finding it makes it unnecessary for us to consider the 1999 PTSD SoP. However, for the sake of completeness, we find that for the reasons referred to above the material before us in relation to the scare charge event is consistent with factor 5(a) of the 2008 SoP, taking into account the reference in that factor to the definition of “experiencing a severe stressor”. We also add that notwithstanding Dr Furze’s opinion in relation to the Hawk event as to the effect of that SoP, we find that the material before us in relation to the Hawk event, including the continuation of it, is not consistent with the factors provided for in that SoP.
(b) Factors 6(b) and (c) of 2009 Alcohol SoP – experiencing a category 1A or 1B stressor within the five years before the clinical onset of alcohol dependence
110. The expressions “a category 1A stressor” and “a category 1B stressor” are defined in the 2009 Alcohol SoP in the same terms as those in the 2008 PTSD SoP. We set out the relevant paragraphs from the two definitions in paragraph 90 above. The same three relevant events referred to in the definitions are also relevant in considering factors 6(b) and (c) of the 2009 Alcohol SoP.
111. For the reasons referred to in paragraphs 92 - 94 above, we find that the material before us in relation to the Hawk event, including the continuation of it, does not point to that event being a category 1A stressor, since it does not point to it being a life-threatening event, and we find further that that material does not meet the criteria described in (b) or (e) of the definition of a category 1B stressor. However, for the reasons referred to in paragraphs 95 and 96 above, we find that there is material before us that Mr Rodsted experienced a life-threatening event, namely the scare charge event.
112. We now turn to the material before us in relation to the time of the clinical onset of alcohol dependence. The 2009 Alcohol SoP provides in clause 3(b) for the diagnostic criteria of alcohol dependence and alcohol abuse.
113. As mentioned above, in describing Mr Rodsted’s alcohol-related conditions, Dr Furze did not in his reports clearly differentiate between alcohol abuse and alcohol dependence, even though the diagnostic criteria for alcohol abuse requires that condition never to have met the criteria for alcohol dependence. In his evidence he described alcohol dependence as essentially a more damaging level of alcohol abuse, and agreed that people with alcohol dependence start with alcohol abuse and then their condition deteriorates into dependence (see transcript 25.05.09, page 876, lines 40 - 46). He referred to having obtained a history that Mr Rodsted’s excessive drinking started within two years of traumatisation (report of 18 June 2007, exhibit A2, tab 16, page 4). He went on at page 6 of that report to refer to the history of marked increase in alcohol consumption and the deterioration in his naval conduct culminating in the car stealing, being gaoled and discharged from the Navy. In his evidence he acknowledged that it might be very difficult to establish that Mr Rodsted had “alcohol abuse syndrome” some 40 years previously, during his naval service (transcript 25.05.09, page 881, lines 38 - 44). He thought it possible but unlikely that alcohol abuse commenced after Mr Rodsted’s naval service. We think that on balance, Dr Furze’s evidence indicates that in his opinion, Mr Rodsted was suffering from alcohol abuse during his naval service, but he did not provide any clear opinion as to the date of clinical onset of alcohol dependence by reference to the diagnostic criteria of that condition.
114. Dr Ewer was not requested to report on the issue of alcohol abuse or alcohol dependence, and did not provide an opinion as to the date of clinical onset of alcohol dependence.
115. Dr Davis referred to his attempts to try to define the date of clinical onset of alcohol abuse, from his interviews with Mr Rodsted and from the different reports he had read. He said the impression he was left with was that Mr Rodsted drank heavily and engaged in heavy binge drinking when he went on shore with his mates, had access to rationed alcohol when he was on ship, and then following his discharge from the Navy there was a gradual increase in his consumption of alcohol that built up over time and became entrenched (see transcript 29.05.09, page 1135, lines 27 - 33). After being referred to the diagnostic criteria for alcohol abuse, he said that he had read nothing to support that those criteria were satisfied at the time of Mr Rodsted’s naval service (see transcript 29.05.09, page 1137, line 47). Dr Davis ultimately agreed that the clinical onset of alcohol abuse would have been some years after Mr Rodsted’s service when he was working in the construction industry (see transcript 29.05.09, page 1181, lines 17 - 18), and the history that he obtained from Mr Rodsted as to his prior work indicates that this must have been during his 10 to 15 years that he worked in the construction industry, which commenced in 1973 or 1974.
116. As regards alcohol dependence, Dr Davis said that he has “struggled” to date the onset of that condition, but his impression was that it evolved over time and well past service days (transcript 29.05.09, page 1156, lines 15 - 20). He agreed in cross-examination that he had fixed a point, namely approximately the mid-1970s, when he thought that alcohol dependence might have been able to be diagnosed (see transcript 29.05.09, page 1185, lines 31 - 36).
117. Mr Rodsted also gave evidence as to his heavy drinking and its effect on the performance of his duties in the Navy and its effects after he was discharged. His evidence does not, however, specifically address each of the diagnostic criteria for alcohol dependence, and does not comprise evidence as to the likely date when three or more of the relevant diagnostic criteria were met.
118. We prefer the evidence of Dr Davis to the evidence of Dr Furze as to the date of clinical onset of alcohol dependence. We conclude that the material before us suggests that the date of the clinical onset of alcohol dependence was some years after the date of Mr Rodsted’s discharge from the Navy on 11 May 1970, and not earlier than 1973, but the evidence before us does not otherwise define a date of the clinical onset of alcohol dependence. The scare charge event occurred in June 1966. The material before us is therefore not consistent with Mr Rodsted having experienced a category 1A stressor within the five years before the clinical onset of alcohol dependence, being the requirements of factor 6(b) of the 2009 Alcohol SoP. Further, as there is no material before us that Mr Rodsted experienced a category 1B stressor, the evidence before us does not support factor 6(c) of that SoP.
Relevance of the 1998 Alcohol SoP to alcohol dependence
Factor 5(a) of the 1998 Alcohol SoP – suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence, and factor 5(b) - experiencing a severe stressor within two years before clinical onset of alcohol dependence
119. The definition of “psychiatric disorder” in clause 8 of the 1998 Alcohol SoP does not, unlike the definition of “a clinically significant psychiatric disorder” in the 2009 Alcohol SoP, exclude alcohol-related disorders. In that respect the 1998 Alcohol SoP is more favourable to Mr Rodsted. We must therefore consider that SoP: Gorton (supra).
120. We have found for the reasons referred to above that there is material before us that Mr Rodsted was suffering from a psychiatric condition, namely PTSD, at the time of the clinical onset of alcohol dependence.
121. We next consider whether there is material before us that Mr Rodsted was suffering from alcohol abuse before the clinical onset of alcohol dependence. The evidence before us as to Mr Rodsted having steadily increased the extent of his drinking, and Dr Furze’s evidence as to people progressing from alcohol abuse to alcohol dependence, leads us to be satisfied that there is material before us that is consistent with Mr Rodsted having had alcohol abuse before the clinical onset of alcohol dependence. There is also material before us that alcohol abuse was war-caused, because there is evidence before us that he was suffering from PTSD at the time of the clinical onset of alcohol abuse, thus meeting factor 5(a) of the 1998 Alcohol SoP.
122. We accordingly conclude that there is material before us that Mr Rodsted was suffering both PTSD and war-caused alcohol abuse before the clinical onset of alcohol dependence, and that that material meets factor 5(a) of the 1998 Alcohol SoP.
123. This makes it unnecessary to consider factor 5(b), but for the sake of completeness, we find for the above reasons that there is no material before us that the clinical onset of alcohol abuse occurred prior to Mr Rodsted’s discharge from the Navy. As a result, there is no material before us that Mr Rodsted suffered a severe stressor, namely the scare charge event, within the two years immediately before the clinical onset of alcohol abuse, and so factor 5(b) of the 1998 Alcohol SoP is not met.
Findings of fact
124. For the above reasons, after considering the whole of material before us, we consider that the material raises a reasonable hypothesis connecting Mr Rodsted’s alcohol dependence with his operational service. By virtue of s 120(1) of the VE Act, we must determine that this condition was war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We refer in this regard to Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, where Mason CJ, Guadron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis”.
125. The application of s 120(1) was discussed in earlier cases in somewhat more detail. In O’Brien v Repatriation Commission (1985) 155 CLR 422, Brennan J (as he then was) said at 440 – 441:
“Whether it is possible rationally to dispel an affirmative hypothesis and to destroy the probative effect of material supportive of the claim in a particular case depends on the material before the decision-maker. An opinion expressed in or a fact suggested by the material may be contradicted by ordinary experience or be otherwise inherently incredible. Or the material supportive of the claim may be internally inconsistent. Or the material obtained from the opposed medical experts, especially evidence given under cross-examination, may reveal that an opinion in favour of entitlement is vitiated by a mistake of fact or by inconsistency with received contemporary medical science. Or a lack of personal credibility may deny credit to material emanating from a particular source. Or it may be a combination of factors that leads the decision-maker to reject the hypothesis of entitlement.”
Whilst his Honour dissented in that case, a Full Court of the Federal Court subsequently agreed with his above statement: see Munt v Repatriation Commission (1986) FCA 255.
126. In another earlier case, Bushell v Repatriation Commission (1992) HC of A 175 CLR Mason CJ, Deane and McHugh JJ said at 416:
“The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed …”.
127. The hypothesis connecting Mr Rodsted’s alcohol dependence with his operational service rests on his evidence that the scare charge event occurred, and on his evidence as to his subjective reaction to it. That hypothesis is the basis of the material before us that meets the relevant factors in the SoPs concerning PTSD, and the relevant factors in the 2009 and 1998 Alcohol SoP. If we are satisfied beyond reasonable doubt that that event did not occur, or that (if it did occur) it did not produce the subjective reaction asserted by Mr Rodsted, then that would dispel the hypothesis that alcohol dependence was war-caused.
128. We referred above to our finding, in the context of considering the issue of diagnosis, that we are not reasonably satisfied that the scare charge event occurred. This finding was, however, arrived at by reference to the standard of proof provided for in s 120(4). We must now consider whether we are satisfied beyond reasonable doubt that there is no sufficient ground for finding that the scare charge event occurred, or that Mr Rodsted experienced the subjective reaction he has asserted to that event.
129. Over the course of and as a basis for his claim for PTSD, Mr Rodsted has referred to various asserted stressors, namely shelling on the mainland, the destruction of small surface boats, his role as a member of boarding parties, the abuse of prisoners on the Derwent, the Hawk event, the effect on him of scare charges in Vung Tau Harbour, and finally one specific scare charge event in Vung Tau Harbour. He did not mention the Stalwart event, notwithstanding that it was clearly a traumatic event that evoked a strong emotional reaction. His account in relation to the abuse of prisoners and the destruction of small boats was contradicted by the direct evidence to which we have referred above, and there is no record of his providing a history of the specific scare charge event until nearly six years after he first lodged his claim for PTSD. At an earlier stage of the proceedings in this tribunal after the remittal by the Federal Court, he had sought to rely upon the Hawk event and the destruction of boats possibly with occupants on board, but (perhaps understandably, in view of Dr Furze’s then opinion) he did not rely on the scare charge event at all (see exhibit R3, the applicant’s further amended statement of facts and contentions). This changing focus on the basis of Mr Rodsted’s claim is inconsistent with Dr Davis’s opinion to the effect that he would expect there to be a major stressor and an intense and clear recollection of the core experience of it in order to explain four decades of illness (see paragraph 60 above).
130. We refer to our above comments that Mr Rodsted was an unsatisfactory witness, and as to the effect of Mr Rodsted’s many years of heavy drinking on his memory. We also referred above to a number of areas where we found Mr Rodsted’s evidence to be unreliable, unsatisfactory, or incorrect. These matters may be briefly summarised as follows:
(a)his evidence as to the manner in which the sailor was transferred from the patrol boat on to the Derwent (in contrast with the evidence of the witnesses Barr and Commander Ward, and the statement of the late Dr Passehl and his evidence to the Board of Inquiry);
(b) his evidence as to the condition and behaviour of the sailor in question;
(c)his account to Dr Furze of prisoners being abused on the quarter deck of the Derwent, which we find was incorrect or untruthful;
(d)his evidence as to the destruction of small boats, which again we find was incorrect or untruthful;
(e)his references to scare charges generally (rather than the specific scare charge event he later described) during the period from August 1998 when he lodged his claim until he saw Dr Ewer in June 2004, and his failure before then to refer to the specific scare charge event (even though, according to the history he gave to Dr Davis, over the last 10 years or so he had remembered the specific event and had kept thinking about it);
(f)his evidence in the 2002 hearing in this tribunal to the effect that he thought that the Derwent was alongside the Hawk when the sailor went berserk; and
(g)his inability to recall the names of any of the other sailors who at the time of the asserted event allegedly rushed from their bunks to the ladder in order to go to the upper deck (notwithstanding that steps were taken during the hearing to identify the names of the ordinary seamen who were on board the Derwent at the relevant time, some of whom would have shared the same mess as his).
131. Certain further matters are relevant to our evaluation of the evidence relating to the scare charge event. These are as follows:
(a)a number of other sailors were called, but none of them had any recollection of the event described by Mr Rodsted, even though on Mr Rodsted’s account it was unlike any scare charge he had heard before, the hull vibrated “with a hell of a noise”, it was right beside the ship’s hull, and involved some 10 sailors rushing to the ladder to escape to the upper deck, presumably because like Mr Rodsted, they thought the Derwent had been mined;
(b)Commander Ward had no recollection or knowledge of a scare charge being deployed incorrectly when the Derwent was in Vung Tau Harbour at the relevant time;
(c)according to the witness Miller, for the scare charge to have exploded on the surface of the water, or just below the surface, adjacent to Mr Rodsted’s bunk, the person deploying the scare charge would have had to count to four after releasing the priming lever, before dropping it, and this seems to us to be inherently unlikely;
(d)none of the witnesses who were apparently friends of Mr Rodsted at the relevant time noticed any change in him following the asserted event (see the evidence of the witnesses Roe, Wilson and Porter);
(e)other witnesses gave evidence that was inconsistent with Mr Rodsted’s account of the extent of his drinking after the trip to Vietnam and before his discharge from the Navy;
(f)a Naval record reporting on the hearing of the prosecution against Mr Rodsted for the car stealing offences in 1969 makes no reference to any submission being made on his behalf to the effect that his conduct at the relevant time was affected by alcohol;
(g)the witness Porter contradicted Mr Rodsted’s evidence that he was affected by alcohol at the time of the car thefts that occurred in 1969; and
(h)the records relating to disciplinary action taken against Mr Rodsted before his discharge from the Navy include one document indicating that his character was assessed annually as very good (see exhibit R29), and except for a reference to his conduct after February 1970, when he was posted to Nirimba, do not include any reference to disciplinary breaches or misconduct of the sort that he described in evidence.
132. Counsel for Mr Rodsted contended that we should not accept the Commission’s argument that the scare charge event did not occur. He referred to the evidence of Commodore Mulcare to the effect that a scare charge had been dropped close to the hull in 1969 on a different vessel, namely HMAS Vendetta, that some commanding officers, including the commanding officer of HMAS Yarra, did not like scare charges being thrown too close to the ship’s hull for fear that this might cause damage, and that a scare charge had damaged an oil tank of the Ark Royal, an aircraft carrier. Commodore Mulcare said that he had prepared a report in relation to the event on the Vendetta, but for reasons which we have previously published, we refused to direct him to produce this report: see Re Rodsted and Repatriation Commission [2009] AATA 403.
133. We also allowed an objection to Commodore Mulcare being asked in cross-examination, whether in the context of the present proceedings, he had reported the Vendetta event to the Commission’s solicitor. We now provide reasons for our ruling as requested by counsel for Mr Rodsted, Mr Roberts. We agree with respect with the decision of the President of this tribunal, the Hon. Garry Downes J and the Hon. RJ Groom, Deputy President, that legal professional privilege applies to proceedings in this tribunal: see Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788, and the authorities discussed in a helpful article by Dr Christos Mantziaris published in (2008) 82 ALJ 397 entitled “Client legal privilege in administrative “proceedings” : Killing off the adversarial/inquisitorial distinction”. It follows that the Commission was entitled to claim that any communication to the applicant’s solicitors by the Commodore was subject to legal professional privilege. Mr Roberts contended that the Commission waived privilege by disclosing the witness’s reports to the applicant. In our view, that does not necessarily follow where, as in this case, the reports were required to be disclosed as a result of directions to that effect made by the tribunal: see the authorities referred to in Cross on Evidence, 4th Australian Edition, paragraph 25010. Further, the issue of waiver might depend on whether Commodore Mulcare should be regarded as an expert witness. This matter was not argued before us, but his evidence largely consisted of reporting the outcome of his investigations into factual issues and recounting his knowledge of past events, rather than providing an opinion on a matter requiring an exercise of judgment. If (as we are inclined to think) he was not an expert witness, the provision of his reports might, on one line of authority in cases where witness statements are provided pursuant to directions for the filing and exchange of witness statements, have constituted a waiver of privilege in relation to his reports. However, we were not referred to any authorities that suggested that the waiver would extend to communications between the solicitor and the witness in such circumstances. On the contrary, in a recent decision, namely Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2008) 242 ALR 181, the Court of Appeal of the Supreme Court of Western Australia held that an independent witness was prevented from disclosing what the lawyer had asked him, and what he had said to the lawyer. It seems to us that in the absence of compelling reasons to the contrary, the same position should obtain in this tribunal, since cross-examination as to communications would potentially lead to hearings becoming protracted, and would ultimately be of limited assistance to the tribunal’s decision-making process. The following remarks that we made in relation to our previous ruling are also relevant to the present issue:
“Under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) the procedure of the tribunal is within its discretion, and the proceeding is to be conducted with as much expedition as the requirements of relevant legislation, including that Act, and a proper consideration of the matters before the tribunal permit. The tribunal refers to the comments of French J as he then was in Mt Gibson Manager Pty Ltd v Commissioner of Taxation (1998) 81 FCR 335 at 343, where after discussing s 33(1)(c) of the AAT Act, his Honour said that the tribunal was not “required to accept material which, while strictly relevant, is of little or no probative value.” In addition, the tribunal is required to observe the objective referred to in s 2A of the AAT Act, which refers (inelegantly, and amongst other considerations) to a “quick” mechanism for review.” ([2009] AATA 403 at [8])
134. Further, as mentioned in the reasons for our previous ruling, the 1969 event is potentially of marginal relevance only to the issues before us, having regard to the facts that the event occurred on a different vessel, in a different location and approximately three years after the asserted scare charge event referred to by Mr Rodsted. Mr Roberts sought to justify the question on the basis that it was relevant to our assessment of Commodore Mulcare’s credibility. However, in our view Commodore Mulcare’s evidence was largely uncontentious and, indeed, is relied upon by Mr Rodsted in some respects. In the circumstances, the question of whether or not Commodore Mulcare had informed the Commission or its solicitor of the Vendetta event would not have assisted us to determine the issues that have arisen in the present proceedings.
135. Once again, we are mindful of the provisions of s 119(1)(h) of the VE Act, to which we referred above. We have also taken into account the criticism made by Mr Roberts of the evidence of various witnesses, as well as his contentions that witnesses were being asked to recall events from more than 40 years ago and undoubtedly their memories would have faded, and that a number of witnesses conceded the possibility that certain events might have occurred but that they might not now remember them. We have also read the written statements of witnesses in the light of their cross-examination, and have taken into account the sometimes questionable weight of pre-prepared witness statements, a matter referred to in cases such as Gately v R (2007) 241 ALR 1 at [119] – [122] and Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at [175]. In addition, we are mindful of the difficulties that arose during the cross-examination of the witness Porter, but we do not agree that we should give no weight to his evidence, as submitted by Mr Roberts. We have also noted that the correctness of the transcript of the 2002 hearing before Senior Member Purcell was not conceded on behalf of Mr Rodsted, but we see no reason to think that the transcript is not substantially correct insofar as it relates to the matters to which we have referred above. Further, our view in this respect is supported by the evidence of the witness Doube, who appeared as the departmental advocate at the 2002 hearing.
136. Whilst various of the matters to which we have referred to in the preceding paragraph may not in themselves lead us to find beyond reasonable doubt that the scare charge event did not occur or that Mr Rodsted did not have the subjective reaction that he described, and whilst some of those matters affect the weight that we have given to some of the factors we have taken into account in assessing his evidence or even negate some of those factors, there nevertheless remain a significant number of factors in the present matter that have led us to conclude that his evidence was unreliable, inaccurate or incorrect. Having regard to the combination of such factors, we are satisfied beyond reasonable doubt that there is no credible evidence before us that the scare charge event occurred, or that Mr Rodsted suffered the serious subjective reaction that he asserts in consequence of any event of that sort, and accordingly there is no sufficient ground for us to determine that Mr Rodsted’s alcohol dependence was war-caused.
Decision
137. The tribunal varies the decision under review by deciding that:
(a)the applicant is not suffering from post-traumatic stress disorder, but the tribunal otherwise affirms the decision under review in relation to that condition; and
(b)the applicant is not suffering from a depressive disorder, and his condition of alcohol dependence was not war-caused, and as a result, the applicant is not entitled to disability pension or medical treatment in respect of those conditions.
I certify that the 137 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis and Mr S Ellis, AM, MemberSigned: .....................................................................................
L. Staker AssociateDates of Hearing 1-3 April 2008
7 and 8 July 2008
21 August 2008
16 September 2008
4-7 and 17 November 2008
25-29 May 2009
18 and 19 June 2009
Date of Decision 1 September 2009
Counsel for the Applicant Mr M Roberts
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Camilos
Solicitor for the Respondent Australian Government Solicitor
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