Mitchell and Repatriation Commission
[2004] AATA 1150
•4 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/474
VETERANS' APPEALS DIVISION ) Re DAVID MITCHELL Applicant
And
REPATRIATION COMMISSSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member Date4 November 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in place of that decision:
(a) determines that the applicant's post traumatic stress disorder and neurodermatitis are war-caused conditions; and
(b) remits the matter to the respondent to determine in accordance with the Tribunal’s reasons for decision, whether the conditions of hypertension and hypertriglyceridaemia are war-caused.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - whether claimed conditions are war-caused - post traumatic stress disorder - hypertension - neurodermatitis - hypertriglyceridaemia - two conditions subject to Statements of Principles - application of Deledio - two conditions not the subject of Statements of Principles - application of Byrnes - decision under review on PTSD and neurodermatitis set aside – circumstances in which AAT should remit matter to original decision-makers for reconsideration - conditions of hypertension and hypertriglyceridaemia remitted for reconsideration.
Veterans' Entitlements Act 1986 (Cth) sections 9, 120(1), 120(3), 120A(3), 120A(4) and 196
Administrative Appeals Tribunal Act 1975 s 42D(1)
Re Fenner and Repatriation Commission [2002] AATA 368
Repatriation Commission v Deledio (1998) 83 FCR 82
Re A’Bell and Repatriation Commission (1999) 58 ALD 721
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Stoddart (2003) 77 ALD 67
Stoddart v Repatriation Commission (2003) 74 ALD 366
Delahunty v Repatriation Commission (2004) 38 AAR 511
McKenna v Repatriation Commission (1999) 86 FCR 144
Spencer v Repatriation Commission (2002) 118 FCR 453
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock (2003) 37 AAR 383
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Re Martin and Commonwealth (1983) 5 ALD 277
Re Lavery and Registrar, Supreme Court of Queensland and Others (No.2) (1996) 23 AAR 52
REASONS FOR DECISION
4 November 2004 Deputy President D G Jarvis and Dr E T Eriksen, Member 1. The applicant in this matter, Mr David Mitchell, was engaged in operational service on board the HMAS Derwent from 4 to 8 November 1971. On 2 November 2000 Mr Mitchell lodged a claim for a pension in respect of conditions that were subsequently diagnosed by the Repatriation Commission (the "Commission") as neurodermatitis, post traumatic stress disorder (“PTSD”), hyperlipidaemia, bilateral sensorineural hearing loss, hypertension and heart disease. In a decision dated 3 July 2001 the Commission accepted bilateral sensorineural hearing loss, found no incapacity in respect of the heart disease claim and rejected the claim for the remaining conditions. The applicant applied to the Veterans’ Review Board (the “VRB”) for a review of the decision to reject hypertension, neurodermatitis, PTSD, hyperlipidaemia and heart disease. The heart disease claim was subsequently withdrawn and, on 4 November 2002, the VRB affirmed the decision with respect to the remaining conditions. Mr Mitchell was advised of this decision by letter dated 8 November 2002. He subsequently applied to this Tribunal to review the decision of the Commission as affirmed by the VRB regarding his claim for hypertension, hyperlipidaemia, neurodermatitis and PTSD. In a letter dated 15 October 2003, Dr Tsavaridis, Mr Mitchell's treating physician, amended the diagnosis of hyperlipidaemia to the technically more specific condition of hypertriglyceridaemia. We will use the latter term throughout this decision.
2. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were admitted in evidence, and the parties tendered a number of other documents. We will refer to those documents as necessary in the reasons for this decision. We have carefully considered all of the documentary material and evidence before us.
Issues Before the Tribunal
3. The issues before the Tribunal are whether Mr Mitchell’s claimed conditions are war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). The diagnosis of the claimed conditions was not in dispute, and on the evidence before us, this is appropriate.
4. Mr Mitchell contends that his PTSD was clinically worsened as a result of the severe stressors he experienced in the course of his operational service. He also contends that he suffers from hypertension as a result of his alcohol dependence or alcohol abuse, which in turn, he says, was caused by his operational war service experiences. He further claims that he suffers from hyperlipidaemia and neurodermatitis as a result of his alcohol consumption and PTSD respectively, and that these two conditions themselves arise from his operational war service. We will address each condition in turn, and will refer later in these reasons to the evidence relevant to his assertion that he experienced certain stressful events during his operational service.
5. It is also common ground that if Mr Mitchell succeeds in his claim before us, the date of effect would be 2 August 2000, which is the date three months prior to the date of lodgement of the original claim.
Background
6. According to Mr Mitchell’s first written statement (exhibit A2), his “addendum” statement (exhibit A3), and his oral evidence, he was born in Adelaide in 1952, and attended three primary schools and one high school at which he completed second year before leaving to join the Royal Australian Navy. He then undertook further schooling and training on HMAS Leeuwin, HMAS Diamantina, and HMAS Cerberus before joining the HMAS Derwent in January 1970.
7. In the course of his service aboard HMAS Derwent Mr Mitchell was regularly deployed around South East Asia. He was also involved in international exercises. Altogether, he served in the Navy from 2 January 1968 to 1 January 1974, and again from 1 April 1975 to 9 August 1976. For the purposes of the present application pursuant to the VE Act, Mr Mitchell performed operational service aboard HMAS Derwent when it went to Vietnam in 1971. It is agreed by the parties, and we so determine, that his period of defence service is not relevant to a determination of the issues before us.
Legislative Framework
8. 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; …”
9. 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. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
10. 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.
11. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
12. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.
13. Subsection (4) of s 120A excludes the operation of subsection (3) in the following circumstances:
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
14. Section 196A of the VE Act provides for the establishment of the Repatriation Medical Authority (“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 statement of principles (“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.
Evidence Before the Tribunal
15. We will now summarise the evidence before us that is relevant to the issues identified above, but we will not at this stage make any findings on matters relevant to the issue of whether Mr Mitchell’s asserted conditions were war-caused.
16. Mr Mitchell experienced many traumatic events from 1969 onwards during the course of his naval service. It is agreed between the parties, and on the evidence correctly so, that the events described below did not occur during operational service, but these events are relevant to the medical evidence and so we outline the pre-operational service traumatic events as follows.
(a)The rape: When Mr Mitchell was 17 years old, HMAS Derwent was anchored in Subic Bay. On his way back to the ship, in an inebriated state, he met two men in their early twenties, and after some drinks and a conversation in which the men said they were in the Navy, the applicant went back to the men’s accommodation. He believes that after further drinks he passed out. He awoke to find that he was being raped and was pinned underneath one of the men, and then passed out again. Mr Mitchell awoke early the next morning and the men took him back to the HMAS Derwent. He did not discuss the sexual assault with the men or anyone else. He says that he felt confused at the time and he now relates his homophobia and discomfort while in close proximity to another man to this event. In a psychiatric report from Dr Ewer, Mr Mitchell is recorded as having been “terrified” by this incident and that it “really freaked him out” (exhibit A1, T16, page 144). In evidence, Mr Mitchell said that he just put this event to the back of his mind and got on with his life.
(b)The motor vehicle accident: In October 1969, Mr Mitchell was a passenger in a car that was involved in a motor vehicle accident. The driver was a fellow sailor who had charged Mr Mitchell $10.00 to drive him to Adelaide while they were on leave. The driver died a few days after the accident and Mr Mitchell received a head injury which caused periodic blackouts and a loss of memory of events just prior to and after the accident. Mr Mitchell told doctors shortly afterwards that he was “very cut up” about his friend's death (see exhibit A1, T4, page 39).
(c)Ongoing bastardisation: Mr Mitchell was the victim of numerous physical assaults perpetrated by more senior sailors. Mr Mitchell explained that such incidents were part of naval culture at that time.
(d)The taxi driver chase: While onshore in Okinawa, Japan, Mr Mitchell was chased by a taxi driver who was brandishing a knife. At one point Mr Mitchell fell and he recalls the taxi driver standing over him. He got up and ran to a sentry station at which point the taxi driver gave up the chase. During this event he felt terrified for his life.
(e)The Manila bar incident: In 1970, in a bar in Manila, a vendor demanded money from Mr Mitchell for goods that had been broken by another sailor. Mr Mitchell refused to pay and in response, the vendor held a knife to Mr Mitchell’s throat. Mr Mitchell eventually escaped out the back door of the bar, but he was also intensely frightened by this event.
(f)The wharf shooting: In 1969 Mr Mitchell was in Jakarta when he witnessed a man on a wharf steal some produce and then attempt to run away. The man was pursued by a number of armed police or army personnel. One of the armed men said something in Indonesian and then shot and killed the thief. Mr Mitchell was distressed by this event and it was the topic of much conversation aboard the ship.
(g)The boiler fire: On the way back from Vietnam the HMAS Derwent stopped in Singapore and Mr Mitchell was required to enter the boiler in order to carry out repairs. While he was at the bottom of the water drum of the port boiler a fire started in a nearby area. The fire and the smoke were drawn into the man-hole of the drum that was also the only exit from the small space. Mr Mitchell was able to leave the drum safely after the fire was extinguished. He went out that night and got very drunk. Mr Mitchell has never forgotten the feeling of terror and helplessness he felt in the situation in which he had found himself.
17. Mr Mitchell married in May 1971 and then sailed with HMAS Derwent from June to December of that year. During this long period at sea, the HMAS Derwent undertook escort duties for HMAS Sydney in South Vietnamese waters, and entered Vung Tau Harbour in the course of these duties. In his witness statement (exhibit A2), Mr Mitchell said he was in good spirits when he entered into the harbour because he had learned of the birth of his baby son just the night before. He also said he was in Vung Tau Harbour for five days. In his “addendum” statement (exhibit A3), he said that he now believes that he was in the harbour for two days and one night. Evidence in the form of a report by Captain Hugh Stevenson RAN (Rtd) indicates that HMAS Derwent was actually in Vung Tau Harbour for only one day (see exhibit R1). We prefer the evidence of Captain Stevenson to that of Mr Mitchell on this matter, but the discrepancy between their evidence does not affect our determination of the matters in issue.
18. There are three events that Mr Mitchell asserts occurred in the course of his operational service in Vietnamese waters; the boiler room incident, witnessing bodies in bags being loaded into a truck, and being 15 feet from the HMAS Derwent’s guns as they were fired unexpectedly. Each event is detailed below.
The Boiler Room Incident
19. At some point, while the HMAS Derwent was anchored in Vung Tau Harbour in a state of defence watch, Mr Mitchell assisted in the repair of a diesel generator that was housed beside the bulkhead in the boiler room. In the course of this work a tool was dropped below the floor plates and Mr Mitchell, as the smallest person present, was told to retrieve the tool. He climbed under the floor plates and along a narrow space that was approximately two feet wide for about one and a half metres. By this time Mr Mitchell was in an area that was just above the bilge water and right next to the hull of this ship. When he reached the tool he heard a very loud explosion and felt a reverberation that passed through the hull of the ship and throughout his body.
20. Mr Mitchell did not know what the noise was, but he thought that it was a mine or a bomb that had been placed on the hull. He thought the ship was going to sink and he was going to be trapped under the grates. He had heard scare charges from the mess and upper decks but he did not recognise this noise as a scare charge. Mr Mitchell said he had been warned about the possibility of mines in the harbour and knew how much security was in place while the ship was anchored in Vung Tau Harbour. He recalled that the other sailors standing above him in the engine room were alarmed and shocked by the noise. He panicked when he heard the noise and tried to extricate himself from the space he was in but, because of his tense and anxious state, he became stuck. He thought that he was going to die and that his newborn child would not have a father. He screamed and became so distraught that he lost control of his bladder. He was unable to get out of the space he was in and was too distressed to listen to the advice he was receiving from some of the men above him who tried to calm him down. At some point while he was still wedged under the floor plates, he was told that it was probably a scare charge that had been dropped too close to the ship. Some of the sailors exacerbated the situation by making jokes at Mr Mitchell's expense, but a friend recognised Mr Mitchell’s distress at being unable to extricate himself and organised for an oxyacetylene torch to cut him out from under the floor plates. He was stuck under the plates for approximately 20 to 30 minutes. Mr Mitchell said that after he was released from the boiler room plates, he changed his clothes, had some food and completed his defence watch duties.
21. In exhibit A2, Mr Mitchell said he did not tell his wife about this incident because he did not want to worry her, but in his evidence he said that he later told her about the incident by letter. Not long after the engine room incident Mr Mitchell commenced having nightmares about the event, and those nightmares continue to plague him now. He also tried to transfer out of the engine room branch as he suddenly found that he hated working in confined spaces. Before the boiler room event, Mr Mitchell had treated work in confined spaces as just part of his job. He was teased by some of his shipmates about his reaction to the situation and this led to avoidance and a cessation of social activities. Mr Mitchell also started having difficulty sleeping for more than three or four hours, and this problem continues. He is easily upset by images that evoke memories of the boiler room event. Mr Mitchell’s fear of confined and hot spaces also caused the loss of a job in Darwin due to his unwillingness to perform certain tasks that were required of him.
Body Bags Being Loaded into a Truck
22. When Mr Mitchell was on his free time after completing his defence watch duties following the boiler room incident, he volunteered to go to shore on the mail run. Mr Mitchell described the decision to carry on as normal and to volunteer to go to shore on a boat as “a bit of bravado”. When the launch that carried out the mail run reached the shore, Mr Mitchell could see American soldiers loading bags into a truck at a distance of about 200 yards from where he was. A leading seaman who was present at the time told Mr Mitchell that the bags contained bodies. Mr Mitchell said he was “not impressed at all” by what he saw and it brought home to him that he was not in a safe place.
Unexpected Gunfire
23. Mr Mitchell told us that after he had been in Vung Tau but while the ship was still in Vietnamese waters, he was walking on the upper deck of HMAS Derwent when the ship’s guns were fired. Mr Mitchell had not been paying any attention to the public announcement system and was caught off guard by the practice firing. In his evidence he said he was 15 to 20 feet from the guns, but by marking his position on a diagram of HMAS Derwent in exhibit R1 he indicated that he was some 50 feet or so from the guns. A report dated 9 April 2001 by Dr Parker records that Mr Mitchell told Dr Parker that he was 15 feet away from the guns and that the ship was firing on the coast of Vietnam (exhibit A1, T12, page 95). In evidence before us he said that the ship was not firing on to the land, but had been travelling up the Vietnamese coast. According to a report of Dr Parker, Mr Mitchell explained that the unexpected firing left him feeling as though “the whole of his insides were going to jump out” (exhibit A1, T12, page 95).
Mr Mitchell’s Drinking History
24. Mr Mitchell said that he had a good childhood and that his training on HMAS Leeuwin had it’s “ups and downs”, but was acceptable for the era. At the time of his enlistment and early training he was too young for a beer issue and he could not get into pubs or the wet mess because of his small stature and youthful appearance. He did on occasion share a beer with his sponsor father and a few drinks with his friends.
25. In 1970, Mr Mitchell commenced a relationship with a woman whom he married in 1971. Initially, the relationship was good, he was happy and his alcohol consumption was limited to social occasions at the RSL or at dances. However, after the boiler room incident and before he reached Australia, Mr Mitchell started drinking spirits as well as his beer issue. He says in exhibit A3 that:
"6.My drinking pattern changed a little in Singapore after the Derwent trip. I bought a bottle of whisky and drank it all in one sitting.
7.There had been a previous increase in my drinking after the rape incident in 1970. It really did escalate significantly after the incidents when I was trapped.
8.After I came back to Australia from South Vietnam I drank a lot more. I started drinking rum. I drank virtually every day … I separated from my first wife in June or July 1972. The marriage broke down in part due to my drinking.
…
10.After I returned from my service on the Derwent I was really drinking every day. I started drinking wine and spirits as well in the 1970's. I would usually drink six to seven beers straight after work and then at home. In winter I drank port, usually around half a flagon a day and in summer white wine of the same quantity. Although I tried to hide the level of drinking from [my] wife it really caused our marriage breakdown.
11.Today I still have this high level of drinking. I would normally drink about six beers in the pub in the afternoon and then when I return home two bottles of red wine or a bottle of scotch.”
26. When he was stationed back in Australia he would drink for a couple hours in the wet mess each night. Eventually, Mr Mitchell was transferred to HMAS Sydney and while that ship was in the dry dock he would go on what he termed drinking “benders”. This caused tension in his marriage and his wife would often take their son and stay with her mother. Mr Mitchell said that his wife would often comment about his nightmares. Once, she asked Mr Mitchell to attend at the doctor’s surgery with her. The doctor confronted Mr Mitchell about his abusive behaviour towards his wife and it was then that he realised that he and his wife were not communicating about his drinking and his aggression. Mr Mitchell’s wife left their home with their 10 month old son in 1972 and since then he has only seen his son once from across the road, when the child was three. Mr and Mrs Mitchell were divorced in 1974.
27. In an alcohol questionnaire completed on 21 November 2000, Mr Mitchell recorded that he commenced drinking when he joined the Navy in 1968. He also reported that his alcohol consumption was due to, or contributed to, by his service because of the “Culture of the service. Peer pressure. Anxiety and stress – boredom” (exhibit A1, T5, page 80). In answer to a question about changes in his alcohol consumption, Mr Mitchell provided the following information:
Date of Change New Amount Consumed Reasons for Change 1969-1970 8 - 12 Beers
3 - 4 SpiritsService in Far East and Vietnam, Stress - coping with operational service
1970-1976 10 - 14 Beers
6 SpiritsBinge Drinking - Beer - Spirit - Wines - Social Life of Navy Service/culture
1976-2000 8 - 12 Beers
2 Bottles of wine per dayCoping with Life and Habit
We also note that in Mr Mitchell's naval medical records there is a record dated 28 January 1970 that notes that while on board HMAS Derwent Mr Mitchell was diagnosed with “Alcohol induced GASTRITIS” described as “Periodic episodes of nausea, vomiting and diarrhoea usually following heavy beer consumption” (exhibit A1, T4, page 32).
Evidence as to Mr Mitchell’s Health
28. In his “addendum” statement (exhibit A3) Mr Mitchell says:
“14.I still do have nightmares about the rape. I also have nightmares about being trapped. In particular I have one nightmare where I am trapped in a ship which is sinking.
15.I have had sleeping problems and difficulties since the rape and these have got worse over time. After the rape I also became quite violent, particularly if I had been drinking. After Vietnam, I had additional new different nightmares. The level of my aggression increased and I had more sleeping problems.”
29. On page 4 of exhibit A2, the first statement by Mr Mitchell, he recounts that:
“Not long after the engine room incident I started to have nightmares about it and they continue now. The scenario is always the same. I am trapped in a ship which is sinking, or in a building or a plane with something terrible happening, but I am always trapped."
30. Mr Mitchell's Navy medical records contain a reference to a diagnosis of “anxiety” on 30 June 1972. He was prescribed valium and this record notes that Mr Mitchell was:
“… having marital troubles. States his wife wants to leave him purely because of what he has said to her. No communication from her to him. Now anxious and worried - will have to leave his flat. States doesn’t drink heavily - non violent.” (exhibit A1, T7 page 51)
Mr Mitchell acknowledged that at that time he denied any problems with alcohol.
31. Dr Ewer, a psychiatrist, gave oral evidence as well as providing a report dated 6 March 2002. He has interviewed Mr Mitchell on eight occasions and has diagnosed him with PTSD, alcohol dependence and nicotine dependence. Dr Ewer’s report details the events referred to in paragraph 16(a), (c), (d), (e), (f) and (g) above. Dr Ewer also records the boiler room incident and the event involving the unloading of body bags. He does not refer to the unexpected firing of HMAS Derwent’s guns, but does note the earlier motor vehicle accident referred to in paragraph 16(b) above.
32. Dr Ewer reports that Mr Mitchell recalled being irritable and angry after he was raped. He also abused nicotine and alcohol, but Mr Mitchell told Dr Ewer that these symptoms subsequently settled down again. After the boiler room incident, in which Mr Mitchell reported feeling “intensely frightened and helpless”, his mental state worsened in 1973, 1989, 1998 and 2000, and he attempted suicide in 1986. Dr Ewer recounts that Mr Mitchell started abusing alcohol soon after he joined the Navy and that his alcohol intake steadily increased. Dr Ewer also reports that Mr Mitchell presently has numerous PTSD symptoms including nightmares in which:
“… in 40% of the nightmares he sees a ship coming down on him and he relates this to the incident in the boiler room. The remaining 60% of nightmares focus upon him being raped.” (exhibit A1, T16, page 145)
33. In his report Dr Ewer expressed the opinion that Mr Mitchell’s PTSD was substantially caused by the rape and the boiler room incident, but alcohol abuse (not we note, alcohol dependence) and nicotine abuse were pre-existing conditions. In his evidence before us, Dr Ewer explained that it was probable that Mr Mitchell developed PTSD after he was raped and that this condition was aggravated by the boiler room incident. In answer to questions put to him in cross-examination, Dr Ewer said that as the motor vehicle accident referred to in paragraph 16(b) above resulted in loss of memory of events before and after the accident, it was unlikely in his view to have caused the PTSD, and would more likely cause a depressive illness.
34. We were also provided with a report from Dr Parker, a psychiatrist, dated 9 April 2001, in which Dr Parker records the events listed in paragraph 16(a), (c), (d), (f) and (g) above. Dr Parker also refers to the boiler room incident, the loading of the body bags and the unexpected firing of HMAS Derwent’s guns. He reports that Mr Mitchell suffers from disturbing dreams about his being stuck in the boiler room and when he wakes up he experiences anxiety symptoms. Dr Parker records that Mr Mitchell panics when he is in confined spaces and he avoids activities that remind him of Vietnam. Dr Parker also records that Mr Mitchell suffers from insomnia and irritability. He is hypervigilant with poor concentration and short term memory. Dr Parker reports that Mr Mitchell’s alcohol consumption is about 120 grams per day with a history of drinking related fits and blackouts. Notably, Dr Parker records that Mr Mitchell was:
“… generally tense and tearful at different times in the interview, this was particularly so when he discussed the issues of bastardisation and rape during his period of service … His mood was tense and depressed.” (exhibit A1, T12, page 97)
35. Dr Parker concludes that:
“[Mr Mitchell's] early optimism for life appears to have been significantly affected by the physical and sexual abuse that he experienced in the Navy. These issues and, particularly the alleged rape appear to have left him with significant emotional vulnerability. A reminder of these issues in association with a number of particular traumatic experiences during Navy service appears to have precipitated the current severe episode of Post Traumatic Stress Disorder … I consider that the Post Traumatic Stress Disorder suffered by Mr Mitchell is related to his service in the Navy.
…
I, thus also consider that Mr Mitchell's alcohol dependence is also related to his service in the Navy.” (exhibit A1, T12, pages 98 and 99)
Captain Stevenson's Reports
36. In a brief report prepared in response to a letter from the Department of Veterans' Affairs, Captain Hugh Stevenson reported that with respect to the boiler room incident:
“… the Reports of Proceedings (RoPs) of HMAS DERWENT have been examined and no record of the incident described has been found.
… Defence watches remained closed up throughout the day, Awkward State Two was assumed and continuous boat patrols were carried out. Scare charges were thrown over side at random intervals.
… The author is familiar with the machinery space of this class of ship and believes that such an incident was possible and could have been frightening.” (exhibit A1, T22, page 159)
37. In a further report dated 6 August 2003 comprising exhibit R1, Captain Stevenson reported that he had not been able to locate any record of the HMAS Derwent firing its main armament during its five day operational service period. If someone had been within 15 feet at the time that the main armament was fired, it was his view that that person would experience shock, possible ear damage and possibly flash burns. He could not find reference to other incidents, although he agreed that bastardisation, the boiler fire during repairs and being stuck in the boiler room above the bilge could all have occurred. He asserted that the latter two events would have been frightening. Furthermore, he said that is unlikely that official records would exist concerning the rape, the Manila bar incident and the shooting on the wharf.
Other Documentary Evidence
38. A copy of a letter dated January 2002, written by Mr Steven Evans, was admitted in evidence as exhibit A1, T19, page 155. That letter relates how Mr Mitchell became openly distressed at a veterans' reunion while he and other sailors were recounting the incident in which he was trapped near in the boiler room under the floor grating.
39. In a letter written to the Department of Veterans' Affairs dated 18 July 2002, Mr Rodney Price-Beck explained that he had trained with Mr Mitchell and shared a dormitory with him for 12 months during training (exhibit A1, T19, page 154). He says that by Christmas 1971, when he met up with Mr Mitchell after time apart on different postings, he noticed that Mr Mitchell's behaviour had changed and in particular, he was more aggressive. Later on he asked another veteran, Geoff Ennis, about Mr Mitchell and was told that Mr Mitchell had never been able to get over being “trapped under a diesel generator while in Vung Tau Harbour in Vietnam”. Mr Ennis also told Mr Price-Beck that Mr Mitchell's urinary incontinence while he was trapped had been a popular joke on the ship. The bottom of that letter includes a hand written note, apparently by Mr Mitchell, which says it was Petty Officer Robert Wiseman who freed him from the floor plates.
40. In an email dated 26 July 2002, Mr Ennis advised that he was aware of several traumatic events in which Mr Mitchell was involved, including being trapped in the boiler room and the boiler fire. He also attested to the ongoing effects of these incidents upon Mr Mitchell's wellbeing.
Respondent's Submissions
41. Mr Crowe, on behalf of the respondent, submitted that the events detailed in paragraphs 19 to 23 do not meet the relevant SoPs for PTSD and hypertension. Whilst Mr Crowe conceded that Mr Mitchell does suffer from the claimed conditions, he asserted that the cause of the claimed conditions lay in the many other stressful events that Mr Mitchell experienced outside of his operational service (see paragraph 16(a) to (g)). Mr Crowe placed particular emphasis on the rape incident in relation to Mr Mitchell's PTSD and asserted that Mr Mitchell had experienced, at most, only a few minutes or even momentary fear while trapped in the boiler room. He submitted that Mr Mitchell's decision to volunteer to go to shore on the mail round within hours of that incident was an indication of the trivial effects that the event had upon him. Mr Crowe relied on the decision of this Tribunal in Re Fenner and Repatriation Commission [2002] AATA 368, and we will refer to that decision later in these reasons.
42. Mr Crowe also contended that Mr Mitchell had initially exaggerated his story as to the unexpected firing of the guns. During the course of the hearing Mr Mitchell did withdraw some of the details contained in the report of Dr Parker, and he indicated on a drawing that he was further away from the guns than the 15 feet recorded by Dr Parker. Mr Crowe submitted that this event also fails to meet the definition of a severe stressor in either of the relevant SoPs. Neither party addressed the Tribunal about the body bags being loaded into the truck in any great detail, because this was a further incident that occurred after the main events, namely the rape and the boiler room incident.
43. Mr Crowe conceded that there had been a clinical worsening of Mr Mitchell's PTSD and that if Mr Mitchell were successful in his claim for PTSD and hypertension he would also succeed in his claim for neurodermatitis and hypertriglyceridaemia. In a letter to the Tribunal after the hearing had concluded and in response to questions posed by the Tribunal, Mr Crowe conceded that the clinical onset of Mr Mitchell's alcohol abuse occurred within two years of his operational service. We will refer to this concession further later in these reasons.
Consideration
44. The claimed conditions of hypertension and PTSD are the subject of SOPs. We will set out the provisions of the relevant SoPs as each condition is considered. We note that where a SoP exists we must apply the test prescribed by s120A(3), and as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Claim for PTSD
45. We have considered all of the material before us and we are satisfied that the material points to an hypothesis connecting the condition of PTSD with the circumstances of Mr Mitchell's operational service. That hypothesis is that Mr Mitchell's PTSD was clinically worsened by the three incidents outlined in paragraphs 19 to 23. Furthermore, a SoP has been determined by the RMA in respect of this condition. That SoP is Instrument No.3 of 1999 as amended by Instrument No. 54 of 1999 (the “PTSD SoP”). These two findings meet the first two steps in Deledio. We now turn to the third step as enunciated by the Full Federal Court.
46. The PTSD SoP relevantly provides as follows:
“Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
…
Factors that apply only to material contribution of aggravation
6.Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person's post traumatic stress disorder was suffered or contracted before or during (but not arising out of ) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8.For the purposes of this Statement of Principles:
…
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
…
“relevant service” means:
(a)operational service; or
… .”
47. In taking the third step identified in Deledio, we must determine whether on the material before us the hypotheses based on the events identified in paragraphs 19 to 23 above satisfy the relevant factor in the PTSD SoP, that is, whether they meet the definition of a “severe stressor” and, if so, whether there was any clinical onset or clinical worsening of PTSD.
48. The evidence before us points to the clinical onset of PTSD at a time that predates Mr Mitchell's operational service, and most probably following his having been raped. This evidence includes the report from Dr Ewer, Mr Mitchell's treating psychiatrist, to the effect that the rape is the subject of around 60% of Mr Mitchell's nightmares. It follows that the only relevant factor in the PTSD SoP is factor 5(b) which is concerned with clinical worsening of PTSD following the experiencing of a “severe stressor” as defined in that SoP.
49. The concept of clinical worsening was considered by Deputy President McMahon in Re A’Bell and Repatriation Commission (1999) 58 ALD 721. The Deputy President decided that the phrase “clinical worsening” entailed determining whether the pre-existing condition itself had been worsened, and that a temporary worsening of symptoms with consequential temporary incapacity would not amount to a “clinical worsening” for the purposes of the SoP. We consider that the material before us points to clinical worsening of PTSD in 1973, 1986, 1989, 1998 and 2000. That material comprises the statements of Mr Mitchell and the history referred to in Dr Ewer's report. We note that the issue of any clinical worsening of PTSD was correctly (on the basis of the evidence before us) conceded by the respondent.
50. We next consider whether there is material before us to indicate that Mr Mitchell experienced a severe stressor in the course of his operational service. In two Full Court decisions, namely Woodward v Repatriation Commission (2003) 131 FCR 473 (Black CJ, Weinberg and Selway JJ) and Repatriation Commission v Stoddart (2003) 77 ALD 67 (Carr, Finn and Sundberg JJ), the Courts considered the definition of “experiencing a severe stressor” in SoPs concerning PTSD and alcohol abuse. It was decided in these two Full Court decisions that the definitions did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances.
51. In Woodward the Court approved the decision of the primary judge in Stoddart v Repatriation Commission (2003) 74 ALD 366 (Mansfield J), and said at [139]:
“Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.”
The Full Court in Stoddart also endorsed this passage at [36]. A helpful summary of the approach referred to in Woodward and Stoddart is contained in the judgment of Tamberlin J in the case of Delahunty v Repatriation Commission (2004) 38 AAR 511.
52. In analysing the requirements of the definition of “experiencing a severe stressor”, Mansfield J had also said in Stoddart (supra) at [50]:
“... the adjectival clause ‘that involved actual or threat of death or serious injury ...’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause.”
53. His Honour also said, at [55], that a “threat” extended to an event or events which:
“... judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
On appeal, the Full Court did not otherwise comment on this extract, and importantly for present purposes, did not disapprove the reference to the fact that the events had to be judged objectively from the point of view of a reasonable person in the position and with the knowledge of the person experiencing the events.
54. The requirement for a decision-maker to determine whether a particular occurrence satisfies the objective requirements of the definition of the stressor raises difficult issues where there is no evidence as to any specialised meaning or usage. In Delahunty (supra), Tamberlin J pointed out that the concept of the man on the Clapham omnibus was inappropriate in the present context. We consider that the objective requirements of the definition should be assessed from the point of view of the perception of a member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart (supra)). Even so, this suggested characterisation is of only limited assistance, because the Armed Forces could include experienced soldiers who have been exposed to combat situations on many occasions, as well as (particularly when considering cases involving veterans who have seen service in Vietnam) young soldiers who have completed their formal training, but have not previously been in a war zone or been involved in combat experience. We further consider that in the absence of evidence as to how to assess the objective requirements of the definition, some guidance is afforded by the examples included in the definition of occurrences that would constitute a “severe stressor”.
55. We will now consider the three events identified in paragraphs 19 to 23 above in the light of the above analysis, and noting the definition of severe stressor in the PTSD SoP.
The Boiler Room Incident
56. As mentioned in paragraph 41 above, Mr Crowe placed reliance upon the decision of this Tribunal in the matter of Fenner (supra). In that decision Deputy President Muller assessed whether three events satisfied the SoPs for alcohol abuse and PTSD. In explaining that the stressful event relied upon must be of the calibre of those examples contained in the definition of “severe stressor” in the SoPs themselves, the Deputy President said, at [17], that:
“The level of stress required to satisfy the SoP and hence to qualify as a stressor sufficiently traumatic to precipitate a psychiatric illness must be more than a momentary fright, a merely unpleasant experience or some general feeling of apprehension.”
However, in the present case, there is evidence before us that Mr Mitchell was trapped for 20 to 30 minutes in the boiler room floor grates, and that the frightening aspects of the situation extended beyond the point at which he was told it was probably a scare charge until he was finally freed. This evidence extends beyond a case of a momentary fright.
57. The material before us consists not only of Mr Mitchell's evidence that the event occurred in the manner in which he described it. There is further material in the form of letters provided by Mr Evans, Mr Price-Beck and Mr Ennis (exhibit A1, T19, pages 154 and 155 and T24, page 163). There is also evidence before us that, viewed objectively, this event involved a perception on Mr Mitchell's part (and, for a period, also on the part of the other sailors around him) that the ship was under attack. The evidence was that Mr Mitchell was trapped in the bowels of the ship, and that this added to his terror to the point that he could not relax sufficiently to free himself. This is not a situation in which the material before us indicates that the veteran's perception of a threat of injury to himself was idiosyncratic or fanciful. We further consider that Mr Mitchell’s evidence that he lost control of his bladder constitutes material indicating that he suffered intense fear and helplessness (if in fact such a subjective reaction on his part is required in order to satisfy the SoP).
58. We therefore consider that the hypothesis asserted by Mr Mitchell satisfies factor 5(b) of the PTSD SoP, and so is reasonable. We accordingly turn to the fourth step in Deledio, involving the application of s 120(1) of the VE Act. Having regard to the evidence before us, and to the reverse onus of proof beyond reasonable doubt, we are not satisfied that Mr Mitchell's assertion that this event occurred and (if this is required) that it involved a threat of death that evoked intense fear and helplessness on his part has been disproved beyond reasonable doubt. We accordingly find that Mr Mitchell’s PTSD was war-caused.
Body Bags Being Loaded into a Truck
59. In light of our above conclusions, we need not address the remaining two events in any great detail. For completeness, we note that Mr Mitchell came to believe that the bags contained bodies because of what he was told by a leading seaman, a sailor of a higher rank. The judgments of Mansfield J and, on appeal, the Full Court of the Federal Court in Stoddart (supra) make it clear that even if the bags did not in fact contain bodies, if the perception that they did is one that is not idiosyncratic or fanciful, it may still be capable of meeting the objective criteria of the definition of a “severe stressor”. However, the evidence before us is that this occurrence was one in which Mr Mitchell was not directly involved and he was some 200 yards from activity in question. On the evidence before us, this was not an event that was of the severity of the examples provided for in the PTSD SoP, nor was it an event that might evoke the subjective response of intense fear, helplessness or horror (if this is required). On the material before us, this event does not meet any of the minimum factors referred to in the PTSD SoP and therefore fails the third step in Deledio (supra).
Unexpected Gunfire
60. In his evidence before us Mr Mitchell amended the version of this event as against the version that was recounted in Dr Parker's report. Mr Mitchell said that the guns suddenly fired at a time when he was approximately 50 feet from the main armament. There is no evidence before us that Mr Mitchell suffered from the flash burns that would be expected if he was as close as 15 feet. Captain Stevenson’s evidence is that the ship was not firing at the coast of Vietnam. Having regard to all of the material before us, we consider that it does not satisfy the objective requirements of the PTSD SoP. There would no doubt have been an initial momentary shock of the firing, but we consider that this event was not one that might be expected to evoke “intense fear, helplessness or horror”. We consider that the hypothesis based on this event also fails to meet the requirements of the PTSD SoP, and so is not reasonable, and Mr Mitchell’s claim cannot succeed insofar as it is based on this event. In the alternative, we find that if we are wrong in this conclusion, we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that this event caused Mr Mitchell’s PTSD. We accept Captain Stevenson’s evidence that the HMAS Derwent did not fire at the coast of Vietnam. We have referred above to the inconsistencies in Mr Mitchell’s evidence as to this event, and we do not accept his evidence as to this incident. We are satisfied beyond reasonable doubt that this incident did not occur.
Claim for Neurodermatitis
61. As regards the condition of neurodermatitis, the RMA has neither determined a SoP in relation to this condition pursuant to s 196B, nor declared that it does not propose to make a SoP in respect of it. Therefore, by virtue of s 120A(4), s 120A(3) has no application to this condition.
62. In McKenna v Repatriation Commission (1999) 86 FCR 144, the Full Court of the Federal Court, at [27], expressly declined to consider the situation where:
“… a hypothesis raised by the material before the decision maker consists of two or more sub-hypotheses and at least one, but not all of the sub-hypotheses, relates to a kind of injury, disease or death concerning which the Authority has nether determined a Statement of Principles nor declared that it does not propose to make such a Statement of Principles.”
It is that very situation that is before us with respect to neurodermatitis.
63. However, in Spencer v Repatriation Commission (2002) 118 FCR 453, Emmett J explained that before s 120A can be applied, the decision-maker must first consider s 120A(4). If s 120A(4) applies, then s 120A(3) and any SoP that is applicable to a disease or injury that provides a connection between the disease or injury ultimately claimed by the applicant and the circumstances of the veteran's service, cannot be applied to the hypothesis connecting the end point condition/s (and for present purposes, the end point condition is neurodermatitis). Therefore, in the present proceedings we cannot test the reasonableness of the hypothesis connecting the end point condition with Mr Mitchell’s service by reference to the SoP for PTSD. Rather, we are required to follow the reasoning in Byrnes v Repatriation Commission (1993) 177 CLR 564, were the High Court explained the effect of s 120 of the VE Act before SoPs were introduced.
64. The relationship between Deledio (supra) and Byrnes (supra) has been explained by Selway J in Repatriation Commission v Hancock (2003) 37 AAR 383 as follows (at [10]):
"In addition, the suggestion made obiter in paragraph numbered two of the above quotation from Deledio to the effect that if there is no SoP ‘the application must fail’ is clearly in error. If there is no SoP or determination by the Commission under s 180A(2) of the Act, then the question of causation falls to be determined under s 120(1) and (3) of the Act, rather than s 120A. This is made clear from the terms of s 120A(3) and (4). The result is not that the application necessarily fails. Rather the application would be dealt with in the manner discussed in Byrnes v Repatriation Commission (1993) 177 CLR 564 (`Byrnes') at 571:
‘The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) 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.’”
We will accordingly apply s 120(3) and (1) in the manner explained in Byrnes to the claim for neurodermatitis.
65. Mr Mitchell has presented a hypothesis in which this condition is said to have arisen as a result of the stress that he experienced due to his PTSD. There is material before us that gives rise to this hypothesis. This comprises medical evidence in the form of a report dated 27 August 2003 from Dr Tsavaridis (exhibit A6). In that report Dr Tsavaridis states that:
“Neurodermatitis as defined by the ‘Collins Dictionary of Medicine’ is ‘skin damage and thickening caused by scratching, usually without an organic basis’.
Reading [Mr Mitchell's] notes there is documentation of visits with ‘rash on scalp’' and ‘itchy rash on scalp’. No diagnoses is documented. He had been treated with Elecon Scalp Lotion.
He had been seen by a dermatologist in 1999, however there is no correspondence in my notes.
In answer to your question, the anxiety experienced in his post traumatic stress disorder may lead him to scratch his scalp. This is the only way I can link the two conditions. I am not aware of any link between hypertension and neurodermatitis. If further information is required, you may need to find out the name of the dermatologist Mr Mitchell saw him [sic] in 1999 and seek an opinion from him or her.”
66. The material before us includes the evidence to which we have referred above of the boiler room incident, the distress which this caused Mr Mitchell and the causative effect of this incident in the development of his condition of PTSD. We find that the facts raised by this material give rise to a reasonable hypothesis connecting this condition with Mr Mitchell’s operational service. The hypothesis is not contrary to known scientific facts; on the contrary, it is supported by Dr Ewer’s evidence. It cannot be said that the hypothesis is “obviously fanciful or untenable” so as to render the hypothesis not reasonable. The negative provisions of s 120(3) of the VE Act (which would require the Commission, or this Tribunal standing in the shoes of the Commission, to find beyond reasonable doubt that the condition was not war-caused) do not therefore apply to the claimed condition of neurodermatitis.
67. In accordance with the approach explained in Byrnes (supra) we must now make findings of fact from the material before us. We have carefully considered that material, including in particular the evidence as to the boiler room incident. None of the facts necessary to support the hypothesis based on the boiler room incident have been disproved beyond reasonable doubt, nor have any other facts which are inconsistent with that hypothesis been proved beyond reasonable doubt. We are not satisfied beyond reasonable doubt that the condition of neurodermatitis was not caused as a result of Mr Mitchell’s operational service, or that there is no sufficient ground for determining that the condition was not war-caused. Accordingly, in accordance with s 120(1), Mr Mitchell’s claim must succeed.
Claim for Hypertension
68. As for the claim for hypertension we have considered all of the material before us and we are satisfied that the material points to an hypothesis connecting this condition with the circumstances of the applicant's operational service. Furthermore, a SoP has been determined by the RMA in respect of this condition. These two findings meet the first two steps in Deledio.
69. We now turn to the third step enunciated by the Full Federal Court. This third step requires an analysis of all of the material before us and the relevant SoP in order to determine whether the hypothesis is a reasonable one. The relevant SoP is Instrument No. 31 of 2001 (the “Hypertension SoP”) and it provides as follows:
“Statement of Principles concerning Hypertension
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
…
(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; or
…
Inclusion of Statements of Principles
7.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purpose of this Statement of Principles:
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally signs of tolerance or withdrawal are absent;
“alcohol (contained within alcohol drinks)” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
“alcohol dependence” means the presence of a constellation of cognitive behavioural and physiological symptoms indicating the continuing or past consumption of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol abuse behaviour;
…
“relevant service” means:
(a)operational service; or
… .”
70. Mr Mitchell relies only on factor 5(b) of the Hypertension SoP. This factor refers to the presence of alcohol dependence or alcohol abuse at the time of the clinical onset of hypertension. In accordance with clause 7 of the Hypertension SoP and the judgment of the Full Court of the Federal Court in McKenna (supra), we are bound to assess the material before us against the SoP in respect of alcohol abuse and alcohol dependence in order to determine if the sub-hypothesis that is required to support the hypertension hypothesis is a reasonable one. This SoP is Instrument No. 76 of 1998 as amended (the “Alcohol SoP”).
71. The Alcohol SoP relevantly provides as follows:
“Statement of Principles concerning Alcohol Dependence or Alcohol Abuse
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…
Factors that apply only to material contribution of aggravation
6.Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person's alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
72. Neither alcohol dependence nor alcohol abuse is the subject of a claim by Mr Mitchell, and our only purpose in considering these conditions is to assess the reasonableness of the hypertension hypothesis. However, before we assess this hypothesis against factor 5(b) of the Hypertension SoP, we must first determine the time of the clinical onset of hypertension, and then the correct diagnosis of the alcohol condition (that is, whether Mr Mitchell suffered from alcohol dependence or alcohol abuse) at that time.
73. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 in which the Tribunal concluded (at 670) that:
“... 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 at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
74. In the present matter, there is no evidence before us as to the date of clinical onset of hypertension. The only evidence before us is that Mr Mitchell was suffering from that condition on 8 November 2000 (see exhibit A1, T5, page 70).
75. There appears not to have been any investigation as to whether Mr Mitchell was suffering from alcohol dependence or alcohol abuse as at the time of clinical onset of hypertension (whenever that might have been). It appears from Dr Ewer’s report of 6 March 2002 that Mr Mitchell started to abuse alcohol soon after he joined the Navy, and that his alcohol abuse pre-dated the rape and the boiler room incident. It further appears from the medical evidence recounted in paragraphs 31 to 35 above that both Dr Ewer and Dr Parker consider that Mr Mitchell currently suffers from alcohol dependence. However, the date of clinical onset of his alcohol dependence is not apparent from the material before us. It is perhaps possible that one or more of the stressful events relied upon by Mr Mitchell led to a clinical worsening of his pre-existing condition of alcohol abuse, but once again, the parties have not directed their attention to this issue.
76. We have noted that in a letter dated 7 September 2004 from Mr Crowe, the advocate for the Commission, Mr Crowe said:
“The respondent concedes that the onset of alcohol dependence or alcohol abuse (specifically alcohol abuse) occurred within two years after 4 November 1971, the start of the period of five days of the applicant’s eligible war service.”
However, the evidence before us in relation to that matter does not support that concession.
77. We have briefly recounted the material before us that is relevant to this concession in paragraph 75 above. We consider that this material does not constitute appropriate medical evidence in relation to the issues of whether Mr Mitchell:
(a)was suffering from alcohol dependence or alcohol abuse at the time of the clinical onset of hypertension;
(b)was consuming at least 200 grams of alcohol per week at the time of the clinical onset of hypertension;
(c)suffered a clinical worsening of his alcohol abuse within two years of experiencing a severe stressor during his operational service; or
(d)suffered from the clinical onset of alcohol dependence within two years of experiencing a severe stressor during his operational service.
The significance of the matters referred to in paragraphs (c) and (d) is that those matters would satisfy factor 5(b) of the Alcohol SoP, thus providing the necessary connection between the asserted condition of hypertension and his operational service.
78. In explaining our attitude to Mr Crowe’s concession, we are mindful that when the evidence before the Tribunal raises a doubt as to whether the concession was properly made, it is necessary for the Tribunal to receive evidence as to the relevant facts: Re Martin and Commonwealth (1983) 5 ALD 277.
Claim for Hypertriglyceridaemia
79. The analysis of whether this asserted condition was war-caused should be conducted in accordance with the approach in Byrnes (supra), because there is no SoP for hypertriglyceridaemia. It appears that this condition developed as a result of Mr Mitchell’s intake of alcohol. We refer in this regard to the following extract from the report dated 27 August 2003 of Dr Tsavaridis (exhibit A6).
“Hyperlipidaemia as defined by the ‘Collins Dictionary of Medicine’ is ‘an abnormal increase in the levels of fat (lipids) including cholesterol in the blood’. There are two main types of lipids - cholesterol and triglycerides. An increase in alcohol consumption will raise the triglyceride level but not the cholesterol level (Primary care Singleton etal [sic] 1999 page 109). Hence to be technically correct, hyper-triglyceridaemia is related to Mr Mitchell's intake of alcohol rather than hyperlipidaemia. I have copies of Mr Mitchell's lipid levels (see attached sheet). His triglyceride level peaked at 5.8 on 7/6/01 (normal level < 2.0). On his latest test 18/9/02 it has come down to 1.0. This is probably as a result of treatment with Atorvastatin (a lipid lowering agent). I do not know what his triglyceride level was pre July 1999 as I do not have records.”
80. There is also a minute dated 16 February 2001 prepared by Dr W I Seith, Visiting Medical Officer of the Department of Veterans' Affairs, the causes of hyperlipidaemia, as it was then described, are listed as genetics, diabetes, alcoholism, stress, obesity, hypothyroidism but not smoking.
81. The question then arises as to whether Mr Mitchell’s intake of alcohol was caused by his operational service. Because there is no SoP in respect of hypertriglyceridaemia, it is not appropriate to refer to the Alcohol SoP in order to determine this question (see paragraph 63 above).
82. We have referred above to Dr Ewer’s report of 6 March 2002, in which he said that Mr Mitchell began abusing alcohol soon after he joined the Navy, and that this pre-dated both the rape incident and the boiler room incident. It is not clear on the evidence before us whether the level of Mr Mitchell’s alcohol consumption would have continued at a sufficient level to result in his developing hypertriglyceridaemia in the absence of relevant stressful events which occurred during operational service. Once again, therefore, the parties did not turn their mind to this issue, and the medical evidence presented to us was unhelpful for the same reason.
83. The primary matters in contention between the parties in the hearing before us related to whether or not the events complained by of Mr Mitchell amounted to his experiencing a severe stressor during his operational service within the meaning of the PTSD SoP, and also the relevance of the other stressful events, which occurred outside his operational service, to the conditions from which he is now suffering. We have already found above that the boiler room incident satisfies the definition of experiencing a severe stressor within the meaning of the PTSD SoP. The definition of “experiencing a severe stressor” in the Alcohol SoP is in substantially the same terms as the definition of that concept in the PTSD SoP, except that the words “which event or events might evoke intense fear, helplessness or horror” appear at the end of the first paragraph of the definition. These words introduce a further qualification to the definition, and in our view, they are relevant to the objective requirements that must be satisfied in order for a relevant event to satisfy the definition. However, we consider that even if the above words are interpreted as requiring a subjective reaction by the veteran of intense fear, helplessness or horror, the boiler room incident meets the definition in the Alcohol SoP, because there is material before us that in the circumstances in which he found himself during the boiler room incident, Mr Mitchell suffered from intense fear and helplessness.
84. In our above reasons for decision, we have determined that Mr Mitchell’s PTSD and neurodermatitis are war-caused, and we have made findings which determine primary contentions raised by the parties in the proceedings before us. However, there is insufficient evidence for us to determine whether Mr Mitchell’s conditions of hypertension and hypertriglyceridaemia are war-caused, for the reasons referred to above. Under s 42D(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) we have a discretion to remit to the Commission for reconsideration the decision it has previously made in relation to these two conditions. In Re Lavery and Registrar, Supreme Court of Queensland and Others (No. 2) (1996) 23 AAR 52 Deputy President Forgie provided a helpful analysis of the place of this section in the scheme of the AAT Act, and referred to certain circumstances in which it would be inappropriate to remit a matter to the original decision-maker for reconsideration. In the present matter, the issues of the date of clinical onset of hypertension and the relevance of alcohol dependence or abuse will potentially involve a range of further factual and medical investigations which have apparently never been undertaken. We have no reason to think that the Commission will arrive at the same decision if the claim for the two conditions is referred back to it for reconsideration in the light of the necessary further investigations. These investigations may involve other doctors apart from Dr Ewer and Dr Parker, and a re-examination of Mr Mitchell’s medical records. It seems to us that these investigations could be undertaken more expeditiously and inexpensively in the first instance by the parties, rather than being the subject of further evidence in the proceedings before us. In addition, the Commission should now be in a position to reconsider Mr Mitchell’s pension entitlement in the light of the findings we have made concerning PTSD and neurodermatitis, and we think it inappropriate for our decision to be delayed until the necessary further evidence can be placed before us to enable us to fully determine all of the issues raised by the present proceedings. In all of the circumstances, we think that this is an appropriate matter for the exercise of our discretion to remit the matter to the Commission to reconsider its decision as to the two remaining conditions claimed by Mr Mitchell.
85. We accordingly direct the Commission to reconsider whether the conditions of hypertension and hypertriglyceridaemia are war-caused in accordance with these reasons for decision, and on the basis of our findings on the issues which we have determined above. We assume that the parties will further investigate the issues which we have identified above as necessary to enable the reconsideration to be completed expeditiously and appropriately.
Decision
86. For the above reasons, we set aside the decision under review and in place of that decision:
(a)determine that the applicant's PTSD and neurodermatitis are war-caused conditions; and
(b)remit the matter to the respondent to determine in accordance with these reasons for decision, whether the conditions of hypertension and hypertriglyceridaemia are war-caused.
I certify that the 86 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis and Dr E T Eriksen, MemberSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 3 and 4 May 2004
Date of Decision 4 November 2004
Counsel for the Applicant Mr A J Burnett
Solicitor for the Applicant Lempriere Abbott McLeod
Advocate for the Respondent Mr A Crowe
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