Mulvaney and Repatriation Commission (Veterans' entitlements) - [2018] AATA 4358

Mulvaney and Repatriation Commission (Veterans' entitlements) [2018] AATA 4358 (22 November 2018)
Division:VETERANS’ APPEALS DIVISION
File Number: 2017/2288
Re:Stephen Mulvaney
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:22 November 2018
Place:Perth

The Reviewable Decision dated 13 March 2017 is affirmed.
............[sgd]............................................................
Member L M Gallagher
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – Veterans’ Entitlements Act 1986 (Cth) – defence service – motor bike accident – whether Applicant exposed to a traumatic event – whether Applicant suffers from post-traumatic stress disorder – whether Applicant suffers from alcohol use disorder – veracity and reliability of lay evidence – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)
Military Compensation Act 1994 (Cth)
Veterans’ Entitlements Act 1986(Cth) – s 5D(1), s 34, s 68(1), s 68(1)(a), s 70(1),
s 70(5)(a), s 70(5)(b), s 120(4), s 120(5), s 120B(3), s 135, s 175(1)
CASES
Bloomer and Repatriation Commission [2018] AATA 6672
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Warren [2008] FCAFC 64
Summers v Repatriation Commission (2012) 130 ALD 32
Williams and Repatriation Commission (Veterans’ entitlements) [2018] AATA 3015
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Member L M Gallagher
22 November 2018
BACKGROUND

Mr Mulvaney is 62 years old. He enlisted in the Royal Australian Navy (“RAN”) on 10 April 1972 and was discharged on 21 December 1992 (R3, T57).
Mr Mulvaney completed eligible service, being “defence service” as defined under subsection 68(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”), from 7 December 1972 to 21 December 1992 (R3, T57).
On 12 January 2015, Mr Mulvaney lodged a claim for disability pension for:
(a)osteoarthritis of the left knee;
(b)chrondromalacia patella of the left knee;
(c)sensorineural hearing loss;
(d)tinnitus;
(e)lumbar spondylosis and mild disc degeneration at L3-4, L4-5 and L5-S1;
(f)non melanotic malignant neoplasm of the skin;
(g)rotator cuff syndrome of the right shoulder;
(h)gastro-oesophageal reflux disease (“GORD”);
(i)post-traumatic stress disorder (“PTSD”); and
(j)alcohol use disorder
(R3, T7 and T35).
On 12 March 2015, Dr Megan Gilbert, Consultant Psychiatrist, provided a report at the request of the Department of Veterans’ Affairs (“DVA”) (R3, T19). In her report, Dr Gilbert diagnosed Mr Mulvaney with PTSD and alcohol abuse. In Dr Gilbert’s view, both of Mr Mulvaney’s “problems” were a direct consequence of a motor bike accident (“MBA”) that he had in Melbourne in 1983 whilst in his navy training (R3, T19, page 73).
On 10 December 2015, a delegate of the Repatriation Commission made a determination relating to the acceptance of the claimed conditions set out at subparagraphs 3(a) to 3(g) above (R3, T35). In its determination, the Repatriation Commission rejected liability for the claimed conditions of GORD, PTSD and alcohol use disorder on the basis that they were not related to Mr Mulvaney’s eligible service under the VEA. That is, the Repatriation Commission was of the view that Mr Mulvaney’s GORD, PTSD and alcohol use disorder were not defence-caused for the purposes of the VEA.
On 12 January 2016, Mr Mulvaney requested a reconsideration of the determination dated 10 December 2015 in relation to his GORD, PTSD and alcohol use disorder (R3, T38).
On 13 March 2017, the Veterans’ Review Board (“VRB”) affirmed the Repatriation Commission’s determination dated 10 March 2015 (“the Reviewable Decision”) (R3, T52).
In the Reviewable Decision dated 13 March 2017, the VRB addressed a preliminary contention made by Mr Mulvaney. Mr Mulvaney had said that an email sent to him on 30 November 2015 from a Departmental officer, which stated, among other things, “I have accepted all conditions of your claim”, constituted a published decision in relation to his claim (T52, page 275). Mr Mulvaney contended that therefore, the Repatriation Commission’s determination dated 10 March 2015 could not stand and, it seemed to the VRB, that it was in turn bound to find that Mr Mulvaney’s GORD, PTSD and alcohol use disorder were service related. The VRB concluded that the email was not in accordance with section 34 of the VEA, which prescribes the manner in which the Repatriation Commission must record and serve its decisions, and therefore, the email did not constitute a decision and otherwise did not have any effect on the issues before it (R3, T52, page 276).
On 21 April 2017, Mr Mulvaney applied to the General Division of the Administrative Appeals Tribunal (“Tribunal”) for review of the Reviewable Decision (R3, T2). The Tribunal notes that Mr Mulvaney has sought review of the Reviewable Decision as it relates to his claimed PTSD and alcohol use disorder. Mr Mulvaney has not sought review of the Reviewable Decision as it relates to his GORD and therefore, it is unnecessary for the Tribunal to address it in its decision.
ISSUES BEFORE THE TRIBUNAL
The issues for determination by the Tribunal are:
PTSD
(a)whether Mr Mulvaney suffers from PTSD; and, if so,
(b)whether it can be reasonably satisfied that Mr Mulvaney’s PTSD is defence-caused; and
Alcohol use disorder
(a)whether Mr Mulvaney suffers from alcohol use disorder; and, if so,
(b)whether it can be reasonably satisfied that Mr Mulvaney’s alcohol use disorder is defence-caused.
The Tribunal notes that only when it is established that Mr Mulvaney suffers from the disorder/s claimed that the issue of whether they were defence-caused falls for consideration. As the Tribunal has concluded below that it does not have sufficient evidence before it that Mr Mulvaney suffers from PTSD or alcohol use disorder (or any other relevant condition), the Tribunal has not addressed the legislation or Statement of Principles (“SOPs”) nor considered the issues relevant to whether these “diseases” (as defined in subsection 5D(1) of the VEA) are defence-caused within the meaning of the VEA. In the circumstances, it is not required to do so (refer to paragraphs 21 and 22 below). Nevertheless, the Tribunal has, at times, set out the facts as they relate to the matters going to causation in order to preserve the chronology and completeness of the factual picture.
JURISDICTION
Subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the jurisdiction of the Tribunal is given to it by other “enactments” which grant the Tribunal jurisdiction to review certain decisions made under those enactments.
Subsection 175(1) of the VEA gives the Tribunal the jurisdiction to review a decision of the VRB, if a decision of the Repatriation Commission has been reviewed by the VRB, upon an application made under section 135 of the VEA (being an application for review of a decision in respect of a claim for a pension) and either the Board affirms or varies the decision.
Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable Decision.
LEGISLATION AND GENERAL PRINCIPLES
Subsection 68(1)(a) of the VEA defines “defence service” as including continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date.[1]
[1] Subsection 68(1) of the VEA defines the “terminating date” as the date on which the Military Compensation Act 1994 (Cth) commenced, being 7 April 1994.
Subsection 70(1) of the VEA provides that a pension is payable to a veteran who is incapacitated by a defence-caused injury or a defence-caused disease.
Subsection 5D(1) of the VEA defines “disease” as:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;…
As to whether a veteran suffers from a “disease” for the purposes of the VEA, a decision-maker is first obliged to examine the collection of symptoms of which the veteran complains to determine whether, according to the standard of “reasonable satisfaction” set by subsection 120(4) of the VEA, they constitute a disease for the purposes of entitling a veteran to a pension (Repatriation Commission v Bawden (2012) 206 FCR 296 [“the Bawden decision”] at [43]).
The issue of diagnosis of a particular condition is a question of fact (Summers v Repatriation Commission (2012) 130 ALD 32).
While there is no onus on a veteran to attach a label to the disease or injury manifested in his or her symptoms, if the disease or injury is alleged to be, for example, PTSD, the question of diagnosis is squarely raised and must be resolved (the Bawden decision at [45]).
The Tribunal is not required to apply the definition of a particular disorder set out in the relevant SOP to determine the existence of that claimed disorder or how it should be described (Williams and Repatriation Commission (Veterans’ entitlements) [2018] AATA 3015 (17 August 2018) at [15]).
In Repatriation Commission v Warren (2007) 95 ALD 606 (‘the Warren decision’)[2], Kiefel J stated:
[24] The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be ‘those specified in DSM-IV, and are as follows’. The criteria are intended as part of the definition for the purpose of the application of the SoP.
[25] The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
[26] The applicant’s case must, therefore, be that it is to be inferred, as a matter of statutory construction, that the SoP diagnostic criteria are to be applied to a finding with respect to the anterior statutory question…the anterior question is separate from that as to whether the SoP applies…
[27] It may be inferred that the SoP were written upon an assumption that if a veteran was found to be suffering from a condition classified by DSM-IV, a diagnosis in accordance with that manual would have been made. It was intended that the SoP apply where such a diagnosis was made. This assumption, of correspondence, might suggest the application of the SoP criteria in relation to the finding of the existence of the condition. There is, however, one difficulty with that approach. It is DSM-IV as a whole which will inform a clinical diagnosis, upon which a finding will be based. The manual itself explains that there is more to a diagnosis than the application of the criteria in a ‘cookbook’ fashion. A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition. DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience. In some cases the SoP criteria may not, therefore, be met.
[28] It cannot be inferred that the SoP were drawn on the basis of some misunderstanding as to the application of DSM-IV. They were drawn by reference to it. It could not, therefore, have been intended that the strict application of the criteria summarised in the SoP definition was to be a requirement of, or a substitute for, a proper clinical diagnosis. The threshold question in each case will be whether the diagnosis was one properly made, having regard to DSM-IV. Because clinical judgment is involved, differences of opinion may arise. They will need to be resolved by the tribunal on the materials before it.
[Emphasis added.]
[2] The Warren decision was affirmed on appeal to the Full Court (Repatriation Commission v Warren [2008] FCAFC 64).
Subsections 70(5)(a) and 70(5)(b) of the VEA relevantly provide that a disease contracted by a member of the Forces (being a person who has completed defence service) shall be taken to be a defence-caused disease, if the disease:
(a)arose out of, or was attributable to, any defence service of the member; or
(b)resulted from an accident that occurred while the member was travelling during any defence service but otherwise than in the course of duty, for the purpose of performing duty or away from a place upon having ceased to perform duty;
and, in the opinion of the Repatriation Commission, the disease was contributed to, in a material degree, by any defence service.
The Tribunal is not entitled to presume that a disease contracted by a person is a defence-caused disease (subsection 120(5) of the VEA).
Rather, the Tribunal shall determine the issues of whether a person’s disease is defence caused to its reasonable satisfaction (subsection 120(4) of the VEA).
In applying subsection 120(4) of the VEA to determine a claim, the Tribunal is to be reasonably satisfied that a disease contracted by a person is defence-caused only if, relevantly:
(a)the material before the Tribunal raises a connection between the disease and some particular service rendered by the person; and
(b)there is in force a SOP that upholds the contention that the disease is, on the balance of probabilities, connected with that service
(subsection 120B(3) of the VEA).
EVIDENCE
The matter was heard in Perth on 9 and 10 May 2018. Mr Mulvaney appeared in person and was represented by Mr Robert Wood, an advocate from the Busselton RSL. Mr Wood was assisted by Ms Beverley Streeter. The Repatriation Commission was represented by Ms Allyson Ladhams from the Australian Government Solicitor (“AGS”).
Evidence before the Tribunal
The Tribunal received the following evidence:
·     Applicant’s Statement of Facts, Issues and Contentions (“SFICs”), dated 21 August 2017 (“A1”);
·     Report of Dr Megan Gilbert, Consultant Psychiatrist, dated 28 June 2017 (“A2”);
·     Letter from Dr Gilbert, dated 12 February 2018 (“A3”);
·     Applicant’s submission to the VRB, dated 27 October 2016 (“A4”);
·     Transcript of VRB hearing on 10 November 2016 (“A5”);
·     Transcript of VRB hearing on 13 March 2017 (“A6”);
·     Statutory Declaration of Mr Peter Pigram, dated 26 April 2018 (“A7”);
·     Copy of map printed from Google Maps (“A8”);
·     Applicant’s record of visit to Dr Lawrence Terace, Consultant Psychiatrist, dated 31 January 2018 (“A9”);
·     Applicant’s emails of various dates (“A10”);
·     Respondent’s Statement of Facts, Issues and Contentions (“SFICs”), dated 23 March 2018, with annexures 1 to 4 (“R1”);
·     Dr Terace’s report, dated 3 November 2017, together with a briefing letter prepared by the AGS dated 6 October 2017, with attachments (“R2”);
·     A 415 page set of T-Documents (T1 – T57) (“R3”);
·     Briefing letter and referral letters to Dr Gilbert (4), of various dates (“R4”);
·     Dr Gilbert’s report, dated 12 March 2015 (“R5”); and
·     Curriculum Vitae of Dr Terace (“R6”).
The following additional material was put before the Tribunal following the hearing in accordance with the Tribunal’s directions:
·     Applicant’s further emails of various dates (not forming part of A10)[3];
·     Applicant’s written closing submissions dated 22 June 2018;
·     Respondent’s written closing submissions dated 31 July 2018; and
·     Applicant’s responsive written closing submissions dated 9 August 2018.
[3] See also paragraph 99 below and related footnote numbered 13.
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided with an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
Documentary evidence
Mr Mulvaney’s statements
Mr Mulvaney’s statement dated 2 January 2015 reads in its entirety as follows (R3, T9):
In 1983 I was studying Electronics at the Royal Melbourne Institute of Technology (RMIT) on a full time basis as part of my duties in the Royal Australian Navy. Whilst travelling from home to RMIT via the most direct route I was knocked off my motor bike by a motor car, landing on my back on the road. The driver of the vehicle, not realising that he had hit me, continued driving and ran over my left arm, narrowly missing my head. I thought he was going to run over my head and kill me and was in fear of my life. After the accident, even though I had scratches, abrasions and pain in my arm, back and was limping I did not visit the sick bay at HMAS Lonsdale because of the distance and decided to continue on, on the back of my friends motor bike, firstly to report the accident to the police, and secondly to get to lectures at RMIT. As I recall I reported the accident and injury to a LCDR who was our liaison at RMIT. I do not recall his name, and am not 100% certain I reported to him. Even though I suffered quite sever (sic) pain for the next 3 weeks to a month, I self-medicated with aspirin and the pain eventually subsided.
The driver of the motor car which hit me, … [Mr C],[4] paid for the replacement cost of [indistinct] motorcycle, jacket and helmet which were all destroyed in the accident. I subsequently made a claim against … [Mr C] for the injuries I had received. The case was heard in the County Court of Victoria at Melbourne. I was represented by Maurice Blackburn &Co (sic), Barristers and Solicitors and … [Mr C] was represented by John Mathies and Co, Solicitors. Copies of Interrogatories of the defendant and my answers are included with this Application for Disability Pension. These answers indicate the details of my injuries in the accident and the subsequent treatment I received over a number of years.
Since the time of the accident I regularly have flash backs to the accident which cause me great anxiety. I often have dreams of the accident. Which also cause me great anxiety and I awake in a cold sweat, usually being unable to get back to sleep.
After the accident which occurred about half way through my RMIT studies I would regularly spend the afternoon in the Oxford Hotel across the road from RMIT, instead of attending lectures of laboratory sessions. I would regularly drive home, a distance of about 40kms, under the influence of alcohol. Luckily I was never tested by the police, nor did I have an accident. I believe that even though I completed my course and received a degree, my results were much worse than they would have been, had I not commenced to drink so heavily. The drinking habit was further contributed to by the service culture, in particular when I was appointed to commissioned rank and joined the Wardroom, where alcohol was freely available during lunch times, after work and Wardroom functions.
This drinking habit continued to the present day, to the extent that on 2 December 2014 my employment was terminated due to the fact I tested positive for alcohol at the start of day shift.
[Original emphasis.]
[4] The Tribunal is aware of the claimed identity of the driver of the motor vehicle, but has removed the driver’s name for the reason that it is unnecessary to include it. Hence, the driver will be referred to as “Mr C”.

Mr Mulvaney’s statement dated 5 January 2015 states (R3, T10):
Alcohol Statement by S J Mulvaney dated 05 January 2015
I was recently dismissed from my position as a contract Engineer due to testing positive to alcohol at 5:30am prior to the start of my shift. I have tested positive on at least one previous occasion, however this only resulted in a written warning. On a number of occasions when I know I have drunk to excess the previous night, I have managed to avoid the testing.
Even though I knew the presence of alcohol in my system would result in my dismissal, I was unable to control my urge to drink. Drinking 4-5 cans of full strength beer and 1 to 1 ½ bottles of red wine seem to have little or no effect on my level of sobriety. Even though I know the dangers of drinking alcohol to excess, I have been unable to reduce my alcohol intake.
I drink every day, and this can cause arguments and fights with my wife, to the point it threatens my marriage.
[Original emphasis.]
Mr Mulvaney’s email to the DVA responding to a request for additional information reads as follows (R3, T25):
Hi Stephen,
Unfortunately, because of the time involved, I don’t remember the date of the accident. I have, however, tracked down my mate Menno Zwerwer. We were both Leading Seamen at the time, he later retired from the RAN last October as a Commander. I have emailed him and asked if he could provide details corroborating my version of events, as outlined in my claim.
The best I can provide as far as the bellow (sic) questions are:
Date and time of accident? 1983, but unsure as to the exact date.
Date accident reported? On the date of the accident to my Divisional Officer. He was a LCDR schoolie posted to [indistinct] record it on my file at the time. I can probably go through my old files and possibly find his name. however, the Navy sh (sic) he was the student liaison officer at RMIT in 1983.
To who was incident reported? Military or civilian police? My Divisional Officer, I cannot recall his name, but he was a [indistinct] responsible for the Naval Personnel studying at the time.
Location of accident? Defence property or civilian road? Civilian road, La Trobe Street in the direction of RMIT.
Was the vehicle involved civilian or military? Civilian, my motor cycle.
Who else was involved? … [Mr C], the driver of the vehicle which ran me over.
From the correspondence between myself and the lawyers, I believe the following occurred, however I have no memory. I attended the surgery of Dr Suss in North Melbourne on the morning of the accident, prior to resuming my lectures at [indistinct]
My left arm and right knee were x-rayed. I have no record of the results, but my response to the lawyers interrogatories
I hope the above information assists you in your queries.
Mr Mulvaney’s service records
A clinical record dated 21 September 1988 states (R3, T57, page 396):
This 32 year old officer was involved in a MBA[5] which left him with a lacerated (L) knee cap. He required approx. 12 sutures to the wound at Rockingham Hospital last night.
[5] There is no reference in Mr Mulvaney’s service records of Mr Mulvaney having been involved in a MBA in 1983, or having taken any sick leave in 1983 or 1984. The Tribunal notes that Mr Mulvaney has also given evidence that he had a week off after the 1983 MBA (refer to paragraph 46 below).
In his Discharge Health Statement dated 16 November 1992, Mr Mulvaney gives a series of answers to questions put, relevantly as follows (R3, T57, pages 392 and 393):
Do you suffer from any illness or injury at the present time?
No, Occasional indigestion and lower back pain.
Have you suffered any disabilities during your service?
Yes
If ‘Yes’, list them together with approximate dates of onset and location at the time.
Motorcycle accident in 1984 – Back & right shoulder trouble.
Motorcycle accident in 1988 – Left knee problems.
Have you made a claim under Commonwealth Employees Compensation or Repatriation Act or received insurance for any of the above conditions
Yes
If ‘Yes’, give brief details and whether the claims were accepted and have been finally settled
Motor vehicle insurance compensation as a result of the 1984 accident.
Mr Zwerwer’s statement
Mr Zwerwer’s statement dated 11 June 2015 states (R3, T26):
As per my conversation with Stephen Mulvaney, I am writing to confirm the details of a motor cycle accident which I witnessed in 1983.
At the time of the accident, Stephen and I were both in the Royal Australian Navy undertaking study towards our engineering degrees at the Royal Melbourne Institute of Technology (RMIT) and were in our second year of our studies there (1983). This was our normal place of duty and on the day of the accident, we were required to attend lectures and tutorials.
We both lived in the western suburbs of Melbourne, and regularly travelled together on our motor bikes to RMIT. As we were travelling north east along Latrobe Street in the direction of RMIT, a motorist coming in the opposite direction to us turned across the path of Stephen Mulvaney. Stephen hit the left front fender of the car and was catapulted across the bonnet. The motorist then continued executing his U-turn, and drove over Stephen’s left arm. I was travelling a few meters behind Stephen at the time and witnessed the entire incident. At the time I believed Stephen to be dead.
When I got to the accident scene, I realised Stephen was alive, albeit in a degree of pain. Stephen’s motor cycle was a complete write-off, and with the assistance of the other motorist, we eventually went to the North Melbourne police station where we completed an accident report. Although in obvious pain, Stephen insisted we continue on to RMIT, where we reported the incident to our Divisional Officer, before attending normal lectures.
[Emphasis added.]
Mr Pigrim’s statement
Mr Pigrim’s Statutory Declaration dated 26 April 2018 states (A7):
… I was a Leading Seaman Electronic Technical Systems of the Royal Australian Navy (RAN) and once studied for a Bachelor of Communication (Electronics) at the Royal Melbourne Institute of Technology, (RMIT) at the same time as Leading Seaman Stephen J. Mulvaney. Stephen Mulvaney contacted me recently in order for me to verify, in writing, my account of the details of a motorcycle accident he had whilst we were at RMIT. Following is my account of that day. While I do not recall the date of the accident, I can certainly confirm that it happened one morning when Stephen was on his way to RMIT from his home in the Werribee area. I recall this clearly because we all parked our motorcyles in the same area at RMIT (as it was just outside the RAN Liaison Office. This particular morning, his motorcycle and that of Leading Seaman Menno Zwerwer, also a fellow student and member of the RAN, were missing from their parking spaces. This was surprising as they almost always beat myself and my fellow colleagues to the best parking spaces – so I took one of their spaces that day (closer to the exit).
At the time of the accident we three were of course members of the Royal Australian Navy and undertaking study towards our engineering degree at RMIT. RMIT (now a University and then and (sic) Institute of Technology) was our normal place of duty and on the day of the accident, we were required to attend lectures and tutorials as per our class schedules. This time was well before the advent of the mobile telephone and so we know nothing until later in the day as to what had happened. I recall that both Stephen and Menno had missed the morning lectures, and it was when they arrived at RMIT and reported the accident to our RAN Liaison Officer, a Lieutenant Commander (whose name I cannot recall at this time) that we learned what had happened – and Menno had witnessed the accident (as he had been riding behind Stephen when the accident happened). Stephen was in a fair amount of pain and had been to see a doctor who sent him to a hospital for X-rays. I do not recall if Stephen was hospitalised or not. The nearest naval bases and to which base we were attached, HMAS Lonsdale, is in South Melbourne and RMIT is in central Melbourne. Therefore because of the distance to the Lonsdale medical centre and due to his pain, Stephen was told to attend a local civilian doctor.
At our Liaison Office, Stephen and Menno described the accident to myself and a number of other naval students studying at RMIT at the time – which left us all in no doubt that this was actually quite a serious accident. I recall the details of Stephen’s accident very clearly, as only a few months earlier I had been a pillion passenger on a friend’s motorcycle and a motorist too had caused us to collide with her vehicle through no fault of I or my friend. The woman driver in my case had made an illegal lane change without indicating and had also failed to stop. Luckily we were both able to roll out of the way before the woman had driven over our legs, unlike what happened to Stephen as follows. Stephen at the time of the accident, with Menno, had been travelling along Latrobe Street in the direction of RMIT. A motorist coming in the opposite direction to Stephen and Menno had suddenly turned across the path of Stephen. His motorcycle hit the left front fender of the car and he was thrown off his motorcycle and across the bonnet of the car. The motorist did not stop, but continued executing a U-Turn, and in which action, having failed to stop, he then went on to drive his car over and across Stephen’s left arm!
Menno told me that at that time he thought Stephen had been killed as Stephen was slumped on the road with his motorcycle looking to be completely written-off.
Thankfully Stephen was not dead and though badly injured and in a lot of pain. Stephen after recovery had to use public transport for a number of weeks until he organised a replacement ride to RMIT for lessons.
[Emphasis added.]
Dr Gilbert’s reports
In her initial report dated 12 March 2015, Dr Gilbert reports the following account given by Mr Mulvaney regarding his 1983 MBA following her three consultations with him prior to the report (R5):
…Mr Mulvaney dates the onset of his problems to a significant motor bike accident that he had in Melbourne in his second year of training at the RMIT in 1983 whilst he was in the navy. He said that he was studying electronics and was travelling home via the most direct route when he was knocked off his motorbike by a car. He landed on the road and the driver of the vehicle who had not realised he had knocked him off his bike, ran over his left arm, narrowly missing his head. At the time Mr Mulvaney thought he was going to die as did his friend who had been travelling behind him on his own motorbike.
Mr Mulvaney suffered abrasions and scratches, back pain and damage to his left arm.
Since that time Mr Mulvaney said he started to drink heavily…
In addition to his alcohol problem Mr Mulvaney states that he has flashbacks on a regular basis that relate to his motorbike accident. He has middle insomnia and often wakes after having disturbing dreams which relate to both the motor bike experience and other experiences he had in the navy. He also states he had problems with concentration and his temper is a problem. This again dates back to after the accident…
[Emphasis added.]
In her report dated 23 November 2016, Dr Gilbert states, in part (R3, T49):
As you are aware, I have been seeing Steven (sic) [Mulvaney] since February 2015 at which point a diagnosis of Post Traumatic Stress Disorder and Alcohol Use Disorder was made. There is no doubt in my mind that Steven’s PTSD started soon after the motor bike accident that he was involved in in his second year of training at the RMIT in 1983. Furthermore, there is certainly no doubt in my mind that his drinking occurred in response to symptoms that he was having from this at that time. It is my opinion that Steven was abusing alcohol in an attempt to symptomatically treat these symptoms. Notably as a consequence of this his performance at university from this point started to drop off.
Dr Gilbert reiterated the view expressed in her report extracted at paragraph 39 above, in her later report dated 28 June 2017 (A2), as follows:
As I have said previously Mr Mulvaney started to develop PTSD soon after the motor bike accident that he was involved in in his second year of training at the RMIT in 1983. In response to the symptoms, and therefore within weeks of him developing these symptoms, he started to abuse alcohol to symptomatically treat these symptoms.
In her further report dated 12 February 2018, Dr Gilbert states, in part (A3):
I have continued to see Mr Mulvaney since my original assessment on a monthly basis and my assessment of his situation has not changed. I have no doubt that he has Post Traumatic Stress Disorder and Alcohol Use Disorder. He has been compliant with treatment over this period of time and as part of this treatment we have reviewed various aspects of the stressor that precipitated his problem and there has [sic] never been any inconsistences in his story. As such, I do not doubt the validity of the information. I am not going to reiterate details pertaining to this nor am I going to debate the issues that were raised by other psychiatrists. Because I have been seeing Mr Mulvaney over an extended period of time I have the benefit of having a longitudinal perspective which gives me greater insight into aspects pertaining to Mr Mulvaney’s personality which further supports my assessment that his story is as he remembers it. In regard to the issue that you [Mr Wood] raise with intercurrent factors such as his mother’s death and the break-up of his marriage, clearly these situations are stresses [sic] and can act as aggravators but clearly his symptomatology is that of Post Traumatic Stress Disorder as a consequence of the accident in that his intrusive phenomena such as flashbacks and nightmares pertain to the accident.
[Emphasis added.]
Dr Terace’s report
The Tribunal notes in particular the following matters addressed in Dr Terace’s report dated 3 November 2017 (R2):
1Has the applicant suffered from PTSD and/or any identifiable psychiatric or psychological condition? If yes:
1.1     what is your diagnosis of the condition.
1.In my opinion, the psychiatric diagnosis in this case is based on Mr Mulvaney’s subjective descriptions and one would have to assume the complete veracity of Mr Mulvaney’s history alone, because I found no objective signs.
2.Furthermore, I was concerned that Mr Mulvaney described termination of his contract on the basis of testing positive for alcohol at 5.30am in late 2014.
3.I was further concerned that Mr Mulvaney provided a history that he did not seek treatment except in the context of lodging a claim through an Advocate from the Busselton RSL which reportedly began, according to this interview, approximating 3 years ago in January 2015.
4.Therefore, veracity becomes absolutely essential in determining the diagnosis in this case, and I am caused to have serious concerns on the basis of the presentation and your comments in your letter of instruction dated 6 October 2017.
1.2please provide a description of the diagnostic criteria used and met, along with the symptoms that the applicant presented with, that assisted you in reaching the diagnosis. In the event that you were to make a diagnosis of PTSD, please explain how you consider criteria A to H in SOP No. 83 of 2014 was met by the applicant.
1.I refer to my comments in the aforementioned and accept, however, that truth is a legal issue.
2.If I am compelled to accept Mr Mulvaney’s history provided from the interview alone, then he has effectively met the diagnostic criteria within the DSM-V nomenclature for –
2.1     A Post-Traumatic Stress Disorder (which appears to be relatively mild in severity) and –
2.2     Alcohol Use Disorder.
3.He has effectively ticked the correct boxes if we simply rely upon a check-list approach for the diagnostic criteria of the DSM-V nomenclature.
4.This does not, on its own, mean that he truly suffers from these disorders, and as stated, it is only if I accept the simple veracity of his history from the interview about his beliefs and do not consider any other factors.
5.The diagnostic criteria for a Post-Traumatic Stress Disorder are described in the DSM-5.
6.However, I cannot be certain, and nor do I have sufficient evidence, that it is more likely than not that the accident the subject of this claim was the causative event of the alleged Post-Traumatic Stress Disorder, particularly given the description by yourself in your letter of instruction dated 6 October 2017, of another motor vehicle accident.
7.…
9.One of the essential problems of the diagnosis of a Post- Traumatic Stress Disorder is that most of the symptoms are fairly non-specific and can occur in a range of psychological disorders and psychological states. A Psychiatrist is thus compelled (sic) have some index of suspicion when a claim presents of a Post-Traumatic Stress Disorder in the context of a compensation claim, in the absence of a history, or history of treatment prior to that time, or prior to the lodgement of the claim after so many years.
10.For example, Mr Mulvaney presents with a history of developmental issues in which his youngest brother drowned as an infant, although he did not witness the event and described himself as belittled by his father, such that he was already psychologically vulnerable to further psychological symptoms.
11.…
13.The problem is that a potential chain of causation is broken and confounded and complicated by other factors which include –
…
13.3   He denied dissociative flashbacks but claims post-traumatic nightmares 3-4 times per week of which 1-2 are about the specific motorcycle accident, but this is subjective and assumes the veracity of his account. The other dreams are reportedly about motor vehicle accidents, claiming that he cannot get out of a truck and is unable to stop the truck against the traffic, but such anxiety dreams occur associated with anxiety and alcohol abuse and a range of mental states anyway.
Furthermore, the alleged post-traumatic thoughts, memories and images of last seconds, and are relatively modest.
…
16.His present descriptions of alcohol consumption are excessive, and if they are correct then he probably meets criteria for an Alcohol Use Disorder.
…
26.I regret that I cannot accept that simply because a person claims specific symptoms, has lodged a claim and then pursues treatment with a Consultant Psychiatrist, that this alone is sufficient to cause me to accept that, on the balance of probabilities, that that person suffers from a Post-Traumatic Stress Disorder associated with an Alcohol Use Disorder more likely than not.
27.In summary, it is only if we accept Mr Mulvaney’s verbal history and ignore all other factors, that I would find him to meet diagnostic criteria for at least one recognisable psychiatric condition which might possibly be a Post-Traumatic Stress Disorder associated with an Alcohol Use Disorder, but only if I accept the history provided at this verbal interview without consideration to any other factors or possibilities.
…
Alcohol Use disorder.
3.Has the applicant suffered from ‘Alcohol Use Disorder’? If yes:
3.1please explain how you consider the relevant diagnostic criteria provided in SOP 47 of 2017 and/or SOP 2 of 2009 was met by the applicant.
1.Mr Mulvaney meets criteria for an Alcohol Use Disorder in the DSM-V nomenclature, if his history has veracity, since the history is entirely subjective.
2.If the history does have veracity, then an Alcohol Use Disorder is probably the dominant clinical picture in this case, and can explain most of his symptoms by meeting the diagnostic criteria of the DSM-V nomenclature.
Mr Mulvaney meets the diagnostic criteria as specified = a problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least four of the following, occurring within a 12 month period:
Criterion A – alcohol is often taken in larger amounts or over a longer period than was intended.
Criterion B – there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
Criterion D – craving or a strong desire or urge to use alcohol.
Criterion F – continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
3.2specify (if possible) the date on which you consider the condition to have first develop (sic).
1.Mr Mulvaney claims that it developed within weeks of the motor vehicle accident the subject of this claim.
3.3does the applicant currently continue to suffer from the condition, and if not, when did it resolve.
1.It may be reasoned that the applicant currently continues to suffer from an Alcohol Use Disorder if his history has veracity, and if it does, then it has not resolved.
…
5.In answering the above questions, please ensure that you provide an explanation for each of your answers, and identify any documents which you have taken into account in giving your answers and opinions, for the assistance of the Tribunal and the parties.
…
23.I am thus left in the position that if I am caused to rely solely upon the history provided by Mr Mulvaney without consideration to any other matter, then I might conclude that he effectively ticks the boxes and meets the check list of PTSD and Alcohol Use Disorder as specified by the DSM-V nomenclature, but it is still subjective, and objective corroborative accounts are preferable in a case such as this. I thus do not have sufficient evidence to lead me to conclude that, on the balance of probabilities, that he meets criteria for an incapacitating psychological disorder or disease.
24.I am also not provided with sufficient objective evidence at this time to lead me to conclude that it is more likely than not that, on the balance of probabilities, that there is a causal relationship between service and the claimed psychological injuries.
25.However, if the objective facts support Mr Mulvaney’s verbal history and do not contradict it, then only on that basis, I could form a reasonable hypothesis that it is within the realm of possibilities that the motor vehicle accident the subject of this claim, if it was part of his service, was a service-related event that caused psychological symptoms which then caused PTSD and/or alcohol abuse.
26.However, this partly assumes the motor vehicle accident the subject of this claim was part of his service, and as a minimum existed.
27.However, given the passage of time, given all the other factors described in the verbal history at this interview, and the association with a contemporaneous Claim, and the lack of objective documentation pertaining to psychopathology prior to that time, and given all the other possible causes of Mr Mulvaney’s present symptoms, I did not have sufficient evidence to argue that, on the balance of probabilities, that Mr Mulvaney most likely suffers from both PTSD and/or Alcohol Use Disorder caused by the motor vehicle accident the subject of this claim as part of his relevant military service.
28.Conversely, if I solely accept the verbal history provided by Mr Mulvaney and do not consider any other factors, then I would find him to meet diagnostic criteria for an Alcohol Use Disorder which I believe would then probably be the dominant clinical picture associated with more non-specific symptoms which are post-traumatic in character and resemble a Post-Traumatic Stress Disorder in partial remission, but which is relatively mild, but would still conclude that both of the aforementioned may probably be explained by the interaction of multiple factors.
29.I do concede, that if objectification of the facts supports his claims and does not contradict them, and if there is no evidence that supports that the presentation is solely to pursue secondary gain, then it is within the realm of possibilities that the motor vehicle accident the subject of this claim caused a psychiatrically vulnerable individual to develop psychiatric symptoms, which he then sought to self-medicate with alcohol, such that he now presents with a complex clinical picture of Alcohol Use Disorder and something that resembles a Post-Traumatic Stress Disorder, which is chronic and in partial remission but is not severe or profound, but warranting further clinical intervention.
6.Please also provide any comments or observations which you consider may be relevant.
In conclusion, with consideration to all the aforementioned evidence before me, the scientific conclusion in this case depends substantially upon the credibility and/or reliability of the historian, and of the history, and such truth, in my opinion, is a legal and not a medical or psychiatric matter.
However, legal truth is not necessarily the same as scientific truth, and just because a person believes something to be true does not necessarily make it so.
It is not my wish, nor intention, to impugn the character or honesty of the historian.
However, there are multiple considerations in this case as stated, and I have sought to distinguish between what is likely on the balance of probabilities and that can be supported by objective evidence from that which is reasonable as a reasonable hypothesis within the realm of possibilities. I have considered both the examination I conducted and all the documentation provided.
Memory, by its nature, is frequently an unreliable tool.
Added to this difficulty is also that meeting diagnostic criteria in Psychiatry and self-reporting of symptoms at psychiatric interview or the completion of diagnostic questionnaires is very subjective, and diagnostic criteria for psychiatric disorders is now widely available with the proliferation of the Internet such that self-diagnosis is very common.
We, as Consultant Psychiatrists, also do not yet have adequate technology including reliable biological markers to enable either objective diagnoses or to determine causation in a specific case, as is available to either many or most other Medical Specialists and Scientists.
Therefore, I did not find sufficient objective evidence available to me, in this case, to enable me to reach the standard of scientific proof necessary for me to conclude on the balance of probabilities or more likely than not that the applicant suffers from both Post-Traumatic Stress Disorder and Alcohol Use Disorder caused by military service…
[Original emphasis.]
Oral evidence at hearing
Mr Stephen Mulvaney

At the hearing, Mr Mulvaney gave oral evidence to the Tribunal in person, including during cross-examination by Ms Ladhams. Mr Mulvaney had earlier provided statements dated 2 January 2015 (R3, T9) and 5 January 2015 (R3, T10). The Tribunal notes Mr Mulvaney’s various other written submissions, for example:
(a)his email to the Repatriation Commission dated 4 June 2015 (R3, T25); and
(b)his handwritten answers to interrogatories issued to him in County Court proceedings relating to the 1983 MBA dated 8 February 1988 (R3, T4 and T5),
do, in part, contain statements that in substance could also be regarded as Mr Mulvaney’s evidence and hence, the Tribunal will treat those statements as such where relevant.
Mr Mulvaney gave evidence before the Tribunal that he joined the RAN in 1972 as a junior recruit. Mr Mulvaney said that after spending time at sea he then, from 1982 to 1985, studied Electronics at the Royal Melbourne Institute of Technology (“RMIT”) in Melbourne. Mr Mulvaney said that during the time he studied at the RMIT, he was a permanent member of the RAN.
When asked, Mr Mulvaney said that at the RMIT, he was never required to attend roll call or register his attendance and any absence on his part would not have been queried or required to have been reported. Mr Mulvaney said that during his study at the RMIT, there was a liaison officer available if he needed to discuss something and there was a 12 monthly academic review. Mr Mulvaney said that otherwise, there was no other contact with the RAN during this time.
Mr Mulvaney was taken to his answer to interrogatory 6(a) (regarding treatment obtained as a result of Mr Mulvaney’s injuries from the MBA in 1983) given in previous unrelated proceedings where he stated that following his MBA in 1983, he underwent surgery the same morning of the MBA and was confined to his bed for the first week after the accident (R3,T4, page 14 and T5, page 21). Mr Mulvaney said that he was “pretty sure” that he had a week off after the accident, but because of the timeframe (that had passed), he could not recall 100%. Mr Mulvaney said that he would not have been required to have reported this “time off” to anyone.
Mr Mulvaney said that during the time he studied at the RMIT, he lived in Wyndham Vale (a suburb of Melbourne).
Mr Mulvaney said that on the day of the MBA in 1983, the accident had occurred at “X” (a location marked by hand on A8, that can best be identified as relatively close to central Melbourne) at approximately 8.00 am. Mr Mulvaney said that on the day of the MBA, he had been accompanied by his friend, Mr Menze Zwerwer, who was riding his own motor bike behind Mr Mulvaney. Mr Mulvaney said that he and Mr Zwerwer would ride in to the RMIT together each day.
When asked to describe the MBA that had occurred in 1983, Mr Mulvaney said:
(a)He was travelling on his motor bike on La Trobe Street, from south to north, in the direction of the RMIT.
(b)He then saw a car coming from the opposite direction and the car stopped.
(c)He thought the car, having stopped, would be turning.
(d)The car then started and stopped again.
(e)He accelerated and the car then turned in front of him.
(f)He realised he could not avoid the car.
(g)He then hit the front wheel on the passenger side of the car and catapulted over the car bonnet.
(h)He landed on the ground on his back, “skidding down the road.”
(i)He then lay on the road, thinking that he had “done a serious injury.”
(j)He saw a flash of yellow, the vehicle then ran over his left arm and he thought he was dead.
(k)The vehicle, when it ran over him, did not strike his head.
(l)His motor bike was written off.
(m)The driver of the vehicle, Mr C, said that he never saw Mr Mulvaney.
(n)Mr Zwerwer thought that Mr Mulvaney was dead.
(o)Mr Zwerwer assisted him at the scene. Mr Mulvaney said that he could not recall whether Mr Zwerwer helped him into Mr C’s car and then rode behind them on his own motor bike to the police station, or if Mr Zwerwer left his motor bike and rode with him in Mr C’s car. Mr Mulvaney said that his recollection of this was not 100% clear.
(p)Mr C was wearing calipers.
(q)Mr C drove Mr Mulvaney to the police station to file a report. Mr Mulvaney said that he “wanted out of there” (“there” being the police station).
(r)Two to three hours after the accident, he rode back to the RMIT on the back of Mr Zwerwer’s motor bike.
(s)Once at the RMIT, he reported the accident to the liaison officer, although he “can’t recall 100%.” Mr Mulvaney said that he also discussed the accident with Mr Pigram, Mr Stuart Winslade and one other person.
(t)The accident does not appear on his naval records.
When asked, Mr Mulvaney said that he had been treated by Dr Gilbert since February 2015 and that, generally, he had seen her every four weeks since that time. Mr Mulvaney said that he had first consulted with Dr Gilbert on the recommendation of his General Practitioner (“GP”), Dr Nick Carr, who suggested that Mr Mulvaney could benefit from her treatment.[6]
[6] Dr Nick Carr’s referral letter to Dr Gilbert dated 9 January 2015 (forming part of R4) states that Mr Mulvaney’s issues “result from a motorcycle accident in 1988 whilst attending university in Melbourne.” Dr Carr’s letter does not refer to the 1983 MBA. In Dr Gilbert’s report dated 12 March 2015 (R5), it appears that Mr Mulvaney made no mention of the 1988 accident nor did Dr Gilbert ask him about this event following Dr Carr’s written reference to it, even if only to entertain the possibility that the 1988 reference in Dr Carr’s letter was a typographical error.
Mr Mulvaney said that he had heard about PTSD in the media and that he first found out that he had it when Dr Gilbert told him so. Mr Mulvaney said that he had also first found out about his alcohol use disorder from Dr Gilbert. Mr Mulvaney said that he knew he had a problem with alcohol prior to seeing Dr Gilbert, from having had blackouts while “under the influence” (of alcohol) and from his relationship breakdown.
Mr Mulvaney said that he had been instructed to visit Dr Terace. Mr Mulvaney said that he did not have an idea as to how long the examination would take, or that the examination would take two to three hours. Mr Mulvaney said that his wife drove him to Dr Terace’s premises and he had assumed that the examination would take one hour.
Mr Mulvaney said that, on arrival at Dr Terace’s rooms, he had felt uncomfortable. Mr Mulvaney said that he had to proceed through two locked gates, that there was no “ID” at the front of the building and no signs, and that he was “getting stressed.” Mr Mulvaney said that he had been told to go to a certain room number, however without a phone number to call he had been unable to confirm this. Mr Mulvaney said that Dr Terace had let him in, and there had been “no introduction.” Mr Mulvaney said that he thought he was attending a private residence but that Dr Terace had said “no.”
Mr Mulvaney said that at his appointment with Dr Terace, he and his wife sat diagonally opposite from Dr Terace. Mr Mulvaney said that he was not offered a drink. Mr Mulvaney said that Dr Terace’s receptionist had been present during the appointment, sitting behind a partition. Mr Mulvaney said that he was “100% convinced” that the receptionist could hear every word of the interview. Mr Mulvaney said that in turn, he was able to hear the receptionist working and taking phone calls.
Mr Mulvaney said that Dr Terace had taken five to ten pages of handwritten notes during the “two and three quarter hour” interview, the interview not having been recorded. Mr Mulvaney said that as the interview time approached two hours, his wife left to attend to their parking.
Mr Mulvaney said that he had been embarrassed during the interview with Dr Terace and that he preferred for his wife not to be there, however there was nowhere for her to go. Mr Mulvaney said that he had found the level of intimacy in Dr Terace’s questions “extremely embarrassing” knowing that someone was listening.
Mr Mulvaney said that Dr Terace’s report says that he (Mr Mulvaney) reported to him that he was belittled by his father (R2, page 14, point 4, under heading “Personal history prior to military service”). Mr Mulvaney said that he had not given that history to Dr Terace. Mr Mulvaney said that he would have, however, said that he had a strict upbringing given that he was one of six children in his family.
As to the reference in Dr Terace’s report to Mr Mulvaney having reported his younger brother having drowned at age two and a half (R2, page 14, point 6, under heading “Personal history prior to military service”), Mr Mulvaney said he thought that this had occurred when he was in primary school, when he (Mr Mulvaney) was around ten years’ old. Mr Mulvaney said that he had mixed feelings when his brother had died, that he had not been particularly close to him and that he had not had any “flashbacks” about his brother’s death. Mr Mulvaney said that (as his brother’s death had occurred when he himself was a child) he had enjoyed the attention it had brought him.
Regarding the references (all derived from R2, page 29, point 18) in Dr Terace’s report to:
(a)Mr Mulvaney having reported his father was a heavy drinker, Mr Mulvaney said that he did not recall telling this to Dr Terace. Mr Mulvaney said that his father did drink alcohol, although he was not a heavy drinker.
(b)Mr Mulvaney having reported that his youngest son suffers from anxiety attacks, Mr Mulvaney said that he recalled saying to Dr Terace that his youngest son had been made redundant from his job, that this had caused his son some concern and that his son suffered from panic attacks on occasion.
(c)Mr Mulvaney having reported that his youngest daughter suffers from depression, Mr Mulvaney said that he could not recall exactly what was said. Mr Mulvaney said that he had probably said to Dr Terace that his youngest daughter was the single mother of a mildly autistic son and that his daughter has struggled on occasion.
When asked, Mr Mulvaney said that he has five children and five siblings. Mr Mulvaney said that he did not know of any of his siblings having suffered from any psychological conditions.
During cross-examination by Ms Ladhams, Mr Mulvaney said that at the RMIT, there was an expectation to attend lectures and to pass exams. Mr Mulvaney said that during university vacations, he did not have to report to duty elsewhere. Mr Mulvaney said that during his time at the RMIT, he was entitled to six weeks annual leave, for which he had to submit leave forms. Mr Mulvaney said that he would not have to explain any absences from university, that there were no attendance records and that they were treated as civilian students.
When asked, Mr Mulvaney said that he did not know the exact date of the MBA in 1983. Mr Mulvaney said that it had been approaching the middle of the year (1983) when the MBA occurred, maybe the month of May, however this was based on “vague memory” and the weather conditions (as he recalled them) at the time. Mr Mulvaney said that the accident had occurred 35 years ago, and his recollection of the accident would have been better closer to the time of the accident. Mr Mulvaney said that he recalled some aspects of the 1983 MBA “like it happened yesterday,” whereas other “less important” aspects were “less clear.”
Mr Mulvaney said that there are things about the MBA in 1983 that he remembers better now than before. Mr Mulvaney said that, for example, he recalls that Mr C was wearing calipers, that Mr C was a retired lawyer and that Mr C had been driving a yellow car. As to whether the details following the accident were more or less clear to him now than they were at the time they occurred, Mr Mulvaney said that this depends on the actual event. Mr Mulvaney said that his recollection of going to the police station was very clear, his recollection of going to Mr C’s home was reasonably clear, that his recollection of attending Dr Suss[7] was less clear and his recollection of discussing the accident with others at the RMIT was reasonably clear.
[7] Mr Mulvaney gave evidence that he attended Dr Suss’s surgery in North Melbourne on the morning of the 1983 MBA (R3, T5, page 21, answer to interrogatory 6(a)). There are no consultation notes or medical reports by Dr Suss before the Tribunal.
When asked of the things that he could recall better and what it was that had helped him remember, Mr Mulvaney said “going over it,” “over and over.” Mr Mulvaney said that it was not until the time of the second VRB hearing (being on 13 March 2017) that he remembered the reason that Mr C had stopped the car and started it again. Mr Mulvaney said that the reason was that a woman had double parked and Mr C had to stop the car because of her. Mr Mulvaney said that when he first saw Mr C’s car, it was travelling at approximately 60 kilometres per hour, then (at a “bit of a guess”) it slowed down to about half of that. Mr Mulvaney said that Mr C had then stopped his car completely, accelerated again and then was travelling at approximately 60 kilometres an hour again when Mr Mulvaney saw him. Mr Mulvaney said that therefore, Mr C had been travelling approximately 60 kilometres per hour at the time of their collision.
When asked about the copy of the map printed from Google Maps (A8)[8], Mr Mulvaney said that the map represents the area it covers as it is now, not as it was in 1983 at the time of the MBA. When asked to name the “main line” running through the map, Mr Mulvaney said that he had to check. He had thought it was the “Geelong Freeway,” however he now believes it is the “Princes Highway.” Mr Mulvaney said that he had travelled that route (on the “main line”) on the date of the MBA, which was a route that never varied.
[8] This copy of a map appears to cover the general area between Wyndham Vale, where Mr Mulvaney was living on the day of the MBA in 1983, and central Melbourne, where the RMIT was located in 1983. It appears on a single A4 piece of paper. The major highway numbers are legible on the map, however there is little other detail as to street names and routes.
Mr Mulvaney said that in 1983, the RMIT was located on the corners of Bourke and La Trobe Streets. Mr Mulvaney said that his accident in 1983 had occurred between one to two kilometres from the RMIT. When asked, Mr Mulvaney identified on the map what he believed to be the location of the RMIT.
Mr Mulvaney said that (in 1983), he would meet Mr Zwerwer each day at Mr Zwerwer’s home in Altona Meadows, which was less than halfway between Mr Mulvaney’s home in Wyndham Vale and the RMIT (and they would then ride together the rest of the way to the RMIT). When asked, Mr Mulvaney said that he did not know how far it was from Altona Meadows to the RMIT.
Mr Mulvaney said that after the accident, Mr C drove him (in Mr C’s car) to the police station, with Mr Zwerwer following them on his own motor bike, where they reported the matter to police. Mr Mulvaney said that he then went with Mr C (in Mr C’s car) to Mr C’s house, where they “picked up a trailer.” Mr Mulvaney said that they then went to the crash site and took Mr Mulvaney’s motor bike back to Mr C’s house.[9] Mr Mulvaney said that he then went back to the RMIT with Mr Zwerwer.[10] Mr Mulvaney said that he could not recall the exact mode of transport he took with Mr Zwerwer to travel back to the RMIT, and he thinks that he travelled on the back of Mr Zwerwer’s motor bike.
[9] It is unclear to the Tribunal from Mr Mulvaney’s evidence whether Mr Mulvaney’s references to “they” in the context of going with Mr C to Mr C’s house, where they “picked up a trailer” and then returned to the crash site, includes Mr Zwerwer.
[10] It is again unclear to the Tribunal from Mr Mulvaney’s oral evidence as to whether Mr Zwerwer was present with Messrs Mulvaney and C from the time they left the police station to the time that Mr Mulvaney then returned to the RMIT with Mr Zwerwer.
Ms Ladhams took Mr Mulvaney to the following extract from his statement dated 2 January 2015 (R3, T9) regarding the events that occurred following the claimed MBA in 1983:
[After the accident, Mr Mulvaney] decided to continue on, on the back of my friends [sic] motor bike, firstly to report the accident to the police, and secondly to get to lectures at RMIT.
In relation to the extract at paragraph 69 above, his recollection (of having travelled to the police station on Mr Zwerwer’s motor bike) was now different (refer to paragraph 68 above), due to “replaying the incident over and over” as part of the claims process. Mr Mulvaney said that his particular previous recollection (set out in paragraph 69 above) was “more of an assumption” and then he “remembered more information about Mr C...”
As to whether Mr Mulvaney ever recalled saying previously that, following the accident, he went with Mr C to get a trailer and then returned to the accident scene to get his motor bike, Mr Mulvaney said that he did not recall having done so. Mr Mulvaney said that it was the task of reading answers to interrogatories that he gave in 1988 that triggered his memory of this. When asked what aspect of the interrogatories triggered his memory, he said that he could not recall without reading them again.
When asked by Ms Ladhams whether it was fair to say that his earlier comments about the accident were guesswork, Mr Mulvaney said that his assumptions were made on facts that he clearly remembers.
When asked how he got home from the RMIT on the day of the accident, Mr Mulvaney said that he rode on the back of Mr Zwerwer’s motor bike, although he could not recall this clearly.
Mr Mulvaney said that the more that he thinks about it, he is 99.9% sure that he reported the accident to the liaison officer at the RMIT and that Mr Zwerwer would have been with him. Mr Mulvaney then said that he had “vague memories” of talking to the liaison officer but he could clearly remember talking about the accident with three other RMIT students. As to what he talked about with the three other students, Mr Mulvaney said that he talked about the details of the accident, “where he was, what happened.” Mr Mulvaney said that he would have told them (the three other students) everything, about the police station and about recovering his motor bike.
As to when he first saw a doctor following the accident, Mr Mulvaney said that he had a vague recollection of having seen a doctor that day. Mr Mulvaney said that he did not recall seeing Dr Suss any time after the day of the accident. Mr Mulvaney said that there was no follow up treatment after (initially) seeing Dr Suss.
When asked to describe the injuries he sustained from the accident, Mr Mulvaney said that he suffered shoulder pain, lower back pain, soft tissue damage to his right knee, one heel was badly bruised and that he was limping. Mr Mulvaney said that the pain increased over the ensuing days.
Mr Mulvaney said that he did not recall preparing the answers to interrogatories (R3, T5), other than that he did so at the HMAS Stirling.
Mr Mulvaney said that when he decided to pursue his “civil claim,” he did not seek assistance from the RAN, because it was a matter between himself and the Victorian Government.
As to his claim for “compensation” (being the disability pension referred to in paragraph 3), Mr Mulvaney said that he claimed for various physical injuries and there was no claim for a psychological condition or an alcohol-related condition at that time.
Mr Mulvaney said that his interrogatories did not refer to any psychological symptoms following the 1983 MBA. Mr Mulvaney said that he had occasional difficulty sleeping, due to shoulder and back pain, which was referred to in his interrogatories (refer to interrogatory numbered 5(c) at R3, T4, page 13 and related answer numbered 5(c) at R3, T5, page 20).

As to why he did not report any psychological symptoms following the 1983 MBA, Mr Mulvaney said that it was not because he was not experiencing them at the time but rather, in 1988[11], he was experiencing flashbacks, nightmares and his alcohol consumption had increased.
[11] The Tribunal appreciates that the reference to the 1988 date coincides with Mr Mulvaney’s later MBA. However, in the context of the evidence, the Tribunal takes it to be Mr Mulvaney’s evidence that the symptoms he claimed to experience in 1988 relate to the 1983 MBA.
Mr Mulvaney was taken to his answer to interrogatory 7(c) (regarding from whom he received treatment as a result of his injuries following the 1983 MBA and a description of the treatment he was receiving) (R3, T4, page 14 and R3, T5, page 22) that he was “currently being treated by naval doctors and the orthopaedic surgeon. Medication, which if unsuccessful will be followed up by injections for the right shoulder pain.”
Mr Mulvaney said that he did not know (whether this answer was correct) and that “it must have been.” When asked, Mr Mulvaney answered “no” to the question of whether he sought specific medical treatment from naval officers following his accident in 1983. As to whether Mr Mulvaney sought medical treatment from naval medical officers any time after the accident in 1983, specifically in relation to injuries sustained from the 1983 accident, Mr Mulvaney said “yes.” Mr Mulvaney said that while he was at the HMAS Stirling, he suffered back pain, he could not sleep on a hard surface, and he had problems with his knee, with running and with playing squash.
Mr Mulvaney said that he had ridden a motor bike for nine years prior to his accident in 1983. When asked whether Mr C had replaced his motor bike following the accident, Mr Mulvaney said that Mr C did not. Mr Mulvaney said that rather, Mr C had compensated Mr Mulvaney for the damage to his motor bike in that he gave Mr Mulvaney a lump sum of money and Mr Mulvaney repaired the motor bike. When it was put by Ms Ladhams that Mr Mulvaney’s motor bike was “not a write off then?” (refer to subparagraph 49(l) above), Mr Mulvaney said that “an insurer would have written it off.”
When asked, Mr Mulvaney said that he did not have an insurance assessment (of his motor bike) following the accident as his motor bike was uninsured. Mr Mulvaney said that he did not recall how long it took for his motor bike to be fixed but that he began riding it again within six months of the accident. Mr Mulvaney said that he did not recall how he “got around” in the meantime and that public transport “played a part.” Mr Mulvaney said that he was involved in another MBA in 1988, and continued to ride after that. Mr Mulvaney said that he no longer rides a motorcycle and has not done so since the mid-1990s, “pretty close” to around the same time that he left the RAN. Mr Mulvaney said that he does not need to and does not want to ride a motor bike.
As to the symptoms he experienced following the 1983 MBA, Mr Mulvaney said that by 1988, he had flashbacks of certain aspects, which varied and included the actual collision and the aftermath. Mr Mulvaney said that he did not recall when the flashbacks first started, and they were “not at a constant level.” Mr Mulvaney said that he would sometimes experience flashbacks two to three times per week and at other times he would experience none at all for a number of weeks.
When asked if there were any other symptoms that Mr Mulvaney experienced that he attributes to the 1983 MBA, Mr Mulvaney said that relatively soon after the accident, whilst still studying at the RMIT, he experienced aggressiveness. Mr Mulvaney said that his aggressiveness was in the form of loss of patience with people, physical altercations, he was easily startled and he had a decrease in his ability to concentrate. Mr Mulvaney said that his ability to concentrate had become worse over the years. Mr Mulvaney said that now, he still drives a car, but does not ride a motor bike. Mr Mulvaney said that his current wife prefers that she drive their car (rather than Mr Mulvaney) as she believes that he is aggressive (when he drives).
Mr Mulvaney said that he rarely gets more than three to four hours sleep per night, which he first noticed in 1999 or 2000, when his father pointed it out to him. Mr Mulvaney said that he had difficulty sleeping following the MBA in 1983 for as long as he can remember. Ms Ladhams noted to Mr Mulvaney that his sleep difficulties (as they related to his psychological symptoms) were not stated in his answers to interrogatories (R3, T5). Mr Mulvaney said that his answers to interrogatories referred only to sleep loss caused by back pain as to admit sleep loss caused by psychological symptoms would be “navy career suicide.”
Mr Mulvaney said that he could not recall whether he went to other naval medical officers for his third party insurance claim and could not recall whether that information would have been passed on to the RAN.
Ms Ladhams took Mr Mulvaney to the reference in his Claim for Disability Pension form where he stated that he first became aware of the signs and symptoms of his “anxiety, stress and panic attacks” disability from “about 2000” (R3, T7, page 37). Ms Ladhams asked Mr Mulvaney whether he was now asking the Tribunal to accept that he had experienced these symptoms since the 1980s. Mr Mulvaney said “yes” to the question as it was in about 2000 that these symptoms became a problem. When Ms Ladhams asked further whether that meant that he had those symptoms in the 1980s but they did not become a problem until about 2000, Mr Mulvaney said “no,” that he had been unaware that “it was PTSD” in the 1980s, but that he had had “a fair idea it was PTSD” when he filled out the claim form.
Ms Ladhams referred to Mr Mulvaney’s earlier oral evidence that he did not know he had PTSD until he saw Dr Gilbert (in 2015, refer to paragraph 51 above). Mr Mulvaney said that he knew he had problems before that and that he had seen Dr Gilbert within one month of filling out the claim form (R3, T7).
When asked why the “about 2000” date was significant (refer to paragraph 89 above), Mr Mulvaney said that his father had pointed out that he was getting up in the night. Mr Mulvaney said that he did not seek medical assistance in 2000 as he was working, he thought “it was just him” and he thought he could look after himself.
Mr Mulvaney said that he did not seek medical assistance (for his psychological symptoms) until 2014 because it was then that he became aware that he could as part of the claims process. As to what had made him aware that he could seek medical assistance, Mr Mulvaney said that he had also suffered physical injuries and that these were easier to quantify and were service related. Mr Mulvaney said that he is “not saying that his psychological injuries aren’t service related,” but that you “can’t see a psychological problem on an x-ray.” Mr Mulvaney said that he had described his “physical and mental problems” to an advocate who said that he could make a claim. Mr Mulvaney said that he knew he could seek treatment for his psychological symptoms prior to that (i.e. prior to the time he made his claim). However, he chose not to as the cost “would be personally on him as a private patient.”
Ms Ladhams took Mr Mulvaney to the reference in his Alcohol Questionnaire form to his alcohol consumption increasing from “2-4 cans of beer about once per fortnight” in 1973 to “30-40 beers” per week in 1983, the change in quantity being due to his MBA in 1983 (R3, T8). When asked what made him attribute his increased alcohol consumption to his accident in 1983, Mr Mulvaney answered “Dr Gilbert’s diagnosis.” As to whether Mr Mulvaney’s beer consumption of 30 to 40 beers per week had been “fairly constant” since that time, Mr Mulvaney said that he could not recall and that it “changes from week to week.” When asked how soon his drinking increased after the MBA in 1983, Mr Mulvaney said that it had been within 12 months of the accident. As to whether the increase in consumption was gradual, Mr Mulvaney said that he did not know.
Mr Mulvaney referred to the following extract from Mr Mulvaney’s statement dated 2 January 2015 (R3, T9):
After the accident which occurred about half way through my RMIT studies I would regularly spend the afternoon in the Oxford Hotel across the road from RMIT, instead of attending lectures or laboratory sessions. I would regularly drive home, a distance of about 40kms, under the influence of alcohol. I believe that even though I completed my course and received my degree, my results were much worse than they would have been, had I not commenced to drink so heavily. [Original emphasis.]
Mr Mulvaney said that he would drink alcohol with “uni friends” on occasion and when his friends would leave, he would stay on and continue to drink.
When asked why he started to drink more alcohol (following the MBA in 1983), Mr Mulvaney said that it was to relieve stress, that he was easily distracted, that he had difficulty relaxing and that he wanted to relax. Mr Mulvaney said that he had started to suffer from anxiety (in the general sense).
Ms Ladhams then took Mr Mulvaney to the reference in his Claim for Disability Pension form that he first became aware of the signs and symptoms of his “alcohol problems” from 2007 (R3, T7, page 37). When asked what had happened in 2007 to make him aware of his “alcohol problems,” Mr Mulvaney said that it was in 2007 that he first admitted to himself that he had an alcohol problem. Mr Mulvaney said that (in 2007) he was working in a mine, drinking alcohol and he realised that he was putting himself at risk of testing positive (for alcohol, at work) and he was struggling to control his drinking at night. Mr Mulvaney said that he had tried to reduce his alcohol on the days that he worked, however this was unsuccessful. Mr Mulvaney said that he did not seek assistance for his alcohol consumption at this time, as he thought he could “handle it.”
Mr Mulvaney said that he first sought assistance for his alcohol consumption from Dr Carr, in 2014 or 2015. As to what caused Mr Mulvaney to seek this assistance, Mr Mulvaney said that his advocate had convinced him. When asked whether he told Dr Carr in July 2016 that he drank four alcoholic drinks a day in general or 12 alcoholic drinks a day in general,[12] Mr Mulvaney said that he recalls Dr Carr asking how his consumption was going but did not recall those specific details. Mr Mulvaney said that he does not drink the same amount of alcohol every day, there is no “24 hour pattern,” that he can go one to two days per week without drinking any alcohol and that he has weeks where he has a drink every day.
[12] Refer respectively to page 5 of the consultation notes of Dr Nick Carr, dated 1 July 2016 and 7 July 2016, located at R1, Annexure 2, page 5 and at R3, T53, pages 286-287.
Referring to his oral evidence at paragraphs 52 to 56 above regarding his consultation with Dr Terace, Ms Ladhams asked Mr Mulvaney whether he ever told Dr Terace that he had felt uncomfortable during his consultation or that Mrs Mulvaney did not want to be there. Mr Mulvaney answered “no” to both questions.
When asked, Mr Mulvaney said that in the course of his claim, he had personally approached Mr Zwerwer and Mr Pigram, by email[13]. As to whether he had any telephone conversations with them prior to their statements being filed, Mr Mulvaney said no in relation to Mr Pigrim, as he lives in Thailand and that in relation to Mr Zwerwer, he did not recall.
[13] The Tribunal was provided a copy of further emails from Mr Mulvaney of various dates shortly after the conclusion of the hearing, following a number of issues raised by Ms Ladhams during cross-examination of Mr Mulvaney as to the veracity and credibility of Mr Mulvaney’s witnesses (including himself) and their related statements. Those issues are addressed at paragraphs 180 to 199 below.
As to what other steps Mr Mulvaney had taken to try to obtain further evidence, Mr Mulvaney said that he had emailed two other RMIT students, who had said that they recalled discussions with Mr Mulvaney but not in a lot of detail. When asked if he had taken any steps to obtain medical records from 1983, Mr Mulvaney said that he had requested a copy of the accident report from the North Melbourne police station, however, the station could not provide the report. Mr Mulvaney also said that Maurice Blackburn Lawyers[14] could not locate any evidence and he had not sought any records from the RMIT, for example a transcript to demonstrate his grades having dropped (refer to paragraph 94 above).
[14] The Tribunal understands that after the 1983 accident, Mr Mulvaney instructed Maurice Blackburn solicitors to act for him in relation to his third party insurance claim (R3, T52, page 277, paragraph 22).
Ms Ladhams then directed Mr Mulvaney to an email written by him on 22 April 2016 (forming part of A10), which Mr Mulvaney confirmed was directed to Mr Pigrim, and the body of which reads as follows:
I have attached the letter that Zed did for me, I did the initial draft and he changed a few small details and added some further info of his own.
Once you are happy with your letter, if you could print, sign and scan you letter back to me, it would be greatly appreciated…
Ms Ladhams raised the Repatriation Commission’s concerns with Mr Mulvaney in relation to the extract at paragraph 101 above, being: who “Zed” is; the attached letter referred to has not been reproduced with the body of emails constituting A10; the request that is the subject of the email does not appear to be the initial request and when Mr Mulvaney was asked whether any of the earlier correspondence was still in existence, Mr Mulvaney said that “Zed” was Mr Zwerwer, that his initial approach to (Mr Pigrim) was not within the emails provided and he does not have any of the earlier correspondence in this regard.
When asked, Mr Mulvaney said as to what was in the attached letter (referred to in the extract at paragraph 101 above), he “can’t say 100%.” Mr Mulvaney said that he assumes the initial draft of the letter that he wrote detailed his memory of the accident, which he then provided to Mr Zwerwer (who provided his changes and sent it back to Mr Mulvaney, who then sent it on to Mr Pigrim).
Ms Ladhams stated that the initial letter to Mr Zwerwer (referred to in the extract at paragraph 101 above) not having been reproduced raises significant concerns regarding the veracity and credibility of Mr Mulvaney’s witnesses and related statements, if the Tribunal accepts them at all.
When asked, Mr Mulvaney said the email (referred to in paragraph 101 above) was not the first contact he had had with Mr Pigrim and he had initially contacted Mr Pigrim via Facebook. Mr Mulvaney said that he did not know whether he had records of that initial Facebook communication. Mr Mulvaney said that he does not know when he first became friends with Mr Pigrim on Facebook and that it was sometime after the year 2000, approximately. Mr Mulvaney said that he and Mr Pigrim had lost contact after university and reconnected sometime after.
Mr Mulvaney said that he had raised the issue of his 1983 accident with Mr Pigrim via Facebook, saying that Mr Wood had asked him about witnesses to the 1983 accident who could corroborate details. Mr Mulvaney said that he sent Mr Pigrim messages asking if he could recall the accident. Mr Mulvaney said that Mr Wood asked him to gain a letter from Mr Pigrim detailing Mr Pigrim’s memory of the details of the 1983 accident.
Mr Mulvaney said that when he first approached Mr Pigrim about the 1983 accident, he did not provide any details of the accident to Mr Pigrim other than the basics. Mr Pigrim’s response was that he did recall the accident. Mr Mulvaney said that he then corresponded with Mr Pigrim on “Messenger” [via Facebook] and on his Facebook [main page]. Mr Mulvaney said that he and Mr Pigrim had a few exchanges back and forth, although he does not know how much contact they had about the 1983 accident before 22 April 2016 (being the date of the email extracted at paragraph 101 above). As to the content of their communications, Mr Mulvaney said that he had asked Mr Pigrim whether he could provide a letter, he was pretty sure Mr Pigrim indicated that he could email a letter to Mr Mulvaney, and they exchanged email addresses.
When asked about “the letter that Zed did” (refer to paragraph 101 above), Mr Mulvaney said that he believes this letter to be the letter that appears at R3, T26, which is the letter that Mr Mulvaney provided to Mr Pigrim. Mr Mulvaney said that he (himself) did the initial draft of that letter (at R3, T26). To be clear, Mr Mulvaney confirmed for Ms Ladhams that Mr Mulvaney gave Mr Zwerwer the initial draft of his own (Mr Mulvaney’s) letter, so that Mr Zwerwer could use this letter to prepare the letter that appears at R3, T26.
When asked, Mr Mulvaney said that he was not sure how he first contacted Mr Zwerwer, that they had first re-established contact through his sister[15], in Canberra, who had a friend in Defence, who got him Mr Zwerwer’s contact details and Mr Mulvaney then contacted Mr Zwerwer by phone, “years before the DVA claim.” Mr Mulvaney said that by May 2015, he and Mr Zwerwer had been (back) in contact for a number of years. Mr Mulvaney said that he had not attempted to contact Mr Zwerwer via the Australian Defence Force (as suggested in the letter from the DVA, R3, T24).
[15] It is unclear to the Tribunal whether Mr Mulvaney is referring to one of his own sisters (Mr Mulvaney had mentioned his sisters to Dr Gilbert, R5) or to Mr Zwerwer’s sister, although nothing turns on this.
Mr Mulvaney said that he was unsure as to how he had approached Mr Zwerwer to write the letter, that it was “probably” by phone. As to whether he had made a written request to Mr Zwerwer for him to write a letter regarding Mr Mulvaney’s accident, Mr Mulvaney said that he “probably” did this but he was unable to locate this request. Mr Mulvaney said that he did not know whether he and Mr Zwerwer had discussed Mr Mulvaney’s recollection of the accident and is pretty sure that he did not provide Mr Zwerwer with any other documents other than Mr Mulvaney’s statement dated 2 January 2015 (R3, T9). Mr Mulvaney said that he did not provide to Mr Zwerwer his further statement dated 5 January 2015 (regarding his alcohol consumption, R3, T10) “mainly because it’s embarrassing.”
During re-examination by Mr Wood, Mr Mulvaney said that he has not worked since 2 December 2014 (refer to R3, T7, page 39) and that he believes, although he was not entirely certain, he first saw Mr Wood between 2 December 2015 and 1 January 2015 (the latter date being the date he signed his Clam for Disability Pension Form, received by the DVA on 12 January 2015, see R3, T7, page 44). Mr Mulvaney said that he first saw Mr Wood regarding his left knee, his right shoulder and his lower back. Mr Mulvaney said that he did not recall if his wife was with him on his first attendance with Mr Wood.
Mr Mulvaney said that he started discussing his “mental problems” with Mr Wood as time progressed and as he became more comfortable. Mr Mulvaney said he had been embarrassed by his drinking. Mr Mulvaney said that Mr Wood had suggested he attended a psychiatrist, which he then did.
Mr Mulvaney said that he did not submit his “psychological claim” at the time his “civil claim” was active because he did not, at the time, think his loss of sleep was due to a psychological condition.
Mr Wood took Mr Mulvaney back to the letter by Mr Zwerwer (R3, T26) and asked him whether that letter was the “letter that Zed did” (referred to at paragraph 101 above). Mr Mulvaney said that he was not 100% sure.
Mr Wood asked Mr Mulvaney to detail what his conversation with Mr Zwerwer consisted of in reference to the opening line of the letter (R3, T26), which states “[a]s per my conversation with Stephen Mulvaney.” Mr Mulvaney said that he was not sure, and that he assumed it was one of the phone calls he had with Mr Zwerwer regarding “who to send the letter to.”

The question of whether Mr Mulvaney is suffering from PTSD (and alcohol use disorder, which is considered below) is a question of fact, which must be determined on the balance of probabilities to the reasonable satisfaction of the Tribunal (subsection 120(4) of the VEA, refer also to paragraphs 18 and 19 above).
Mr Mulvaney has a diagnosis of PTSD (and alcohol use disorder) from Dr Gilbert and relies on this heavily. The Repatriation Commission contends that there is little information about how Dr Gilbert reached her diagnoses, there is no detailed consideration of DSM-IV criteria, or how she considered the diagnostic criteria are met, the diagnoses are based on information provided by Mr Mulvaney, on subjective factors and do not take into account objective factors.
The Tribunal notes in addition that Dr Gilbert’s main diagnostic report produced in 2015 does not state when Mr Mulvaney says flashbacks started. Dr Gilbert’s later reports say that Mr Mulvaney’s flashbacks started soon after the accident. The Tribunal notes that Dr Gilbert’s reports do not mention the later accident in 1988.[26]
[26] Refer to footnote 6.
Dr Terace has concerns about what he calls “possible” diagnoses given the passing of time, other possible causes, and the lack of objective contemporaneous corroborative evidence. The Repatriation Commission contends that Dr Terace’s assessment is comprehensive, and his opinion is that given the passage of time, the other possible factors and causes for Mr Mulvaney’s present symptoms, the lack of objective documentation pertaining to any psychopathology prior to his claim and the relatively modest alleged post-traumatic thoughts, memories and images, there was not sufficient objective evidence before him to be able to conclude that on the balance of probabilities, Mr Mulvaney meets the criteria for PTSD (and alcohol use disorder).
The Tribunal shares Dr Terace’s concerns given its treatment of the preliminary matters regarding the lay evidence set out at paragraph 180 to 199 above. The Tribunal is of the view that given the issues regarding the lay evidence, particularly the inconsistencies in evidence and gaps in recollections (and of concern is the evidence around the point of impact and shortly after), the lack of clarity around when Mr Mulvaney’s flashbacks started and the absence of reporting the existence of psychological symptoms until 2015 (claiming them to have commenced in 2000), it cannot be satisfied that Mr Mulvaney has been exposed to a traumatic event in the manner required by the DSM-IV or the DSM-V (the reference to both having no bearing on the outcome given the identical nature of the requirements between them in this regard).
In making this finding, the Tribunal emphasises, given Mr Mulvaney’s express concerns regarding having been perceived as a liar or that his claim was contrived (neither of which was submitted by the Repatriation Commission or was apparent to the Tribunal), that the Tribunal’s focus was instead on the necessary question of whether it could be reasonably satisfied that the 1983 MBA occurred in the manner Mr Mulvaney said that it did and whether the evidence demonstrated that Mr Mulvaney had an intense subjective reaction to it in the manner required by the DSM (referring to either the DSM-IV or the DSM-V).
This being so, the Tribunal is left in a position where:
(a)given that Dr Gilbert’s opinions regarding diagnosis were based on the assumption that Mr Mulvaney’s memory of events, including matters relevant to whether he was exposed to a traumatic event was accurate and that what he says is true, it treats Dr Gilbert’s diagnosis of PTSD with abundant caution; and
(b)given that Dr Terace’s opinions regarding diagnosis were qualified by his statements that one would have to assume the complete veracity of Mr Mulvaney’s history alone, because he found no objective signs (and Dr Terace’s diagnosis falling short of a firm diagnosis of PTSD in any event), it otherwise cannot be satisfied that Mr Mulvaney suffers from PTSD.
For completeness, the Tribunal reiterates that exposure to a traumatic event in the manner required by the DSM criteria (in the non-checklist-approach taken by Dr Terace) is key to a diagnosis of PTSD at a medical level, and without such exposure, there can be no other conclusion.
Whether Mr Mulvaney suffers from alcohol use disorder
As noted at paragraph 205 above, the question of whether Mr Mulvaney is suffering from alcohol use disorder is a question of fact, which must be determined on the balance of probabilities to the reasonable satisfaction of the Tribunal.[27]
[27] The DSM-V criteria for alcohol use disorder is annexed to this decision (Annexure 2). As noted in footnote numbered 16 above, alcohol use disorder does not appear in the DSM-IV, in its own right.
The Repatriation Commission’s submissions, which it contends, leave it open for the Tribunal to find that Mr Mulvaney does not suffer from alcohol use disorder are such that (Respondent’s written closing submissions, dated 31 July 2018, pages 14 and 15, paragraphs 63 to 66):
(a)Dr Gilbert considers that Mr Mulvaney suffers from alcohol use disorder and Dr Terace considered that, if the subjective history provided by Mr Mulvaney has veracity, Mr Mulvaney would meet the diagnostic criteria for alcohol use disorder under DSM-V. Dr Terace further considered that, if Mr Mulvaney’s history has veracity, alcohol use disorder is probably the dominant clinical picture.
(b)For the reasons given in relation to PTSD, it would be open to the Tribunal to find that the history of Mr Mulvaney’s claims do not have veracity and accordingly, the Tribunal could not be satisfied that Mr Mulvaney has alcohol use disorder.
(c)In making the submission in subparagraph 214(b) above, the Repatriation Commission noted the following inconsistencies in the lay evidence, which are relevant to the assessment of whether Mr Mulvaney has alcohol use disorder:
(i)Mr Mulvaney indicated moderate alcohol consumption of 8-10 drinks per week at the time of his discharge from the RAN in 1992 and indicated that there had been no change to his alcohol consumption (R1, Annexure 1 and R3, T57, page 413).
(ii)At the time when Mr Mulvaney lodged his compensation claim in 2015, he indicated that he had increased his alcohol consumption from two to four drinks per fortnight to 30-40 drinks per week in 1983 (R3, T8, page 46 and 47).
(iii)Mr Mulvaney indicated in the alcohol questionnaire prepared for the purposes of his compensation claim that he became aware that he had a problem with alcohol consumption in 2007 (R3, T7, page 37). In cross examination, Mr Mulvaney indicated that this was because he was working on a mine and realised that he was putting himself at risk by drinking.
(iv)Mr Mulvaney’s GP has recorded alcohol consumption of four drinks per day on 1 July 2016 and alcohol consumption of 12 drinks per day on 7 July 2016 (R1, Annexure 2, page 5). No other records of alcohol consumptions, or concerns about alcohol consumption are expressed in the available medical records of Mr Mulvaney’s GPs.
(v)It appears that Mr Mulvaney told Dr Terace that his alcohol use disorder developed within weeks of the 1983 MBA (R2, page 32, para 1. Under the heading 3.2).
(vi)Mr Mulvaney indicated in cross-examination that he cannot be certain when he increased his drinking but believed it was within about a year of the accident.
(vii)Mr Zwerwer, by comparison, gave evidence that he continued to be in the same courses as Mr Mulvaney until 1986, initially at the RMIT, then at HMAS Cresswell and HMAS Cerberus. Mr Zwerwer recalls that he would socialise with Mr Mulvaney when they were students at the RMIT and that this would sometimes involve alcohol, including sometimes going for drinks at the Oxford Hotel. Mr Zwerwer gave evidence that, as university students, they all drank more than was good for them, but he did not notice any change in the level of alcohol consumed by Mr Mulvaney after the accident in 1983. Mr Zwerwer continued to be in the same courses as Mr Mulvaney until 1986 and would have seen him on a very frequent basis during this time. If, as Mr Mulvaney now claims, he changed his drinking habits from two to four drinks per fortnight to 30-40 drinks per week in 1983 and started missing a lot of lectures, it would be reasonable to expect that someone in the position of Mr Zwerwer would have noticed and would recall such a significant change even if, on his own evidence, he is not the most observant person.
In relation to alcohol use disorder, the extent of Mr Mulvaney’s submissions appear to be that there is a clear indication from Dr Gilbert’s reports that Mr Mulvaney’s PTSD already existed when he commenced using alcohol in a manner which led to his alcohol use disorder, which in turn commenced around the time of the accident. Again, Dr Gilbert’s opinion on Mr Mulvaney’s diagnosis is based entirely on Mr Mulvaney’s subjective historical recollections.
The Tribunal’s issues with Dr Gilbert’s approach in paragraph 215 above, given the issues regarding the lay evidence in this matter, is well documented above and the direct bearing it has on its conclusion regarding whether Mr Mulvaney suffers from PTSD similarly applies in relation to whether Mr Mulvaney suffer from alcohol use disorder. In addition, the Tribunal notes that Dr Gilbert’s report dated 12 March 2015 (R5) states that “Mr Mulvaney satisfies the criteria for alcohol abuse”, without stating what those criteria are. Dr Gilbert then goes on in her report of 12 February 2018 (A3) to refer to Mr Mulvaney’s alcohol-related condition as Alcohol Use Disorder, a disorder which appears in the DSM-V (a DSM which by her own evidence, she does not use or refer to).
In addition to the Tribunal’s concerns in paragraph 216 above, the Tribunal has also taken into account the lack of corroborative evidence from the years immediately following the 1983 MBA and the specific inconsistences in evidence highlighted by the Repatriation Commission in paragraph 214 above. This, in the Tribunal’s (and indeed, Dr Terace’s) view, impacts the veracity of Mr Mulvaney’s history on which a diagnosis of alcohol use disorder is subject. As such, the Tribunal is unable to find that Mr Mulvaney suffers from alcohol use disorder.
As the Tribunal has found that it is unable to be satisfied that Mr Mulvaney suffers from PTSD or alcohol use disorder as claimed, the Tribunal has not gone on to consider whether it can be reasonably satisfied that either or both of those conditions are defence-caused. It is not required to do so.
CONCLUSION
Based on the analysis above, the Tribunal is not reasonably satisfied that Mr Mulvaney suffers from PTSD or alcohol use disorder. As such, the Tribunal is not required to determine whether either or both of those conditions are defence-caused.
DECISION
For the reasons outlined above, the Reviewable Decision dated 13 March 2017 is affirmed.

I certify that the preceding 220 (two hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

..............[sgd]..........................................................
Associate
Dated: 22 November 2018

Date(s) of hearing: 9 and 10 May 2018

Advocate for the Applicant: Mr Robert Wood, Busselton RSL

Representative for the Respondent: Ms Allyson Ladhams

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE 1
DSM-IV Diagnostic Criteria for Posttraumatic Stress Disorder
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person’s response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behaviour

B.The traumatic event is persistently reexperienced in one (or more) of the following ways:
(1)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2)recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
(3)acting or feeling as if the traumatic event were occurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific re-enactment may occur.
(4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2)effort to avoid activities, places, or people that arouse recollections of the trauma
(3)inability to recall an important aspect of the trauma
(4)markedly diminished interest or participation in significant activities
(5)feeling of detachment or estrangement from others
(6)restricted range of affect (e.g., unable to have loving feelings)
(7)sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

D.Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
(1)difficulty falling or staying asleep
(2)irritability or outbursts of anger
(3)difficulty concentrating
(4)hypervigilance
(5)exaggerated startle response

E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more

Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor

DSM-V Diagnostic Criteria for Posttraumatic Stress Disorder
Note: The following criteria apply to adults, adolescents, and children older than 6 years. For children 6 years and younger, see corresponding criteria below.
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1.Directly experiencing the traumatic event(s).
2.Witnessing, in person, the event(s) as it occurred to others.
3.Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4.Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B.Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1.Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
2.Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
Note: In children, there may be frightening dreams without recognizable content.
3.Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
Note: In children, trauma-specific reenactment may occur in play.
4.Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5.Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C.Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1.Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2.Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D.Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidence by two (or more) of the following:
1.Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
2.Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., ‘I am bad,’ ‘No one can be trusted,’ ‘The world is completely dangerous,’ ‘My whole nervous system is permanently ruined’).
3.Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4.Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5.Markedly diminished interest or participation in significant activities.
6.Feelings of detachment or estrangement from others.
7.Persistent inability to experience positive emptions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E.Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidence by two (or more) of the following:
1.Irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
2.Reckless or self-destructive behaviour.
3.Hypervigilance.
4.Exaggerated startle response.
5.Problems with concentration.
6.Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

F.Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
G.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H.The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
Specify whether:
With dissociative symptoms: The individual’s symptoms meet the criteria for posttraumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:

1.Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).
2.Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant or distorted).

Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behaviour during alcohol intoxications) or another medical condition (e.g., complex partial seizures).

Specify if:
With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).

ANNEXURE 2
DSM-V Diagnostic Criteria for Alcohol Use Disorder
A.A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:
1.Alcohol is taken in larger amounts or over a longer period than was intended.
2.There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
3.A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
4.Craving, or a strong desire or urge to use alcohol.
5.Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home.
6.Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
7.Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
8.Recurrent alcohol use in situations in which it is physically hazardous.
9.Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
10.Tolerance, as defined by either of the following:
a.      A need for markedly increased amounts of alcohol to achieve intoxication or desired effect.
b.      A markedly diminished effect with continued use of the same amount of alcohol.
11.Withdrawal, as manifested by either of the following:
a.      The characteristic withdrawal syndrome for alcohol (refer to Criteria A and B of the criteria set for alcohol withdrawal, pp. 499-500).
b.      Alcohol (or a closely related substance, such as benzodiazepine) is taken to relieve or avoid withdrawal symptoms.

Specify if:
In early remission: After full criteria for alcohol use disorder were previously met, none of the criteria for alcohol use disorder have been met for at least 3 months but for less than 12 months (with the exception that Criterion A4, ‘Craving, or a strong desire or urge to use alcohol,’ may be met).
In sustained remission: After full criteria for alcohol use disorder were previously met, none of the criteria for alcohol use disorder have been met at any time during a period of 12 months of longer (with the exception that Criterion A4, ‘Craving, or a strong desire or urge to use alcohol,’ may be met).

Specify if:
In a controlled environment: This additional specifier is used if the individual is in an environment where access to alcohol is restricted.

Code based on current severity: Note for ICD-10-CM codes: If an alcohol intoxication, alcohol withdrawal, or another alcohol-induced mental disorder is also present, do not use the codes below for alcohol use disorder. Instead, the comorbid alcohol use disorder is indicated in the 4^th character of the alcohol-induced disorder code (see the coding note for alcohol intoxication, alcohol withdrawal, or a specific alcohol-induced mental disorder). For example, if there is comorbid alcohol intoxication and alcohol use disorder, only the alcohol intoxication code is given, with the 4^th character indicating whether the comorbid alcohol use disorder is mild, moderate, or severe: F10.129 for mild alcohol use disorder with alcohol intoxication or F10.229 for a moderate or severe alcohol use disorder with alcohol intoxication.
Specify current severity:
305.00 (F10.10) Mild: Presence of 2-3 symptoms.
303.90 (F10,20) Moderate: Presence of 4-5 symptoms.
303.90 (F10.20) Severe: Presence of 6 or more symptoms.

Date(s) of hearing:	9 and 10 May 2018
Advocate for the Applicant:	Mr Robert Wood, Busselton RSL
Representative for the Respondent:	Ms Allyson Ladhams
Solicitors for the Respondent:	Australian Government Solicitor