Monteith and Repatriation
[2003] AATA 339
•11 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 339
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1597
) N2001/153
VETERANS' APPEAL DIVISION ) Re Thomas Robertson Monteith Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr M E C Thorpe, MemberDate11 April 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Administrative Appeals Tribunal decides to:
(i) Set aside the decisions under review in relation to chronic airflow limitation, diabetes mellitus, post traumatic stress disorder with alcohol dependence and substitute its decision that the conditions of chronic airflow limitation and alcohol dependence are war-caused and Disability Pension for these conditions is payable with effect from and including 11 April 1997. The condition of diabetes mellitus is war-caused with effect from and including 21 September 1999. The condition of hypertension is war-caused with Disability Pension being payable from and including 17 June 1997.
(ii) The decision under review in relation to post traumatic stress disorder is affirmed.
...............................................
Ms S M Bullock
Presiding Member
DECISION (CORRIGENDUM)
Before : Ms S M Bullock – Senior Member
Dr MEC Thorpe – MemberDate: 6 June 2003
Place: Sydney
The Tribunal made a decision in this matter dated 11 April 2003 pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (“the Act”).
It has come to the Tribunal’s attention that the Tribunal omitted to make reference in the decision to assessment of Disability Pension.
The Tribunal desires to amend the decision pursuant to section 43AA of the Act and provides as follows:
A. Page 1 and 2
Decision:“Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Administrative Appeals Tribunal decides to:
(i)Set aside the decisions under review in relation to chronic airflow limitation, diabetes mellitus, post traumatic stress disorder with alcohol dependence and substitute its decision that the conditions of chronic airflow limitation and alcohol dependence are war-caused and Disability Pension for these conditions is payable with effect from and including 11 April 1997. The condition of diabetes mellitus is war-caused with effect from and including 21 September 1999. The condition of hypertension is war-caused with Disability Pension being payable from and including 17 June 1997.
(ii)The assessment of all accepted war-caused disabilities is remitted to the Repatriation Commission.
(iii)The decision under review in relation to post traumatic stress disorder is affirmed.”
B. Paragraph 196, page 85
“196. In conclusion, for all of the reasons set out above and considering all of the evidence, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 to:
(i)Set aside the decisions under review in relation to chronic airflow limitation, diabetes mellitus, post traumatic stress disorder with alcohol dependence and substitute its decision that the conditions of chronic airflow limitation and alcohol dependence are war-caused and Disability Pension for these conditions is payable with effect from and including 11 April 1997. The condition of diabetes mellitus is war-caused with effect from and including 21 September 1999. The condition of hypertension is war-caused with Disability Pension being payable from and including 17 June 1997.
(ii) The assessment of all accepted war-caused disabilities is remitted to the Repatriation Commission.
(iii)The decision under review in relation to post traumatic stress disorder is affirmed. “
..........................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS - Entitlement – Operational Service - Reasonable Hypothesis – Diagnosis – Post Traumatic Stress Disorder –Diabetes Mellitus – Chronic Airflow Limitation – Psychoactive Substance Abuse – Alcohol Abuse or Dependence – Hypertension – Assessment
LEGISLATION
Veterans’ Entitlements Act 1986 ss 5D, 9, 13, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Gorton (2001) 110 FCR 321
Re Howe and Repatriation Commission (1999) 59 ALD 309
Re Hughes and Repatriation Commission [2000] AATA 571
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Law (1980) 31 ALR 140
Kattenberg v Repatriation Commission (2002) 34 AAR 562
Re Kelly and Repatriation Commission [2001] AATA 254
Re Chaplin and Repatriation Commission [2000] AATA 688
Re Hamilton and Repatriation Commission [2000] AATA 299
O’Neil v Repatriation Commission (2001) 34 AAR 290Benjamin v Repatriation Commission (2001) 34 AAR 270
Re Boardman and Repatriation Commission [2001] AATA 764
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Owens (1996) 70 ALJR 904
Repatriation Commission v Budworth (2001) 116 FCR 200
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Bey (1997) 79 FCR 364
Hutton v Repatriation Commission (1998) 49 ALD 8
REASONS FOR DECISION
11 April 2003 Ms S M Bullock, Senior Member
Dr M E C Thorpe, Member1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mr Thomas Robertson Monteith, of two decisions made by the Veterans’ Review Board (“the Board”) dated:
i) 19 August 1999 (T29, Bundle 1) which affirmed a decision of the Respondent, the Repatriation Commission (“the Commission”) dated 22 April 1997 (T2, Bundle 1), refusing a claim for chronic airflow limitation, psoriasis and post traumatic stress disorder and varied the diagnosis of that condition to include alcohol dependence. The Board also affirmed a decision of the Repatriation Commission dated 3 February 1998 (T3, Bundle 1) which refused a claim for hypertension.
ii) 1 December 2000 (T23, Bundle 2), which affirmed a decision of the Commission dated 4 July 2000 that refused Mr Monteith’s claims in respect of diabetes mellitus and L5/S1 spondylolisthesis (T2, Bundle 2).
2. It was confirmed by the Applicant at hearing that there was no application for review being made to the Tribunal for the conditions of psoriasis, internal derangement of the right knee, refractive error and L5/S1 spondylolisthesis.
3. A Hearing was held in Sydney on 11 February 2002, resuming on 12 and 15 February 2002, 22 and 23 July 2002 and 24 September 2002. Mr and Mrs Monteith provided oral evidence to the Tribunal as did Dr L V Brown, Consultant Psychiatrist, Commodore P M Mulcare, Writeway Research Service, Associate Professor R P Mattick, Clinical Psychologist from the National Drug and Alcohol Research Centre, University of New South Wales and Dr N J Schultz, Consultant Psychiatrist. Mr Monteith was initially represented by Ms J Buss, Solicitor, Legal Aid Commission of New South Wales and later by Mr N Dawson of Counsel. The Respondent was represented by Miss R Henderson of Counsel. Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”: T1-T44, Bundle 1; T1-T29, Bundle 2”). The following exhibits were also tendered.
NUMBER
DESCRIPTION
DATE
A1
Statement of Mr T R Monteith
22 February 2001
A2
Report of Dr J R Carroll, Hon. Secretary, HMAS Sydney and Vietnam Logistic Support Veterans’ Association
24 September 2000
A3
Handwritten letter from Commander F R Woods RAN (Rtd)
13 March 2001
A4
Extract from “The Vung Tau Ferry” by R Nott and N Payne, pp166-179
1998
A5
Report by Dr L Brown, Consultant Psychiatrist and Emotional and Behavioural Medical Impairment Worksheet
9 February 2000
A6
Report of Dr M Baz, Occupational Physician
7 August 2000
A7
Department of Defence Documents in relation to the Applicant
Various
A8
Medical Records from Dr S M Smith, Consultant Psychiatrist, St John of God Medical Centre
Various
A9
Clinical Notes of Dr P T Chia, General Practitioner
Various
A10
Clinical Notes of Dr A Samad, Consultant Psychiatrist
Various
A11
Supplementary Statement of Mr T R Monteith
2 May 2002
A12
Statement by Mrs Jennifer Dawn Monteith and attached document
30 April 2002
A13
Letter to Legal Aid Commission of NSW from Colonel A J Cotton, Director of Psychology, Defence Personnel, Department of Defence
29 May 2002
A14
Document headed “HMAS Sydney – Vung Tau Anchorage Notes on Ship Security” prepared by Captain D J Dalton RAN (Rtd) covering the period March 1968 to September 1970
R1
Report of Dr T Anderson, Consultant Physician
22 May 2000
R2
Report of Associate Professor R P Mattick, Clinical Psychologist
31 March 2000
R3
Report of Dr N J Schultz, Consultant Psychiatrist
14 April 2000
R4
Report of Dr N J Schultz, Consultant Psychiatrist
4 September 2000
R5
Report of Dr N J Schultz, Consultant Psychiatrist
10 October 2000
R6
Report of Mr J Tilbrook, CSM, RFD Writeway Research Service
28 June 2000
R7
Report of Commodore P M Mulcare, RAN (Rtd)
5 September 2000
R8
Report of Commodore P M Mulcare RAN (Rtd)
1 November 2000
R9
Claim for Rehabilitation and Compensation by Mr Monteith for Post Traumatic Stress Disorder
6 June 1998
R10
Supplementary Report of Commodore P M Mulcare RAN (Rtd) and Attachments
14 February 2002
ISSUES
4.The issues in this matter are:
i) What is the correct diagnosis of Mr Monteith’s psychiatric condition and specifically is this post traumatic stress disorder or some other psychiatric condition and is the correctly diagnosed psychiatric condition war-caused?
ii) Whether or not the conditions of diabetes mellitus, chronic airflow limitation, psychoactive substance abuse in the form of alcohol abuse or dependence and hypertension are war-caused.
5. It was agreed by the parties at the Hearing that if Mr Monteith was successful in relation to any of the entitlement matters, then the correct assessment of the war-caused condition(s) should be remitted to the Respondent. Given that many of the opinions by medical or psychological experts were provided some time ago, the Tribunal agrees that if successful, the assessment of any war-caused conditions should be remitted to the Respondent to be assessed up-to-date.
LEGISLATION
6. A determination in this matter requires consideration of the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).
7. Section 5D of the Act deals with the definition of injury and disease. Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:
“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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
…”
8. Section 13 of the Act deals with eligibility for pensions.
9. Section 119 of the Act deals with decisions-makers not being bound by the technicalities and acknowledges that decision-making under the Act is of an Administrative rather than a judicial nature. Section 119 of the Act allows decision-makers to take into account matters such the effects of the passage of time, the absence or deficiency in records and the diminished memory of a Veteran.
10. The standard of proof to be used in relation to Mr Monteith’s operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:
“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.
…”
11. In relation to the Tribunal’s decision about the correct diagnosis of Mr Monteith’s psychiatric condition, the standard of proof to be applied is contained within subsection 120(4) of the Act which provides:
“(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.
…”
12. Paragraph 120A of the Act deals with Statements of Principles and requires that the assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority (“RMA”) or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(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.”
STATEMENT OF PRINCIPLES
13. In making a determination in this matter the Tribunal must apply any relevant Statements of Principles which are in force. The Tribunal notes the Full Federal Court decision in Repatriation Commission v Gorton (2001) 110 FCR 321 in which it was determined that the current Statement of Principles is applied and if the Applicant cannot succeed under the current Statement of Principles, then the Statement of Principles in force at the time of the original decision is to be utilised. The Tribunal considers that the following Statements of Principles are applicable:
· Instrument Number 82 of 1999 as amended by Instrument Numbers 9 and 91 of 2001 concerning Diabetes Mellitus
· Instrument Number 136 of 1996 concerning Chronic Airflow Limitation.
· Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995 concerning Post Traumatic Stress Disorder.
· Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse
· Instrument Number 25 of 1999 concerning Hypertension
SERVICE HISTORY
14. Mr Monteith served in the Royal Australian Navy (“the Navy”) from 9 July 1966 until 31 August 1973 (T3, Bundle 2, pp11,12). Mr Monteith had the following operational service in HMAS Sydney:
· From 20 September 1971 until 16 October 1971 in Vietnam
· From 26 October 1971 until 18 November 1971 in Vietnam
· From 24 November 1971 until 17 December 1971 in Vietnam
· From 14 February 1972 until 9 March 1972 in Vietnam
Mr Monteith also rendered eligible defence service in the Navy from 7 December 1972 until 31 August 1973.
EVIDENCE OF MR THOMAS ROBERTSON MONTEITH
15. Mr Monteith told the Tribunal that he was 16 years old when he joined the Navy. In the Navy, Mr Monteith was first posted to HMAS Leeuwin in Western Australia where he spent 12 months. He had not passed the Intermediate Certificate in New South Wales and while serving in HMAS Leeuwin, his education was upgraded to the equivalent of the Intermediate Certificate and he also undertook general seamanship training. From HMAS Leeuwin, Mr Monteith was posted to HMAS Sydney which was in dry dock where a refit was being undertaken. Mr Monteith estimated that he was with HMAS Sydney initially for approximately six months. He also undertook a mechanical trade course at HMAS Cerebus over a period of approximately three months. In about 1968, Mr Monteith was posted to HMAS Melbourne. Mr Monteith recalled Sky Hawk craft landing on the deck and remembered hearing ammunition exploding, either emanating from HMAS Melbourne or from other ships involved in naval exercises.
16. The sequence of his service was difficult for Mr Monteith to recall but appears to be in HMAS Creswell (Jervis Bay) from 15 July 1970 to 5 September 1970; in HMAS Cerberus from 6 September 1970 to 4 October 1970; in HMAS Creswell from 5 October 1970 to 15 August 1971; in HMAS Sydney from 16 August 1971 to 2 July 1972; in HMAS Supply from 3 July 1972 to 4 February 1973; in HMAS Penguin (Balmoral, Sydney) from 5 February 1973 to 15 July 1973; and, in HMAS Melbourne from 16 July 1973 to 31 August 1973 (Exhibit R7, Attachment 1). The posting to HMAS Supply involved trips to the Far East and in HMAS Melbourne, Mr Monteith undertook destinations to the Far East, Hawaii, Japan and New Zealand, he stated. Initially, Mr Monteith’s duties at sea involved him working in the boiler room, cleaning and other general duties. He later graduated to watch keeping which involved looking after the machinery in and around the boiler room, but in confined compartments. Mr Monteith stated that he completed his Leading Hand Certificate while serving in HMAS Melbourne and he was a Leading Hand in HMAS Supply.
17. In HMAS Melbourne on one occasion at approximately 3:15 am in 1969, Mr Monteith was awakened by violent shudders. He stated that he raced up to the starboard side of the ship when he saw the back of another ship which was floating slightly in front of HMAS Melbourne but moving slowly backwards. Mr Monteith stated that he raced downstairs and obtained a camera, going back on deck to take a photo of the back of a ship which he later identified as USS Evans. Mr Monteith stated that people were running around and there were also sailors in the water. He was told to return to his duties on watch. Mr Monteith stated that he was shocked by that sight, particularly as he had some American drinking mates aboard the USS Evans and one of the sailors known to Mr Monteith was taken on board HMAS Melbourne and subsequently asked for Mr Monteith. Mr Monteith stated that he went about his normal routine for the rest of the day and was back on watch after the morning watch at about 4:00 pm. Mr Monteith stated that he did not know if his habits or behaviour changed after this. He believed that he started drinking and smoking slightly more after the HMAS Melbourne/USS Evans collision. This evidence was different to information recorded by Mr Monteith in a claim for compensation for post traumatic stress disorder in which he stated that he suffered post traumatic stress disorder because of the traumatic events of the USS Evans/HMAS Melbourne collision. Mr Monteith later stated that he was not a doctor and would not know if he was affected or not. He stated that he thought of the incident from time to time because it resulted in a tragic waste of life (Transcript, 11 February 2002, p14).
18. At some time in 1970, Mr Monteith was posted to the land based HMAS Creswell and while there he found out that he would be sailing to Vietnam in HMAS Sydney. Mr Monteith noted that he undertook four trips to Vietnam in HMAS Sydney, each trip lasting approximately one month.
19. Mr Monteith noted that on the trips to Vietnam, his watch-keeping duties while at sea required him to be in the boiler room working four hours on then eight hours off repeatedly while at sea. He served in the turbogenerator area which he described as a steam generator located in the forward engine compartment. The engine room itself was described by Mr Monteith as a large room which was located over four or five decks. He thought he was located on deck seven below the waterline, although noted it was difficult to tell. There were a lot of ladders and a number of different levels in the engine room space and there were not standard deck levels. Mr Monteith later estimated that in fact the engine room was eight decks high with each deck being approximately eight or ten feet high. The area was open containing two boilers, the main engines which were steam turbogenerators and a great deal of other steam equipment. Mr Monteith described this space as being very, very hot and generating a great deal of noise to the point where one could not hear people talk. Sailors had to be within a foot of another person’s ear to communicate by yelling. Mr Monteith stated that it was impossible to hear any intercom systems in that engine room space.
20. Mr Monteith’s duty in the boiler room space included him maintaining the turbogenerator, checking oil temperatures, pressures and controls, keeping these controls within certain predefined limits and to monitor and keep the turbines running. Mr Monteith stated that basically the system ran itself, but there had to be someone present to ensure that everything went according to the requirements. Mr Monteith stated that he had no ear protection at the time as to wear ear-muffs would cause them to fill up with perspiration due to the extreme heat in that workplace. In the boiler room, there were three personnel on the boiler face being the Petty Officer and two stokers, Mr Monteith on the turbogenerators and another person on the evaporator. There were two personnel working on the throttle and an officer on watch who was usually a lieutenant. The distance between Mr Monteith and the next person in that area was approximately 20 or 30 feet, he estimated. To reach the open deck, Mr Monteith had to go from the equivalent of deck seven up approximately three or four ladders. Outside the area where he worked, there was other auxiliary machinery, some stores and on the side there was an oil tank for balance in the bottom of which there were fresh water tanks. The hull consisted of an outer skin then an inner skin with the boiler room next, being the width of the ship less the tanks which were approximately eight to ten feet thick (Transcript, 11 February 2002, p17). Mr Monteith estimated that by the time he reached Vietnam the oil tanks would probably have been half-full.
21. At the time Mr Monteith was serving in HMAS Sydney, he believed that he would probably have read something called “Daily Orders.” He could not however remember what was on these Daily Orders. Mr Monteith stated that when he went aboard HMAS Sydney there were only a few days before they were sailing to Vietnam. He was aware of such things as “Operation Awkward” but that made no effect on the operations of the boiler room, it was just another day. Mr Monteith’s routine was that following his four hour shift he would come off watch, wash, have a meal, be that breakfast or late tea and, if it was a later shift, he would have some beer and sometimes play cards. Because of the work location, Mr Monteith stated that unless it was verbally stated to him and the others working in the engine room spaces, one did not know what was going on from one day to the next. He stated that half the time he did not even know whether it was day or night time with only the type of food served at meal times giving away the particular time of the day. Mr Monteith rarely went upstairs and had no idea where one would find Daily Orders. He stated that if he had been working on a day shift he may have known about them. Mr Monteith was firm in his opinion that people on watches in the boiler and engine room spaces did not know what was happening. He stated that he did not know where the notice board would have been located.
22. During the early part of his trips to Vietnam, Mr Monteith confirmed that he would have been an Acting Leading Hand and then towards the latter time of his operational service, he was confirmed as a Leading Hand. He became a Mechanical Engineer (“ME “) in about May 1969. On 25 January 1972, he was promoted to Acting Leading Mechanical Engineer and in March 1972 he was Acting Leading Mechanical Engineer 4, which meant a change of skill grade which Mr Monteith thought meant that he was skilled in propulsion. The final title change occurred on 1 January 1973, when he became Leading Seaman, Marine Technical Propulsion (Transcript, 11 February 2002, p51). Mr Monteith could not recall specifically these changes, but agreed that if it was recorded it probably was the case that he was not a Leading Mechanical Engineer or Leading Hand until his fourth voyage. It was at that stage that because of his status and in recognition of respect from the junior sailors, that he requested the junior sailors to obtain extra beer rations for him. It was not that the people who provided these extra rations were supervised by Mr Monteith, but more that they were doing him a favour. These men were all stokers in the same mess deck.
23. Mr Monteith noted that on his first trip to Vietnam he was on watch on the starboard side turbogenerator between 4:00 am and 8:00 am when he heard a loud bang outside the hull. He stated that he could tell that they were slowing down and were sailing into Vung Tau Harbour because of the different sound of the engines (Transcript, 11 February 2002, p18). Mr Monteith later stated that the engines were idle and he did not know if the ship was tied up or not (Transcript, 11 February 2002, p60). He did not remember if there were messages about entering or leaving Vung Tau Harbour. Mr Monteith noted the different characteristics of the machinery which told Mr Monteith that the ship was slowing down because the noise levels dropped and this was the case with idle engines.
24. Mr Monteith stated that after the loud bang, his instinct told him to get out of the engine room space as quickly as possible. He thought that the ship had been hit and he did not stop and find out, he just wanted to get out of that area. Mr Monteith described that he was in fear of his life and he was not going to stay in the big square hole of the boiler room and die. Mr Monteith was unaware whether any men had run out from the boiler room when the explosion had occurred. At that time he was on his own beside the generator but there may have been between two or four people at the boiler face with two or three seamen beside the engine including the officer of the watch.
25. Mr Monteith believed that if there had been a rupture of the hull, then the doors of the engine room space would have been shut and he and the other men would have been kept there. He ran up and out of the area, ending up on three deck on the starboard side. Mr Monteith described seeing the body of a person whom he assumed was Asian floating face down approximately 20 or 30 feet from the ship. He could not actually see the face and the body had some type of backpack attached, which Mr Monteith assumed were explosives. Mr Monteith recalled that the body was wearing “dirty greeny-browny colour…..overall things” (Transcript, 11 February 2002, p19). It was daylight by this time and Mr Monteith estimated that it was early morning. He believed it was towards the end of his trip that this incident occurred.
26. Mr Monteith did not know if anyone else had heard the explosion. Mr Monteith believed that the Petty Officer would have seen the body but he did not know if any one else saw it. He believed that there would have been others around because he thought the ship was entering Vung Tau Harbour but he did not really know. Mr Monteith did not talk to anyone about the incident when he went back on watch. There was no conversation later on in the mess between the men about the floating body. Mr Monteith in fact never mentioned much about anything until he started seeing psychiatrists some years later. Mr Monteith assumed that the person who had been deceased had been in the water probably in an attempt to blow up HMAS Sydney.
27. In his statement (Exhibit A1), Mr Monteith noted that he knew nothing of the use of percussion charges. He had never heard of them being used until the incident on his first trip to Vietnam on HMAS Sydney. He stated that there was no instruction from the Navy that he could recall. While he did recall that from time to time there may be messages over the intercom or visits by the Captain or Officers, he did not recall any specific message concerning a scare charge on the particular day in question. Furthermore, Mr Monteith stated that while he had not heard any announcement on the day in question, he had never heard messages broadcast about the use of scare charges on other days (Transcript, 11 February 2002, p61). The only messages he recalls were things such as the Captain saying “Hello” to the crew when he did the rounds in the morning. Mr Monteith would sometimes hear whistles over the intercom or announcements concerning refuelling parties. He could not say whether he recalled any messages concerning HMAS Sydney entering or leaving a port.
28. After the first trip in HMAS Sydney, Mr Monteith experienced no particular problems after that, apart from increasingly not wanting to go on these trips. He did not want to be down in the boiler room, hating the thought of it, but knowing that in his trade he did not have much choice. Mr Monteith also recalled that he started getting into trouble after that first trip, for example, for being late on watch. He made application for an elective discharge, he recalled, in 1972.
29. After serving in HMAS Sydney, Mr Monteith thought his next sea-going ship was HMAS Supply. In HMAS Supply, Mr Monteith noted that he had a cabin which he shared with two other junior sailors. This was a more relaxed vessel and he was able to leave the boiler room for most of the watch. Mr Monteith was not sure how many months he would have been at sea on HMAS Supply. It was following Mr Monteith’s consultation with the Chaplin that he left HMAS Supply and did not have to go to sea again. Even though he did not have to spend the watch in the boiler room in HMAS Supply, he still did not want to go there. While HMAS Supply’s boiler room was different to that of HMAS Sydney, Mr Monteith still did not want to go down there and have the possibility of being locked up. If anything had happened in HMAS Supply, he still felt that he could be confined in that space.
30. Mr Monteith did not recall seeing a psychiatrist, Dr Rowe, on 28 June 1973 (T3, Bundle 2, p20). From contemporaneous clinical notes during the first half of 1973, it was recorded that Mr Monteith had a fall down a flight of stairs, was reviewed by Mr R Tinning, a Consultant Orthopaedic Surgeon, who opined that the knee disability was not quite as severe as Mr Monteith made out. Following further review by Mr Tinning in March 1973, Mr Tinning noted “I feel sure there is some functional overlay with this man.” (T3, Bundle 2, p20). Mr Monteith acknowledged in relation to his right knee that he did have difficulties with it in 1973 but not as badly as he had made out. In Mr Monteith’s written statement of 2 May 2002, he noted that:
“Towards the end of my time in the Navy, I think I used it to help with my discharge. “ (Exhibit A11).
31. In oral evidence to the Tribunal, Mr Monteith stated that he is not sure what he meant by that statement. He stated that it was possible that he did use his knee to get out of the Navy, but he was not sure. Mr Monteith was also unable to state whether or not he was a person who exaggerated to get what he wanted at that time. He just does not want to remember that period in his life and at best he vaguely remembers seeing the Navy Chaplin.
32. In relation to paragraph 9 of Mr Monteith’s statement of 2 May 2002 (Exhibit A11), which indicated that he was interviewed by a social worker in or about August 1973 and the statement concerning that interview refers to Mrs Monteith’s agitation and other problems, Mr Monteith stated that he and his wife were only 21 and 18 years old when they married and that his wife was dependent on him. He wrote that he did not remember whether there was any real problem but assumed that he must have used this as a means of avoiding returning to sea. In oral evidence, Mr Monteith stated that he really had no idea what he meant by the term “used” but it was possible that he could have used his wife’s agitation as an excuse not to go to sea. All he knows is that he was using any means not to go back to the boiler room on any ship. In relation to the final possible posting to HMAS Melbourne, immediately prior to discharge, Mr Monteith noted in his written statement that that ship had recently been on sea trials and perhaps he used his wife’s problems to avoid his own difficulties (Exhibit A11, para 11). Mr Monteith subsequently put in an application in not to go to sea but could not recall the reason he gave.
33. There are further notations on that record of Mr Monteith complaining about returning to his ship and of his mother telephoning the naval authorities about him. Mr Monteith stated he did not remember his mother ringing but presumed that she was concerned for him. Dr Rowe, Psychiatrist, in his report of 28 June 1973, noted that Mr Monteith had no psychiatric abnormality. At that time in 1973, Mr Monteith recalled that he just did not want to be in the Navy. He did not wish to go into the boiler room any more and was prepared, he stated, “to take any means to get out.” Mr Monteith had in fact submitted an application to leave the Navy which, had it been accepted would have been effective in December 1973. One of the means to avoid going to sea was to miss a ship as was discussed in a “Report on a case referred for psychiatric examination” made on 22 June 1973 (T3, Bundle 2, pp30, 31). The report noted:
“Required fairly close supervision. Unreliable and disinclined to put much of himself into his work…Tended to keep to himself and seemed not to get on too much with others. Otherwise complaints about him were restricted to his job performance.”
34. The report further detailed that Mr Monteith had left his ship at a time when he was to become involved in an inquiry into his administration of an auxiliary watch. Mr Monteith had reported sick ashore and had not been back since. It was noted as significant in the report, that Mr Monteith was understood already to have arranged his wedding for the month after the ship’s departure. Mr Monteith stated that he did not know what this was about, noting that his marriage had been organised some 12 months earlier. He stated that he did not leave the ship because of the wedding, but because he did not want to on board a ship.
35. Mr Monteith agreed that Commander Holthouse’s report that he had “skipped the ship” was correct. At that time, when he failed to report for boarding the ship, he took his fiance and went to see the Fleet Chaplin. He did this, he stated, to avoid being charged. The Chaplin organised for Mr Monteith to commence work at HMAS Kuttabul which is a land base in Potts Point, Garden Island. Mr Monteith stated that he worked there for a while and then he was sent to HMAS Melbourne which was about to sail. Mr Monteith put a request in to the Captain not to go and minutes before he sailed, Mr Monteith was ordered off the ship with a few other seamen as the Captain did not want him or the others on board. Mr Monteith stated that he was discharged about two months after that staying at HMAS Penguin until his discharge was finalised.
36. Prior to his discharge, Mr Monteith considered himself a good employee for a while but towards the end of his service he did not care as he did not want to be in the Navy. It was not that he did not get on with the people stating it was more that he did not associate with any sailors because he never stayed on board ship unless he had to. He was always the first off the ship and the last back on board. Prior to him having these difficulties, he would do extra duties and it never worried him. At the time of discharge, Mr Monteith stated that he had discipline problems with authority and this was just after he got married in March 1973. Also soon after he married, Mr Monteith recalled commencing destroying things such as kicking holes in kitchen cupboards and punching walls.
37. Considering his discharge documents (T3, Bundle 2, p16-17), Mr Monteith stated that these are far from correct and he was urged to complete them in a hurry in order for the Navy to get rid of him. He noted that there was a parade on at the time and he put that he had no disabilities arising out of service because he was told to “sign here, do this, say that, go” (Transcript, 11 February 2002, p26).
38. Mr Monteith told the Tribunal that he had no psychiatric problems recorded by doctors until about 1996 when he sought psychiatric help. His children had been telling him that he was nasty and needed help. His friends had also recommended to him that he obtain help as he did not want to see people, work with customers and just shouted at everyone around him.
39. Mr Monteith was asked about his Disability Pension claim forms, particularly the second claim for anxiety, hypertension and post traumatic stress disorder in which he had answered that he had first become aware of psychological problems in 1971. He noted that his service had caused the disability of anxiety and post traumatic stress disorder because of the trauma associated with the sinking of USS Evans and compounded by war-caused trauma in HMAS Sydney while serving in Vietnam. Mr Monteith explained that this did not mean that he knew in 1971 that he had psychiatric problems but at that time, he started smoking and did not want to be in the boiler room as he had to get out. When he looked back he realised that his psychiatric problems were starting earlier.
40. Mr Monteith was referred to Dr A Samad, Consultant Psychiatrist. A report from Dr Samad dated 19 September 1996 indicated that Mr Monteith was examined on 7 June 1996 (T6, Bundle 2, p104-107). At that time, Mr Monteith recalled that he was frequently curling up in a corner crying and did not want leave his house. Dr Samad tried a number of different medications and Mr Monteith continued to consult Dr Samad between 1997 and 2000. He noted that sometimes he had had heated words with Dr Samad. Part of the problem of consulting a psychiatrist, Mr Monteith noted, was that he was made to remember and he does not want to remember. He had gone for 30 years not talking about the problems to do with his naval service and then all of a sudden everyone wanted to know about it. This was also at the root of the problem with Dr Samad because he wanted to make him remember (Transcript, 11 February 2002, p76). Dr Samad had organised for Mr Monteith to be admitted into St John of God Hospital for a period of treatment which may have been for detoxification. Mr Monteith became tired of seeing doctors and was happy for his General Practitioner, Dr Chia, to organise his medication. Currently, Mr Monteith takes the medication “Cipramil”, a 20 milligram tablet in the morning.
41. There have been a number of other consultations with psychiatrists including Dr S Smith who treated Mr Monteith at St John of God Hospital on up to four occasions as an inpatient or as an outpatient. In terms of other doctors who had examined Mr Monteith for the purpose of his application for review, he did not think that the histories recorded by those doctors or experts were accurate, as he believed that he had only seen many of them for a very short space of time. Thus, his consultations with Dr N Schultz, Consultant Psychiatrist, Dr L Brown, Consultant Psychiatrist and Associate Professor R Mattick, Clinical Psychologist, would not have recorded everything accurately because there was not enough time to record his history and symptoms, Mr Monteith stated.
42. Mr Monteith described his symptoms of finding it difficult to be in shopping centres because he wants to get out if it becomes too noisy or there are a lot of stairs. When Mr Monteith hears loud noises, he goes cold and freezes up not being able to do any thing for a short time. He reported feeling jumpy. At times of stress, he thinks about the first trip to Vietnam in HMAS Sydney, when he experienced the explosion and the floating body. It is also at times of stress that Mr Monteith becomes angry and frustrated and frequently damages the house. Mr Monteith stated that he does not know how many times he has had to repair the damage he has inflicted on his home. This behaviour commenced shortly after he was married in 1973 he believed.
43. In a statement made by Mr Monteith on 2 May 2002 (Exhibit A11), Mr Monteith noted that he has at best a very hazy memory of many events and at worst his memory is non-existent. In this regard, he noted for the past several years he has had trouble with names, dates and memories of what he has done or what he is supposed to do next.
44. In relation to Mr Monteith’s smoking history, he stated that many of the Smoking and Alcohol Questionnaires were not completed accurately by him. Mr Monteith stated that he commenced smoking when he joined the Navy aged 16 years. He was in Western Australia at HMAS Leeuwin. At that time, he was earning $10.00 per fortnight and would buy “roll your own cigarettes.” When Mr Monteith joined the fleet, cigarettes were duty free and he purchased tailor-made cigarettes costing approximately 10 cents per packet. Mr Monteith estimated that he would have smoked one packet of tailor-made cigarettes per day and thought that he smoked Marlboro 20s. He recalled that his smoking increased after the USS Evans incident in about 1969 to 1971. After being in Vietnam, Mr Monteith used to smoke a packet of Winfield 25s every four hour watch. He later stated that he possibly smoked more than one packet of cigarettes, but less than two. Mr Monteith noted that it was boring during his shift and he did not want to be there.
45. After the first voyage to Vietnam his smoking increased, Mr Monteith stated. After naval service, he smoked at least two packets per day, ceasing smoking cigarettes in about 1987 because he started to cough up blood. Mr Monteith lodged a Smoking Questionnaire which was signed and dated on 25 August 1997 (T15, Bundle 1, pp 72,73). This questionnaire contained different information to the one he had previously completed on 29 April 1996 (T5, Bundle 1, pp 50,51). The later Smoking Questionnaire included a reference to July 1967 when Mr Monteith was smoking 25 to 30 cigarettes per day because he had a habit and it was cheap and easy to get cigarettes. There was a further increase in July 1969 smoking 40 or more cigarettes per day following the collision with USS Evans and then a further increase in 1971 to 50 or more per day because of the stress of Vietnam. In the 1996 Smoking Questionnaire, Mr Monteith had recorded that in 1969 he had increased his smoking from 25 to 30 cigarettes per day because of nerves.
46. Mr Monteith could not recall who it was who assisted him to complete the 1996 Smoking Questionnaire and also had no recollection of the name of the person who helped him with the 1997 questionnaire. Mr Monteith stated that the 1997 Smoking Questionnaire was not completed by him as it did not use his wording. He noted that the figures were probably not correct and that he was only doing as he was advised in signing it. Mr Monteith stated it was more likely that he was smoking 20 cigarettes per day in 1967 and thereafter his consumption probably increased when he started smoking packets of Winfield 25, may be 25 or 30 cigarettes per day. The 50 or more cigarettes per day smoking habit recorded for 1971 was probably correct, Mr Monteith stated. He did not believe that he would have smoked 40 cigarettes per day after 1969.
47. Mr Monteith had recalled being interviewed by Associate Professor Mattick for approximately two hours, which he acknowledged was longer than the five minutes he had initially indicated had been the length of the interview. Mr Monteith did not recall telling Associate Professor Mattick that his smoking had decreased when serving in HMAS Supply. He did agree with the history recorded by Associate Professor Mattick in relation to his smoking decreasing after leaving the Navy because of the cost and that he would smoking approximately 30 cigarettes per day. In relation to the later recording in the 1997 Smoking Questionnaire of the impact of Vietnam service on his smoking, Mr Monteith stated that he did not remember whether he realised in September 1997 that he could only qualify for a Disability Pension for his various claimed conditions if they arose out of eligible service and as relevant his operational service in Vietnam.
48. From Dr Chia’s clinical notes (Exhibit A9), it appears that Mr Monteith was treated by Dr Chia for bronchitis in November 1982, May 1992, May 1985, February 1986, February 1990, in December 1995 for wheezing and in June 1996 and August 1997, when treatment was undertaken for COAD [Chronic Obstructive Airways Disease]. Mr Monteith stated that the bronchitis never improved nor has his breathing and in fact that has been slowly worsening. The treatment consisted of puffers to try and make his breathing a little easier and he was prescribed antibiotics from time to time. Mr Monteith did not recall taking any sick leave from his civilian employment at the Water Board.
49. In relation to diabetes mellitus, this condition was diagnosed by Dr Day, but Mr Monteith had no idea when this diagnosis was made. He had noticed that he was going to the toilet a great deal over a number of years before he was diagnosed. The condition was initially controlled by diet but then he was required to take medication. He believed the condition was now coming under control.
50. Turning to Mr Monteith’s alcohol consumption history, Mr Monteith stated that he drank a small amount of alcohol when he was at HMAS Leeuwin but he was only 16 at the time. He was under age and did not have very much money. It was not until he entered the fleet that he was able to increase his alcohol consumption, noting that no beer ration was issued before the age of 18. During those early days, he was consuming one can of 26 ounce beer per day. He maintained this level of consumption up until the beginning of 1970. Mr Monteith stated that his alcohol consumption increased towards the end of the service. He was able to obtain more that than his beer ration simply by asking a non-drinking junior sailor who was 18 to obtain another can of beer for Mr Monteith, being rewarded with 20 cents. The cans were opened at the time of issue to ensure that they were not being stored. Therefore, the beer had to be consumed on the night otherwise it would go flat. On the last few trips in HMAS Sydney, Mr Monteith stated that he could obtain three or four cans of beer after his watch and at about 8pm, sit down, play cards and have a few cigarettes before going to bed. This did not occur every night.
51. When Mr Monteith served in HMAS Supply after HMAS Sydney, he did not remember exactly the situation in relation to the alcohol consumption but believed that the availability of alcohol was harder than when he was serving either in HMAS Sydney or HMAS Melbourne. Certainly his history indicated that he was drinking beer at a reduced level when serving in HMAS Supply. Mr Monteith noted in this regard, that there were not as many young sailors who he could ask to provide him with their beer ration. He believed that the watch in HMAS Supply was four hours on and 12 hours off.
52. Post naval service, Mr Monteith noted that he would go to parties and would drink beer until he could not drink any more. He would often consume whisky as well. As far as he could remember, post service, he would consume beer everyday. He would drink certainly everyday on the weekend and during the week he would have a few beers, but it was party time on the weekend.
53. Mr Monteith stated that during the last five to six years, his drinking pattern had worsened and he now has to consume alcohol everyday. If he does not, he wanders around looking for alcohol. He has tried from time to time not to drink alcohol but his abstinence does not last. Mr Monteith noted that he has been in “detox” when in St John of God Hospital but has not attended Alcoholics Anonymous. Dr Samad was initially under the impression that Mr Monteith had given up drinking. Mr Monteith believed that on the last few consultations, Dr Samad became aware that Mr Monteith was drinking again. It was also apparent to Mr Monteith that his alcohol consumption had worsened because for financial reasons he had ceased buying alcohol and had to commence making his own cheaper beer. Mr Monteith further noted that he had nearly daily arguments with his wife about his alcohol consumption. This has been apparent for the last two or three years. Mr Monteith stated that he does not drink and drive as he knows he has to perform. He was especially careful not to drink when he knew he was going to drive a truck.
54. Dr Chia, General Practitioner, told Mr Monteith in about 1995 that he should cease alcohol consumption. Dr Chia had also advised Mr Monteith to cease driving his truck, not to cease driving a car. Driving a heavy vehicle was prohibited not because of the driving per se, but because of the associated loading and unloading of the truck and this was bad for his back condition.
55. Considering Mr Monteith’s hypertension problem, he believed that that was diagnosed by Dr Day or possibly another doctor, but Mr Monteith was not sure when the diagnosis was made. He believed he was given medication at the time it was diagnosed as he had been on “Accupril ” for a long time. He must take one tablet daily for the remainder of his life.
56. Mr Monteith acknowledged that he has been advised medically at various stages to try and control his diet and lose weight. He did not recall when this advice was first given. He also did not recall whether he had been sent to a dietician at some stage. He noted that he had been trying to lose weight for years, but did not specifically recall trying to lose weight to improve his situation when having airways problems. He did not also remember managing to lose eight kilograms when his lung function was being tested.
57. Mr Monteith told the Tribunal that he had no recollection of submitting a claim in 1998 for the Military Compensation Scheme for permanent impairment in relation to post traumatic stress disorder and claiming weekly compensation payments. Mr Monteith recognised a claim form (Exhibit R9) as being in his handwriting and his signature but had no memory of the details specifically. In that compensation claim form, it was noted that the reason he had post traumatic stress disorder was because of the incident involving the USS Evans. Mr Monteith did recall in April 1996 making his first claim for entitlement for a Disability Pension. That involved a claim for hearing loss and tinnitus, chest problems, skin rashes, anxiety and alcohol. Mr Monteith had recorded in that claim that his conditions had been caused through the traumatic events when HMAS Melbourne hit USS Evans. He noted that at that point he was relying on advice from an ex-army officer who was with him at the time. Mr Monteith acknowledged that the person filling out the form must have asked him a few questions during the process of completing the claim. He did not actually remember what he said to the person assisting him. Mr Monteith believed that the only material he had with him on the day was his Discharge Certificate, which had no reference to HMAS Melbourne or USS Evans. Mr Monteith felt certain that the person would have asked him about Vietnam, but could not specifically recall what he had said. He was not in a good frame of mind at that time of his life, as in April 1996 he was very confused and having many problems functioning (Transcript, 11 February 2002, p37).
58. In the context of discussing this April 1996 claim, Mr Monteith noted in relation to the USS Evans incident that he had provided earlier oral evidence that he did not feel that this incident effected him afterwards. He now stated that it must have affected him in some way because there was a great loss of life, including some of his good friends. He thought of those friends at that particular time he stated, but could not recall what he experienced or felt in the days afterwards. Mr Monteith noted that also in 1996 he was having trouble with his back and had been put off driving his truck at the end of 1995. He may have, he noted, consulted Dr Chia in 1996 for his back condition and Dr Seeton in May 1996 for backache and assistance in claiming workers’ compensation from the Water Board. Mr Monteith also remembered being sent in 1996 to Dr Aouad about his breathing difficulties.
59. After naval service, Mr Monteith worked at the then Water Board in Sydney. During that time, Mr Monteith obtained a Drainer’s Certificate from St George Technical College in Sydney. The course was a one year course. It was a practical and theoretical course, two hours on one or two nights a week and he probably did this in 1975 or 1976. He believed that every third or fourth weekend he may have had to attend for a practical session. During the period of employment at the Water Board, Mr Monteith noted that he was able to be promoted and in fact attending this course assisted him in this regard. He achieved several promotions in the Water Board. Mr Monteith’s job as Inspector finished because the numbers at the Water Board were dramatically reduced and consequently, there were no longer any career prospects for him. Mr Monteith ceased employment at the Water Board in 1987.
60. After the Water Board, Mr Monteith purchased a utility vehicle in about 1989 and in 1990 he purchased a six tonne truck. He went to work driving for the first time. Initially, he worked for a courier company and then set up his own successful business driving the utility and later, trucks. He further noted that he never had any problems with his drivers or other employees. He was liked by his customers, he stated, noting that he had received a number of letters attesting to his being a very good operator with a very sound company. Mr Monteith did not have to have any additional driving tests in order to drive these larger vehicles because he had his heavy vehicle license when he was in the Navy. The business had three trucks for a short time but mainly operated with two vehicles most of the time. It was toward the end of 1996, that Mr Monteith had medical advice to cease driving because of his back. He then commenced undertaking clerical and office work. This involved to a small degree keeping records but Mrs Monteith operated the accounts. Mr Monteith’s main role at that time was taking in the work and then allocating it to his drivers of which there were two or three. He would talk to customers discussing their requirements and most of the time, this involved verbal dealings. If there were any problems, he would call the customer or the drivers on the phone. The drivers would come into the office of an afternoon and give their daily job to Mr Monteith who would then give it to his wife who organised the accounts. Mr Monteith always checked the job sheet and made sure of the minor costings.
61. Mr Monteith stated that after 1996 he had difficulties in that he did not want to talk to customers and when he took accepted jobs, he would often forget the details. The drivers were then not obtaining work and the business started to lose work. In relation to the proposition that Mr Monteith simply did not like doing the paperwork and not being able to drive made him want to get out of the business, Mr Monteith stated that paperwork was just something that he had to do and he did not have any problem with it. It was more that in early 1996 things fell apart and he just thought, in hindsight, now knowing what depression is like, that he was depressed. Before that, he had loved running the business. Mr Monteith was unable to recall the actual date of the cessation of his business but he ceased driving a truck in 1995 or 1996.
62. Mr Monteith discussed his recreational activities recalling that in about 1980 he became involved with an indoor cricket team. He ceased this activity, he believed, in about 1992. Mr Monteith had also been a cricket coach for the then Police Boys Club at Campbelltown. He undertook this activity for about one year while his son was a member of the team and quite enjoyed this activity. Furthermore, Mr Monteith purchased a four wheel drive vehicle in about 1991 or 1992 and joined a local four wheel drive club. He became the Environmental Officer of the club which required him taking responsibility for members not damaging locations which they attended and basically keeping people in line and from driving their vehicles recklessly. The club consisted of family people and regular trips were undertaken by club members. Mr Monteith had a good time when a member of the club and was active for approximately four or five years. He stated that one of the reasons for the sale of his four wheel drive vehicle was his back condition. In addition, he did not want to be around the people any more and shut them out.
63. Mr Monteith was involved with the Masonic Lodge. He believed that he joined the Lodge in 1996 or 1997. Dr Schultz had noted in his report of April 2000 that Mr Monteith had been in the Masonic Lodge for about five years and enjoyed it very much. Dr Schultz further reported that Mr Monteith was attending eight meetings per month but currently he attends 12 meetings per year, one each month. For a while, Mr Monteith was attending four meetings in a week, attending Lodges in different locations in Sydney. Mr Monteith stated that at that time he was a “bit haywire” (Transcript, 11 February 2002, p45). Mr Monteith would travel small distances to the various locations. He stated he did not know what he was doing at that time he was just going anywhere or everywhere (Transcript, 11 February 2001, p46). When attending Lodge meetings, he consumes alcohol with his fellow Lodge members. After Lodge meetings, there is a meal to which women are invited. Mr Monteith became Worshipful Master of one Lodge for one year during the 2000-2001 year. This meant that he was the leader of the Lodge, like a President. The Worshipful Master’s duties involved him presiding at ceremonies. He had to work his way up to this position, through four different stages. Mr Monteith stated that he had a very easy year when he was Worshipful Masterful. He performed his duties with a great deal of help. Mr Monteith stated that he enjoyed the comradeship of fellow Lodge members. He is a past member of the Catholic Club and had been attending this institution while his wife was participating in line dancing. While his wife was dancing, he would be consuming alcohol at the Catholic Club, drinking with other members. Mr Monteith does not attend the Catholic Club any longer.
EVIDENCE OF MRS JENNIFER DAWN MONTEITH
64. Mrs Monteith provided a written statement dated 30 April 2002 (Exhibit A12). Mrs Monteith acknowledged that during her husband’s service she and Mr Monteith did see the Navy Chaplin, but she did not recall the conversation, nor when this interview occurred. Mrs Monteith further stated that she did not remember being interviewed by a social worker only recalling the interview with the Chaplin. As at August 1973, when these events were reported as having taken place, she and her husband had been married since March 1973. Mrs Monteith stated that she knew that her husband had elected to be discharged but could not recall whether or not she was keen for him to leave the Navy. Mrs Monteith stated that she did not remember her wedding but was keen to marry her husband as they had been going out for approximately two years prior to marrying.
65. Mrs Monteith stated that she did recall farewells to Mr Monteith at the wharf in Sydney when he was departing on service. It was the initial farewells at Garden Island that were upsetting to her. Mrs Monteith did not agree with the Social Worker’s report of her, except for notation about her sadness at the wharf saying “Good Bye” to her husband. In her written statement, she noted that she recalled Mr Monteith being away for three months at the end of 1972 serving in HMAS Supply. Mrs Monteith also recalled in March 1973 prior to their wedding, Military Police came to the flat where her mother lived and where her husband had been staying. They did not find Mr Monteith there. Mrs Monteith also recalled that her husband bandaged his leg which he did in a manner to cause it to swell up (Exhibit A12, para 5).
66. After Mr and Mrs Monteith were married, Mrs Monteith recalled that her husband was away for about a week during which time she stayed with her parents. She would often go and stay with her mother during the first six months of their marriage when Mr Monteith was away. In terms of there being a reference by the Naval Social Worker to Mr Monteith being upset by Mrs Monteith’s emotions, Mrs Monteith believed that this was quite incorrect as Mr Monteith had always seemed to ignore her feelings. When Mr Monteith was away she had a great deal of family support. Contrary to there being statements that Mr Monteith got out of the Navy in order to marry, Mrs Monteith’s view is that he married to get out of the Navy. Mrs Monteith stated that she did not recall if she ever told her husband not to go away during his service with the Navy.
67. Mrs Monteith noted that at some time prior to Mr Monteith’s application for a free discharge, he had mentioned to her both the incident related to USS Evans and his service in Vietnam, particularly related to the use of depth charges. Mr Monteith was however “no great talker”, Mrs Monteith noted. She recalled that he was desperate to get out of the Navy but did not recall when she first knew that. Mrs Monteith strongly believed that Mr Monteith’s insistence that they marry and his going to the Chaplin with her after they were married, was a way of him leaving the Navy more quickly.
EVIDENCE OF COMMODORE P M MULCARE, WRITEWAY RESEARCH SERVICE
68. Commodore Mulcare provided three reports dated 5 September 2000, 1 November 2000 and 14 February 2002 (Exhibit R7, R8, R10).
69. Commodore Mulcare noted that at the time Mr Monteith claims to have heard the scare charge and seen the floating body, he was serving in the machinery spaces either forward of or after the main machinery spaces of HMAS Sydney. These spaces are huge and more or less the width of the ship, being approximately three decks high. Commodore Mulcare noted that this space is noisy and steamy and that entry is via an air lock. This was because with HMAS Sydney’s open fronted boilers, the whole machinery space had to be kept under pressure in order to feed the boilers. Commodore Mulcare noted that Mr Monteith would not have been very free, being located in the machinery space, to leave the area because he would have had a number of supervisors in the area who would have chided him had he decided to leave.
70. From an attachment to Commodore Mulcare’s report, Captain D Dalton RAN (Rtd), a Marine Engineering Officer serving in HMAS Sydney in 1968/69, noted that scare charges would sound :
“…similar to a rawhide whip crack through the ship’s hull which I would estimate at about 110db, above the noise level that could do permanent damage to hearing senses. It could be quite frightening if there was no warning, particularly if one was concentrating on listening for sound changes in running machinery.”
Captain Dalton also wrote:
“Dropping the charges from the motor cutters caused only muffled explosions which, although quite significant when heard in the machinery spaces, was an acceptable noise in the circumstances.” (Exhibit R8, p2)
71. In relation to scare charges being used by HMAS Sydney during the 1971 and 1972 voyages, Commodore Mulcare stated that the charges were dropped up stream of the ship. The practice of dropping scare charges directly off HMAS Sydney had changed in about 1971. The charges were not dropped as a matter of routine from the actual ship itself, although Commodore Mulcare opined that scare charges could have been dropped from the ship had that been considered necessary. Commodore Mulcare noted a Statement by Lieutenant Commander K J Fitzgerald RAN (Rtd) who had served aboard HMAS Sydney during 1970/1971 as the ship’s Diving Officer. He noted that scare charges would generally be dropped between 50 to 100 metres ahead of the ship upstream of the tidal stream (Exhibit R8, Attachment 1). At the same time there were boats tracking back and forth across that tidal stream and around the ship towing razor wire obstructions to snag any body or any thing that was floating. Lieutenant Commander Fitzgerald observations were more accurate than those of Captain Dalton’s, Commodore Mulcare opined, because Lieutenant Commander Fitzgerald had contemporaneous service with Mr Monteith and was in the water dealing with the issue of scare charges.
72. Commodore N F Helyer MBE, RAN (Rtd) who served in HMAS Sydney contemporaneously with Mr Monteith, was a watchkeeping Engineer Officer in training at that time. He noted that his recollection was that the sound of detonated scare charges was noticeable above the other machinery noises in the machinery compartments, but this noise was attenuated by both the water column and the fuel, ballast or fresh water tanks, located outboard of all machinery spaces. Commodore Helyer noted that he always remembered the distinct sound of scare charges exploding under water but in his case, those memories had no deleterious effects. (Exhibit R8, Attachment 2).
73. In preparing his reports, Commodore Mulcare was aware of a report by Mr J Tilbrook, of Writeway Research Service (Exhibit R6). While Commodore Mulcare had read this document, he had not relied upon it, believing he had more knowledge about the particular matters relating to Mr Monteith. Commodore Mulcare acknowledged it was important in this matter for the Tribunal to understand the conditions in the machinery space and even though Captain Dalton and Mr Monteith had not had contemporaneous service, the condition in the machinery space would not have changed significantly when Mr Monteith undertook his service. Commodore Mulcare noted that while this was the case it may also have been that operational matters may have changed by the time Mr Monteith served in HMAS Sydney. Commodore Mulcare stated that he did not deliberately leave out information about the heat of between 130 and 140 degrees under the ventilation fans in the machinery spaces. He stated that he did not think such information was relevant.
74. Commodore Mulcare noted that Captain Dalton’s statement referred to him not insisting that sailors wear earmuffs in the machinery space because of the heat and perspiration, although, Commodore Helyer required earmuffs to be worn. Commodore Mulcare noted that he had not often been at the machinery spaces in a ship but agreed that in the tropics, it was very hot. He could not recall whether on such occasions he had observed people wearing earmuffs. Commodore Mulcare stated that generally people in the machine spaces do wear earmuffs whether in the tropics or not, to protect their ears from sound damage. He acknowledged the steamy atmosphere of HMAS Sydney’s engine room with high temperatures and that there would be a high level of perspiration. It was possible, Commodore Mulcare noted, that given that Mr Monteith was not wearing earmuffs because of perspiration and that if an announcement had been made concerning scare charges, that he may not have heard this. Even so, Commodore Mulcare opined that Mr Mulcare should have been aware from briefings before the ship got to Vietnam of what was going to happen. Commodore Helyer wrote that Mr Monteith was an experienced stoker whose duties in the outside machinery spaces meant that he invariably worked alone, except for rounds. Accordingly, Commodore Helyer acknowledged that Mr Monteith was one of the few members of the crew who may have escaped the information contained in briefings, Daily Orders and the like (Exhibit R8, Attachment 2).
75. Discussing the training which Mr Monteith may have had going to Vietnam, Commodore Mulcare noted that he had spoken with officers in charge of the Fleet Training Group who were there in the late 1960s and early 1970s and certainly when ships first went to Vung Tau in 1965, many sailors had not heard of a scare charges before they arrived in Vietnam. It was possible that Mr Monteith may well have arrived in Vietnam without hearing the sound of a scare charge. Commodore Mulcare noted however that Lieutenant Commander Fitzgerald had commented that by the stage Mr Monteith was serving in HMAS Sydney, scare charges were being let off well away from the ship.
76. Commodore Mulcare stated that even in Vung Tau Harbour, HMAS Sydney kept steam up in case of the need to quickly exit the harbour and thus the noise in the machinery spaces would continue. Furthermore, Commodore Mulcare opined that Mr Monteith had been in the Navy long enough and that it was his job to read Daily Orders and to make sure that he kept himself appraised of particular events. Daily Orders and temporary memorandum would be displayed in mess decks, notice boards in the main cafeteria and passage ways. Commodore Mulcare noted that efforts were made to communicate with everyone including such methods as running Tombola competitions and printing the Tombola numbers on Daily Orders in an effort to try encourage people to read those orders. There were also broadcasts over the main broadcasting system and Commodore Mulcare opined that there would be times when Mr Monteith was not in the engine room when he should have heard those announcements. It was also inconceivable to Commodore Mulcare, Commodore Helyer and Lieutenant Commander Fitzgerald that Mr Monteith would have arrived at Vung Tau not knowing what was going to happen there. Having so opined, Commodore Mulcare stated that it is notoriously difficult to get information to the stokers. He noted that it was a standard naval joke that if information could be got through to the stokers then you were a remarkable individual (Transcript, 12 February 2002, p16).
77. Copies of Daily Orders were not available because they were temporary and not retained. Commodore Mulcare noted that it was not possible that there were no Daily Orders about scare charges basing this opinion on information he had obtained from including from Captain Dalton, Commodore Helyer and Lieutenant Commander Fitzgerald in addition to his own knowledge of such matters. No person Commodore Mulcare spoke to about this specific period could recall a general briefing about scare charges, but Commodore Helyer noted in his statement of 1 November 2002 that preparations for an operational visit to Vung Tau commenced some days before arriving and invariably consisted of a Commander’s Temporary Memoranda and Daily Orders about the nature and operation of any extraordinary matters (Exhibit R8, Attachment 2). There would be several briefings over the ship’s main broadcast system via the Operations Officer. During these briefings, the use of weapons was discussed and there would always be clear explanations if such use was intended. The chance that a member of a ship’s company was not aware of the intended use of scare charges was therefore very unlikely (Transcript, 23 July 2002, p31).
78. Specifically in relation to Operation Awkward, Commodore Mulcare stated that this is an umbrella term given to a series of measures taken when a ship was under threat of attack from enemy divers or similar threat. The measures ranged from managing how many steering motors and generators were available, isolating areas to prevent cross action damage through to having watertight access to compartments, manning guns and putting sentries on duty. Thus, Operation Awkward effected every department of the ship, Commodore Mulcare stated. In Mr Monteith’s case as a stoker in the engine room, Commodore Mulcare believed that Mr Monteith’s duties would not have changed to a great extent and it would not really have effected him, although it might have made some things inconvenient if he was off watch and then placed in a damage control party elsewhere in the ship.
79. In terms of the evidence provided by Commodore Helyer and Captain Dalton, Commodore Mulcare noted that Captain Dalton was describing what happened at a particular time and Commodore Helyer was dealing with a different time. Commodore Helyer was watchkeeping in the machinery spaces whereas Captain Dalton was the Senior Commander when he was Engineer of Sydney and had been working in the machinery spaces for many years.
80. In the event that there was an explosion outside the ship’s hull resulting in a hole in the side, Commodore Mulcare stated that it would be unlikely to have resulted from a scare charge. While Commodore Mulcare noted that he is not an engineer, he did not think that there would be penetration through the inner hull to the engine room from a scare charge exploding along side HMAS Sydney. He was aware of scare charges causing minor leaks in oil tanks of carriers in the past. If there was a quite large hole, then the boilers would have to be closed down as would the auxiliary machinery. The machines would have to be vented through safety valves and then that would be a major problem. The area would have to be sealed in any event, because the double doors were locked to keep the air pressure appropriate. If an explosion had been as result of a mine, then that would be ascertained very promptly and sailors would be shutting down machinery very quickly and evacuating the engine space. Exits would be via the ladders and through the air locked doors and sailors would be leaving under direction. Commodore Mulcare could not envisage the situation as described by Mr Monteith where he would be locked in the engine room space and left. It would have to be a very significant catastrophic event to blow a huge whole in the ship’s side or resulting in a boiler blowing up.
81. Commodore Mulcare noted that HMAS Sydney did have problems in the machinery spaces of heat and noise. She was a steel-hulled ship with storage spaces between the double hull. At the time HMAS Sydney was in Vung Tau, her fuel tanks outside the machinery spaces would have been reduced or empty by the time she had reached Vung Tau. The sound of a scare charge varies with factors such as the distance it was dropped from the ship, the depth of the water and the type of seabed. The sound would be like a dull thud, depending on the distance the scare charge was dropped from the ship.
82. In relation to Mr Monteith’s sighting a floating body, Lieutenant Commander Fitzgerald noted that he was present when a body in unspecified military uniform came to the surface (Exhibit R8, Attachment 1). There was no reference by either Lieutenant Commander Fitzgerald or Commodore Helyer (Exhibit R7, Attachment 3) as to whether the body was floating face up or face down. Commodore Mulcare believed that both reports were reliable and about the same incident. He opined that it was highly likely that Mr Monteith did see a floating body (Exhibit R8, p3). Commodore Helyer’s report of the body being blown up was however, probably hearsay and may not have been accurate Commodore Mulcare opined. Commodore Mulcare placed more reliance on Lieutenant Commander Fitzgerald’s report given that he was the Ship’s Diving Officer. It is not significant, Commodore Mulcare stated, that the incident was not recorded in the ship’s Reports of Proceedings.
83. Mr Monteith was discharged at his own request, “DAOR” (Discharge at Own Request). Commodore Mulcare noted that this type of discharge occurred if there were personal or welfare problems and noted an historical record of 3 April 1973 which recorded that Mr Monteith was “Fit for shore duty or for sea duty in a ship carrying a full medical branch sailor of POMED rank or LSMED ACC” (Exhibit R7, Attachment 2). This category is a specialist qualification assigned to someone with a need for emergency treatment. Commodore Mulcare further noted that the service documents indicated problems with Mr Monteith’s right knee and a concern that this condition was not as severe as Mr Monteith had made out, with the possibility of functional overlay (T3, Bundle 2, p20). Commodore Mulcare also noted the reference to a psychiatrist and calls to the Navy from Mr Monteith’s mother in addition to his leaving his ship and reporting ill ashore when about to have into his administration of an auxiliary watch, all occurring in early 1973. These various records indicated to Commodore Mulcare that Mr Monteith was having welfare problems at that time. In the context of a discharge of Mr Monteith’s own request and noting Commander Holthouse’s negative report that Mr Monteith required fairly close supervision, was unreliable and not inclined to put too much of himself into his work (T3, Bundle 2, p30), Commodore Mulcare concluded that if Mr Monteith had remained on board ship, he would have been the subject of an inquiry because of his failure to undertake his job properly.
162. The contemporaneous material from Mr Monteith’s naval days, Miss Henderson submitted, indicated that he was under surveillance because of his medical problems. Mr Monteith was a sailor who had a right knee injury during his service. He did describe a fear of ladders but that is entirely consistent, Miss Henderson submitted, with his knee problem. Miss Henderson submitted that nothing in the Navy material supports the view that Mr Monteith was suffering a psychiatric problem at that stage. At best, as was noted by Mr Monteith Commanding Officer, he is a man who did not particularly get along with people. That was well short of having developed a service-related psychiatric illness. While it is clear that there are problems with Mr Monteith’s temper, Miss Henderson submitted that problems with anger management do not establish a psychiatric illness. These anger attacks had not received any emphasis or been attached any particular significance in the reports of the various psychiatrists who have examined him.
163. In conclusion, Miss Henderson submitted that the evidence is not sufficiently reliable for the Tribunal to be satisfied that a reasonable hypothesis is pointed to by the evidence in relation to all of the conditions.
164. In the event the Tribunal did not adopt the Respondent’s reasoning, it is agreed between the parties that the matter be remitted for assessment. In terms of a Special Rate, the reports are very much out of date and an accurate up-to-date assessment in relation to the potential for a Special Rate is required, particularly noting the non war-caused back condition which lead to Mr Monteith leaving the workforce.
FINDINGS
165. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and the case law.
166. Mr Monteith has claimed a number of conditions as being war-caused, namely chronic airflow limitation, diabetes mellitus, post traumatic stress disorder, alcohol abuse or dependence and hypertension. The Tribunal will confine its attention to Mr Monteith’s operational service as it is during this period that the contentions arise as to war-caused disability.
Chronic Airflow Limitation
167. Following the principles established in Repatriation Commission v Budworth (2001) 116 FCR 200, the Tribunal is reasonably satisfied that the correct diagnosis of Mr Monteith’s respiratory condition is chronic airflow limitation as supported by the expert medical opinion of Dr Aouad, Thoracic Physician. Furthermore, the diagnostic criteria of the relevant Statement of Principles, Instrument Number 136 of 1996 concerning Chronic Airflow Limitation are met. The Tribunal notes that there is no dispute as to the Statement of Principles and finds that applying Repatriation Commission v Gorton (supra) supports this conclusion. Mr Monteith claims the onset of the condition is in 1988 and Dr Chow, Consultant Physician and Cardiologist, notes shortness of breath for several years prior to 1997 (T10, Bundle 1, p60). The onset of the condition is difficult to establish, but Dr Aouad noted in 1996 that Mr Monteith has had breathing difficulties for some years but more problematic in recent times. Dr Aouad noted that Mr Monteith was a smoker for 20 years (T6, Bundle 1, p52). On the evidence, the Tribunal is reasonably satisfied that the onset of chronic airflow limitation occurred in the late 1980s.
168. The causative link between chronic airflow limitation and service is contended to be Mr Monteith’s smoking consumption. The hypothesis put is that Mr Monteith has a war-caused smoking habit which caused his chronic airflow limitation. Following the steps outlined in Repatriation Commission v Deledio (supra), the Tribunal does not consider that this general hypothesis is beyond the realms of possibility or is fanciful.
169. The Tribunal next considers the relevant Statement of Principles and the applicable Factor 5(d) which requires smoking at least ten pack-years of cigarettes before the clinical onset of chronic airflow limitation. As was noted in Bull v Repatriation Commission (2001) 66 ALD 271, what is required by subsection 120(3) of the Act is the formulation of an opinion on the material before it, as to whether a reasonable hypothesis is raised connecting the injury, disease or death with the particular circumstances of service. The Tribunal is not at this stage entitled to find facts or reject matters. As there is a Statement of Principles in force, the decision-maker, in this case the Tribunal, must form an opinion if the general hypothesis is reasonable by ascertaining if the hypothesis fits or is consistent with a factor in the Statement of Principles.
170. In Mr Monteith’s circumstances, the material points to him commencing smoking when he joined the Navy in 1966 aged 16 years and increasing his smoking during service until his cessation in 1987. It is hypothesised that there is an increase in smoking in 1969 after the USS Evans collision and a further increase after his first trip to Vietnam on operational service in 1971 as a result of the stress of that service. The material, on the face of it, points to a smoking habit which increased or was aggravated to the requisite level during operational service in 1971 and thus is a war-caused smoking habit. Thus, Factor 5(d) is met and on the material a reasonable hypothesis is raised linking war-caused smoking to chronic airflow limitation.
171. The Tribunal turns to consider whether or not pursuant to subsection 120(1) of the Act that there are facts in existence, which support the raised reasonable hypothesis beyond reasonable doubt. Mr Monteith provided evidence in the Tribunal’s view, to the best of his ability. It is not disputed by Mr Monteith that the figures provided in smoking questionnaires completed in 1996 and 1997 are not consistent. The Respondent submits that such inconsistencies reflect Mr Monteith’s poor credibility. He cannot be believed and thus there are not sufficient facts to support the raised reasonable hypothesis, the Respondent contends. At first analysis such a conclusion is tempting. However, considering the oral and documentary evidence as a whole, as the Tribunal must, the Tribunal has to deal with the overall force of the evidence which is that smoking commenced on service, increased after the USS Evans’ collision in a period of non-eligible service and increased again or was aggravated during a period of operational service when Mr Monteith was on his first trip to Vietnam in 1971. The figures provided as to quantity do vary in the written and oral evidence. That is not unusual in this jurisdiction where veterans are required to recall circumstances some 25 or 30 years after the event. The legislation under section 119 of the Act allows for the vagaries of memory and the passage of time, but obviously not to the extent of asserting or inventing evidence as discussed in Repatriation Commission v Bey (1997) 79 FCR 364.
172. Mr Monteith’s clear evidence to the Tribunal is that his smoking increased after his first trip to Vietnam because of the stress he experienced. The Tribunal also considered the uncontested evidence of Mr J James (Exhibit A7, p35), who in his Statutory Declaration noted that he has known Mr Monteith for 32 years. Mr James noted a marked increase in cigarette consumption after the USS Evans’ incident and then again a further increase after Mr Monteith’s return from Vietnam. Mr James also noted an increase in Mr Monteith’s alcohol consumption to “intolerable levels” and which he continued later into his life.
173. Accordingly, the Tribunal finds that while there are inconsistencies in the smoking levels, these are not sufficient to convince the Tribunal beyond reasonable doubt that there are not sufficient facts to support the raised reasonable hypothesis. Thus, the Tribunal accepts and so finds that Mr Monteith had a war-caused smoking habit which continued for ten years at the rate of 7,300 cigarettes per year until the onset of chronic airflow limitation in the 1980s. Mr Monteith’s first trip to Vietnam in 1971 contributed to an increase in his smoking of cigarettes in a material way. Therefore, on all of the evidence, the Tribunal determines pursuant to subsection 120(1) of the Act, that the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient reason for determining that Mr Monteith’s chronic airflow limitation is war-caused. Mr Monteith is qualified accordingly for receipt of a Disability Pension for the condition of chronic airflow limitation with effect from 11 April 1997. The assessment of the correct rate of Disability Pension for this condition is remitted to the Repatriation Commission.
Diabetes Mellitus
174. It is difficult to determine the date of onset of Mr Monteith’s diabetes, which the Tribunal is reasonably satisfied is the correct diagnosis having considered all the evidence. Dr Grunstein reports on 1 July 1998 of a worsening of Mr Monteith’s symptoms in the last 12 months (T15, Bundle 2, p126). On 7 May 1998, Dr L J Day, Consultant Physician and cardiologist reported that “It is highly likely that he is diabetic, …” (Exhibit A9, p8). Dr Chia, General Practitioner, in his clinical notes has an entry on 17 May 1997, in which the blood sugar levels are reported to be 8.6 which is higher than the glucose concentration required in the diagnostic criteria in the relevant Statement of Principles, Instrument Number 82 of 1999, as amended by Instrument Numbers 9 of 2001 and 91 of 2001. Dr Chow in his report of 15 January 1997, (T7, Bundle 2, p108) notes no history of diabetes at that stage. Therefore, the Tribunal is reasonably satisfied that the onset of Mr Monteith’s diabetes occurred between May 1997 and July 1998.
175. The hypothesis which is contended is that Mr Monteith’s war-caused smoking habit caused his diabetes mellitus. This general hypothesis is at face value not fanciful, nor out of the realms of possibility. Pursuant to subsection 120(3) of the Act, turning to the relevant Statements of Principles, Factor 5(c) requires the smoking of at least ten pack-years of cigarettes or the equivalent in other tobacco products and where smoking has ceased, the clinical onset must have occurred within ten years of cessation. Mr Monteith ceased smoking in 1987 thus requiring the onset of diabetes mellitus by 1997. The Tribunal has already found that it is reasonably satisfied that Mr Monteith meets the diagnostic criteria for diabetes mellitus and that the onset, based on all the medical evidence, occurred between 1997 and 1998. The Tribunal has also determined that Mr Monteith’s smoking habit was increased or accelerated by his operational service, thus finding that he had a war-caused smoking habit based on the material contribution of operational service to the increase in his smoking. The Tribunal notes the decision in Kattenberg v Repatriation Commission (supra) in which Emmett J noted in that matter that the Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by Mr Kattenberg’s service or that it would not have occurred but for the rendering of that service. This has application to Mr Monteith’s circumstances. The Tribunal also notes the decision in Hutton v Repatriation Commission (1998) 49 ALD 8 at 12:
“In my opinion, in taking administrative decisions under the Act, it is inappropriate to take such a technical approach to decision-making. An administrative decision-maker is bound to deal with the substance of the matter in a sensible, efficient, administrative manner”.
176. In relation to facts sufficient to disprove the material contribution of operational service to Mr Monteith’s smoking habit to the level of ten pack years of cigarettes, in this case, this has been dealt with under the section for chronic airflow limitation. In terms of the onset of the diabetes mellitus which is at issue because of the need to have an onset within ten years of cessation of smoking, the Tribunal is not satisfied beyond reasonable doubt that there is sufficient evidence to disprove the facts supporting an onset of diabetes mellitus in 1997 given particularly the medical reports of Dr Chia, Dr Day and Dr Grunstein. Accordingly, the Tribunal concludes that pursuant to subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is not sufficient reason for determining that Mr Monteith’s diabetes mellitus was war-caused. Accordingly, Mr Monteith is entitled to Disability Pension for diabetes mellitus with effect from 21 September 1999. The issue of assessment of the correct rate of disability pension for diabetes mellitus is remitted to the Repatriation Commission.
Post Traumatic Stress Disorder
177. The Tribunal must first establish the diagnoses of post traumatic stress disorder to its reasonable satisfaction. The diagnostic criteria contained within the Statement of Principles, Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995 are taken from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). Part of the complexity of dealing with entitlement for post traumatic stress disorder is that the criteria to establish the diagnosis of the condition to the Tribunal’s reasonable satisfaction also forms part of the factor necessary to determine or establish a reasonable hypothesis. The use of the earlier Statement of Principles is required following the authority outlined in Repatriation Commission v Gorton (supra) which requires the application of the Statement of Principles in force at the time of the primary decision if there is some disadvantage to the Applicant by applying a later Statement of Principles.
178. Turning to the diagnostic criteria, the Tribunal accepts that Mr Monteith was exposed to a traumatic event in the form of a scare charge in which he experienced threatened severe injury and which invoked feelings of intense fear and helplessness. The Tribunal is thus satisfied that Statement of Principles diagnostic criteria 4(a)(i) and (ii) are satisfied. Considering diagnostic criteria 4(b) in terms of the traumatic event being persistently re-experienced, the Tribunal also is satisfied that Mr Monteith satisfies criteria 4(b)(ii) in that he experiences recurrent distressing dreams of the event. In relation to criteria 4(c), which deals with persistent avoidance of stimuli associated with the trauma, Mr Monteith must meet three of these criteria. While Mr Monteith asserts that he has markedly diminished interest or participation in significant activities and has feelings of detachment or estrangement from others and a restricted range of effect, his actions in being the Worshipful Master of the Mason Lodge and the Environment Officer for the 4-Wheel Drive Club in addition to working with the Police Boys Club, do not suggest any of the types of avoidance symptoms which are required. The psychiatrist supporting the diagnosis of post traumatic stress disorder did not seem to have been familiar with the various social and recreational activities in which Mr Monteith has been involved.
179. In terms of criteria 4(d), Mr Monteith does experience anger and has difficulty concentrating and with sleep. Satisfying the arousal symptoms diagnostic criteria cannot be enough however to allow a diagnosis of post traumatic stress disorder to be made by the Tribunal to its reasonable satisfaction when, on all of the evidence, the avoidance symptoms criteria are not met. It is understood by the Tribunal as opined by Dr Brown, that patients may not exhibit all of the symptoms of the diagnostic criteria of a particular condition and that this is possibly what has occurred with Mr Monteith. The Tribunal is however charged with a statutory responsibility of establishing a diagnosis within the framework of the Statement of Principles, if there is one. In this case, the Tribunal is of the view that Mr Monteith does not satisfy the diagnostic criteria of post traumatic stress disorder to the requisite level and hence with no diagnosis being established, the disorder cannot be considered to be war-caused.
Alcohol Abuse or Dependence
180. Having determined that post traumatic stress disorder is not the diagnosis of the psychiatric condition Mr Monteith suffers, the Tribunal turns to try to establish from the material it has, whether there is some other diagnosis which can be applied to his set of symptoms. This approach is required following the principles outlined in the Full Federal Court decision of Benjamin v Repatriation Commission (supra). In this regard, the Tribunal considers that it must examine whether or not the symptoms Mr Monteith suffers may indeed relate to a condition of alcohol dependence or abuse. This diagnosis has been accepted by the medical experts in this matter however, the issue of causation is contentious.
181. Associate Professor Mattick considers that Mr Monteith has mild alcohol dependence (Exhibit R2, p13). Dr Brown considers Mr Monteith has the condition of alcohol abuse (Exhibit A5), and similarly, Dr Samad and Dr Schultz (Exhibit R3) consider that Mr Monteith has alcohol abuse and alcohol dependence. The diagnostic criteria contained within the relevant and undisputed Statement of Principles, Instrument Number 5 of 1994, indicates that Mr Monteith has a maladaptive pattern of use of alcohol which is indicated by diagnostic criteria 4(a) where he has continued to use alcohol despite knowledge of having persistent or recurrent social, occupational, psychological or physical problems that are caused or have exacerbated by use of the substance. The preponderance of evidence from Mr Monteith and from medical and psychological opinion is that Mr Monteith has continued to drink when it is physically hazardous for him to do so. The consumption of alcohol has also impacted on Mr Monteith’s relationship with his family. Thus the Tribunal is reasonably satisfied and so finds that a diagnosis of alcohol dependence is established.
182. Having established a diagnosis of alcohol dependence to the Tribunal’s reasonable satisfaction, the Tribunal must determine whether or not this condition is linked to service. It is contended that the scare charge incident while Mr Monteith was serving in HMAS Sydney in Vietnam in 1971 has caused or materially contributed to Mr Monteith’s alcohol dependence problem. The material points to Mr Monteith increasing his alcohol consumption after the USS Evans incident which occurred during a period of non-eligible service, with a further increase in alcohol consumption in Vietnam while serving in HMAS Sydney after the scare charge incident on Mr Monteith’s first trip to Vietnam in 1971. The general hypothesis being put is not fanciful, illogical or beyond the realms of possibility.
183. The Tribunal turns then to consider subsection 120(3) of the Act to establish whether or not a reasonable hypothesis is raised consistent with a factor in the relevant Statement of Principles for psychoactive substance abuse or dependence. Factor 1(a) requires that Mr Monteith experienced a stressful event prior to the clinical onset of psychoactive substance abuse or dependence and the abuse or dependence is maintained post-service. A “stressful event” is defined as:
“…an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress”
184. The contention is that the scare charge was stressful to Mr Monteith. He experienced the loud sound whilst he was in the engine spaces. Mr Monteith feared for his life and fled to the outer decks, whereupon he then saw a deceased body floating past HMAS Sydney. Mr Monteith felt afraid, anxious and concerned for his physical well being. Later he experienced nightmares and he increased his drinking and smoking consumption. Further symptoms related to Mr Monteith not wanting to go back down into the boiler room nor go to sea on subsequent occasions. He also, from the Tribunal’s reading of the material, had discipline problems following the 1971 trip to Vietnam. The Tribunal considers that the material points to Factor 1(a) being met and accordingly a reasonable hypothesis has been raised pursuant to subsection 120(3) of the Act. The Tribunal’s task is then to find whether or not there are sufficient facts pursuant to subsection 120(1) of the Act to support the raised hypothesis.
185. The Respondent notes the varying details contained in the alcohol questionnaires and the shifting of emphasis by Mr Monteith from the causative influence of the USS Evans incident increasing Mr Monteith’s alcohol consumption to the emphasis on service in Vietnam causing an increase in the alcohol consumption of the Veteran. Mr Monteith’s increase in alcohol consumption following both the USS Evans incident and HMAS Sydney’s service in Vietnam is attested to by Mr James in his Statutory Declaration. Mr Monteith’s evidence is that he increased his drinking after the USS Evans incident and again following his 1971 trip to Vietnam in HMAS Sydney. Thus, the Tribunal notes Mr Monteith’s evidence that he drank four to six large cans of beer each night, “wiping himself out” and by 1994 he was consuming four or five cans of beer in addition to spirits. In late 1997, Mr Monteith undertook detoxification at St John of God hospital as noted by Dr Samad. The Tribunal considers that whilst there are, as with the smoking history, inconsistencies in the material and oral evidence, it accepts that there was an overall exacerbation or aggravation of Mr Monteith’s alcohol consumption materially contributed to by his service in Vietnam.
186. Considering the scare charge incident and sighting of the deceased body as a stressful event, it is clear from Mr Tilbrook’s report (Exhibit R6) that Operation Awkward measures were adopted when Australian ships were at anchor in hostile waters in Vietnam. These measures were adopted at various times and resulted in various states of alert. It is also confirmed by historical records and contemporaneous accounts that when at anchor, the engines were kept in a state of readiness in case there was a need to leave the area quickly because of threat of conflict. The Tribunal accepts that any noise heard above the engine noises would be very loud and significant. Furthermore, the fact that the fuel and water tanks were half-empty by the time HMAS Sydney arrived at Vung Tau, would have caused the noise to be exaggerated. This is attested to by the comments from Lieutenant Commander Fitzgerald and Commodore Helyer. Whether or not Mr Monteith knew about the scare charges as a general proposition is difficult to say. There is significant evidence that it was notoriously difficult to ensure stokers received information. Even if Mr Monteith did know that scare charges were released from time to time and was aware of Operation Awkward, it is clear from the evidence that the dropping of scare charges was random and even if Mr Monteith did have some general knowledge of such activities, he was not in a position to know precisely when the charge was to be detonated. As Mr Tilbrook reported, it was not possible for sailors below deck to anticipate the precise moment of explosion of a percussion grenade. Furthermore, any announcement made over the ship’s loud speaker system in the engine room spaces has also been confirmed as possibly not being heard by the stokers working in those engine room spaces. In this regard, Mr Tilbrook further noted that:
“It is accepted that sailors were posted at all times on duty watch below deck in the heart of the ship, and would have been at duty stations when “scare charges” were thrown. It is “possible” that those working in noisy spaces may not have clearly heard the piped announcements concerning the imminent dropping of percussion grenades (Exhibit R6, p9)”.
187. It is also clear from the evidence of Lieutenant Commander Fitzgerald (Exhibit R8, Attachment 1) and Commodore Helyer (Exhibit R7, Attachment 3) that a body dressed in military type uniform was seen floating past HMAS Sydney when she was at anchor in Vung Tau. Furthermore, as Mr Monteith was on board HMAS Sydney at this time, it was likely that Mr Monteith witnessed this body, Commodore Mulcare opined, having considered the evidence from Lieutenant Commander Fitzgerald and Commodore Helyer. Commodore Helyer noted that it was a ploy of Viet Kong to “booby trap” bodies with explosives and use them as floating mines. Commodore Helyer believed that the body was escorted away from HMAS Sydney and then blown up. As the ship’s Diving Officer, Lieutenant Commander Fitzgerald noted however that it was after a period of using scare charges when HMAS Sydney was at anchor at Vung Tau Harbour, that a body came to the surface upstream of HMAS Sydney and he inspected the body. Lieutenant Commander Fitzgerald stated that there were no explosives on the body but it was dressed in military uniform.
188. Thus the undisputed evidence is that a body did float past HMAS Sydney after a period of the use of scare charges when HMAS Sydney was at anchor. While Mr Monteith could not recall whether HMAS Sydney was tied up or not when he saw the body, his description of the idle engines is consistent with the ship being at anchor, but at the ready if the need arose to leave quickly. Certainly the body was seen when HMAS Sydney was at anchor and Mr Monteith reported seeing it after he abruptly left the engine spaces following hearing an explosion. The Tribunal finds that Mr Monteith experienced stress as a result of the explosion whilst he was in the machine spaces and that this was compounded by him immediately seeing the body when he went up on deck. Mr Monteith reports he had increased his drinking and smoking after this incident. The Tribunal finds that Mr Monteith’s individual reaction to the circumstances indicates that he experienced a stressful event which lead him to increase his alcohol consumption materially contributed to by that service in Vietnam. Mr Monteith increased his level of alcohol consumption and continued drinking at a high level over the years consistent with what he has reported and has been reported by medical and psychological experts. The fact that Mr Monteith increased his alcohol consumption after USS Evans cannot detract in the Tribunal’s view, from there being a further increase in alcohol consumption after Vietnam. There are not sufficient facts to disprove this sequence of events nor Mr Monteith’s reaction and symptoms as a result of the stress.
189. Again, there are variations in the drinking history but on Mr Monteith’s evidence and Mr James’ Statutory Declaration, the minor doubts the Tribunal has are not sufficient to allow it to decide against Mr Monteith so as to preclude the reasonable hypothesis beyond reasonable doubt.
190. The Tribunal is accordingly satisfied that the facts supporting the reasonable hypothesis are not disproved beyond reasonable doubt and thus, pursuant to subsection 120(1) of the Act, there is not sufficient ground to determine other than that Mr Monteith’s condition of alcohol dependence is war-caused. Accordingly, Mr Monteith is entitled to Disability Pension for the condition of alcohol dependence with effect from and including 11 April 1997. The matter of the assessment of the condition is remitted to the Repatriation Commission.
Hypertension
191. The Tribunal is reasonably satisfied that Mr Monteith has a condition correctly diagnosed as hypertension meeting the diagnostic criteria contained within the agreed Statement of Principles, Instrument Number 25 of 1999. In this regard, the Tribunal notes Dr Chow’s report dated 15 January 1997 (T10, Bundle 1, p60) and Dr Chia’s report of 16 October 1999 (T20, Bundle 1, p104). The onset of hypertension is noted by Dr Chia to be May 1997 (T20, Bundle 1, p98).
192. The general hypothesis being put is that alcohol dependence involving the consumption of 200 grams per week of alcohol at the time of the onset of hypertension which the Tribunal is reasonably satisfied occurred in May 1997 (Factor 5(b)). It was in 1997 that Mr Monteith entered detoxification at St. John of God Hospital. Mr Monteith was drinking four or five bottles of home brew beer per day at that time. Associate Professor Mattick noted that Mr Monteith satisfied the requirement for alcohol abuse ingesting 200 grams of alcohol per week or ten grams per standard drink that requirement being 20 standard drinks per week. Mr Monteith’s alcohol consumption on the material available to the Tribunal would meet this and furthermore, material suggests that doctors considered he qualified for a diagnosis of either alcohol dependence or abuse. The Tribunal notes Dr Samad’s clinical notes and a report of 7 October 1997 which reports that Mr Monteith was “successfully detoxed” in hospital (Exhibit A9, p13). Furthermore, notes of Dr Samad in Exhibit A10 indicate alcohol consumption at an abusive level in August 1997.
193. Of course it is difficult to arrive at a precise appreciation of the quantity of alcohol consumed by Mr Monteith but the material certainly points to detoxification in October 1997 which further supports the criteria required for alcohol dependence or abuse. In such circumstances, the Tribunal is of the view that the requirements of Factor 5(b) are met and thus the material raises a reasonable hypothesis within the requirements of subsection 120(3) of the Act. Accordingly, the Tribunal now considers the application of subsection 120(1) of the Act to determine whether it can accept sufficient of the facts as are necessary to support this raised hypothesis.
194. As the Tribunal has noted previously, there are inconsistencies in the evidence concerning matters such as alcohol and tobacco consumption. The Tribunal has already accepted that Mr Monteith has a war-caused alcohol dependence condition. In terms of there being alcohol dependence to the level of at least 200 grams of alcohol per week at the time of accurate determination of hypertension, which in this case is in May 1997, the Tribunal relies on the evidence at hearing provided by Mr Monteith, supported by the Statutory Declaration of Mr James and the medical reports and opinions contained within the material. Considering the report of Associate Professor Mattick, who while finding it difficult to believe Mr Monteith, accepts that there is alcohol dependence but not causally related to Mr Monteith’s service, the Tribunal must make its determination based on an appreciation of all of the evidence and material and applying the law to the requisite standard of proof. Associate Professor Mattick decided that he could not believe Mr Monteith. The Tribunal very carefully considered all the material. The standard of proof required is that the Tribunal must be satisfied beyond reasonable doubt, that there are sufficient facts in the material which point to the reasonable hypothesis and which have not, despite some doubts, been disproved.
195. The Tribunal has already noted that it is difficult in such matters to deal with events which occurred on service some 30 or more years ago. In terms of the clinical onset of conditions such as hypertension, and trying to assess at the precise time of onset, what level of alcohol has been consumed, requires a complex responsibility on decision-makers. In making administrative decisions about such matters, while applying the requisite standard of proof, the Tribunal considers that its task should allow a realistic and practical interpretation of the material. In all of the circumstances, the Tribunal finds that pursuant to subsection 120(1) of the Act, while there are some doubts which have been pointed to by the Respondent and by various experts, these doubts do not allow the Tribunal to determine other than it is not satisfied beyond reasonable doubt that there is no sufficient reason for deciding that Mr Monteith has a war-caused disability of hypertension and is qualified to receive a Disability Pension for that condition with effect from and including 17 June 1997. The assessment of that condition is remitted to the Repatriation Commission.
196. In conclusion, for all of the reasons set out above and considering all of the evidence, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 to:
(i)Set aside the decisions under review in relation to chronic airflow limitation, diabetes mellitus, post traumatic stress disorder with alcohol dependence and substitute its decision that the conditions of chronic airflow limitation and alcohol dependence are war-caused and Disability Pension for these conditions is payable with effect from and including 11 April 1997. The condition of diabetes mellitus is war-caused with effect from and including 21 September 1999. The condition of hypertension is war-caused with Disability Pension being payable from and including 17 June 1997.
(ii)The decision under review in relation to post traumatic stress disorder is affirmed.
I certify that the 196 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member
Signed: .......................................................................................
AssociateDates of Hearing 11,12 and 15 February 2002; 22 and 23 July 2002; 24 September 2002
Date of Decision 11 April 2003
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Ms J Buss, Legal Aid Commission of NSW
Counsel for the Respondent Miss R HendersonSolicitor for the Respondent Ms Angela Nanson, Australian Government Solicitor
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