Newlands and Repatriation Commission
[2005] AATA 413
•9 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 413
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2004/435
VETERANS' APPEALS DIVISION )
Re ANTHONY NEWLANDS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate9 May 2005
PlaceSydney
.............................................
Ms G Ettinger,
Presiding Member
DECISION OF THE TRIBUNAL
The Tribunal varies the decisions of the Repatriation Commission dated 8 June 2001 and 21 August 2001 as affirmed by the decision of the Veterans’ Review Board made on 25 February 2004, which refused the claims of Mr Anthony Newlands for depression, anxiety, adjustment disorder, alcohol dependence and drug dependence.
In substitution therefor, the Tribunal finds that Mr Newlands’ conditions of alcohol abuse and drug abuse, are war-caused pursuant to section 9 of the Act.
The Applicant did not pursue his claims in relation to depression, anxiety and adjustment disorder, and accordingly, the Tribunal affirms the decision of the Repatriation Commission as affirmed by the Veterans’ Review Board in that regard, and finds that those conditions are not war-caused pursuant to section 9 of the Act.
The matter is remitted to the Repatriation Commission for assessment of Mr Newlands' entitlement to disability pension.
.............................................
Ms G Ettinger,
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlement – Disability Pension - Operational Service – Reasonable hypothesis - Statements of Principles – Diagnosis – Eligible Service – Decision Varied
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 120(1), 120(3), 120(4)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 77 of 1998
Statement of Principles concerning Drug Dependence or Drug Abuse – Instrument No.79 of 1998
AUTHORITIES
Repatriation Commission v Cooke (1998) 52 ALD 1
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Cornelius [2002] FCA 750
Woodward v Repatriation Commission [2003] FCA 160
Repatriation Commission v Stoddart [2003] FCAFC 300
REASONS FOR DECISION
9 May 2005 Ms G Ettinger, Senior Member
Dr I Alexander, Member
BACKGROUND
1. The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Mr Anthony Newlands, (“the Applicant”), for review of decisions of the Repatriation Commission dated 8 June 2001 and 21 August 2001, as affirmed by the Veterans’ Review Board (“the VRB”) made on 25 February 2004, refusing claims for depression, anxiety, adjustment disorder, alcohol dependence and drug dependence.
2. The Applicant was born on 25 February 1953. He served in the Royal Australian Navy (“the Navy”) from 8 January 1969, aged 15 years, to his discharge on 3 June 1976. Mr Newlands trained in gunnery and spent his time in the Navy in that field.
3. He served on operational service on HMAS Vampire from 21 – 26 November 1972, and also has eligible service. There was some inconsistency in the recording of the exact dates for Mr Newlands’ eligible service, the Tribunal noting that different dates were recorded at T2 and Exhibit R5. Mr Dawson gave the dates for Mr Newlands’ eligible service as June 1973 to 3 June 1976, and ultimately the event claimed as stressor for purposes of the relevant SoP, took place on HMAS Yarra on 14 August 1973, during the period of eligible service.
4. Mr Newlands sought review of the Repatriation Commission and VRB decisions by application to this Tribunal on 30 March 2004, and at the time of Hearing, the only conditions pursued were alcohol abuse and drug abuse.
5. The Tribunal noted that the agreed date of effect for any condition found to be war-caused was 3 February 2001.
6. At the Hearing the Applicant was represented by Mr N Dawson of counsel, and the Respondent, by Mr M Huthnance of the Advocacy Section of the Department of Veterans’ Affairs.
7. Oral evidence was given by the Applicant, and concurrent evidence by Dr P Morris, a psychiatrist, and Professor R Mattick, a psychologist.
8. The following documents were tendered and taken into evidence at the Hearing:
ITEM
DATE
EXHIBIT NUMBER
Statement by Applicant
30 August 2004
A1
T-Documents (T1-T17, pp1-77)
various
R1
Service Documents from Department of Defence
Various
R2
Report by Mr B O’Keefe
3 August 2004
R3
Research & Report by Mr O’Keefe
8 November 2004
R4
Instrument regarding to Applicant’s Operational Service
23 December 1997
R5
Report by Dr P Morris
22 July 2004
R6
Supplementary report by Dr P Morris
22 December 2004
R7
GARP attachments by Dr P Morris
22 July 2004
R8
Report by Professor R P Mattick
14 July 2004
R9
ISSUES BEFORE THE TRIBUNAL
9. The issue the Tribunal had to decide was whether Mr Newlands’ claimed conditions of alcohol abuse and drug abuse, were war-caused in the context of his eligible service, and pursuant to section 9(1)(b) of the Act.
10. By the close of the Hearing, both parties accepted that Mr Newlands suffered alcohol abuse and drug abuse. The Tribunal was satisfied as to the diagnosis, but had to decide a date of onset for both conditions before considering the relevant Statements of Principles (“SoP”):
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 77 of 1998
Statement of Principles concerning Drug Dependence or Drug Abuse – Instrument No.79 of 1998
11. The Applicant did not pursue his claim in relation to the other conditions not accepted as war-caused by the Respondent, and by agreement of the parties, the Tribunal did not hear evidence about those before affirming the decision of the Respondent in regard to depression, anxiety and adjustment disorder.
RELEVANT LEGISLATION
12. A decision in this matter requires consideration of relevant provisions under the Veterans’ Entitlements Act1986 (“the Act”). The issue of whether a condition is war-caused is determined pursuant to section 9 of the Act which relevantly follows:
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
…
but not otherwise.
…”
13. The standard of proof applying in the case of operational service is the reasonable hypothesis as provided for by section 120 of the Act. In the case of eligible service, section 120(4) of the Act applies, so that the standard is to the reasonable satisfaction of the Tribunal.
14. Section 120A of the Act deals with the Statements of Principles (“SoP”) and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority (“the RMA”) or any other relevant determination or declaration under the Act.
15. The standard of proof for diagnosing a condition prior to considering whether it is war-caused, is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act which follows as relevant. (Repatriation Commission v Cooke (1998) 52 ALD 1; Budworth v Repatriation Commission [2001] FCA 317; Benjamin v Repatriation Commission [2001] FCA 1879.
“120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
THE EVIDENCE BEFORE THE TRIBUNAL
16. The written statement of the Applicant was dated 30 August 2004 (Exhibit A1). The Tribunal summarised Mr Newlands’ oral evidence for Drs Morris and Mattick who then gave concurrent evIdence before the Tribunal.
17. Mr Newlands served Australia in the Australian Navy (“the Navy”), on both operational service and eligible service in the 1970s. He joined the Navy aged a little over 15 in 1969, and had training in Western Australia. He then went to sea in 1970 as an ordinary seaman, and served on various ships.
18. Mr Newlands said that his parents did not drink, but that he had probably had a beer once or twice before joining the Navy, where he encountered a culture of drinking.
19. He recounted two particular incidents which he claimed caused him great concern, and resulted in an increase in his alcohol consumption. The first was during operational service, when he served on HMAS Vampire, and was by himself in one of three gun turrets on the ship (”the gun turret incident). Mr Newlands said that if action stations had arisen, which in fact did not occur while he was there, he would have had to start engines, load ammunition, and then within minutes he would have been joined by other crew. Mr Newlands said that he was on duty in the gun turret in the Viet Nam waters for six days straight, on four hour shifts, and was “shit scared”. He said at night he could not see anything, and he felt he was responsible for the whole ship’s company; the adrenalin was flowing.
20. Mr Newlands said that he then went ashore either in Singapore or Hong Kong, spending 21 days in Hong Kong at Christmas 1972. He said that he was drinking a lot -- too much, and when not working, was drinking heavily on shore, in bars. He said that prior to Hong Kong, he had not drunk much because he had been interested in sport, and played football in the Navy.
21. Mr Newlands recounted a second event, (“the injured sailor incident”), which upset him greatly. This occurred in Hong Kong harbour on HMAS Yarra, when a sailor was ordered to slip the tug, which is letting the line connecting the ship and the tug go. Mr Newlands said that he was only a couple of metres away and shouted to the sailor not to do it, because he could see that there was too much weight on the line. However the sailor did what he was told, and suffered serious injuries as a consequence. Mr Newlands told the Tribunal that the sailor was screaming in pain, and that, he, Mr Newlands, was very angry the accident had occurred. He said that after that incident, things went downhill for him in the Navy, and he wanted a discharge. He said he was drinking heavily, “out of control”.
22. Mr Newlands said that he had a posting at a landbase in Victoria, and with the next posting at sea on HMAS Stuart, he started smoking cannabis. He continued to get drunk when on shore leave, had further postings e.g. to Darwin after the cyclone, and continued heavy drinking and smoking cannabis. He spent time in detention as a result, and was discharged in June 1976.
23. The Tribunal has noted other occasions in which Mr Newlands was confronted with serious events in the Navy, and was upset, as for example when a colleague died doing a night dive in Manila. He had been doing a diving course himself, but said that as a result, he did not complete it.
24. Since then he has worked in various jobs, most recently laying asphalt, his preference being to work two to three days a week. His company was taken over, he said, so he has not worked since the beginning of this year.
25. Mr Newlands said that he continues to drink 10 -12 stubbies a day, and smoke five to six joints. He said this calms his nerves. He said that he tries not to drink during the day, because if he starts drinking, he cannot stop. Mr Newlands said that he gets on well with his children, but has had problems with his marriage because his wife does not smoke or drink, and is different from him.
MR BRENDAN O’KEEFE – CONSULTING HISTORIAN
26. Mr O’Keefe’s reports were at Exhibit R3 (3 August 2004), and Exhibit R4 (8 November 2004). Mr O’Keefe was not called to give oral evidence. His first report included copies of Proceedings of HMAS Vampire for the period July 1972 to June 1973. His second report dealt with replies to questions by the Respondent. Of particular relevance to Mr Newlands’ claim was the verification of the injured sailor incident of 14 August 1973, in Exhibit R4, which was described by the former Navy officer who was Executive Officer of the ship HMAS Yarra at the time, as “horrific”. Mr O’Keefe reported the Executive Officer’s description of the incident, stating that the sailor suffered “extraordinary pain”.
DR IAN HAYES – PSYCHIATRIST
27. The report of Dr Hayes was dated 20 June 2000 (T6). Dr Hayes found the Applicant presented as a “somewhat distant and dissociated individual who was clearly under the influence of drugs, presumably marijuana.”
DR PATRICK MORRIS – PSYCHIATRIST
28. The reports of Dr Morris were dated 22 July 2004 (Exhibit R6), 22 December 2004 (Exhibit R7), and the GARP report, 22 July 2004 (Exhibit R8). Dr Morris took a history regarding Mr Newlands, referred to the two incidents, the gun turret incident, and the injured sailor incident, and to the Applicant’s alcohol and cannabis consumption as well as the ensuing discipline problems.
29. Dr Morris diagnosed alcohol abuse and cannabis abuse pursuant to DSM-IV, referring to the criteria therein specified. He considered the clinical onset of both to have been in 1973. Dr Morris stated that he did not find evidence of anxiety or depressive symptoms which would constitute a diagnosis.
30. In his written report, Dr Morris stated that he did not find Mr Newlands had met the definition of experiencing a severe stressor pursuant to the relevant SoP in relation to the injured sailor event, because Mr Newlands had described his reactions as feeling anger, helplessness and frustration. In his supplementary report (Exhibit R7), Dr Morris maintained this position even after learning that a former navy officer who was the executive officer of the ship at the time, described the accident to the sailor as “horrific”.
PROFESSOR RICHARD MATTICK – PSYCHOLOGIST
31. Professor Mattick’s report dated 14 July 2004 was at Exhibit R9. Professor Mattick also took a detailed history from the Applicant, and referred to the two incidents which the Applicant claimed were the severe stressors. Professor Mattick took a history of the Applicant’s drinking and smoking of cannabis, and the increase in consumption of alcohol after the injured sailor incident.
32. Professor Mattick also assessed Mr Newlands for alcohol abuse and alcohol dependence pursuant to DSM-IV. Professor Mattick also referred to Mr Newlands neglecting role obligations due to excessive alcohol consumption, and described Mr Newlands working in hazardous situations, operating a back hoe after drinking, and smoking cannabis at work. Professor Mattick considered the onset of alcohol abuse and alcohol dependence to have been in 1983.
33. Professor Mattick opined that Mr Newlands met the drug abuse criteria pursuant to DSM-IV with onset in 1987, but considered that he did not meet the criteria for drug dependence.
34. Professor Mattick did not find signs of anxiety disorder.
CONCURRENT EVIDENCE OF MATTICK AND MORRIS
35. Dr Morris and Professor Mattick both commented on the gun turret incident as well as the injured sailor incident, because at the time of giving their concurrent evidence, both incidents were still being pressed by the Applicant, as the severe stressors in terms of the relevant SoPs. Their oral evidence is discussed in the paragraphs which follow.
SUBMISSIONS AND CONCLUSIONS
36. The Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Newlands’ conditions of alcohol abuse and drug abuse were war-caused pursuant to section 9(1)(b) of the Act.
37. As stated above, the Tribunal noted that the Applicant was not arguing the Respondent’s decision as it related to his conditions of depression, anxiety and adjustment disorder. Accordingly the Tribunal affirmed the decision of the Respondent in that regard without hearing further evidence or submissions about those conditions.
38. The parties agreed that the correct date of effect for the Applicant’s claims would be 3 February 2001, and the Tribunal so finds. The Tribunal also accepted at the Hearing that if the Applicant were successful, the matter be remitted to the Respondent for assessment of his entitlement for disability pension.
39. Before dealing with the submissions of the parties, the Tribunal puts on record that it was satisfied Mr Newlands was a witness of truth who did not embellish his evidence, and noted Mr Dawson’s submission that his evidence was not that of a witness who had been coached.
40. Mr Dawson conducted the Veteran’s case initially claiming two severe stressors. The first of these was the gun turret incident during operational service on HMAS Vampire from 21 – 26 November 1972. The second, was the injured sailor incident on 14 August 1973 on HMAS Yarra, during eligible service. However, Mr Dawson commenced his closing submissions by informing the Tribunal that the Applicant was not pursuing the former, and was relying solely on the injured sailor incident. Mr Huthnance endorsed Mr Dawson’s submissions almost entirely.
41. The Tribunal was mindful that if the gun turret incident as severe stressor had been argued, the issue of whether Mr Newlands’ conditions were war-caused, would have been determined taking into account the principles in Repatriation Commission v Deledio (1998) 83 FCR 82, because the incident claimed was said to have taken place during operational service. Mr Dawson submitted that notwithstanding Mr Newlands’ evidence that he had commenced drinking heavily after his days on watch in the gun turret during his operational service, he also conceded that his drinking returned to more normal levels after that time.
42. As the witnessing of the injured sailor incident on board HMAS Yarra during eligible service was ultimately the sole event claimed as the severe stressor for Mr Newlands, the standard of proof was on the balance of probabilities pursuant to section 120(4) of the Act, and applying the SoPs, Instruments No.77 and 79 of 1998.
43. Mr Dawson also drew the attention of the Tribunal to section 196B(14)(d) of the Act which follows as relevant:
“…
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…..
(d) it was contributed to in a material degree by, or was aggravated by, that service;
…”
44. Mr Dawson submitted that for the Applicant to be successful, the Tribunal had simply to be satisfied that the increase in consumption of alcohol and cannabis by Mr Newlands was contributed to, or aggravated by the events on HMAS Yarra in 1973. In that regard he referred to the case of Kattenberg v Repatriation Commission [2002] FCA 412, in which, notwithstanding it was a case concerning operational service, material contribution was discussed by Emmett J.
45. Mr Dawson drew to the attention of the Tribunal the culture of drinking in the Navy of which Mr Newlands had given evidence, and a further sub-culture of people present who had been affected by events such as the Voyager/Melbourne incident, and drank to excess because of the medical and psychiatric conditions they suffered as a result.
46. The Tribunal noted that although the diagnoses of alcohol abuse and drug abuse were agreed by the parties, in considering the relevant SoPs, the date of onset of the alcohol abuse and drug abuse had to be determined. Well known cases dealing with diagnosis, and applying the standard of proof in section 120(4) of the Act, are Cooke (supra), Budworth (supra), Benjamin (supra) and Repatriation Commission v Cornelius [2003] FCA 160.
47. The Tribunal was also mindful of a number of cases where the Federal Court and the Tribunal had dealt with the issue of a veteran experiencing a stressor.The most recent authorities are Woodward v Repatriation Commission [2003] FCA 160 and Repatriation Commission v Stoddart [2003] FCAFC 300.
48. Experiencing a severe stressor is defined in Instrument 77 and 79 of 1998 as follows:
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
49. Mr Dawson submitted that the Tribunal accept the Veteran as a witness of truth, who, as the Tribunal had summarised to the doctors before their concurrent evidence was given, witnessed an event (the injured sailor incident), which “distressed him greatly”. Mr Dawson also referred to Mr O’Keefe’s research regarding the incident in which it was described as “horrific” (Exhibit R4, page 3).
50. Mr Dawson submitted that the Veteran, on witnessing the injured sailor incident first exhibited anger towards the Navy, rather than horror at the incident. It was this, he submitted, which the Respondent seized upon to deny that the incident did not meet the stressor.
51. Mr Dawson also submitted that Professor Mattick was too restrictive in his interpretation of DSM-IV, and relied excessively on the dictionary definition of “recurrent”. He submitted that Professor Mattick had fallen into error in interpreting “repeatedly” as “constantly”, and submitted that whilst DSM-IV was relevant, it was not intended to be applied mechanically or too stringently.
52. In summary, Mr Dawson submitted in relation to the onset of alcohol abuse that before the incident on HMAS Yarra, Mr Newlands abused alcohol as a result of the culture of the Navy of the time and, referring to Factor 5.(b), submitted that after the injured sailor incident on HMAS Yarra, which was the severe stressor, Mr Newlands increased his alcohol consumption to the extent of abusing alcohol. He referred to Dr Morris’ opinion which was that by late 1973, or early 1974, the extent of abuse was clear, and that by the time of his discharge in 1976, Mr Newlands was definitely abusing alcohol and cannabis. He submitted that Professor Mattick had been wrong in his assessment of commencement dates.
53. Mr Huthnance agreed with the Applicant with regard to preferring the evidence of Dr Morris over that of Professor Mattick, and agreed that Mr Newlands suffered alcohol and drug abuse by 1973.
54. The Tribunal was of course also mindful of Mr Huthnance’s submissions with regard to the injured sailor incident, that is the Respondent did not agree it met the test for a severe stressor in Factor 5.(b) of the SoPs. Mr Huthnance submitted that Dr Hayes, in his report dated 20 June 2000 (T10/32), did not report the Applicant having suffered intense fear as required to satisfy the SoP, but rather, anger and frustration at the incident. He submitted that this was supported by the reports of Professor Mattick and Dr Morris. He also submitted that Mr Newlands could not meet the tests in any of the other clauses of Factor 5 in the relevant SoPs.
55. The Tribunal considered Mr Newlands’ evidence in regard to the injured sailor incident on which the Applicant relied as a stressor, noting that he had initially described his reaction to the incident as anger, adding that after that incident, things went downhill for him in the Navy, and that he wanted a discharge. He told the Tribunal that after the injured sailor incident he was drinking heavily, “out of control”, and with the next posting at sea on HMAS Stuart, he started smoking cannabis. He described the ship as a “party ship”, and the Tribunal noted that it was hazardous for a seaman to be working aboard a ship when affected by alcohol and cannabis, as it accepted Mr Newlands was.
56. The Tribunal accepted that after the injured sailor incident Mr Newlands continued to get seriously drunk when on shore leave, and was smoking cannabis, and that the incident also had an effect on his behaviour at work, so that he spent time in detention for insubordination to his superiors before his discharge in June 1976.
57. The Tribunal noted the evidence of Dr Morris and Professor Mattick in regard to the onset of Mr Newlands’ alcohol abuse and drug abuse, noting that Dr Morris dated both to 1973, while Professor Mattick considered that Mr Newlands’ drug abuse had its onset in 1987, and alcohol abuse in 1983.
58. In support of his opinion that the onset of Mr Newlands’ alcohol abuse and drug abuse was in 1973, Dr Morris referred to the Applicant’s complications at work from 1973. He commented that Mr Newlands lost respect for the Navy and his superiors after the injured sailor event, and due to the increase in alcohol and drug consumption, he had persistent social problems. He was subjected to urine tests, and behaved badly towards his superiors to the extent that he was incarcerated in 1976. He commented that Mr Newlands operated machinery while under the influence of drugs and alcohol, and even after leaving the Navy, worked in remote areas of the Northern Territory and Queensland where his problems were less noticeable. Dr Morris concluded that Mr Newlands had legal and social problems from 1973, and ongoing.
59. Professor Mattick, on the other hand, did not see Mr Newlands’ problems as persistent or recurrent, and commented that police and pilots were tested routinely for drugs and alcohol. He commented that certain workers drank at lunch breaks routinely and were able to continue with their work. Professor Mattick referred to Mr Newlands’ work record, noting that despite drinking and smoking cannabis, he had only missed work on one occasion, and that the evidence showed he had only worked a back hoe under the influence of drugs and alcohol on one occasion.
60. Professor Mattick dated the onset of the abuse to 1983 because it was the year in which Mr Newlands had marital problems. Dr Morris disagreed, saying that there had previously been problems in the marriage, and in any case, on board ship the interpersonal relationships were with one’s colleagues, because there was no family present.
61. The Tribunal preferred the evidence of Dr Morris, and accepted the onset of Mr Newlands’ alcohol abuse and drug abuse was within a short period after he witnessed the injured sailor incident, which it accepted as the severe stressor in this case. The Tribunal accepted Dr Morris’ opinion that, given the setting, the Applicant’s social environment was his workplace, and accepted that he endangered his and other people’s lives by working under the influence of drugs and alcohol. The Tribunal was further satisfied that Mr Newlands increased his drinking and started cannabis abuse after the injured sailor incident on 14 August 1973, in satisfaction of Factor 5.(b) of the SoP, and that he had legal and social problems as discussed above following the witnessing of the severe stressor event on HMAS Yarra. Factor 5.(b) in both relevant SoPs of course requires the experiencing of a severe stressor within the one year immediately before the clinical onset of drug dependence or drug abuse, or alcohol dependence or alcohol abuse.
62. The Tribunal was satisfied that the distress, anger and helplessness Mr Newlands described at the injured sailor incident were sufficient to satisfy the requisite standard that he witnessed or was confronted with actual or threatened death or serious injury, or that they were a threat to Mr Newlands or other people's physical integrity. The Tribunal noted that Mr Newlands was standing approximately two metres away from the spot where the young sailor was seriously injured. He explained how when the ship sailed, the sailors had to line up ceremonially. Apart from shouting to the person giving the command to the sailor not to carry out the orders, he was helpless and could not move. He witnessed the young sailor thrown up into the air and seriously injured, an event described by the historian as a horrific injury.
63. The Tribunal noted that notwithstanding Mr Huthnance’s submissions that he preferred the evidence of Dr Morris to that of Professor Mattick, he submitted on behalf of the Respondent that Mr Newlands reacted to the injured sailor incident with anger and frustration, and not the intense fear required to meet the definition of stressor in the SoPs. In that regard he referred the Tribunal to the evidence of Drs Hayes and Morris, and Professor Mattick.
64. However, relying on the evidence of Mr Newlands which the Tribunal accepted, and which has been detailed above, the Tribunal was satisfied that Mr Newlands reacted with intense helplessness and horror, in satisfaction of the definition of stressor in the SoPs, and that he went off work and drank to excess, commenced smoking cannabis, and has continued to do so.
65. The Tribunal was satisfied from the evidence that Mr Newlands has operated machinery hazardously while under the influence of drugs and alcohol in the period following the injured sailor incident. The Tribunal also accepted from the evidence that the actions of the Applicant’s employers in conducting urine tests and searching his car were due to suspicions he was abusing alcohol and other substances by 1974. The Tribunal agreed with Dr Morris, and was satisfied that Mr Newlands suffered behavioural problems, had marriage problems, abused alcohol and cannabis, after the incident in 1973, and was incarcerated for insubordination.
66. The Tribunal was satisfied that the stressor which the Veteran claimed occurred as given in evidence. The Tribunal was satisfied that the Applicant had been exposed to a “traumatic event” (the injured sailor incident on HMAS Yarra), in which he “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”, that his “response involved helplessness, or horror”.
67. Accordingly, the Tribunal was satisfied that the Applicant’s alcohol abuse and drug abuse were war-caused pursuant to the legislation.
68. The Tribunal was mindful also of Mr Dawson’s submissions regarding section 196B(14)(d) of the Act, noting that a factor causing, or contributing to an injury or disease, is related to service rendered by a person if it was contributed to in a material degree by, or was aggravated by, that service. Emmett J held in Kattenberg (supra), in relation to the Veteran’s disc prolapse in that case, that the Tribunal had fallen into error in its application of SoP 130 of 1996. His Honour stated as follows:
“42. An SoP is brought into existence in order to comply with s 196B. The terms of the SoP 130 of 1996 purport to comply with the requirement of s 197N(2) by referring to the requirement that ‘factors must be related to any relevant service’. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
43. Thus, smoking at leat thirty pack years of cigarettes will be related to relevant service rendered by a veteran (see para [9] above), if the smoking of that quantity of cigarettes:
·arose out of, or was attributable to, that service;
·was contributed to in a material degree by, or was aggravated by, that service; or
·would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.
44. The Tribunal did not approach the construction of SoP 130 of 1996 in that way. The Tribunal construed the SoP as requiring that the smoking of at leat thirty pack years of cigarettes be wholly attributable to the service. The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996….”
69. The Tribunal has noted the views of Emmett J in Kattenberg (supra) in relation to section 196B(14)(d) of the Act. It has accepted that the increase in drinking which the Tribunal is satisfied occurred in Mr Newlands’ habits after the injured sailor incident, was contributed to in a material degree and aggravated by his service.
70. The decision follows.
DECISION
71. The Tribunal varies the decisions of the Repatriation Commission dated 8 June 2001 and 21 August 2001 as affirmed by the decision of the Veterans’ Review Board made on 25 February 2004, which refused the claims of Mr Anthony Newlands for depression, anxiety, adjustment disorder, alcohol dependence and drug dependence.
72. The Tribunal finds that Mr Newlands’ conditions of alcohol abuse and drug abuse, are war-caused pursuant to section 9 of the Act.
73. The Applicant did not pursue his claims in relation to in regard to depression, anxiety and adjustment disorder, and accordingly, the Tribunal affirms the decision of the Repatriation Commission as affirmed by the Veterans’ Review Board in that regard, and finds that they are not war-caused pursuant to section 9 of the Act.
74. The matter is remitted to the Repatriation Commission for assessment of Mr Newlands' entitlement to disability pension.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger and Dr Ion Alexander, Member
Signed:
AssociateDates of Hearing 7 and 8 February 2005
Date of Decision 9 May 2005
Counsel for the Applicant Mr N Dawson
Advocate for the Respondent Mr M Huthnance
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