Munton and Repatriation Commission
[2000] AATA 902
•16 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 902
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1997/1320
VETERANS' APPEALS DIVISION )
Re Alfred Lewis MUNTON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member
Date16 October 2000
PlaceSydney
Decision The Tribunal – 1. Sets aside the decision of the Repatriation Commission ("the Respondent") dated 30 October 1996 in respect of Post Traumatic Stress Disorder, and 2. In substitution therefor determines that – (a) the diagnosis of the claimed condition is amended to "Post Traumatic Stress Disorder with associated depression", and (b) the condition of Post Traumatic Stress Disorder with associated Depression is a war-caused disease pursuant to s9(e) of the Veterans' Entitlements Act 1986, with effect on and from 22 April 1996, and (c) the matter be remitted to the Respondent to assess the rate of pension payable to the Applicant.
.............................................. M T Lewis Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - entitlement - whether suffers from PTSD - whether definition of PTSD in Statement of Principles applied - whether PTSD war-caused - whether operational service aggravated PTSD - Statement of Principles applied - whether hypothesis reasonable - whether exposed to traumatic event on service - whether experienced severe stressor - operational service off the coast of North Borneo - whether scare charges and alleged murder of suspect on Indonesian junk were stressors - whether perception of danger sufficient to satisfy "experiencing a stressor" - subjective or objective test to be applied - whether diagnostic criteria in PTSD Statement of Principles satisfied - truth of hypothesis considered
Veterans' Entitlements Act 1986 – ss 120(1),120(3), 120A
Statements of Principles – Instrument No.15 of 1994, Instrument No.225 of 1995, Instrument No.3 of 1999, Instrument No.54 of 1999
Keeley v Repatriation Commission (1999) 56 ALD 455
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Cooke (1998) 90 FCR 307
Shelton v Repatriation Commission (1999) 85 FCR 587
Repatriation Commission v Gosewinckel [1999] FCA 1273
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235
REASONS FOR DECISION
16 October 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member
This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 30 October 1996 which refused a claim made by Alfred Munton ("the Applicant) in respect of post traumatic stress disorder ("PTSD"). On 6 August 1997, the Veteran's Review Board ("the VRB") affirmed that determination. All applications for review were in time. Therefore the earliest effective date of the Tribunal's decision is 22 April 1996, being a date not earlier than three months before the date of his claim.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –
Statement of the Applicant signed and dated 2 November 1998 (exhibit A);
Unsigned handwritten notes of the Applicant (exhibit B);
Two maps of the South China Sea area from the Atlas of South East Asia (Macmillan & Co, London, 1964) (exhibit C);
Sketch produced by the Applicant during the hearing (exhibit D);
Two undated statements of Colleen Munton (exhibit E);
Statement of Wendy Irene Munton dated 5 February 1998 (exhibit F);
Report of Dr M G Miller, consultant physician, dated 30 June 1998 (exhibit G);
Report of Dr M Dent, consultant psychiatrist, dated 5 August with annexures (exhibit H);
Reports of Dr M Amjad, MB, BS, dated 12 December 1996 and 9 January 1998 (exhibit J);
Two Discharge Summaries from St John of God Hospital in respect of the Applicant for the periods of 30 September 1996 to 25 October 1996, and 13 January 1998 and 23 January 1998 (exhibit K);
Letters from Dr J Westerink, consultant psychiatrist, dated 30 September 1996, 1 October 1996, 17 October 1996 and 10 April 1997 (exhibit L);
Reports of Dr J Westerink with addenda, dated 4 March 1999 and 8 December 1997 (exhibit M);
Excerpts from monographs entitled –
Treating the Trauma of Rape: Cognitive-Behavioural Therapy for PTSD by Foa, E.B & Rothbaum, B.O (Guildford Press, NY; 1998); and
Traumatic Stress by van der Kolk, B.A., McFarlane, A.C. & Weisaeth, L (Eds) (Guildford Press, New York, 1996) (exhibit N);
Report of Thomas R Frame, Ph.D, dated 22 June 1999 (exhibit O);
Statement of John Meredith dated 15 October 1999 (exhibit P);
Letter of Instruction from Vardenaga Roberts, Solicitors, to Dr Frame dated 7 June 1999 (exhibit Q).
The following documents were tendered as evidence on behalf of the Respondent –
Records from Australia War Memorial relating to HMAS Derwent between period 15 December 1964 and 11 January 1965 (exhibit 1);
Reports of Mr J H Straczek, senior naval historical officer, dated 6 May 1999 and 27 August 1999 (exhibit 2);
Reports of Rear Admiral R C Swan, AO CBE RAN (Rtd), dated 30 April 1999 and 3 May 1999 (exhibit 3);
Report of Dr Robert D Lewin, psychiatrist, dated 18 September 1998 (exhibit 4);
Transcript of VRB hearing held on 6 August 1997 (exhibit 5);
Report of Associate Professor Jeffrey Grey, historian, dated 8 August 1999 with covering letter dated 9 August 1999 (exhibit 6).
The Applicant and his wife gave oral evidence at the hearing. Dr Westerink, Dr Miller, Dr Dent and Dr Frame, were also called by the Applicant to give oral evidence. Dr Lewin, Mr Straczek and Rear Admiral Swan were called by the Respondent to give oral evidence.
The Applicant rendered operational service in the Royal Australian Navy in Malaysian waters and off North Borneo between 15 December 1964 and 11 January 1965, which was operational service. Therefore the standard of proof to be applied is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), which requires the Tribunal to determine, with respect to the period of the Applicant's operational service, that his PTSD was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Applicant's service.
As the Applicant lodged his claim after 1 June 1994, pursuant to s120A of the Act, the Tribunal is also required to apply the relevant Statement of Principles in determining this matter. The Statements of Principles concerning the reasonable hypothesis standard of proof for Post Traumatic Stress Disorder, which were in place at the time the primary decision was made are Instruments No. 15 of 1994 as amended by No. 225 of 1995. Those Statements of Principles were revoked by Instruments No. 3 of 1999 as amended by No. 54 of 1999.
At the time of the hearing the decision of Heerey J in the Federal Court in Keeley v Repatriation Commission (1999) 56 ALD 455 identified a veteran's accrued right to have his matter determined by the Tribunal using the Statements of Principles that applied at the time the primary decision was made. After the conclusion of the hearing, the Full Federal Court on appeal in Repatriation Commission v Keeley (2000) 98 FCR 108 also held that the veteran had an accrued right. The parties submitted, and the Tribunal agrees, that the outcome is not affected, whether the Tribunal applies the Statement of Principles for PTSD in existence at the time of the primary decision or the most recent Statement of Principles. That is, the outcome is the same despite the introduction of the phrase "severe stressor" in the more recent Statement of Principles which carries the same definition as that of "stressor" in the previous Statement of Principles.
Instrument No. 15 of 1994 states that at least one of the factors described in that Statement of Principles must be found by the Tribunal to exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the Applicant's operational service. The Applicant relies on factor 1(a) which states –
Experiencing a stressor prior to the clinical onset of post traumatic stress disorder;
That Statement of Principles (Instrument No.15 of 1994) defines "experiencing a stressor" and "post traumatic stress disorder" respectively (at paragraph 4) –
"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:(i) 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; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(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:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.It was the Applicant's case that he witnessed the murder of an Indonesian suspect on an Indonesian junk during a boarding party and that he was exposed to scare charges during his operational service aboard the HMAS Derwent. It was the Applicant's case that both these incidents qualify as "stressors" for the purpose of the Statement of Principles.
It is not in dispute that the Applicant suffers from a mental disorder; the question is whether he suffers from PTSD and if he does, whether it is war-caused. It was the Respondent's case that the Applicant does not suffer from PTSD as he did not experience any severe stressors on service and that his current condition can be explained by other events outside his operational service.
evidence
ApplicantThe Applicant served in the Royal Australian Navy from 20 February 1959 until 11 November 1965. The relevant period of his service for the purpose of these proceedings is his posting on HMAS Derwent from 15 December 1964 to 11 January 1965 in North Borneo. Prior to that the Applicant served on various other ships including HMAS Gascoigne, HMAS Melbourne and HMAS Stewart. The Applicant said that prior to his service in the Navy, he was never anxious or distressed.
In his oral evidence, the Applicant recalled the collision of the HMAS Voyager and HMAS Melbourne during his time aboard HMAS Stewart. He did not witness the incident as he was in the boiler room at the time. He recalled going on deck and observing ships' remains in the sea. He lost one of his friends with whom he had served for 2 years (not a close friend) on the Voyager. The next day he was required to deflate several rafts and clean up the area. The Applicant said that he could not recall any changes in his behaviour after this incident.
The Applicant was seen by a psychiatrist, Dr McGeorge, about 10 months after joining the Navy on the basis that he could not perform the task assigned to him, which was, to climb into a water tank on a boiler to conduct a "water clean". Dr McGeorge suggested the reason for this was that the Applicant had experienced something in his childhood that he could not recall. The only incident the Applicant could recall was when he was trapped in a wardrobe playing hide and seek for about five minutes. Although the Applicant considered that it did not distress him, Dr McGeorge thought to the contrary.
The Applicant met his wife in about 1963 after joining the Navy but before his trip to North Borneo.
The Applicant worked mostly in the boiler and engine rooms during his posting on HMAS Derwent. He also assisted with boarding parties and trained for loading mortars, damage control system assistance, refuelling and other general maintenance. He said the boiler room was well below the water line mid ship and it consisted of four boilers and various other pumps and machinery. It was a very noisy work environment. The compartment was large, but because he worked in the front of the boiler, movement was restricted. Access to the boiler room was by climbing down a ladder from the hatch to the top plate of the catwalk that led into the compartment.
During an admission to St John of God Hospital the Applicant made some handwritten notes about the nature of the boarding parties and procedures adopted, viz. (exhibit B) -
... our duties consisted of intercepting, boarding foreign vessels (Junk type craft) and inspecting them for any contraband (small arms, ammunition etc) also we shell shore installations.
During the boarding parties the ship was in a state of action which was known as Z1, the ship was closed up in a damage control state, During this state there was an alertness where engine room and boiler room staff were in a tense atmosphere due to the fact of the ship being stopped and were very vulnerable & susceptible to enemy divers placing mines on the ship's hull. Although the ship was darkened and guns manned this does not deter divers to place mines on the ships hull, so percussion grenades would be dropped by our gunnery staff over the side to deter any divers from placing mines on the ships hull. The noise from these charges exploded near Boiler and Engine rooms was extremely unnerving and we didn't know if it was incoming enemy fire, mines going off or our own percussion grenades.
…
We had on board Malayan military peope [sic] also the English S.A.S who we use to put ashore so they could locate enemy instalations [sic] and camps via spotter planes.
We would drop them off at a pre determined area and recover them at different day intervals….
The fear the engineering staff had to contend with on board HMAS Derwent during contact with these craft when we stopped to search them was the not knowing just what was going on for we were never informed why we were stopped.
The effect this had on me was great fear of the unknown which lead to anxiety & stress, we all had a permanent knot in our stomach which made sleep impossible …The Tribunal notes the Applicant's statement (exhibit A) is consistent with the content of these notes. In oral evidence the Applicant explained that the phrase "state of alert" was used to describe the ship being in a damage control state, and the term "Zulu 1" (Z1), was the highest state of readiness that required closing different sections of the ship to maintain watertight integrity. If a crew member attempted to move out of a particular section during this time, the Applicant said he or she would have been "severely reprimanded".
The Applicant recalled that during the voyage to North Borneo the hatch was closed quite often, usually in the evenings, for up to 12 hours. He said that announcements were made that the hatches were closing but it was very hard to hear them while in the boiler room. Once the hatch was closed, the Applicant described being "sealed in" - the crew was not allowed to reopen the hatch to come off watch. In his written statement dated 2 November 1998 (exhibit A) he noted –
On some occasions I remember coming off watch and not being allowed to shower or go back to my bunk because the ship was in a state of alert. During this time all water tight doors and hatches were closed and could not be opened. As a result we were required to sleep as best we could on the steel flooring and passageways.
In his oral evidence the Applicant said that the first time he experienced the dropping of scare charges was during his operational service. Although it was considered a standard procedure when the ship stopped, it was never an exercise that was practised routinely. He said about 5 or 6 grenades were dropped "intermittently" in the evenings along different parts of the ship at different times, when the ship stopped. He qualified that it did not happen every time the ship stopped, so he was always uncertain whether a charge would be dropped. He said they were never informed whether to expect a charge; they were only advised 10 or 15 minutes later of the reason for the dropping of the charges. He said the noise of the charges was "unnerving" and "deafening" when he was in the boiler room as it was very close to the bulkhead. He said the noises distressed him.
The Applicant served on two boarding parties during the trip to North Borneo. He was unable to remember the first one, but he recalled witnessing the murder of an Indonesian suspect by a Malaysian Military Officer during the second boarding party which he described in his written statement (exhibit A) –
One of the occasions was particularly unnerving and occurred late one night. It was pitch black as there was no moon. The ship was closed up in a darkened state and we picked up a craft on our radar. We manoeuvred very close to the craft and hit it with strong floodlights. The Malayan Military Personnel told the craft to heave which it did. I was off engine room watch at the time and so I was required to be part of the boarding party. My job was to start and make sure the engine and motor cutter was maintained throughout the journey to and from the junk and to assist in any other way.
On board the junk there were 33 crew which the Malayan Military Personnel ordered to the forward of the craft. At this time the Malaysian's [sic] took two of the crew to the stern for interrogation. One of the Malay's Military became agitated by the two crew members and was screaming at them. After about 15 to 20 minutes of this he hit one of them with something. Initially I was unable to see what he had in his hand and when I looked closer I realised that it was some sort of a sharp instrument and that he had cut the crew member severely around the throat. The crew member was bleeding profusely. The victim was pushed over the side of the junk and the other person was sent to join the other members of the crew at the forward section. At the time, I felt physically sick and inquired whether this was normal procedure and if not what was going to be done about it. I was told to say nothing and was reminded of the Secrets Act Statutes. On return on board the ship I cried for some time.
In oral evidence, the Applicant gave the following further particulars of the incident –
The officer in charge of the boarding party was an officer of the Malay Military who was required to act as interpreter and interrogator.
The boarding party travelled about 100 yards from HMAS Derwent to the Indonesian junk. He understood that previously ships used to approach alongside the junk but one of the English mine sweepers had exploded so that practice had ceased.
The Applicant was not advised whether the occupants of the junk were armed, but as they were not in uniform he assumed some of them may have been civilians. However it was possible that their uniforms had been discarded.
The Applicant was the only member of the boarding party that was not armed. He was manning the engine of the boarding craft and was advised by the Malaysian officer to stay near the motorcutter.
The Malay officer spoke to Indonesians at the forward of the junk and although the Applicant did not understand the language spoken he said the tone was "abusive" and very loud. His impression of the crew and passengers was that they were not pleased to see the boarding crew.
The Applicant stayed at the aft of the junk, alongside the motorcutter, close to where they had alighted. He was required to "keep an eye" on the craft. He recalled that there were about 30 people on the junk and said that other members of the boarding party did a head count.
The Applicant was about 12 feet from the Malayan military officer and the two suspects. Exhibit D was drawn by the Applicant in the course of giving evidence. It identified that the interrogation occurred diagonally opposite from where he was standing, towards the stern. The Applicant's vision of the victim was partially obscured because he was standing at an angle, but he was able to see the victim's upper body, neck and left shoulder. His vision of the incident was quite clear because of illumination from a light from the Derwent, about 100 yards away. The remainder of the boarding party was located towards the bow of the junk and would not have been in line of sight of the incident.
The Malayan military officer hit the crew member with his right hand across the throat and then pushed him overboard. He did not hear the victim say anything before he fell into the water.
The Applicant noticed blood on the gunwhale (over an area about the size of a fist) where the suspect was standing before he was thrown overboard.
The Applicant recalled having a conversation with the Malayan Military officer for about 3 or 4 minutes, when he asked about what had happened. The officer merely told the Applicant that it was none of his business, that he should not tell anyone about the incident and reminded him that what he had just witnessed was covered by the "Secrets Act".
The Applicant remained at the stern of the junk until they proceeded to take it in tow. He was then told to return to the landing craft by a Petty Officer.
Some of the other members of the party were aware that two Indonesian crew members were taken towards the rear of the boat for interrogation and some would have been aware that only one person had come back. However no one asked the Applicant what had happened.
The Indonesian crew members would not have mentioned the incident to anyone when they were taken aboard on the HMAS Derwent because they were required to sit on the quarterdeck until they reached Sarawak, where the Indonesians and the junk were handed over to the authorities.
The Applicant had no reason to believe that people on the Derwent were not watching the incident in question. However he was unable to see whether there were people watching from the Derwent because the light coming from the ship was directly in his eyes.
The Applicant said he felt shocked, frightened, angry and upset at the time of the incident. He did not discuss the incident when he went back to the Derwent because he was upset and frightened of being reprimanded as he was told by the Malay military Officer not to disclose it. The Applicant did not ever tell his wife or friends about the incident because he said, "I wanted to put it behind me; I wanted to forget it; I wanted to bury it". Nor did he disclose the incident to the VRB in August 1997. When asked why, he responded –
I glossed over it … because I didn't know them. They were strangers. It's very hard to talk to someone in a matter like that when you don't know them. I hadn't gained any confidence from them.
Despite realising its significance to his claim, the Applicant said "at the time I was more concerned about myself than any decision from them".
The Tribunal understands that the first time the Applicant disclosed this incident was during his second admission at St John of God Hospital in May 1997, after having spoken to his psychologist, Lee James (exhibit B). Initially the Applicant did not disclose the boarding party incident to Dr Westerink, his psychiatrist at St John of God Hospital, because he said he did not know him. The Applicant realised that the incident might have been relevant to the problems he was experiencing only after he had revealed it to Dr Westerink.
The Applicant said that the following paragraph from the Report of Proceedings ("ROPs") provided from Australian War Memorial records recounted by Commander R.A.N Captain R.C Swan, the Captain of HMAS Derwent from April 1964 until May 1965 (exhibit 1) referred to the same boarding party in question -
20. … At 1930 on Monday 21st December, a contact was gained at 6 miles, on 978 radar, which, upon further investigation proved to be the USHAA KILAT, a large trading kumpit outbound from Tawau. This vessel had a crew of 7 and was carrying 29 passengers. A thorough search disclosed 2 sealed envelopes hidden under sheets of galvanised iron. The crew and passengers were interrogated concerning their contents, but no member would speak, nor would they translate the contents of the letters. The crew were therefore arrested and the kumpit taken in tow back to Tawau and handed over to the police. It was later determined that the two envelopes contained no subversive material, but were love letters together with pornographic photographs, which were being smuggled into Indonesia.
After his HMAS Derwent posting the Applicant asked if he could be given another job as he felt he could not do the task assigned to him. The attendant at the sick bay advised him that he had a psychological problem and that it should have been followed up six years previously. The Applicant expressed his feelings about being in the boiler room to the attendant at that time. The sick bay attendant referred the Applicant to a naval medical officer at Flinders Naval Depot who considered the possibility that the Applicant might have been claustrophobic, and on that basis he was referred to Dr Reynolds, psychiatrist. The Applicant did not mention to Dr Reynolds that he was having flashbacks and dreams or that he had trouble sleeping because he said "there's a certain culture in the Navy that if you whinge or carry on, you're considered a bludger or whatever…and I never wanted to cause any trouble or any concern of my welfare …They sent me there, I didn't request to go there".
The Applicant did not recall seeing Dr Fisher, psychiatrist, in 1973 in conjunction with a claim that he made to the Department for nerves. However he recalled experiencing sleeping problems, flashbacks, dreams and nightmares around that time. He did not know why he did not disclose any of these problems to Dr Fisher as he had already been discharged from the Navy. He said "I kept them to myself. They were something personal and I didn't know what the problems were. I just thought they were bad dreams."
After the Applicant returned from North Borneo he said he noticed changes in his behaviour and he did not sleep well. For the remainder of his HMAS Derwent posting he had about four or five hours of broken sleep a night. He admitted that his sleeping patterns were worse than before going to North Borneo and that he slept reasonably well prior to that. He said his drinking became "a lot heavier" than before he went to North Borneo and he spent most of his money on alcohol when they were ashore. He felt depressed and "didn't care much about anything any more." He also became short tempered, anxious and apprehensive.
The Applicant recalled getting angry and irritable with some of the crew on occasions. He said he treated his superiors and officers with respect but only because he respected the "uniform"; he did not respect the people in the uniforms as he did not have any faith in them after what he had witnessed. When he was discharged he lost contact with everyone from the Navy.
The Applicant admitted in oral evidence to experiencing a recurring dream since his time on HMAS Derwent but before the boarding party incident, of being trapped in a flooded compartment, feeling very hot and trying to escape but being unable to because the wheel spanner was missing. During his admission at St John of God Hospital he described his dream in almost similar terms (exhibit B) –
I'm in a flooded ship compartment which is up side down, there is very little light the air is thick and humid.
The compartment is awash with the ship's movement, "I'm trapped".
The escape hatch is visable [sic] but can not be opened because the wheel spanner wich [sic] is used to open the escape hatch is missing.
The reason the wheel spanner been missing I believe is that one of the Engine Room staff have cut the retaining chain to the wheel spanner and stolen the spanner (which I have done myself on occasions) so that I could take the spanner down to the boiler room as there was always a shortage of them.
This dream started not long after the Voyager was cut into two by HMAS Melbourne…on the night of the 10 February 1964.The Applicant admitted that he did not tell any of his shipmates while on the Derwent that he was having that dream because he said "you don't really talk about things like that". The Applicant said that not long after the boarding party incident he had multiple dreams and flashbacks of what he had witnessed on the junk.
Before going to St John of God Hospital (that is, prior to 1996) the Applicant had dreams and flashbacks about two to three times a week; since then it has been less frequent, due to medication. Nonetheless he continued to experience flashbacks during waking hours "quite frequently" because of certain triggers such as television and loud noises which frightened him because they reminded him of the sounds of gun shots and charges that exploded on the ship.
The Applicant's problems apparently were at their worst in about 1994. He said he took a lot of time off work then because he was stressed, irritable, angry and felt he could not cope. He always felt tired because of lack of sleep, and was unable to sleep because he continued to dream of incidents that occurred on service that made him apprehensive about going to sleep. He also used to wake up feeling apprehensive and suffered from heart palpitations and sweats. He said a cardiograph was taken, but no cardiac abnormality was found.
The Applicant also had difficulty concentrating and consequently did not socialise very much because he could not remember conversations. He did not want to get close to anyone socially; he said "I just didn't feel I was worthy of being friendly with people …I had low self esteem because I didn't join in conversations very much anyhow. People would tend to talk past me so I just didn't want to be in that position". Essentially, the Applicant's problems were not improving and consequently, his doctor suggested he consult a psychiatrist. He has been admitted to St John of God Hospital three times since his initial admission in 1996.
The Applicant's last employment was at Integral Energy where he remained for over ten years in a security/reception position. He left in 1996 because he had become short tempered with other staff members and was forgetting things. This had been happening for two years. He was offered retrenchment packages a couple of times that he rejected initially. Ultimately on the advice of his doctor he took retrenchment and ceased work.
Since leaving work he has continued to feel apprehensive about sleeping, he continues to have problems with concentration and short term memory. He has had concentration problems for the last six to seven years. He considered he has not given his family the love that he should have during the last few years; he said "I just had a fear of getting too close to them" because he thought he would hurt them or "let them down emotionally" due to his drinking problem.
The Applicant rarely goes out. He prefers to do things on his own such as go fishing. He does not like being in the city, nor does he like supermarkets. He said he has left his purchases at the counter at times and walked out. He does not like being in crowded places because he feels insecure and apprehensive; he said, "everything seems to close in on me".
Veronica MuntonMrs Munton met the Applicant in about October 1963 at the age of 16 years. They saw each other for about four hours each evening for a period of some months until the Applicant went to Melbourne. At that time she recalled the Applicant did not appear to be anxious or apprehensive, nor did he ever mention problems relating to claustrophobia. In her undated statement to the psychologist, Lee James, (exhibit E) she noted –
Before Alf left to go to war I had not seen any sign of aggression in him whatsoever, he had an easygoing nature and was friendly and kind to everyone.
Mrs Munton said she received correspondence from the Applicant while he was on HMAS Derwent, but he made no mention of any distressing events.
In the period between the Applicant's return from his Derwent posting and their marriage Mrs Munton said she noticed the Applicant became "toey and yelled" at her on a few occasions. On one of those occasions, in about November 1965, they were in the car and the Applicant was angry and yelling while he was driving. She did not know what had caused it; she thought it was her fault. She also admitted that he appeared anxious; she said –
I just didn't know which way he was going to go when he became anxious. I didn't know whether it would go into being depressed or whether he would loose control a little bit with a lot of yelling
When he felt depressed he became very quiet and he withdrew by watching television.
Mrs Munton married the Applicant on 15 January 1966, after he had returned from his Derwent posting. At the time of their marriage she said he appeared to be "edgy or apprehensive" occasionally and "vigilant yet sensitive". She said this behaviour has gradually worsened since they married. He drank heavily in the early stages of their marriage but this has decreased since his first admission to St John of God Hospital because of his medication. Prior to that he drank about a dozen stubbies a day.
Essentially, Mrs Munton's evidence was that the Applicant's symptomatology was worse four or five years ago, notwithstanding short term improvement after his admission to St John of God Hospital. In her statement addressed to psychologist Lee James upon request (exhibit E) at St John of God Hospital she wrote –
Over the years Alf has become more volatile with an ever increasing short fuse, (especially after alcohol) we had to replace a wall in the bathroom once.
Alf completely withdraws from everybody most of the time now, he is depressed and takes everything to heart. I have learnt not to argue as it only prolongs the situation.
Alf's nightmares are now much more frequent, so much so we have not shared the same bed for approx. six months. These dreams frighten me and I find it difficult to go back to sleep.Mrs Munton said the Applicant's sleeping habits have gradually worsened since they married. Early in their marriage she noticed he was a very light sleeper and he had occasional nightmares (once every two weeks) and was always up very early. She was unaware of the boarding party incident until about 1997 when she read some notes the Applicant made during his admission at St John of God Hospital (exhibit B). She said that the Applicant never wanted to talk about his nightmares; he just told her that they were always the same. His nightmares have become more regular than when they were first married.
Prior to 1996 Mrs Munton worked with the Applicant at Prospect Electricity at the same site in Parramatta. She recalled that at work he occasionally used to "upset people by the things he said to them". Other times he became agitated and if someone said something to him he took it very personally and became depressed, withdrawn and sad. He also had "anxious" days when he became angry, volatile and "short fused". Mrs Munton left Prospect Electricity in 1994 and in her last three months there she said the Applicant was anxious and depressed on "most days".
Mrs Munton said the Applicant has become more withdrawn in the last four or five years - "he takes everything to heart…more on edge". His behaviour has changed particularly at night, in that he relives the nightmares and dreams that he has had the previous night. He looks sad, is often tearful and does not want to talk. She also noticed that recently he had become "jumpy" while watching television or when a door was shut behind him. The Applicant has also become indecisive over the last ten years.
In her statement dated December 1996 (exhibit E) which she prepared in conjunction with her carer's pension application she stated –
From the time my husband wakes in the morning I have to keep him within eye sight constantly. I have to encourage him to eat his 3 meals a day. I do all the preparing of food otherwise he would not eat his correct food.
I have to encourage him to dress himself otherwise he would sit in his pyjamas all day.
He has to be coaxed to shower and grooming in general.
I supervise his medication otherwise he forgets what he has taken and when and[sic] possible double dosing can occur. I also drive him to any medical treatment he requires as he is unable to handle public transport and due to medication cannot drive himself.
I don't like to leave him on his own at all as he tends to wander.
Mrs Munton explained that on a standard day the Applicant cannot sleep after about 5.30 am. He engages in various activities to keep him occupied during the day, such as the washing, fixing the pool filter, mowing the lawn/gardening about once a week and doing the crossword. Sometimes he makes his own breakfast. However there are times when he "just sits…he forgets about time, time means nothing". At night they watch television. The Applicant goes shopping with her most of the time because he likes to know that she is safe.
Mrs Munton said the Applicant's behaviour has restricted their social life. They stay at home mostly and socialise (if ever) only with people they have met through St John of God Hospital, and with their children. Mrs Munton said that other people do not seem to understand the Applicant's occasional violent and "erratic behaviour" after drinking. She said he does not drive because he gets aggressive and loses concentration.
After leaving Prospect Electricity Mrs Munton worked for a motor mechanic on a casual basis between 12 and 20 hours a week. She left work because of her anxiety about the Applicant when he was home on his own. She felt she needed to look after him to ensure that he was taking his medication when he felt depressed. Mrs Munton said that although she considered the Applicant's symptoms had remained at much the same level, he has some good days and some bad days. She said he improves when he visits Dr Westerink each month. He also consults his psychologist, but not as regularly.
Mrs Munton said the Applicant suffered from chest problems three or four years before leaving work. He "collapsed" a couple of times - once at work and once at home in the bathroom. On the first occasion he was taken by ambulance to hospital and he was asked there when he had suffered from a heart attack. The Applicant was not aware that he had ever suffered from a heart attack. Stress tests were conducted but no further investigations were undertaken. Mrs Munton said the Applicant "looked like a monster" at that time as he had many ruptured blood vessels in his face. She also said that no further investigations were conducted following the Applicant's second "collapse". He recovered within a few days.
Although the Applicant started taking medication for his depressive condition in 1996, Mrs Munton was aware of another occasion in about 1989 when he also took medication. She did not know what triggered that episode. In 1974 she recalled the Applicant locked himself in the bathroom and attempted to kill himself with a razor after returning from the Blacktown RSL where he had been drinking. He eventually opened the door and pushed his fist into the wall. She said that he did not recall anything the next day.
Wendy James MuntonMiss Munton, the Applicant's daughter, wrote a statement addressed to Lee James, psychologist at St John of God Hospital, dated 5 February 1998 (exhibit F), providing her observations of the Applicant's behaviour, in which she noted –
I remember as a child how my Dad was always quick to fly off the handle with any small problem which would arise in our household. On two occasions Dad needed to patch holes which he made in the house walls as a result of a small problem resulting in an argument.
Dad would often be seen drowning his sorrows in some alcoholic beverage. Dad regularly had bad nightmares and would wake my brother and I up with loud noises and crying. Dad stays in his own room now.
Dad is slowly changing and has, and still is, learning strategies and skills to deal with this.
I have noticed positive changes with Dad since he has been attending St John of God.
I have attended a family day, at St John of God, which explained terms like Post Traumatic Stress Disorder, S.U.D.S levels etc. I found this day to be very helpful and it was good to meet other people who have had to deal with, or have similar recollections and experiences with one of their parents. I found it a relief to think that I really wasn't such a bad child after all. It was just that my Dad had a lot of confusion, anger, suppressed and preoccupied thoughts.
John Meredith
Mr Meredith also served on the HMAS Derwent during the relevant period. He stated ( exhibit P) –
…
4.During the period in Malaysian waters, between December 1964 and January 1965, I recall an incident occurring after we had intercepted an Indonesian vessel that was suspected to have been carrying Indonesian Insurgents.
5.After the vessel had been boarded by Australian and Malay personnel I recall witnessing a Malayan interpreter pistol whipping and hitting with his fists male members of the Indonesian crew. I also recall the interpreter kneeing a number of young boys in the groin.
6.This incident occurred at night time, I'm not sure what time, but the incident was visible as the Indonesian vessel was under search light.
7.I recall hearing no sound of the interrogation due to the noise on the Derwent. What I do recall is the vigorous way in which the crew members were interrogated and I recall being very upset and distressed after witnessing that incident.
8.At the time I observed these events I was located on the quarter deck of HMAS Derwent.
9.I discussed this incident with other members of the crew, who's names I do not now recall, but I remember them indicating that they had witnessed similar incidents.
10.Also during the period of December 1964 and January 1965 I recall that at any time we were anchored stun grenades would be dropped over the side of the vessel and the sound of these grenades would scare the hell out of me.
medical evidence
The Applicant's medical service records show that he was diagnosed with "claustrophobia and inadequate personality" on service in October 1965 (T4, p31). Clinical notes in those records refer on several occasions to the Applicant suffering from claustrophobia. Indeed, on 27 May 1960 the Applicant was referred to a psychiatrist with the following comments (T4, p21) –
C/0 fear of closed spaces … First noticed 12/12 ago when working in reserve feed tanks. Had to come out. Since then has had a fear of any small confined space. Has been in R.A.N. 15 months.
…
Request Psychiatrist will see and advise
He was seen by a psychiatrist on 3 June 1960 who noted (T4, p21) –
Claustrophobic as far back as he can remember but much more pronounced in past 12/12. At 8 was hiding in a wardrobe when he panicked. Last week he again panicked in a confined space. No history of any nervous trouble in family. Apparently no one saw him at the time of his panic. Confirmatory evidence, if obtainable, would be of great assistance as a condition such as this would render him completely unfit for service.
The Applicant provided a statement dated 18 October 1965 (T4, p27) at the time of his discharge from the Navy that his first episode of claustrophobia was in 1959 while serving on HMAS Gascoyne at which time he consulted Dr McGeorge at Balmoral Naval Hospital. The Applicant also said in that statement –
After my visit to Dr McGeorge I was not informed of any outcome from my visit and I assumed that no interest had been taken regarding my case. In 1965 I was sent to see Dr Reynolds between those visits to the Doctors I lived in fear due to my condition. Even before I enter a confined space I know and fear what I am going to go through. After I enter I get a feeling of doubt, fear and a terrible close feeling which makes me lose reality …
I consider having to be subjected to work in relatively small compartments and confined spaces during my service in the R.A.N has aggravated my condition.
…
I feel everything closing in around me and have to evacuate the space as quickly as possible. I have tried to fight this feeling every time it occurred, but each time it gets worse.The Applicant was discharged from the Navy on the recommendation of Dr Reynolds on 27 August 1965 (T4, p25). Dr Reynolds noted that the Applicant's "inadequate personality with claustrophobic symptoms" predated his enlistment and that he was not suitable for Navy service. The Tribunal is aware that a report made on 26 August 1965 (T4, p25) stated that the Applicant was "extremely quiet and retiring", "very introverted and is completely negative", "complains of claustrophobia in machinery spaces, gives minimum effort to his duties. Has to be "carried " by his messmates".
A medical history sheet signed by the Applicant on 15 June 1973 (T4, p37) notes symptoms of "claustrophobia, irritability, trouble sleeping" first appearing in 1959 and then again in 1965. On 15 June 1973 Dr Kirkman, whom the Tribunal assumes to be a medical officer employed by the then Repatriation Department, examined the Applicant and noted that he "seems to be depressed ++. Phobic symptoms. No tremor. Not tearful". Dr Kirkman made a provisional diagnosis of "? Depression with phobic symptoms" (T4,p40) and referred the Applicant for psychiatric assessment by Dr Fisher, psychiatrist, on 21 June 1973, who concluded that he was suffering from anxiety state with phobic features.
Dr G J M WesterinkDr Westerink is the medical director of the PTSD program at the St John of God Hospital. He has been the Applicant's treating psychiatrist since 1996 and he prepared numerous medical reports (T4 and exhibit M). He first saw the Applicant on 20 August 1996 when he made a primary diagnosis of partial PTSD, with anxiety disorder, major depression and alcohol dependence as co-morbidities (exhibit K). The Applicant has had three admissions to St John of God Hospital for treatment of his condition. These were from 30 September 1996 to 25 October 1996, from 27 April 1997 to 22 May 1997, and from 13 January 1998 to 23 January 1998.
Dr Westerink said that PTSD was the major cause of the Applicant's distress, with depression being secondary to the PTSD. He opined that depression and anxiety was part of the PTSD, and that the Applicant abused alcohol in order to deal with it. Dr Westerink amended his diagnosis upon discharge in October 1996 to chronic PTSD, and that diagnosis was subsequently confirmed by other specialists in the unit who had also treated the Applicant.
Dr Westerink said that before the Applicant's admission in 1997 Ms Lee James, clinical psychologist at St John of God Hospital, administered the Clinician Administered PTSD Scale ("the CAPS") test. The Tribunal understands on the evidence of Dr Westerink that the questions asked in that test are based on the DSM-IV criteria in order to determine the diagnosis of PTSD. The questions are in almost identical terms to the Statement of Principles for PTSD. Dr Westerink understood that Ms James considered the test results were a true account, that all criteria were met and the diagnosis of PTSD was consequently confirmed.
Dr Westerink saw the Applicant once during his 1997 admission. After discharge, Dr Westerink considered that the Applicant had not "improved optimally" which he attributed to the financial stress the Applicant was suffering at the time. At about that time Dr Westerink had written numerous reports to the Respondent in support of the Applicant's claim for a Special Rate pension (T4). Dr Westerink continued to see the Applicant once every few weeks as an outpatient.
The Applicant was re-admitted on 13 January 1998 for 10 days in the care of Dr Smith who also agreed with the diagnosis of PTSD. His third admission was prompted by Dr Smith's assessment that the Applicant had been feeling tense, stressed and very anxious over the previous few months due to ongoing problems with the Respondent regarding his PTSD claim. The Tribunal notes that in the discharge summary for the 1998 admission (exhibit K), final diagnoses of chronic PTSD and major depression were made. Dr Westerink considered that the Applicant's condition had improved to some extent by the end of his 1998 admission, and that he seemed to be prepared for the Tribunal hearing which was imminent.
Dr Westerink saw the Applicant on 25 February 1999 and again he found him to be very distressed. In his report dated 4 March 1999 (exhibit M) he wrote that the Applicant "was barely coping and he was worried about his court case". Dr Westerink continues to see the Applicant about once a month and noted that his symptoms fluctuate. He noted that the Applicant had improved considerably since his first admission in that he was not as anxious or depressed and isolated as he used to be and that he slept better.
Dr Westerink opined that a number of traumas that the Applicant experienced on service, including the boarding party incident, were responsible for his PTSD and that he satisfied the other diagnostic criteria in the Statement of Principles, as confirmed by the CAPS test. Dr Westerink opined that the onset of the Applicant's PTSD was while he was still in the Navy.
Dr Westerink explained that PTSD can be multi-factorial in causation and more often than not it occurs after a number of traumatic events. He explained that the link between the trauma and the condition is usually, but not necessarily, indicated by intrusive memories. In the Applicant's case, Dr Westerink said that the intrusive memories were mostly about being locked below deck during the time the ship was in hostile waters. The Applicant never told him of dreams or intrusive recollections of the boarding party incident.
In relation to Dr Lewin's opinion that the boarding party incident did not qualify as a severe stressor as required by the Statement of Principles, Dr Westerink responded with the following comments in his report dated 4 March 1999 (exhibit M)-
Mr Munton, like many Veterans with Post Traumatic Stress Disorder, does not like talking about his major trauma. It distresses him and for a person with a naval background or an army background it is not manly to be distressed by memories. They find it difficult to talk about these traumatic incidents to people whom they do not trust or those they do not know. Dr Lewin only got part of the story and it was not until after I knew him very well that he told me the whole story about his traumatic incident …
... Finally traumatic incidents do not occur in isolation, the environmental setting is important.
In essence, Dr Westerink did not believe that the Applicant made up the event, nor did he consider it unusual or extraordinary that the Applicant did not disclose the event to the VRB. The Applicant had been reluctant to talk about it for a long time and in the circumstances it was understandable. Furthermore, Dr Westerink highlighted that PTSD can have adverse effects on memory and can also cause dissociation so that a PTSD sufferer's memory of an event can disappear and then reappear.
Dr Westerink acknowledged that the Melbourne/Voyager collision would have sensitised the Applicant, and that it may have been a pre-disposing factor. However he did not consider it to be the trauma which caused the PTSD.
Dr Westerink said Dr Fisher's diagnosis in 1973 of "anxiety state with phobic features" was the equivalent (at that time) of a diagnosis of PTSD (T4, p42). He considered that the Applicant's anxiety may have commenced during his Navy service and that his depression arose much later. Dr Westerink did not consider the Applicant had a personality disorder as defined by DSM-IV, nor did the Applicant suffer from any pre-morbid psychiatric condition prior to the onset of his PTSD. Dr Westerink considered that the Applicant's claustrophobia was caused by his Navy service and not his childhood, but that it was mild and played no role in the diagnosis of his PTSD.
Dr M G MillerDr Miller, consultant physician, provided a medico-legal report dated 30 June 1998 (exhibit G). He obtained the following history from the Applicant pertaining to the boarding party incident and his duties on board the HMAS Derwent –
There appears little doubt that Mr. Munton perceived his duties on board the cutter as being particularly stressful; a British ship HMS Langton had been sunk by hand grenades thrown into the ship by an Indonesian small craft and HMAS Teal had been fired upon from a small ship. Mr. Munton told me that he was particularly scared that hand grenades would be dropped into his cutter.
The second interception that Mr. Munton was involved with in this period of time was a sailing junk carrying thirty Indonesians. In view of the number of people on board the junk, Mr. Munton was required to board the ship with the other sailors, even though he was unarmed. He told me that the junk's captain was hostile and that the whole crew were taken prisoner. At this point Mr. Munton, who had been exhibiting unease at telling me this story, broke down and was unable to continue for some ten minutes. His wife told me that she understood that her husband was on the junk and saw the Indonesian crew being interrogated. The Malayan interpreter carried by the boarding party had assaulted the prisoners and actually killed one of them and threw him overboard. After Mr. Munton had recovered somewhat he was able to confirm this and told me that he saw the Malayan interpreter beating the prisoners. He broke down again but then told me that he saw the blood on the rail of the junk but that another Australian crew member advised him to keep his mouth shut about this.
Mr. Munton did not wish to discuss this episode, he was so distressed that I considered it to be unwise to probe further. However, there is no doubt that his perception was that the Indonesian prisoner had been murdered by the Malayan interpreter.
The remaining prisoners were brought on board HMAS Derwent and confined on the quarterdeck and the suspect craft was taken in tow. Mr. Munton told me that prisoners were not allowed to go to the heads but were required to relieve themselves where they sat and he actually saw urine running down the deck. He broke down again and I considered that further questions on the subject of the Indonesian prisoners should cease.
After he had recovered he then told me that he was particularly distressed whilst in the engine room because percussion grenades would be thrown overboard, without any warning, in order to discourage swimmers who may be attempting to sabotage the ship. The sound of the grenades exploding was particularly magnified because Mr. Munton was below the waterline for so much time.
At this point Mr. Munton again exhibited distress and I considered it wise to cease questioning about any aspect of his military service.In oral evidence Dr Miller considered the Applicant perceived the alleged event and he had no reason to disbelieve the story, notwithstanding that he was unable to obtain a careful and precise history from the Applicant. He said –
I believe that somehow he obtained the information that one of the Indonesians was murdered and his interpretation of that, which he genuinely believes is that he was pushed overboard by the Malayan.
Dr Miller was quite certain that the Applicant believed the suspect was murdered, a perception which had become very rigid in the Applicant's mind. Nonetheless, Dr Miller expressed doubts as to whether in fact the alleged murder had occurred.
In any case, Dr Miller considered the Applicant was subjected to several other stressors. For example, the Applicant was distressed by being enclosed in a narrow tunnel and hearing hand grenades exploding. The fact that the Applicant had heard about ships being fired upon made the Applicant's experiences a potential stressor for the purposes of the Statement of Principles in Dr Miller's opinion.
Dr Miller obtained the following history with respect to the Applicant's symptomatology –
Mr. Munton said that his main symptom was irritability and difficulty in sleeping. His irritability and bad temper is such that his wife has contemplated leaving him and Mr. Munton admitted to hitting her twice, in the early days, when he had had too much to drink.
He sleeps badly and is so restless, calling out, that he has to sleep in a separate bedroom. Mrs. Munton told me that he perspires heavily and that she often has to change the sheets which are disturbed because he thrashes about in bed. He wakes frequently and early, he told me that he has repetitive nightmares, one in particular was that he is in a ship which has overturned and he is trapped in a compartment. He admits to flashback of blood and Mr. & Mrs. Munton told me about the distress that he suffers when he watches television and anything appertaining to blood comes on the screen. When this happens he gets up and walks out of the room.
He has very few friends, he keeps ... to himself but depends heavily on his wife.
Mr. Munton admitted suicidal ideation and Mrs. Munton told me that he had once locked himself in the bathroom and threatened to cut his wrists. At this point Mr. Munton exhibited overt distress again.
…
Alcohol Intake
He admits to drinking at least four to five schooners and two double spirits a day. This equates with about 115 grams of alcohol daily and Mr. Munton told me that he takes this "for medical reasons in order to sleep."
Memory Loss
This has been present for a number of years. Mr. Munton is able to recall past events but has difficulty with recent ones and has major difficulties in concentration.
Dr Miller considered the Applicant suffered from PTSD.
Dr M R H Dent
Dr Dent, consultant psychiatrist, examined the Applicant on 12 June 1998 and prepared a report dated 5 August 1998 (exhibit H). He also obtained a history to the effect that the Applicant continuously experienced the same nightmare about being trapped in a compartment of a ship and other similar dreams of being "locked in". He also told Dr Dent that he experienced other nightmares referring to his time aboard HMAS Derwent acting as "mother Ship" to minesweepers, one of which was hit and sunk after attempting to arrest a junk. Dr Dent said that the Applicant felt "sensitised" by the Voyager/Melbourne collision. The Applicant provided the following details to Dr Dent regarding events aboard HMAS Derwent and his reactions –
Small arms fire was directed at HMAS Derwent; there would be night exercises to track Junks by radar and involved in the arrest and detention of prisoners…
He's got particularly disturbing recollections of his views of wrong behaviour with such young prisoners who looked to be youths; he found it offensive that a rifle butt blow to the prisoners may have occurred.
He expressed his sense of guilt at putting SAS Soldiers off the vessel in their rubber boats and describes a sense of guilt in this regard ...
He also recalls the quite frightening explosive sounds of percussion grenades around the vessel to deter enemy divers; he found then and even in discussions now it creates a sense of fearful reaction; there were particular periods of being confined under the deck for long periods of time and only going on deck at night in the dark in fact.
Dr Dent opined that the boarding party incident was a severe stressor that involved "intense fear" and "threatened death or serious injury". Relying on the 1996 Detroit Area Survey of Trauma (exhibit 0), Dr Dent said that the key issue in clinical practice was the sufferer's perception of the stressor which involved subjectivity, and he considered that the current criterion in the Statement of Principles, the first of which was objective, was not consistent with clinical practice. He was not surprised that the Applicant did not discuss his trauma in a non-therapeutic setting. Dr Dent noted in his report that the Applicant found that the news of sailors being killed below deck on HMAS Westralia exacerbated his flashbacks. He also agreed that the Voyager/Melbourne collision could have been a significant stressor for the Applicant.
Dr Dent opined that the Applicant's claustrophobia would have contributed to the later onset of his PTSD or made him more vulnerable. There was insufficient evidence to indicate that the Applicant suffered from a pre-morbid psychological disorder based in childhood. Although the Applicant had some pathology consistent with anxiety, Dr Dent considered it to be within the normal spectrum of human experience.
Dr R D LewinDr Lewin, consultant psychiatrist, examined the Applicant on 14 September 1998 and prepared a medico-legal report dated 17 September 1998 (exhibit 4). He obtained the following history from the Applicant regarding events that occurred on board HMAS Derwent –
..the main thing he found difficult was being locked down in the boiler room during episodes of time the vessel was in action stations. The ship was sealed and he was below water level. Mr Munton told that he was afraid that the enemy might attach mines to the ship or that he would be trapped below decks for some other reason.
He told me that he was particularly frightened when percussion grenades were thrown aboard by his vessel. He told me that he had never been told officially what these loud explosions were.
I asked him whether his vessel had ever been engaged in direct hostilities. He told me that the ship encountered various hostile vessels which were generally smaller vessels, wooden junks and similar. A mine sweeper was hit with small arms, but he was serving on a larger steel vessel. Mr Munton noted that while he was serving in the boiler room he did not know about small arms fire above. There was no naval engagement. His vessel was engaged in intercepting infiltrators.
…
He told me that he was witness to an interrogation of a suspect by Malay police personnel. He was distressed about this and appeared to avoid speaking about it. He told me that he believed one of them was injured and thrown over the side of the vessel after his interrogation was completed. Mr Munton was not a direct witness to these events. He told me that it was a dark night and that he did not remember clearly what had happened…Dr Lewin obtained the following psychiatric history from the Applicant –
Mr Munton described symptoms of anxiety and depression including a number of re-experiencing phenomena. The main focus of his symptoms were anxiety symptoms. He described a range of bodily symptoms including palpitation, constipation, chest pains and flushes. …
Mr Munton described fairly typical hyperventilation symptoms including racing heart rate, numbness in his fingers and over-breathing…
…
He noted that he wakes some mornings feeling quite apprehensive. He notes that he expects something bad to happen but nothing actually happens. He feels better after he goes for a walk or after he has made some particular action to distract himself.
Mr Munton described a range of avoidance behaviours. He prefers to stay away from the city or from other crowded places. When he goes shopping, he is impatient at the cash register…in particular, Mr Munton avoids confined places, especially it if is hot. He told me he prefers to stay away from supermarkets, crowded movie theatres and lifts…
He described intermittent panic symptoms …
Mr Munton also referred to intermittent post traumatic symptoms. He described the fairly constant experience of disturbed dreams. He described this happening about three times a week over the last several years and noted that these experiences were neither increasing nor decreasing in frequency. He feels that he sleeps through most nights but occasionally wakes in response to these dreams. Mr Munton described several recurring patterns of dreams. In one of these, the most common, he records that he finds himself trapped in a sealed compartment below water level in a ship. He cannot get out. He awakens on some occasions, "recalling the dreams" as the compartment is filling with water.
…
He described avoidance behaviour regarding certain items on the television, fearing that these might trigger recollections of his war-service.
With regard to depressive symptoms, Mr Munton noted that he generally sleeps most nights, although there are occasions when his sleep is disturbed.
In oral evidence, Dr Lewin accepted the Applicant had a history of recurrent dreams, but he did not regard that as a feature consistent with the diagnostic criteria for PTSD. He said the Applicant described a particular pattern of dreaming which was unusual and inconsistent with the usual clinical phenomena associated with PTSD. In particular he did not find that the Applicant's dreams were a "symbolic representation" of the actual event as they were too literal.
In cross-examination, Dr Lewin said that the history obtained from the Applicant about avoidance of particular activities was more consistent with anxiety syndrome described as agoraphobia, and for that reason the Applicant did not satisfy the third criterion in the Statement of Principles. However he conceded that the Applicant manifested some of the symptoms required to satisfy the diagnosis of PTSD. He was unable to make a diagnosis of a personality disorder on the information presented to him.
In essence, Dr Lewin was of the view that the Applicant had a pre-morbid history of anxiety prior to his service that commenced in childhood and that he currently has a life long anxiety disorder with agoraphobia and panic disorder which was aggravated by his Navy service. He said the Applicant's present symptoms were a broad range of anxiety and depressive symptoms not limited to post traumatic symptoms. He qualified, however, that his conclusions were based on "legalistic grounds"; he felt that there were not enough symptoms to make a diagnosis of PTSD in accordance with the Statement of Principles.
historical evidence
HMAS Derwent in North Borneo – Use of Scare Charges and Operation AwkwardDr Frame provided the following evidence about the HMAS Derwent's voyage into Malaysian waters –
Both reports of proceedings (ROPs) reveal the growing tension which existed in the waters between Malaysia and Indonesia, particularly in the area around Tawau. The period December 1964 - January 1965 was clearly an arduous and difficult time for those embarked in Derwent. The work was constant and the pressures unrelenting. In addition to anti-infiltration, Derwent was engaged in bombardment even as the ship prepared for a rapid escalation in fighting. In December 1965, an RAN ship was fired upon by insurgents before returning gunfire. There was a high level of apprehension within the RAN generally as to what sort of enemy actions were to be expected during "Confrontation". Some intelligence reports warned of all-out war with Indonesia before the middle of 1965. By the end of 1964, "Confrontation' resembled a guerilla war at sea. Combatants were not readily available while their weapons and methods of attack could not be predicted…
… In effect, the men serving in Derwent had no idea of when they would be returning home, the nature of the operations in which they would be engaged, whether their ship was suited to such operations and eventually whether a full-scale war might eventuate.Dr Frame explained that the 'Confrontation' was essentially a conflict which involved infiltration by a small number of Indonesian personnel, and the term "guerilla war at sea" was used to explain the fact that the operations were "covert". He conceded, however, that by 1964 the RAN had ships attached to the Far East Strategic Reserve for almost 10 years, and apart from not knowing whether war would break out with Indonesia, there was nothing unusual about RAN ships' operations in the Strategic Reserve.
Mr Straczek said that according to the ROPs, HMAS Derwent was only ever engaged in practice bombardments and the phrase "guerilla war" painted an inaccurate picture of the relevant period of operational service in that it implied that armed raiders attacked warships with large weapons and torpedoes, which was not the case. Dr Grey also did not agree with Dr Frame's opinion on this point. He noted in his report (exhibit 6) –
The fact that the infiltration groups operating by sea chose to make their attempted landings under cover of darkness does not, of itself, constitute a guerilla war. …Even if one accepted that the maritime infiltration campaign waged from Sumatra and the Rhios against west Malaysia and Singapore constituted such a 'guerilla war', his use of evidence concerning activities in the Tawau area does not support this. Tawau is in east Malaysia, on the eastern extremity of the Malaysian-Indonesian border between Kalimantan and Sabah, and directly across from concentrations of Indonesian marines (KKO) based on Nunukan Island in the Wallace Bay area in this period. The attacks anticipated in Derwent's RoP and referred to by Dr Frame relate to the activities of regular Indonesian personnel in uniform and occupying known positions - the antithesis of 'guerilla war'.
Mr Straczek described Operation Awkward in his report, viz. –
Operation AWKWARD is a defensive state designed to provide protection against saboteurs approaching their target underwater, surface swimming or direct attack from the shore, particularly if the ship is alongside a wharf.
Operation AWKWARD is implemented when a ship is in harbour or at anchor. When a ship assumes what is described as an Awkward State, the following actions will be taken:
Ships motor cutter will conduct continuous patrols around the shipShip divers will conduct bottom and cable searches
Armed sentries are posted to watch for suspicious activity
Scare charges may be usedAn Awkward State would not have been assumed during boarding operations, when the ship was underway and would more than likely be at sea. The ships company, however, would probably have been closed up in Defence Stations.
HMA Ships exercise operational and damage control evolutions on a regular basis, and a ship will 'workup' to a high state of operational readiness prior to deployment, such as the period of Indonesian Confrontation.
When a ship is on[sic] engaged on operational service, the Daily Orders would specify the routine for the day, including information on planned evolutions, including Operation AWKWARD. Whenever the ship assumes or relaxes a particular damage control state, this will be piped to the ships company. All members of the ships company would be aware of the ships damage control state at any given time. Changes in the damage control are normally entered in the ships log, as are occasions on which an Awkward State is assumed.
Dr Grey similarly stated that the ship's company would certainly have been aware that the ship was operating under a given state of Operation Awkward and the procedures associated with that status. He also noted that Operation Awkward and similar damage control operations were routinely deployed, especially during the relevant period. In oral evidence Mr Straczek was unable to say with any certainty whether progress reports on Operation Awkward were in fact given routinely. However he did admit that progress reports were not required as Navy procedure.
In contrast to Mr Straczek's opinion, Dr Frame said that it was not customary to explain to everyone on the ship the reason why Operation Awkward was employed, and to make comments on its general progress. He noted the following in his report –
Mr Straczek seems to assume, however, that the entire ships company was aware of why the operation was ordered, what was happening around the ship when it was underway, and whether sounds and sensations perceptible within the engine room were defensive measures or attacks on the ship given that progress reports were not customarily made. Those in upper deck positions may have had some idea of events and a context in which to assess the prevailing threats to their personal safety; those in the machinery spaces did not have that advantage. Consequently, the level of unease among engineering personnel who were also best placed to hear the explosion of anti-diver incendiaries meant that they faced potentially higher levels of stress …. The preparedness of HMAS Derwent and its ships company for such operations was barely adequate.
In cross examination, however, Dr Frame admitted that if there was any objective indication to the ship's command that it was actually under attack, the ship would have gone publicly to a higher state of readiness, namely action stations. If that did not follow, everyone on the ship would have deduced that it was simply Operation Awkward and there was nothing to worry about being under attack.
In response to that Mr Straczek said that the scare charges used during Operation Awkward were concussion devices and not incendiaries. He said that scare charges were not always dropped whenever operational orders were given. Dr Grey said that given the amount of emphasis placed on Operation Awkward during training, he could not accept that engine room crew could reasonably have believed that the detonation of scare charges was an attack on the ship.
In his report dated 3 May 1999 (exhibit 3) Rear Admiral Swan outlined that Operation Awkward could only have been executed on the nights of 19, 23, 27 and 30 December and possibly (but unlikely) on 25 December 1964. On only two of these dates HMAS Derwent was in a higher state of alert than "state 4". Between 20 December 1964 and 7 January 1965 he said HMAS Derwent apprehended, observed and/or searched 15 suspicious vessels in the Tawau waters. However, the ship was not in the "Action" state so that the hatches and doors would not have been closed. He also said that when the ship was in the action state or in any other degree of readiness, it would have been possible always for personnel to move about the ship if the duties so required. He denied that the doors would have been locked, preventing personnel leaving their respective compartments.
The Tribunal notes the HMAS Derwent log book for the month of December 1964 records on 21 December at 7.45 pm a kumpit was searched and at 8.36pm, crew of the kumpit were arrested and taken in tow back to Tawau. The Ship's log indicates for the months of December 1964 and January 1965, that HMAS Derwent was predominantly in either "3 Yankee" or "4 Yankee" state, which the Tribunal understands to be NBCD state 3 or 4 (exhibit 2). The Tribunal notes from the HMAS Duchess' Ship's Standing Orders (in exhibit 2), those states signified –
NBCD State 3:
a. A State normally associated with peacetime cruising.
b. Implies the maintenance of Watertight Condition X.c.Under hazardous navigational conditions may be augmented by closing up additional personnel as Special Sea Dutymen (HQ1 Section Bases, etc.), and assumption of Condition Y.
d.This state is never assumed if an NBC threat exists.
NBCD State 4:
a.A State normally associated with peacetime in harbour.
b.Implies Watertight Condition X, with relaxations necessary for maintenance, etc.
c.This State is never assumed if an NBC threat exists.
The Tribunal also notes from those Orders that "Zulu" was ordered during "NBCD State 1" which was associated with the following –
a. Normally associated with Action Stations.
b. Assumed, to the extent practicable, for Emergency Stations.
c. Normally assumed for Awkward State One.d.Implies an automatic assumption of Watertight Condition ZULU, unless specifically ordered, e.g. at Emergency Stations.
e.Personnel relaxations for meals, etc. will be ordered as necessary.
f.When a NBC threat exists, will automatically be combined with the assumption of Gastight condition ALPHA.
Boarding Party incident
In his first report (exhibit 2) Mr Straczek noted that the composition of the boarding party in question would have included one officer, one Petty Officer and eight junior sailors. A sailor of the marine engineering branch may have been a member of the boarding party responsible for the engine of HMAS Derwent's motor cutter. He did not consider it possible that a Malayan military officer could have been in charge of the boarding party in question. The overall command of the boarding party operation was vested in the commanding senior officer of the HMAS Derwent and interpreters were used only to assist with the boarding party; they were not in charge of the boarding party.
Dr Miller agreed with those conclusions in oral evidence. Rear Admiral Swan also concurred with that in his letter to the Respondent dated 30 April 1999 (exhibit 3). He also noted that any passengers of arrested vessels were always kept on deck under guard while on board HMAS Derwent while the vessels were towed back to the harbour.
Dr Frame admitted his statement that "While it was policy not to allow the Malay interpreter to conduct interrogations alone, one can easily imagine circumstances in which an interpreter may have been separated from the Australians" was mere speculation. He said that the Malaysian officer could have been a police officer who operated under the jurisdiction of the commanding officer conducting the boarding party.
Mr Straczek opined that the boarding party operations would have been fully observed by personnel closed up in HMAS Derwent as they would have been in close proximity to the boarded craft that would have been illuminated. For that reason, Mr Straczek questioned the veracity of the Applicant's claims. Similarly, Dr Grey opined that it was always possible for a murder of the kind alleged by the Applicant to have occurred in certain situations. However he was unaware of any credible reports of misconduct by the Malaysians towards Indonesians apprehended in Malaysian territory and he could not detect any evidence in support of the Applicant's assertions, even by inference.
Rear Admiral Swan was certain that the alleged murder could not have occurred on 21 December 1964 for the following reasons –
During boarding party operations DERWENT would close the suspected vessel so close as to illuminate the vessel with the ships 10 inch signal lamps - not really searchlights - so that the Command could observe the proceedings and take any necessary action to support the boarding party if necessary.
The whole operation would have been observed by the defence watch of the sailors closed up at the time and the suspicious vessel would have been under constant observation from personnel on the bridge, the lookouts, the signalmen and the gunnery crews in the secondary armament, the safety of the boarding party always being paramount. (exhibit 3)In oral evidence, Rear Admiral Swan accepted the possibility that the entirety of the boarding party incident could not have been observed by Derwent personnel. He considered the incident was most unlikely, but if it had occurred a report would have been written by the Gunnery Officer or second in command. Dr Frame maintained it was possible that the Applicant could have been the only person to have observed the alleged murder. Dr Frame did not comment on whether a Malay interpreter could have murdered an Indonesian during a naval boarding party. He said there was insufficient data available to conclude either that the incident never happened or that similar events occurred on more than one occasion. In his report he stated –
Although there is evidence that some Malay interpreters harboured ill-will towards the Indonesians they interrogated, it is impossible to say whether such sentiments could have resulted in the murder Mr Munton claims to have witnessed. One can also speculate on the amount of sympathy a murdered Indonesian might have received from an Australian boarding party member. I could not state with absolute confidence that racism and discipline existed in equal measure among Derwent ships company. If an Australian sailor felt an Indonesian deserved some vigorous physical interrogation for whatever reason, there is a possibility that such a person might also have been indifferent to the legality of another's action. Consequently, such an event might never be reported or recorded.
In oral evidence however, Dr Frame admitted that there was no evidence to suggest that racism on the HMAS Derwent led to any Australian officer/sailor suppressing the murder of an Indonesian national.
Dr Miller commented that it could have been very likely in the circumstances that the Applicant was advised from someone like a Petty Officer in charge or one of the other soldiers to effectively "keep his mouth shut" about the alleged murder. He said from his readings in history that some things are not reported but are "hushed up", and –
… the very things which do not bring credit to the Naval service are the ones that are usually hushed up.
Essentially, Dr Miller considered the sequence of events as described by the Applicant to be quite reasonable. As such he considered a causal connection existed between that incident and the distress that the Applicant now suffers.
consideration of the evidence, submissions, and tribunal findings
Does the Applicant suffer from PTSD?Before considering whether the Applicant's condition is war-caused, the Tribunal must first decide whether the Applicant in fact suffers from the condition of PTSD. Applying the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307, the Tribunal must be reasonably satisfied that a disease or injury exists. There appears to be no doubt that the Applicant suffers from a psychiatric illness; the point of contention is the diagnosis of the condition from which he suffers. The Tribunal notes that the Applicant's symptoms recorded in Dr Lewin's report are in general the same as those identified by Dr Dent and Dr Westerink.
It was submitted for the Respondent that whether or not the Applicant suffers from PTSD is determined by whether or not in respect of the Statement of Principles he has been exposed to a traumatic event as defined in the Statement of Principles. This raised the question of whether the incidents alleged by the Applicant actually occurred.
It was submitted for the Applicant that, relying on the authority of the Federal Court decision in Shelton v Repatriation Commission (1999) 85 FCR 587, the facts which formed part of the causal hypothesis need only be proved to the reverse criminal standard of proof. It was also submitted that this was a matter where the credit of the applicant was at issue, and in respect of assessing credit, this is done using the reverse criminal standard and not the balance of probabilities. That is, that it is a task to be performed under s120(1) of the Act.
In deciding whether on the balance of probabilities the Applicant suffers from PTSD the Tribunal has examined the diagnoses made by the various psychiatrists who provided medical opinions based on the DSM-IV criteria - a diagnostic tool designed for clinical purposes and replicated in almost identical terms in the definition of PTSD in the SoP. The Tribunal notes the Federal Court decision in Repatriation Commission v Gosewinckel [1999] FCA 1273 in which Weinberg J said:
It is clear that the AAT could not accept Dr Wahr's opinion of generalised anxiety disorder without disregard to the description of that disorder as set out in the SoP. As the Full Court held in Shelton v Repatriation Commission [1999] FCA 181 at par 6 the SoP requires that the disease in question be "manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease.
Mr Hanks submitted that the AAT should have asked itself whether it was reasonably satisfied that the veteran was suffering from generalised anxiety disorder, as defined in clause 4 of the SoP- that is, it should have asked itself: " Are we reasonably satisfied that the diagnostic criteria prescribed by the SoP as essential for a diagnosis of generalised anxiety disorder have occurred more days than not for at least six months?"
I accept this submission in so far as it relates to the AAT's failure to approach the prescribed criteria through s120(4) rather than ss 120(1) and (3) of the Act.With respect, the Tribunal is uneasy about the implications of the Gosewinckel decision, at least with respect to PTSD cases, insofar as it appears to be requiring the decision maker to apply the factors in the SoP to the decision that must be made on the balance of probabilities as to whether the Applicant suffers from the condition. In effect this requires the Tribunal in this case to be reasonably satisfied that the "experiencing a stressor" element (and criterion B-F) exists when determining the issue of diagnosis, and to then revisit that same question (if the Tribunal finds the Applicant suffers from PTSD) but on an easier standard of proof when considering whether the Applicant's condition is war-caused.
The purpose of the SoP in "reasonable hypothesis" cases is merely to be used as a "template" to determine whether the raised hypothesis is reasonable. That is, it is a legislative instrument to determine whether the condition is related to the veteran's war service, whereas our reading of Gosewinckel suggests that it is also an instrument to be used to determine on the balance of probabilities whether the veteran suffers from the condition.
Notwithstanding that concern, however, the Tribunal notes that in this case whether the Tribunal, in considering the diagnosis of the condition suffered by Applicant, applies the legal definition of PTSD in the SoP, or the medical evidence, the outcome is the same as the medical experts in this case made their diagnosis on the basis of the SoP.
Dr Lewin was the only psychiatrist who did not diagnose PTSD, and even Dr Lewin agreed that the Applicant suffered from some symptoms consistent with PTSD. None of the doctors considered that the Applicant was faking a psychiatric illness or that the history he provided was untruthful, nor does the Tribunal find that the Applicant is not genuine in experiencing the symptoms he has described to the doctors and to the Tribunal. Moreover, it was not disputed by the Respondent that some of the Applicant's symptomatology (criterion B to F in the SoP) fitted the diagnosis of PTSD as opposed to some other disorder. The Tribunal also notes that the Applicant was diagnosed with "anxiety state with phobic features" on service, which on the evidence of Dr Westerink, which the Tribunal accepts, was (at that time) consistent with the present diagnosis of PTSD.
Except for Dr Lewin, all other medical experts were of the opinion, which the Tribunal accepts, that the Applicant suffers from PTSD on the basis that he experienced a stressor (or more than one stressor) on service and that he displayed all other diagnostic criteria (criterion B to F in the SoP) to satisfy such a diagnosis. The Respondent's concern was that the Applicant did not "experience a stressor" on service, on the basis that the alleged incident on the junk did not occur. This was the main reason in the Respondent's view (and not because he did not satisfy criterion B to F in the SoP) that he did not have PTSD.
The Tribunal is reasonably satisfied that the Applicant was exposed to a traumatic event for reasons which it will discuss below, and that he suffers from all other diagnostic criteria (otherwise known as criterion B to F) to satisfy a diagnosis of PTSD.
In particular, the Tribunal finds on all the evidence, that the Applicant experiences recurrent and intrusive distressing recollections of the traumatic event, including images, thoughts and perceptions and suffers from intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event. The Tribunal also finds that the Applicant satisfies criterion C, in that he avoids thoughts, feelings or conversations associated with the traumatic event. Indeed the Applicant had not discussed the event for over 30 years. The Applicant also displays a markedly diminished interest/participation in significant activities. He avoids activities that arouse recollections of the trauma and feels detached and estranged from others including his family. With respect to criterion D, the Tribunal finds that the Applicant continues to have difficulty falling asleep or staying asleep, and difficulty concentrating. The Tribunal is also reasonably satisfied that the Applicant satisfies criterion E and F.
Consequently, the Tribunal finds on the balance of probabilities that the Applicant suffers from the clinical condition of PTSD. The Tribunal notes that the Respondent has determined this claim hitherto as "PTSD". However, on the evidence the Tribunal considers that depression is associated with the Applicant's PTSD. Therefore, the diagnosis of the accepted disability should be amended so as to reflect the association of depression.
Has a reasonable hypothesis been raised?The Tribunal must now determine whether a reasonable hypothesis has been raised linking the Applicant's PTSD with the circumstances of his operational service. The question that needs to be considered is whether the Applicant's operational service was responsible for the development/aggravation of the condition. It was submitted for the Respondent that if the Tribunal was of the opinion that the Applicant suffers from PTSD, it was bound to look at all the material to see if it pointed to a relevant hypothesis to connect the PTSD with service, and that it was not enough if the relevant hypothesis was left open: East v Repatriation Commission (1987) 16 FCR 517. The Tribunal considers that this is to be done in the context of the first step to be applied as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82. Those steps, which the Tribunal is required to follow, are (at 97, 98) –
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. (Tribunal's emphasis)
Notwithstanding that Counsel for the Applicant relied primarily on Factor 1(a) in the 1994 SoP or Factor 5(a) in the 1999 SoP, the Tribunal considers that the material before it also raises an hypothesis related to Factor 1(b) or 5(b) respectively, that is, on the issue of the clinical worsening of PTSD that existed prior to the commencement of his operational service. Therefore both factors (a) and (b) will be considered by the Tribunal.
The Tribunal notes that, relying on Deledio (supra), no question of fact finding arises at the first stage. The Tribunal considers that a number of hypotheses have been raised by the material (that are not merely "left open") before the Tribunal, viz.-
1. The Applicant witnessed the murder of an Indonesian on a junk when he was a member of a boarding party and this traumatic event caused the development of PTSD; or
2. The Applicant witnessed physical and verbal aggression of a Malay officer towards an Indonesian on board the junk, which he perceived to be a murder, which invoked in him feelings of intense fear, helplessness and horror, and about which he told no-one for some thirty years which caused his PTSD.
3. The Applicant experienced the explosion of depth charges while he was deployed in the engine room of HMAS Derwent during his operational service, and such experience caused him intense fear and helplessness because at the time of the explosions he was not aware that they were not caused by enemy action directed towards his ship.
4. The Applicant suffered from PTSD arising from his experience witnessing the aftermath of the Melbourne/Voyager disaster that occurred prior to his operational service, or from an experience in his childhood prior to entering the Navy, and that his witnessing of the physical and verbal aggression of a Malay officer towards an Indonesian on board the junk during his operational service, aggravated or materially contributed to his PTSD.
The Tribunal must now consider whether any of the hypotheses raised by the material are consistent with the "template" in the Statement of Principles. If the hypothesis does contain the requisite factors set out in the SoP, then a reasonable hypothesis has been raised and the requirements of s120(3) have been met.
Depth charge hypothesisThe Tribunal accepts that the Applicant did not know at the time he heard the explosion of the depth charges that this was not the result of enemy action directed towards the Derwent. However, this related to his perception of the threat of death or serious injury rather than that there was any actual or threatened death, serious injury or a threat to the physical integrity of self or others. Therefore this was not a stressor or "traumatic event" as defined in factor 4(a)(i) of the Statement of Principles. Hence, that hypothesis cannot be found to be reasonable.
Did the Applicant experience a traumatic event whilst involved with the boarding party?
The Tribunal finds that the other three hypotheses set out (supra) would fit within the template of the PTSD Statement of Principles in that the incidents would satisfy the definition of "experiencing a stressor", if in fact they occurred. There is no issue between the parties that a party from HMAS Derwent boarded an Indonesian junk at the time alleged by the Applicant and that the Applicant was included in that operation. The point of contention is whether the Applicant observed any traumatic incident whilst involved in that operation and indeed whether the alleged traumatic event actually occurred as described by the Applicant.
The Tribunal considers that, by applying Deledio, that dispute is to be considered only at the final stage under the provision of s120(1) as it is only during this stage that the Tribunal is required to find facts from the material before it. The Federal Court in Dixon v Repatriation Commission (1999) 29 AAR 235 (Wilcox J), held that the truth of claims is a step to be carried out in the obligation imposed under s120(1) in the final stage of the Deledio test and that the decision maker is not concerned with the accuracy of the material giving rise to the hypothesis whilst operating under s120(3). Pursuant to s120(1) of the Act, in effect the Tribunal must be satisfied beyond reasonable doubt that such an incident did not occur.
It was submitted for the Respondent that the Applicant made up the incident of the murder. The evidence was that no-one else saw it except the Malay officer as alleged by the Applicant. Dr Miller said that if the murder occurred as described there would have been a large amount of blood on the deck. There was no evidence that anyone cried out – neither the victim, the other Indonesian standing beside him, nor the Applicant. Nor was any complaint made by any of the Indonesians after the incident that one of their crew had disappeared during the course of the incident. On the evidence of Dr Frame and Rear Admiral Swan, some 10 to 20 crew of the Derwent would have observed the operation. The Applicant's evidence was that the lights from the Derwent enabled him to observe the incident. Therefore it could not be the case that the junk could have turned so as not to be seen by those observing from the Derwent. No one on the Derwent saw the incident. Such a situation, it was submitted for the Respondent, was utterly impossible and incredible.
It was also submitted for the Respondent that it was incredible that the Applicant did not tell anyone about this incident for 30 years - not the Navy, his wife, nor his psychiatrist when he first started seeing him, nor the delegate from the Vietnam Veterans' Association who assisted him with this claim. The Applicant did not tell Dr Westerink about the incident for some time, and he did not tell Dr Dent about it at any time.
It was submitted for the Respondent that the evidence against this incident having occurred was overwhelming. There was nothing in any records of the Derwent, and there were no claims by Indonesia either in respect of military personnel or a civilian.
It was submitted that the evidence did not support the Applicant's case that there was a cover-up. It was also contended that the allegation by Dr Frame of racial tension, which he was unable to support, went against his credit. Considering all those factors, it was submitted for the Respondent that there were compelling reasons why the Tribunal would find that the murder incident did not occur.
It was conceded for the Applicant that when viewed objectively, it was unlikely but not impossible that the event occurred. It was submitted that the issue of the Applicant's credibility was not to be assessed on the balance of probabilities. It was also submitted that the Tribunal could not be satisfied beyond reasonable doubt that some other type of distressing event, such as an assault rather than the alleged murder, did not occur. The Tribunal did not have to go as far as making a finding that the alleged murder had occurred.
The Tribunal has considered these submissions and the case law. The Tribunal finds the Respondent's submissions on the evidence as to whether the incident occurred to be cogent and convincing. There is a litany of evidence which raises very serious doubts for the Tribunal that the murder occurred, and when these are combined and weighed against the Applicant's evidence, the Tribunal is satisfied beyond reasonable doubt that the Applicant did not witness a murder during a boarding party on the Indonesian junk. In the words of the Respondent's counsel, the evidence against it is overwhelming. This is not to say that the Tribunal considered that the Applicant was consciously fabricating his evidence. The Tribunal found him to be genuine in his belief that the incident occurred, but after considering all the evidence before it, the Tribunal finds that it is not founded in reality. To that extent the Applicant's evidence on that issue is not credible. There must be an essential objectivity about the occurrence of the traumatic event. Accordingly, the Tribunal finds that the first hypothesis is not reasonable.
However, there is more evidence to support the hypothesis that the Applicant witnessed verbal and physical abuse and aggression of the Malay officer towards an Indonesian. There was no suggestion by the Respondent that Mr Meredith's evidence on this point should be discounted. Mr Meredith recounted being located on the quarter deck of the Derwent when the boarding party searched the Indonesian junk. He said the incident was visible as the junk was lit by "search light", that an "interpreter was kneeing a number of young boys in the groin" and was "pistol whipping and hitting with his fists male members of the Indonesian crew". He discussed the incident with other members of the crew who indicated that they too had witnessed similar incidents. The Tribunal finds that the actions reported by Mr Meredith points to the fact that such an incident could have occurred as described.
The Tribunal cannot be satisfied beyond reasonable doubt that the Applicant did not witness those actions. The Tribunal finds that incident constitutes a "stressor" and traumatic event that involved "a threat to the physical integrity of others and which invoked feelings of fear, helplessness or horror for the Applicant. The Tribunal is aware that the Applicant did not disclose the incident to anyone for over 30 years. The Tribunal finds that the incident has become distorted in the mind of the Applicant as a product of his PTSD and depression and the Tribunal accepts the evidence of Dr Westerink that the Applicant's memory could be affected by his PTSD.
The next question to consider is whether that incident actually caused the Applicant's PTSD or contributed to it in a material degree. The Tribunal finds that the Applicant was significantly distressed because of his experience salvaging after the Melbourne/Voyager disaster, and that within a short period thereafter he began to experience dreams about being trapped in the compartment of a capsized vessel.
The Tribunal also finds that by the time he was involved in the Melbourne/Voyager operation, he had been traumatised as a child when he was locked in a cupboard and soon after the commencement of his service in the Navy he experienced significant problems with claustrophobia which precipitated a psychiatric assessment. The Tribunal finds that the Applicant was psychologically vulnerable before the Melbourne/Voyager incident, and that it is quite likely that he developed PTSD as a result of and soon after that incident. The evidence in the Applicant's service medical records supports that. Hence, the Tribunal finds that by the time he undertook his operational service it is likely that he already suffered from PTSD.
The question is then whether the Applicant experienced a stressor during his operational service and prior to the clinical worsening of his PTSD. The Tribunal finds on the evidence before it that the incident on the Indonesian junk aggravated, exacerbated or contributed in a material degree to his pre-existing condition of PTSD. The Tribunal finds that incident was of the requisite severity to have resulted in the symptoms as reflected in criterion B-F in the SoP.
On the basis of these findings the Tribunal finds that a reasonable hypothesis has been raised connecting the Applicant's PTSD to the circumstances of his operational service. The Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's PTSD with associated depression is not war-caused pursuant to s9(e) of the Act.
The Tribunal sets aside the decision of the delegate of the Respondent that refused the Applicant's claim in respect of PTSD, and determines that the diagnosis of the claimed condition should be amended to read "PTSD with associated depression", and that this condition is a war-caused disease. Pension is payable to the Applicant with effect from 22 April 1996.
AssessmentAlthough both parties acknowledged in their respective Statements of Facts and Contentions before the commencement of the hearing that assessment of the Applicant's war-caused conditions was at issue, little attention was paid to assessment during the very protracted hearing conducted over a period of eight months. In the process of focusing on difficult entitlement issues, insufficient evidence was elicited in respect of assessment, notwithstanding that Dr Miller and Dr Dent addressed that issue in their respective reports. In the circumstances the Tribunal advised the parties during final submissions that in the event of the Applicant succeeding the Tribunal would remit the matter to the Respondent for assessment.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 13 April 1999, 14 April 1999, 9 December 1999,
10 December 1999.
Date of Decision 16 October 2000
Counsel for the Applicant J Fitzgerald
Solicitor for the Applicant Vardenaga Roberts
Counsel for the Respondent D E J Ryan
Solicitor for the Respondent A.Nanson, Australian Government SolicitorM.Doggett, Dept. of Veterans' Affairs
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