Newton and Repatriation Commission
[2009] AATA 485
•30 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 485
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3135
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER NEWTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date30 June 2009
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...............[Sgd]...............................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – no factual basis for diagnosis of posttraumatic stress disorder – posttraumatic stress disorder not war-caused – diagnosis of alcohol abuse – clinical onset of alcohol abuse – a reasonable hypothesis of relevant relationship to service raised for alcohol abuse – satisfied beyond reasonable doubt that alcohol abuse not attributable to eligible war-service – alcohol abuse not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 69, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Keeley (2000) 60 ALD 401
Repatriation Commission v Gorton (2001) 65 ALD 609
Woodward v Repatriation Commission (2003) 75 ALD 420
Repatriation Commission v Stoddart (2003) 38 AAR 176
Drew v Repatriation Commission [2008] FCA 537Repatriation Commission v Deledio (1998) 83 FCR 82
Re Mann and Repatriation Commission [2008] AATA 163
Re Sanderson and Repatriation Commission [2008] AATA 891Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
30 June 2009 Mr R G Kenny, Member BACKGROUND
1. Christopher Newton served with the Royal Australian Navy (“the RAN”) from 26 November 1966 until 30 October 1973. On 29 March 2005, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), a claim for a disability pension for “anxiety/depressive disorders”, “gastro reflux”, “alcohol dependence/abuse”, “impotence” and “lower back” which he contended were related to his RAN service.
2. On 2 November 2005, the respondent determined that the appropriate medical diagnoses for the claimed conditions were posttraumatic stress disorder, gastro-oesophageal reflux disease, alcohol abuse, erectile dysfunction and lumbar spondylosis. It also determined that gastro-oesophageal reflux disease, erectile dysfunction and lumbar spondylosis were related to Mr Newton’s service but that posttraumatic stress disorder and alcohol abuse were not so related. On 14 March 2008, the Veterans’ Review Board affirmed the decision in relation to posttraumatic stress disorder and alcohol abuse.
ISSUES AND SERVICE
3. Mr Newton completed defence service in accordance with s 69 of the Act from 7 December 1972 until his discharge. No contentions were raised in relation to that period and I am satisfied that neither of the claimed conditions are related to defence service. Mr Newton also completed periods of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 20 May 1968 until 7 June 1968, from 15 September 1969 until 11 April 1970 and from 1 November 1972 until 30 November 1972. The second of those periods was off the coast of South Vietnam and in Da Nang Harbour on HMAS Vendetta (“the Vendetta”). The third of those periods was in Vung Tau Harbour on HMAS Sydney (“the Sydney”). Mr Newton was an able seaman during his service in the RAN and, on those vessels, worked in radar operations and in ship’s husbandry.
4. Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined to the decision-maker’s reasonable satisfaction[1]. For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.
[1] This means that matters are determined on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
5. The application of that provision is affected by the terms of s 120(3) and s 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (“RMA”). Where a Statement of Principles has been repealed and replaced by another, the matter is to be considered, initially, under the later Instrument but, in the event that its requirements are not met, the matter is then to be considered under a repealed Instrument which was in force at the date of the primary decision[2]. In that way, an applicant gains the benefit of the more favourable criteria being applied.
EVIDENCE
[2] Repatriation Commission v Keeley (2000) 60 ALD 401 at 415, 422; Repatriation Commission v Gorton (2001) 65 ALD 609 at 620, 625.
The scare charge incident
6. Mr Newton gave the following evidence in relation to an occasion when a scare charge was detonated (“the scare charge incident”). He finished his watch at midnight on 14 October 1969 and went to his mess where some thirty or forty seamen were bunked. He had a clear recollection of the precise date as it was the day before his birthday. The Vendetta was engaged in firing towards the shore at the time and the noise from the guns kept him awake. He passed the time by reading a novel until, at about 2.45 am, he heard an enormous explosion. The vessel shuddered for a brief second and it sounded as though the explosion had occurred close to the hull where his bunk was located. He immediately feared that the Vendetta had come under attack, that the ship would sink and that he would drown. He quickly gathered his life jacket from the foot of his bunk and climbed down from his bunk which was the topmost in a tier of three. He moved towards the cafeteria which was dimly lit, as was usual at night. However, he recalled that the lights went out in the cafeteria for a short time.
7. Some 10 to 20 other seamen also entered the cafeteria from which access to the deck was available through a watertight hatch. Mr Newton felt trapped and feared that he would drown. He said that he “couldn’t get through” to the deck because of the hatch. He described mild panic among the seamen who showed signs of anxiety. He said that he felt “very, very anxious”. While the hatch was not locked and could be opened quickly and easily from either side by disengaging four clips, no attempt was made to open it. After a period, he was unsure of how long but it may have been 5 to 10 minutes, there was an announcement over the speaker system to resume normal duties. He then returned to his bunk and continued to read his book and may have drifted off to sleep before morning.
8. In his statement dated 15 March 2005, Mr Newton gave this account of the scare charge incident:
“By the time I had ran from the mess into the cafeteria … the ships main power had been shut down and was running on emergency power. The ship immediately closed down to State 1, Condition Zulu. (This is the highest level of security for the ship. A ship goes to this state only when under attack). The ship was in virtual darkness with all doors and hatches closed. My mind was still racing with the thoughts that the ship had been hit and we were going to sink and my life was coming to an end” [sic].
In cross-examination, he accepted that account as being correct.
9. In a statement dated 22 September 2008, Mr Newton acknowledged that, though training in relation to scare charges had been conducted on ships to which he was attached prior to the scare charge incident, he had not personally been present at those times. While on the Vendetta, Mr Newton had been aware of the RAN’s use of scare charges to repel a threat from activities of enemy divers. He was aware that a sentry who noted signs of enemy divers in the water would first fire his rifle at them and then throw a scare charge into the water from the deck. However, before the scare charge incident, he had only seen them used from the Vendetta’s boats which would drop them into the water some 200 yards from the ship. He was not aware of scare charges being used close to the hull of the ship. He had not been briefed on the nature of Operation Awkward, which governed the activities of ships’ crews whilst in ports such as Da Nang and Vung Tau.
10. In the statement of 22 September 2008, Mr Newton also described a lapse of 30 minutes before the announcement of the source of the explosion was made. He also said that the men in the cafeteria were all trying to get to the upper deck.
11. Bill Krause completed statements, dated 17 March 2005 and 2 March 2006. He was on the Vendetta in the same mess as Mr Newton when a scare charge incident occurred. He described an explosion and a fear that the ship had been the subject of enemy attack, that it would sink and that he would die. He said that the Vendetta closed down to State 1 Condition Zulu, that the ship’s power was shut down and switched to emergency power, and that all doors and hatches were shut down.
12. Owen Pontin was a member of the Vendetta’s diving team in October 1969. He completed a statement, dated 15 August 2007. He recalled a scare charge incident in mid October 1969 which resulted in a main broadcast message that the ship was to assume emergency stations and for the diving team to prepare for an examination of the Vendetta’s hull. He described the “safe” distance for a scare charge detonation as 20 feet. His search of the hull revealed no damage. He learned the name of the crew member who had released the scare charge. The scare charge had been released while the member was undergoing instruction in relation to their use and the charge was dropped too close to the ship.
13. Malcolm Wheat was also a member of the Vendetta’s crew in 1969. In his statement, dated 21 November 2005, he described an occasion in early to mid October 1969 when he was awakened by an announcement to assume State 1 Condition Zulu after which he proceeded to the cafeteria where, after three or four minutes, the lights went off. He heard tapping on the outside of the Vendetta’s hull. This, in the darkness which lasted for 30 to 45 minutes, caused a high level of distress.
14. The respondent utilised Writeway Research Service to obtain background information about the incidents referred to by Mr Newton. This resulted in a report from Commodore Phillip Mulcare RAN Rtd, dated 18 September 2005. He provided a copy of the Vendetta’s log. It contains an entry, dated 5 October 1969, of a sentry on the Vendetta firing into the water in response to a possible sighting of an enemy diver. The entry refers to the dropping of scare charges from a patrol boat at that time. Reference is also made to a subsequent search of the Vendetta’s hull by the ship’s divers. The log records that the incident was enough for the Vendetta to move to State 1 Condition Zulu, which took the ship to the highest state of watertight integrity. The Vendetta’s log for 13, 14 and 15 October 1969 provides details of activities on those days but makes no reference to a scare charge incident, to the adoption of a heightened state of readiness or to a hull search by divers on those days. The Vendetta’s Report of Proceedings for October 1969 was also in evidence. It provides a detailed entry in relation to the shooting incident on 5 October 1969 but no entries appear of the scare charge incident relied on by Mr Newton of 14 October 1969.
15. Mr Mulcare’s evidence was that the routine use of scare charges was not normally recorded. He also spoke with Commander T Toohey RAN Rtd who had been Officer of the Watch at times in October 1969. In a statement dated 4 August 2007, Mr Toohey recalled an incident when a scare charge was thrown close to the ship, an event which elicited responses such as: “What the hell was that?” However, he confirmed that the incident had not been enough for the Vendetta to assume an emergency status, such as State 1 Condition Zulu.
16. For a subsequent report, dated 22 August 2007, Mr Mulcare spoke with Commander J L McCorriston RAN Rtd who was the Vendetta’s Marine Engineering Officer in 1969. In a statement, dated 30 July 2007, Mr McCorriston wrote that the Vendetta operated two steam turbo-alternators which supplied power to the ship and that, in the event of the failure of one of these, the other would continue to provide full power to the ship and the ship’s lighting would not fail. He did not recall the tripping of a turbo-alternator by a scare charge. He stated that, if the lighting on the ship had been closed down, he would have vividly remembered it.
17. After the scare charge incident, Mr Newton experienced nightmares in which he dreams he is immersed in water and fearful for his life. Shortly after the scare charge incident, he was wakened from a nightmare by a fellow sailor, Mr W Reilly, who occupied the bunk below him and had become alarmed by Mr Newton’s screams. Mr Reilly called the coxswain who was assured by Mr Newton that he was alright and no further action was taken. Mr Newton continues to have these nightmares and is fearful of loud explosive noises including the sound of thunder during storms. Mr Reilly completed a statement dated 28 September 2007 and confirmed the occasion when he woke Mr Newton from a nightmare.
The Vietnamese woman incident
18. Mr Newton described an incident involving a Vietnamese woman which occurred when the Vendetta was on the gunline off the coast of Vietnam (“the Vietnamese woman incident”). The Vendetta was slowly proceeding parallel to the coast when an American boat approached. Mr Newton variously described it as a patrol boat, gunboat, river boat and a runabout with an outboard motor and a machine gun mounted in the bow. It was one of the boats that carried out spotting duties to assist the Vendetta in maintaining accuracy with its guns. Early in his evidence, he said it was not unusual for such boats to come alongside the Vendetta as they provided supplies, such as movies and ice-cream, to the Vendetta and, at times, the Vendetta’s crew would pass fresh victuals to the boat crew. In cross‑examination, he said that the boats “didn’t generally come alongside the ship”. On this occasion, there was one American serviceman on board and a blindfolded Vietnamese person whose arms and legs were bound. He could not tell if it was a man or a woman. The boat did not tie up to the Vendetta but came to within two to five feet of the vessel and travelled alongside for about 10 minutes. At the time, Mr Newton was working with 10 to 15 other sailors on the iron deck of the Vendetta undertaking maintenance of the lifeboats. The American serviceman declared to those on the deck of the Vendetta that the bound person was a woman who had killed his friend and whom he had found in possession of handguns that had been the property of his friend. He advised that she was “nothing but shark bait” and that he was taking her out to sea to “feed her to the sharks”. He also said that he had plenty of “burley” with which to attract the sharks.
19. At the time, Mr Newton was reminded of an incident that occurred prior to any of his tours to Vietnam. He was on the Vendetta when it was required to render assistance to a merchant vessel, the MV Noongah (the Noongah), which had foundered in heavy seas off the New South Wales coast. One of his memories from that incident was his sighting of a drowned seaman’s body which had been in the water for a few days and had been mutilated by sea birds. He said that he had not wanted to refer to this in the context of his claimed conditions because he was aware that it had not occurred during a period of eligible service. The thought of the Vietnamese woman being thrown into the ocean brought back his memories of the drowned seaman. He said that this was the first occasion when that memory had returned to him.
20. Mr Newton referred to the Vietnamese woman incident in his statement dated 15 March 2005. He wrote that the American serviceman said that he was either going to shoot the woman with his friend’s guns or throw her to the sharks.
21. Mr Newton did not know if the threat to the woman had actually been carried out. He did not report the matter to anyone in authority on the Vendetta and did not discuss the incident with anyone on the vessel. He felt no obligation to report what he described as an “everyday occurrence” and “an insignificant incident” and thought that, if it was reportable, a higher ranking witness would have done so. He could not recall any subsequent discussion by the ship’s crew about the incident.
The floating body incident
22. When the Sydney was at anchor in Vung Tau Harbour, Mr Newton took a break from his duties for about five minutes while he enjoyed a cup of coffee. He was by himself toward the bow of the ship when he saw a body floating in the water, face down with arms outstretched (“the floating body incident”). It was bloated and moving quickly with the tide. Mr Newton said that he was horrified by the exposure to the death of the person and was again reminded of the mutilated man from the Noongah and of the Vietnamese woman incident. He did not report the incident even though he was aware of warnings that such floating objects might be used by the enemy to secrete an explosive device with which to damage Australian vessels. He agreed that the body could have posed a significant risk to the Sydney. He was not aware that the sighting of such a body in the water was a matter that was to be reported to someone in authority.
23. Mr Newton referred to the floating body incident in his statement of 15 March 2005. He stated that he saw it approaching the Vendetta’s bow and immediately thought that it may be a booby trap. He referred to the common Viet Cong practice of attaching an explosive device to dead bodies which they then floated towards ships anchored in the harbour. He began to have flashbacks to the scare charge incident and feared the Sydney was under attack. He stated that he considered notifying the duty officer but realised the fast running tide was carrying the body past the Vendetta. He said that he was shaking uncontrollably at the sight of the body.
24. Mr Newton did not report the Vietnamese woman incident or the floating body incident to anyone in authority on the Vendetta and believed that he did not have responsibility to do so. Further, he did not discuss any of the incidents with anyone on the vessel. His first reference to anyone, apart from some family members, was when he saw his general practitioner, Dr Hackett, in 1988. He again raised them in 2005 with a Vietnam veterans’ association before he made his claim and was advised that he might need help in dealing with them. At that time, he was referred to a psychiatrist, Dr Perce Tucker.
Other stressors
25. Mr Newton was engaged in a retail business which, in 1990, was closed down because of recession and difficulties relating to obtaining insurance. Both he and his wife became bankrupt as a result. Mr Newton agreed that this had been a stressful time but considered that these events had not been responsible for the development of his psychiatric problems.
26. Mr Newton was referred to stressors identified by Dr Tucker which included an occasion when the Vendetta was fired at from the shoreline by Viet Cong mortars. He was aware of the incident but only saw it when he viewed a video taken by another sailor. He said that the Vendetta was out of range and there was no real concern at the time. He agreed that it was not a terrifying event and denied that he had advised Dr Tucker that the mortar firing had “terrified” him.
27. Mr Newton described the sighting of the dead crew member from the Noongah to Dr Ivor Jones, psychiatrist, and to Dr Tucker. They considered it to be a formative or sensitizing event but not one which was responsible for posttraumatic stress disorder or alcohol abuse.
Medical evidence
28. Dr Jones saw Mr Newton in November 2008 and completed a report on 27 November 2008. He also gave evidence.
29. Dr Jones diagnosed posttraumatic stress disorder on the basis of the cumulative effect of the scare charge incident, the Vietnamese woman incident and the floating body incident. He assessed the impact of the scare charge incident on the basis that it was described to him by Mr Newton. This was that he was trapped in the cafeteria, unable to leave through the locked hatch which would have allowed exit to the upper deck. In his report, Dr Jones noted corroboration of the scare charge incident by a Navy diver, whose statement he read. This was Mr Pontin who described the Vendetta, at the time, as moving to emergency stations in response to a broadcast and a failure of the vessel’s lighting system as a result of a scare charge incident. Dr Jones also described Mr Newton as being unable to recall subsequent events. He reported that the Vietnamese woman incident and the floating body incident were of much lesser effect than the scare charge incident.
30. In his evidence, on the basis that the hatch was not locked, Dr Jones considered that the scare charge incident was a less frightening experience than he originally thought. He considered that it was reduced to the level of the other two incidents. Initially, he expressed doubts about whether the scare charge incident, alone, would be responsible for posttraumatic stress disorder and advised that he would need to adduce further information from Mr Newton about it in order to reach a conclusion. Despite that, he opined that the relationship was “possible” and also that it was “reasonable”. Dr Jones did not elicit information from Mr Newton about whether he experienced intense fear, helplessness or horror at the time of the scare charge incident. Rather, he noted that Mr Newton described “panic” and he agreed, in his evidence, that the Statement of Principles’ criterion A requirement of intense fear, helplessness or horror was bound up with the feeling of panic. He also considered that the remaining components of the DSM IV (the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) definition of posttraumatic stress disorder were met.
31. Dr Jones did not diagnose alcohol abuse in his report. However, he noted a report from Dr Julia Chang from Queensland Medical Laboratory that Mr Newton’s carbohydrate deficient transferrin results were raised but not enough to indicate probable alcohol excess. He wrote that the elevated readings would not categorically confirm alcohol abuse. In his evidence, he conceded that there may well have been alcohol abuse. Dr Jones considered that the majority of Mr Newton’s symptoms were referrable to posttraumatic stress disorder rather than to alcohol abuse. However, in the event that the Vietnamese woman incident and the floating body incident were not relevant stressors, he considered that the majority of symptoms would be related to alcohol abuse.
32. Dr Tucker has been treating Mr Newton since January 2005. He diagnosed Mr Newton as suffering from posttraumatic stress disorder and alcohol abuse. Dr Tucker advised that he did not diagnose posttraumatic stress disorder or alcohol abuse after one visit but on a longitudinal basis. He based this on each of the three incidents referred to above but, in particular, on the scare charge incident. He considered that the alcohol abuse may also have developed because of the posttraumatic stress disorder.
33. Dr Tucker’s diagnoses were based upon the accounts of the incidents provided by Mr Newton. For the scare charge incident, this included a reference to the Vendetta being “shut down” as a result of it. In his evidence, he also referred to Mr Newton being trapped in the cafeteria for some 10 to 15 minutes and the Vendetta going to emergency power.
34. In his evidence, Dr Tucker considered that the scare charge incident, by itself, was a sufficient stressor to meet the causal requirements for posttraumatic stress disorder and alcohol abuse. Indeed, his opinion was that the sound of the explosion while Mr Newton was in his bunk was sufficient. He also opined that, regardless of whether or not the hatch in the cafeteria was locked, the situation Mr Newton was in at that time was sufficient to satisfy the requirements of criterion A for posttraumatic stress disorder.
35. Dr Tucker was more circumspect in relation to either the Vietnamese woman incident or the floating body incident when considered individually. Nevertheless, he agreed that it was reasonable to assess each as a stressor. This was on the basis of his understanding from Mr Newton that there was more than one American serviceman in the boat with the Vietnamese woman and that he was shocked and horrified by the attitude of them to the woman and that the body he saw in the water was “bloated” and “mutilated”. In his evidence, Dr Tucker referred to his understanding of mutilated bodies as ones with “bits and pieces off them, whether it’s bits of skin or flesh”.
36. Dr Tucker was aware of the financial difficulties encountered by Mr Newton in the 1990s. His opinion was that this was not causally associated with either posttraumatic stress disorder or alcohol abuse. Both Dr Tucker and Dr Jones considered that the Noongah incident was not a prime cause of Mr Newton’s psychiatric problems.
Alcohol consumption
37. Mr Newton’s evidence was that he began to drink alcohol when he was 18 or 19 years of age. Prior to the scare charge incident, he would consume alcohol in the form of beer “every so often”. He would go ashore with other sailors when in port and have half a dozen drinks. This changed after the scare charge incident. When ashore, instead of taking the opportunity to engage in sight-seeing, he would drink to a state of inebriation in local bars. When on board, he would consume his beer ration and that of any other sailor who was prepared to provide it to him. Mr Newton described his current alcohol consumption as, typically, two stubbies of beer and two glasses of wine per day. He sometimes drinks more than that, for example, when there is a thunderstorm but he no longer becomes inebriated.
38. Mr Newton completed an alcohol consumption questionnaire on 15 March 2005. There, he stated that he commenced to drink beer in 1964 at the rate of six to eight 10oz beers each week. He also stated that he increased this substantially after the scare charge incident and continued into post service life.
39. In his report, dated 6 April 2005, Dr Tucker reported that Mr Newton “rarely touched alcohol” before the scare charge incident.
SUBMISSIONS
40. Mr Balzamo, for Mr Newton, submitted that posttraumatic stress disorder and alcohol abuse were correctly diagnosed and that there were three separate stressful events through which the conditions were related to service. First, Mr Newton experienced trauma when he was exposed to the scare charge incident. Secondly, Mr Newton witnessed a threat to the life of a Vietnamese woman by an American serviceman during the Vietnamese woman incident. Thirdly, Mr Newton witnessed a mutilated body during the floating body incident. Each incident, Mr Balzamo submitted, was sufficient to satisfy the required causal connection between posttraumatic stress disorder and alcohol abuse and Mr Newton’s service. Alternatively, he submitted that posttraumatic stress disorder was causally associated with those incidents and was responsible for the onset of alcohol abuse.
41. Mr Hanson, for the respondent, accepted that Mr Newton suffered from posttraumatic stress disorder but not because of any incident that occurred during Mr Newton’s eligible service. He submitted that incidents outside of that service were causally associated with the condition. These included Mr Newton’s sighting of the Noongah crew member’s body before he went to Vietnam and significant financial difficulties relating to his business interests in the 1990s. He submitted that the effects of these matters were deliberately played down to the two psychiatrists who gave evidence with the result that doubt was cast over the usefulness of their evidence. He also submitted that Mr Newton did not provide them with an accurate account of the circumstances surrounding the three incidents relied on by Mr Balzamo with the result, again, of making their evidence unreliable. He also submitted that the varying accounts given by Mr Newton in relation to the three incidents were inconsistent with each other and with official RAN records such that his evidence was also shown to be unreliable. He submitted that the decision in relation to both posttraumatic stress disorder and alcohol abuse ought to be affirmed.
DIAGNOSED CONDITIONS
42. For posttraumatic stress disorder, the relevant RMA Statement of Principles is Instrument No 5 of 2008 which repealed and replaced Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999). These list six criteria, all of which must be met before a diagnosis of posttraumatic stress disorder can be made. The Statement of Principles is not, in itself, a diagnostic instrument but it was not in dispute that the six criteria reflect those that are found in the relevant diagnostic instrument: DSM IV for posttraumatic stress disorder. The first of those, criterion A, reads:
“(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...”
43. The issue is not whether Mr Newton suffers from posttraumatic stress disorder but, rather, whether he does so in relation to a service-related event which meets those requirements. Even where a medical practitioner diagnoses posttraumatic stress disorder, I must, nevertheless, be satisfied that the factual basis on which any such diagnosis is made meets the requirements of criterion A.
44. Mr Balzamo conceded that the scare charge incident did not, in an objective sense, constitute an actual threat to Mr Newton. However, he submitted that the concept of threat was partially subjective and that it was sufficient if Mr Newton had a perception of threat. In that regard, he relied on Woodward v Repatriation Commission (2003) 75 ALD 420 and Repatriation Commission v Stoddart (2003) 38 AAR 176. Those cases were decided in respect of the meaning of the term “experiencing a severe stressor” in factor (b) of Instrument No 76 of 1998 for alcohol abuse. The first part of the definition of the term reads:
“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”.
45. In Woodward, the Full Federal Court said[3]:
“… the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation”.
[3] At 445 [139].
46. The focus in that passage is more on experiencing rather than the threat. Nevertheless, I accept that subjectivity may also extend to the threat itself where that term appears in criterion A for posttraumatic stress disorder. The difficulty on the material before me is in determining what Mr Newton’s perceptions were. He has not been consistent in giving accounts of any of the incidents relied upon in this matter. Nor have his accounts been consistent with the accounts given by others. While the incidents occurred many years ago, the inconsistencies are in relation to accounts given in recent years and not to comparisons between recent accounts and others given years earlier. Those inconsistencies are such that I am satisfied that Mr Newton was a witness whose evidence was unreliable.
47. In relation to the Vietnamese woman incident, Mr Newton described a single American serviceman but Dr Tucker recorded more than one in the account provided to him and, in his evidence, he said that this was what he was told by Mr Newton. At one stage, Mr Newton said it was not unusual for such boats to come alongside the Vendetta and, at another stage, he said that they didn’t generally do so. His evidence was that the American serviceman threatened to throw the woman to the sharks; in one of his statements he wrote that an alternative was nominated. This was that he would shoot her. In relation to Mr Newton’s reaction, Dr Tucker recorded shock and horror. However, this was not in relation to the event itself but to the attitude of the American serviceman. Also, in his evidence, Mr Newton described his reaction as being reminded, for the first time, of the mutilated body of the crew member of the Noongah he had seen in the water. Such memories were unrelated to any aspect of Mr Newton’s eligible service. It is surprising that the Vietnamese woman incident would not be the subject of any subsequent discussion between Mr Newton and other members of the Vendetta’s crew and that Mr Newton felt no obligation to report the incident. Whether or not the Vietnamese woman incident involved an event relating to threatened death, or even a perception by Mr Newton thereof, I am reasonably satisfied that Mr Newton’s response did not involve intense fear, helplessness or horror. In particular, in that regard, I note that, in his evidence he described it, not in traumatic terms, but as an “everyday occurrence” and “an insignificant incident”.
48. Dr Tucker’s record of the floating body incident involved a “bloated” and “mutilated” body. He described what he understood by the term “mutilated”. Mr Newton’s evidence was not that the body was mutilated. He described it as bloated, face down, arms outstretched and moving quickly with the tide. His reference to a mutilated body was in respect of the Noongah crew member and his reactions of horror were associated with that experience, which is unrelated to his eligible service and to the potential threat to the Sydney. This was despite his being aware of warnings that such floating objects might be used to secrete an explosive device and he agreed that the body could have posed a risk to the Sydney. Indeed, in a statement, he wrote that he immediately thought that the body may be a booby trap. In that situation, it is more than surprising that he did not raise an alarm. I have noted his evidence that he believed the speed of the body’s passage on the tide was such that it would have moved beyond the Sydney before anything could be done. Nonetheless, on his evidence, he was prepared to allow the body, which he thought might be booby trapped, to travel the full length of the Sydney, at a distance of some 10 to 15 feet, without raising an alarm. Significantly, Mr Newton made no mention of the incident to any of the Sydney’s crew or to any other RAN personnel at any time. I do not accept his account of the incident but, even if he had been exposed to an event which involved death, I am reasonably satisfied that his reactions were not such that they were consistent with intense fear, helplessness or horror.
49. The Vendetta’s log and Report of Proceedings do not refer to a scare charge incident on 14 October 1969. Detailed reference is made to such an incident on 5 October 1969. However, Mr Mulcare’s evidence was that scare charge detonations were not routinely recorded. Accordingly, such an event may well have occurred on 14 October 1969 despite an absence of an official record. Indeed, Mr Toohey, in his statement, recalled an incident when a scare charge was thrown close to the ship, that elicited responses such as: “What the hell was that?” However, the evidence of Mr Newton was not merely that a scare charge was detonated. Rather, in a statement, he wrote that it did so in such a manner as to cause the Vendetta to move to State 1 Condition Zulu and for the lights to fail, albeit briefly. Mr Krause provided evidence of the effect of a scare charge he experienced and stated that the Vendetta closed down to State 1 Condition Zulu, that it switched to emergency power as the ship’s power had shut down and that all doors and hatches were shut.
50. The Vendetta’s official documents record the adoption of State 1 Condition Zulu in response to the incident on 5 October 1969. The records of 14, 15 and 16 October 1969 do not record that change of status and I am reasonably satisfied that, if such a significant change in the status of the Vendetta occurred on 14 October 1969, it would be featured in the Vendetta’s records. On the basis of Mr McCorriston’s evidence, I am also reasonably satisfied that the Vendetta’s lighting did not fail on 14 October 1969. He said that the lighting would not fail because of the back-up generator systems on the Vendetta, that he did not recall the tripping of a generator by a scare charge and that, if the lighting on the ship had been closed down, he would have vividly remembered it.
51. There was inconsistency in Mr Newton’s evidence relating to the events following the scare charge incident. Dr Jones recorded him as advising that he was unable to recall subsequent events but, in his evidence on oath, he gave a clear explanation of returning to his bunk to resume reading his novel. He gave varying estimates of the period he was in the cafeteria before the announcement came over the speaker system. One such estimate was 10 to 15 minutes; another was 30 minutes. In that latter case, he said that the men were trying to get to the upper deck. The only obstacle to them was the hatch which, on Mr Newton’s evidence, was not locked and could be easily opened. Dr Tucker’s evidence was that a person may lose track of time in such a situation and it may well be that only a very short period elapsed before the announcement came and this may have negated the need for any of the crew to exit the cafeteria to the upper deck. However, if some minutes passed and the men were trying to leave the cafeteria, there was no obstacle to them doing so.
52. The account provided by Mr Wheat, advanced as being another version of the scare charge incident, bears little resemblance to that of Mr Newton. Mr Wheat described being in the cafeteria in darkness for 30 to 45 minutes and hearing tapping on the outside of the Vendetta’s hull. He identified the time-frame as early to mid October 1969 and it may be that his experience recounts the documented assumption of emergency stations and the dispatch of divers on 5 October 1969. Mr Krause referred to the shutting of all the Vendetta’s hatches. Clearly, while the exit door from the cafeteria was shut, the hatch which gave Mr Newton and other crew members access to the cafeteria was not.
53. There may well have been a scare charge detonation on 14 October 1969. However, I am satisfied that any such incident did not occur in the dramatic manner that Mr Newton has related. The Vendetta did not move to State 1 Condition Zulu on 14 October 1969 and there was no loss of power or loss of lighting. Certainly, there was no attack by enemy forces and, accordingly, no actual threat. I am reasonably satisfied that a reasonable person in the position of the applicant, with no declaration of a state of emergency, with no failure in power supply and readily available access to the upper deck, would not have a perception of a threat of death or serious injury, or a threat to the physical integrity of self or others. I am reasonably satisfied that, in the scare charge incident, Mr Newton was not exposed to a traumatic event in which he experienced, witnessed or was confronted with a traumatic event as set out in criterion A of the Statement of Principles. I am also reasonably satisfied that his response was not one which involved intense fear, helplessness or horror. In that regard, I note his evidence that he was able to return to reading his novel immediately afterwards.
54. As criterion A is an essential threshold element of the diagnostic criteria, I am also reasonably satisfied that the factual basis for making a diagnosis of posttraumatic stress disorder, in relation to any incident on Mr Newton’s eligible service, is not present. It may be that he suffers the condition in relation to some other incident. Indeed, that was the submission of Mr Hanson. The only such matters in evidence were Mr Newton’s sighting of the body of the crew member of the Noongah and his financial difficulties in the 1990s. The medical evidence does not support any causal relationship between Mr Newton’s posttraumatic stress disorder and either of those matters. As a diagnosis of posttraumatic stress disorder cannot be made in relation to service-related incidents, consideration need not be given to issues of causation relating to that condition[4].
[4] See Drew v Repatriation Commission [2008] FCA 537 at [8], [9].
55. The diagnosis of alcohol abuse, unlike that for posttraumatic stress disorder, does not depend upon the existence of a factor such as criterion A noted above. Dr Tucker has diagnosed the condition in Mr Newton. Dr Jones’ evidence appears to be equivocal on the diagnosis. While not prepared to make the diagnosis in his report, he referred to elevated readings and, in his evidence, accepted, at least in one scenario, that Mr Newton’s symptoms may be due to alcohol abuse rather than posttraumatic stress disorder. Dr Tucker has been treating Mr Newton for more than four years and has seen him on a regular basis during that period. On his evidence, I am reasonably satisfied that the diagnosis of alcohol abuse is applicable to Mr Newton.
56. Accordingly, the issue for determination in relation to alcohol abuse is whether it arose out of or is attributable to Mr Newton’ service under s 9(1)(b) of the Act.
PRINCIPLES OF CAUSATION
57. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82[5], has set out a four-step procedure for determining issues of causation in relation to operational service. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that the scare charge incident, the Vietnamese woman incident and the floating body incident meet that requirement for Mr Newton’s alcohol abuse.
[5] At 92-93.
58. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. For alcohol abuse, these are Instruments No’d 1 of 2009 and 76 of 1998[6]. The later Instrument repealed and replaced earlier Instruments[7].
[6] This Statement of Principles is headed “Psychoactive Substance Abuse or Dependence”.
[7] This included Instrument No 17 of 2008 which, for the purposes of this matter, is not materially different from Instrument No 1 of 2009.
59. The third Deledio step does not involve fact-finding but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles.
60. For alcohol abuse, these read:
Instrument No 76 of 1998
“(b)experiencing a severe stressor within the two years immediately before the clinical onset of … alcohol abuse “.
Instruments No 1 of 2009
“(b)experiencing a category 1A stressor within the five years before the clinical onset of … alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of … alcohol abuse”.
61. The Instruments that contain those factors also provide definitions relevant to them, which read:
“‘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.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence”.
“‘a category 1A stressor’ means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured”.
“‘a category 1B stressor’ means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties”.
“‘an eyewitness’ means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident”.
62. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
REASONABLENESS OF HYPOTHESES
The stressor
63. A “category 1A stressor” and a “category 1B stressor” in the later Statements of Principles for alcohol abuse are each defined to mean “a severe traumatic event”. In each case, a series of events which will qualify is particularised. As I read those definitions, one of those particularised events must be pointed to by the material in order for a reasonable hypothesis for a category 1A or category 1B stressor to be raised.
64. The scare charge incident is not one which points to events for a category 1A(b) or (c) stressor or a category 1B stressor. Mr Balzamo submitted that category 1A(a) was relevant in Mr Newton’s case. As with the term “experiencing a severe stressor”, both objective and subjective considerations are relevant[8]. If one looks to the most favourable version of matters, from Mr Newton’s perspective, surrounding the scare charge incident, it is consistent with him experiencing a life-threatening event.
[8] See above at paras 43 to 46; see also Re Mann and Repatriation Commission [2008] AATA 163 at [58].
65. The Vietnamese woman incident may be described as a life-threatening event. However, as I read the category 1A(a), (b) and (c) stressors, the focus is on the veteran himself and, unlike the category 1B stressors, not some other person[9]. The material in relation to the Vietnamese woman incident does not point to any of the category 1A or 1B stressors.
[9] See Re Sanderson and Repatriation Commission [2008] AATA 891 at [99].
66. The material before me in relation to the floating body incident does not point to any of the category 1A stressors or to those in category 1B(a), (c), (d) or (e). However, it points to a category 1B(b) stressor in that it is consistent with Mr Newton viewing a corpse as an eyewitness.
67. The factor in Instrument No 1 of 2009 also requires material which points to the clinical onset of the alcohol abuse within five years of the category 1A or 1B stressor. The term “clinical onset” has not been defined by the RMA but the requirement will be pointed to if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time[10]. Dr Tucker’s evidence is that the alcohol abuse developed from the time of the scare charge incident. This points to a clinical onset prior to the floating body incident and, accordingly, that incident does not fit the template of Instrument No 1 of 2009. However, the relevant time-frame is pointed to in relation to the scare charge incident.
[10] See Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750.
68. A reasonable hypothesis of a relationship between alcohol abuse and service is raised under Instrument No 1 of 2009 in relation to the scare charge incident. It is not raised under that Statement of Principles in relation to the Vietnamese woman incident or the floating body incident. However, Mr Newton’s claim may be considered under Instrument No 76 of 1998 which was applicable on the date of his claim. In addition to experiencing a severe stressor, this also requires the clinical onset of alcohol abuse within two years of that stressor.
69. As noted above, the material points to a clinical onset of alcohol abuse from the time of the scare charge incident. This was prior to the floating body incident and, accordingly, the material in relation to that incident is not consistent with the Statement of Principles. No reasonable hypothesis of a relevant relationship between alcohol abuse and service is raised in relation to the floating body incident under Instrument No 76 of 1998.
70. The material before me, considered most favourably from Mr Newton’s perspective, points to his experiencing a severe stressor in that he experienced a threat of serious injury or death in the scare charge incident. The material before me, particularly that of Dr Tucker, points to a clinical onset of alcohol abuse within the required two year time-frame and to the factor in Instrument No 76 of 1998. Also, the material before me, considered most favourably from Mr Newton’s perspective, points to his experiencing a severe stressor in that he witnessed or was confronted with an event that involved a threat to the physical integrity of the Vietnamese woman in the boat. It occurred on the Vendetta in a similar time-frame to the scare charge incident and therefore the material points to a clinical onset within the required two year time-frame and to the factor in Instrument No 76 of 1998.
DELEDIO STEP 4: ARE THE CONDITIONS WAR-CAUSED?
71. As no diagnosis of posttraumatic stress disorder can be made on the basis of the incidents of Mr Newton’s service, this means that posttraumatic stress disorder cannot be a war-caused condition in accordance with s9(1)(b) of the Act.
72. I have determined that Mr Newton’s description of the scare charge incident is consistent with the template of a category 1A stressor in Instrument No 1 of 2009 and with that of experiencing a severe stressor in Instrument No 76 of 1998. I have also determined that his material relating to the Vietnamese woman incident is consistent with experiencing a severe stressor in Instrument No 76 of 1998.
73. I have commented on the evidence of Mr Newton and to my assessment of him as being an unreliable witness. That applies in particular to his evidence in relation to the scare charge incident and the Vietnamese woman incident. The many inconsistencies in his evidence, along with those of other witnesses, are referred to above in relation to the diagnosis of posttraumatic stress disorder[11]. There, on the balance of probabilities, I was satisfied that they did not constitute being exposed to a traumatic event in criterion A of the Statement of Principles for posttraumatic stress disorder.
[11] For the Vietnamese woman incident, see para 47; for the scare charge incident, see paras 49 to 52.
74. Any scare charge detonation on the Vendetta on 14 October 1969 occurred without the ship going into State 1 Condition Zulu, without loss of power and in circumstances where Mr Newton and other crew members could have left the cafeteria at any time through the hatch. They were not trapped. I do not accept his evidence that he was in a state of panic while in the cafeteria. The inconsistencies in the evidence in relation to the incident have been noted. No explanation was given of why Mr Newton did not take that opportunity to make an exit. In the event that there was any actual or perception of life endangerment, that exit would be made, especially if the period in the cafeteria was of some minutes in duration. The situation would be different if the incident had occurred in the setting where emergency stations were called, where lighting systems failed and he was in a room from which he was unable to exit. I am satisfied beyond reasonable doubt that Mr Newton did not experience a life-threatening event in relation to the scare charge incident. For the same reasons, I am also satisfied beyond reasonable doubt that he did not experience, witness or become confronted with an event that involved actual or threat of death or serious injury, which event might evoke intense fear, helplessness or horror.
75. Again, the inconsistencies in Mr Newton’s evidence in relation to the Vietnamese woman incident have been noted. Nevertheless, Mr Newton may well have experienced, witnessed or become confronted with an event that involved threat to his physical integrity. However, I am satisfied beyond reasonable doubt that it was not such an event as might evoke intense fear, helplessness or horror. It certainly did not do so in Mr Newton as he was able to describe it as an “everyday occurrence” and “an insignificant incident” and one which was not reported and which warranted no further discussion among the Vendetta’ crew.
76. I am satisfied beyond reasonable doubt, in accordance with s 120(1) of the Act, that there is no sufficient ground for determining that Mr Newton’s alcohol abuse is war-caused. Accordingly, in accordance with s 9(1)(b) of the Act, it is not war‑caused.
DECISION
77. The Tribunal affirms the decisions under review in relation to posttraumatic stress disorder and alcohol abuse.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.
Signed:......................[Sgd]........................................................
Mátyás Kochárdy, Research AssociateDates of Hearing 18 & 22 June 2009
Date of Decision 30 June 2009
Counsel for the Applicant Mr B Balzamo
Solicitor for the Applicant Compass Legal Solutions
Solicitor for the Respondent Mr M Hanson, Australian Government Solicitor
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