Nitz and Repatriation Commission
[2005] AATA 255
•24 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/273
VETERANS' APPEALS DIVISION ) Re ANSIS NITZ Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date24 March 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and remits the matter to the respondent with a direction that the respondent asses the applicant’s entitlements on the basis that his conditions of post-traumatic stress disorder and alcohol dependence are war-caused.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – post-traumatic stress disorder – alcohol dependence – consideration of stressors – perception that shelling by HMAS Perth had hit hospital – fear that Viet Cong prisoners were booby trapped – firing at perceived enemy diver – fear that enemy diver had attached mines to ship – observation of napalm bombing – absence of record of event – whether subjective reaction of intense fear, helplessness or horror is required under Statements of Principles for alcohol dependence and post-traumatic stress disorder – decision under review set aside.
Veterans' Entitlements Act 1986, ss 9, 19, 120(1), 120(3) and 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
Bull v Repatriation Commission (2001) 188 ALR 756
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission [2004] FCA 1174
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Fenner v Repatriation Commission [2005] FCA 28 (2 February 2005)
REASONS FOR DECISION
24 March 2005 Deputy President D G Jarvis 1. Ansis Nitz served in the Royal Australian Navy from 3 June 1967 until 31 December 1973, and was engaged in operational service in Vietnam in HMAS Perth from 14 September 1970 to 8 April 1971. During this period he was employed as a weapons radar technician. In March 2001 he lodged a claim for pension for incapacity from conditions later diagnosed as post-traumatic stress disorder (“PTSD”) and alcohol dependence. Mr Nitz was born on 4 February 1949. He has an accepted disability of ischaemic heart disease.
2. In a decision made on 18 October 2001, a delegate of the Repatriation Commission (the “Commission”) refused Mr Nitz’s claim on the ground that the conditions were not war-caused. On 15 May 2002, the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision. Mr Nitz has applied to this Tribunal for review of that decision.
Issue Before the Tribunal
3. The issue before the Tribunal was whether Mr Nitz’s conditions of PTSD and alcohol dependence were war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”).
4. The Commission accepted that Mr Nitz is suffering from the conditions of PTSD and alcohol dependence, and that the clinical onset of his alcohol dependence occurred not later than two years after he experienced certain events which Mr Nitz relies upon as severe stressors. It was common ground that if Mr Nitz is successful in his claim, the date of effect would be 29 December 2000.
The Course of the Hearing
5. The hearing before me occurred in two phases. The first phase occurred on 9, 10 and 11 June 2004. Mr Nitz was represented by Mr S D Ower of counsel, and the Commission was represented by its advocate, Mr G Doube. Mr Nitz, Ian Robert Plews, a former sailor who served in HMAS Perth, and Dr M Ewer, a psychiatrist, gave evidence in person in support of Mr Nitz’s case, and Colin Ronald Pope, another former sailor from HMAS Perth, gave evidence by telephone. The Commission called an historian, Commodore Mulcare, who gave evidence in person, and the former gunnery officer on HMAS Perth, Donald Derrick James Marrable, who gave evidence by telephone. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of other documents. Mr Doube completed his address on behalf of the Commission on 10 June 2004.
6. Counsel for Mr Nitz, Mr Ower, commenced his address on 11 June 2004. At the outset of his address, he referred to the definitions of “experiencing a severe stressor” in both the Statement of Principles in respect of PTSD (the “PTSD SoP”) and the Statement of Principles in respect of alcohol dependence (the “Alcohol SoP”). Statements of Principles (“SoPs”) are made under s 196B of the VE Act, by the Repatriation Medical Authority (“RMA”). This section provides in effect that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to (inter alia) operational service by veterans, it must determine a SoP setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of the relevant kind with the circumstances of that service).
7. Mr Ower drew attention to the difference between the diagnostic criteria for PTSD and the wording of the relevant factor in the PTSD SoP, namely factor 5(a) which, is to be interpreted by reference to the definition of “experiencing a severe stressor” in clause 8 of the PTSD SoP. He pointed out that whilst it is necessary for a veteran to suffer a subjective reaction of intense fear, helplessness or horror in order to satisfy the diagnostic criteria for PTSD, the definition of “experiencing a severe stressor” in clause 8 of the PTSD SoP does not include any requirement for any such subjective reaction on the part of the veteran. He contrasted the definition of “experiencing a severe stressor” in the PTSD SoP with the definition of the same expression in the Alcohol SoP, where identical words are used to describe the characteristics of the relevant event or events, but are then qualified by the further words “which event or events might evoke intense fear, helplessness or horror”. However, these words could perhaps also mean that the veteran need not have suffered from the subjective reaction of intense fear, helplessness or horror because the words “might evoke” could indicate that the further qualifying words are also descriptive of the objective characteristics of the relevant event or events; if the SoP were intended to require a subjective reaction, perhaps the additional words in the Alcohol SoP should have read: “which event or events evoked intense fear, helplessness or horror”, not “which event or events might evoke intense fear, helplessness or horror”. Whilst reference is made in clause 2(b)(A)(ii) to a response of intense fear, helplessness or horror, this forms part of the definition of “post-traumatic stress disorder”; that definition is no doubt included in the SoP to facilitate deciding whether a SoP has been made in respect of the asserted injury or disease, in which case the reasonableness of a hypothesis connecting the injury or disease with the service rendered by the veteran in question must be determined by reference to the factors referred to in the SoP (see s 120A(3) of the VE Act).
8. At this early stage of his address Mr Ower very fairly acknowledged that he had “sprung” his submission as to the interpretation of the PTSD SoP on Mr Doube, and he would therefore have no objection if Mr Doube wished to put in a further submission in relation to that issue. Mr Ower further suggested that the matter could be adjourned for a short time to enable both parties to undertake some further research on the issue. In view of the potential importance of this issue to future matters as well as to Mr Nitz’s application, I agreed that the matter should be adjourned for a short time to enable both parties to consider the relevant issues further, and so that Mr Ower’s address would incorporate the benefit of his further research. Mr Ower therefore proceeded no further with his address that day.
9. When the matter resumed several days later, Mr Ower completed his address, and submitted that the factors that must exists as a minimum under both the PTSD SoP and the Alcohol SoP do not require the veteran to experience a subjective reaction of intense fear, helplessness or horror. In the meantime, the Commission had engaged the Australian Government Solicitor (“AGS”) to act in this matter, and had retained counsel. The AGS sought an adjournment to give counsel the opportunity to read the transcript and prepare the Commission’s further submissions.
10. On 7 September 2004, counsel for the Commission, Ms S Maharaj, applied for leave to call further evidence which had apparently become available to the Commission as a result of its further investigations following counsel’s review of the evidence given in the proceedings up to that point. The Commission had in the meantime lodged and served a supplementary report dated 4 August 2004 from Commodore Mulcare. This report included as attachments copies of statements from five personnel who were serving in HMAS Perth while it was engaged in relevant deployment to Vietnam. The statements included one from the captain of the Perth, Commodore Burnside. Because Mr Nitz had provided further particulars in his evidence as to the asserted stressors, including the location in the Perth where he went as part of the damage control party, and so that as I would be as fully informed as possible of all the relevant facts, I decided (with some diffidence) to give the Commission leave to recall Commodore Mulcare to give evidence as to the matters contained in his report of 4 August 2004, and to call each of the personnel from whom he had obtained statements. Because of this, I also gave leave to Mr Nitz to give further evidence and to adduce further evidence from any other persons whom he may wish to call in support of his application.
11. The hearing then resumed on 15 February 2005. Commodore Mulcare’s further report of 4 August 2004 was tendered as exhibit R4, on the basis that paragraphs 9 to 12 inclusive (which comprised a summary of the attached statements of the five further personnel from whom statements had been obtained) were excised from the report. Commodore Mulcare gave further oral evidence, and the Commission also called Commodore Burnside to give evidence. Mr Nitz then called Dr Terry Stevenson, Robert Wayne Ashton and Senior Sergeant William John Collidge, all of whom served in the Perth during the relevant deployment to Vietnam. The further evidence given during the second phase of the proceedings focused on the event which I will refer to late in these reasons as the “enemy swimmer event”.
Stressors Relied Upon by the Applicant
12. In his evidence, Mr Nitz described four events during his operational service in Vietnam which it was contended satisfy the requirements of the definition “experiencing a severe psychosocial stressor” in the PTSD SoP and the Alcohol SoP. These events were as follows.
(a) The Viet Cong Hospital Event Mr Nitz first referred to an occasion when HMAS Perth had been shelling a target on the mainland of Vietnam. He said that his work on HMAS Perth as a radar technician involved maintaining the vessel’s navigational radar and ensuring that it was operational, and that a lot of his time was spent in the combat information centre (“CIC”), which was located on the upper deck. He said that on the night in question he thought he went into the CIC about halfway through the shelling mission. He was not on duty at the time, but it was his habit to spend a lot of his time in the CIC even when he was not on duty. He said that the CIC handled all requests for support fire and mission fire. He said that shortly after they had finished the mission he heard an American spotter radio in and congratulate them for taking out a Viet Cong field hospital. Mr Nitz said his initial reaction was disbelief and disgust and he felt stunned and guilty. He thought “horrified” might be “a bit strong”, but “appalled” would be a good word. He said that the incident occurred at night between about 10.00 pm and 2.00 am.
Mr Nitz said that there was a lot of discussion next morning about what had happened, and this was included on the ship’s official tally board. However, he said that when the captain found out about this, he ordered the information to be removed from the tally board. He said that the captain also made a broadcast to the crew denying that the incident had taken place. Mr Nitz said that he thought this was a huge cover-up, and this disgusted him almost as much as the event itself.
(b) The Hoi Chanh Event - Guarding of Viet Cong Prisoners Mr Nitz said that on another occasion he was piped up to the quarterdeck and saw a boat tied up alongside HMAS Perth, and seven prisoners were lying face down with their hands tied behind their back. He was given a rifle and a flak jacket, and was asked to go up to the tartar deck and watch over the seven prisoners. There were other crew members also watching the men with rifles. He said that he continued to watch them for some time, but could not say for how long, until a US coast guard vessel approached and the prisoners were transferred onto that vessel. He said that he was concerned throughout this period that the vessel tied up alongside the Perth might have been booby trapped or that the prisoners might have been booby trapped. He said that he felt anxious, tense and agitated until the prisoners were taken away. He said he heard later that the prisoners had been searched before he had been asked to guard them, but he was not aware of this at the time.
(c) The Enemy Swimmer Event Mr Nitz said that another incident occurred when HMAS Perth was anchored at night time off the coast of Vietnam very close to the shore. He said that it was unusual for the Perth to be anchored. There were sentries posted about every 20 feet around the deck of the Perth to look out for swimmers or boats which might try to attack the Perth, and he himself was on such sentry duty in the focsle, right at the front of the ship. He thought that this was the only time he had undertaken sentry work during his operational service. He had a headset on, which enabled him to communicate with the bridge. He said that some time after midnight he saw a long beam of light in the water which he thought was coming from an underwater enemy swimmer. He called out to the sentry next to him, namely the witness Plews, and asked him to look over the deck and see what he thought it was, but Mr Plews said that he did not know what it was. Mr Nitz said that he then fired a volley of six shots, and looked over the side and saw that it was still there. After an interval of 25 to 30 seconds, he fired a further five shots. He then called the bridge and said that there was a diver in the water. He said the ship then went into action stations, weighed anchor and proceeded for some distance out to sea. The ship then weighed anchor, and divers went over the side apparently to check whether mines had been attached to the hull of the ship.
He said that when he first saw what he believed was an enemy swimmer, he felt terrified and his immediate thought was that they were going to die. He further said that when the ship was put in to action stations, his role, as a leading seaman, was to be in charge of a damage control party and he was responsible for an area of number 3 deck which was below the water line. He said that after the ship went into action stations he and his party remained in a passage way which was about 25 to 30 feet long for about two and a half to three hours, until the divers had established that there was nothing attached to the hull of the ship, and they were stood down from action stations. He said that being in this position for that period had a more profound effect on him than the firing of the shots. He said that whilst he was waiting for the divers to check the hull he had been waiting for the possibility that the hull would blow up, and his mouth went as dry as a bone, his tongue was rasping over his mouth, his pulse was pumping, he felt blood thumping through his ears, he was shaking and after a while he thought he was going to lose control of his bowel or his bladder.
(d) The Napalm Incident The final incident which Mr Nitz described was an occasion when the Perth was at anchor off the coast in the north of Vietnam at a point close enough for him to distinguish the palm trees on the beach. He said he could see a fire fight going on in the vegetation near the beach, and then he saw some jets drop napalm. He said that he had never seen anything so destructive before in his life, and although he did not feel in danger of his own life it was a terrifying event and he could not imagine how anyone could have survived the napalm bombing. He said that within five to ten minutes of the bombing he initially smelt the burning of petroleum but then he smelt an unfamiliar sweet smell which he thought was the smell of burning skin. He said he felt disgusted by this event.
13. Mr Nitz then briefly described the effects on him of the incidents, including his bad memories of these events, his heavy drinking, his inability to sleep and breaking up with his then fiancée.
14. Reference was made to the first two events described by Mr Nitz in the first report provided by Dr Ewer, being his report of 29 September 2001 (T7, page 72). However, when referring to the Hoi Chanh event, Dr Ewer made no reference in his first report to Mr Nitz’s concern that the Viet Cong prisoners were booby trapped. In his oral evidence Dr Ewer said that he accepted that that incident constituted a stressor because other veterans had told him of what he thought were similar incidents of Viet Cong prisoners being taken prisoner, mistreated and being handled inappropriately and forced to lie on a burning deck. However, Dr Ewer admitted that Mr Nitz had not said any such things to him at the time of the first consultation. In his second report of 31 January 2002, Dr Ewer said in relation to the second event that Mr Nitz was intensely frightened that the “soldier” he was guarding was booby trapped, and that he had been advised that Viet Cong soldiers were known for doing this. In the same report, Dr Ewer also reported that Mr Nitz had told him about the third event involving the perceived enemy swimmer. Dr Ewer also said in his evidence that on an occasion later still, shortly prior to his third report, (being his report of 30 August 2002, exhibit A5) Mr Nitz had described the napalm event to him.
15. Later in these reasons I will refer further to Mr Nitz’s evidence, including his cross-examination, insofar as this is relevant to the issues that arise for determination. I will also deal with the evidence of other witnesses in relation to the asserted events and their relevance to those issues.
Legislative Framework
16. Section 9 of the VE Act provides for when an injury or disease is to be taken as war-caused, and provides relevantly as 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; …”
17. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
18. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
19. As Mr Nitz has performed operational service, as defined in s 6 of the Act, the determination of whether his conditions of PTSD and alcohol dependence are war-caused, is to be made by applying ss 120(1) and 120(3) of the VE Act. These sections provide as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
20. In the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.”
21. Section 120A(4) excludes the operation of s 120A(3) in certain circumstances which are not relevant to the present proceedings.
22. I referred in paragraph 6 above to the requirements in s 196B of the VE Act for the RMA to determine SoPs. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
23. In determining this matter I will apply the approach laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, which is as follows:
“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 ss 196B(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.”
24. Mr Ower submitted that on the material before me, there were eight hypotheses that connected Mr Nitz’s asserted conditions with the circumstances of his service in the Perth. The hypotheses contended for were as follows. As regards the Viet Cong hospital event, the first hypothesis is that the Perth fired upon and destroyed a Viet Cong field hospital, and the second hypothesis is that Mr Nitz misheard what was said and wrongly understood that the Perth had fired upon and destroyed the hospital. As regards the Hoi Chanh event, the first hypothesis is that the Viet Cong prisoners had been mistreated, the second hypothesis is that the prisoners were forced to lie face down on the hot deck with their hands tied behind their backs for the entire time they were on the Perth, and Mr Nitz believed that they were booby-trapped; and the third hypothesis is that the prisoners were not kept in the position applicable to the second hypothesis, but Mr Nitz nevertheless believed that they were booby-trapped. As regards the enemy swimmer event, the first hypothesis is that Mr Nitz believed that the Perth was under threat from an enemy swimmer and fired shots into the water, and the second hypothesis is that the Perth went into action stations with the result that Mr Nitz took up a position at or below the waterline while divers checked the hull for any enemy mines. As regards the napalm event, the hypothesis is that jets had carried out napalm bombing and this had reeked extreme destruction which Mr Nitz thought no-one would have survived. Counsel further submitted that the events variously entailed Mr Nitz experiencing fear, distress, disgust or horror, resulting in the development of PTSD and alcohol dependence.
25. I have considered all of the material before the Tribunal and I am satisfied that that material points to hypotheses (namely, the hypotheses identified by Mr Ower as set out in the preceding paragraph) connecting the conditions of PTSD and alcohol dependence with the circumstances of Mr Nitz’s operational service. Further, SoPs have been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of the two conditions in question, and those SoPs are, as mentioned above, the PTSD SoP and the Alcohol SoP. The PTSD SoP is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999, and is set out in exhibit A1 at pages 108 to 112. The Alcohol SoP is Instrument No. 76 of 1998 and is set out at pages 118 to 123 of exhibit A1. These findings address the first two steps in Deledio, and were conceded by the Commission.
26. I now turn to the third step described in Deledio. This entails determining whether the hypotheses contain one or more of the factors referred to in the relevant SoPs. Once again, this step involves considering all of the material before the Tribunal, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for the purposes of the third stage of the process described in Deledio : Lees v Repatriation Commission (2002) 125 FCR 331.
27. Under clause 4 of the PTSD SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the veteran. Clause 5 of the PTSD SoP relevantly provides:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder … with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor prior to the clinical onset of anxiety disorder;
…”
28. The Alcohol SoP contains corresponding provisions. Under clause 4, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 of the Alcohol SoP relevantly provides:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…”.
29. The expression “experiencing a severe stressor” is defined in the Alcohol SoP in the following terms:
““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’ Entitlement 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.” (emphasis added)
The same expression is defined in the PTSD SoP in the same terms, except that (as mentioned above) the words “which event or events might evoke intense fear, helplessness or horror” are not included in the PTSD SoP.
30. Having regard to the judgments of Mansfield J and the Full Court in Repatriation Commission vStoddart (2003) 77 ALD 67 and the judgment of the Full Court in Woodward v Repatriation Commission (2003) 75 ALD 420, and the judgment of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309, I consider that the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “experiencing a severe stressor” in the PTSD SoP and the Alcohol SoP, and whether the applicant experienced such a stressor, would include the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be 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”, and (in the case of the Alcohol SoP) the event or events must be such that they “might evoke intense fear, helplessness or horror”. These characteristics entail an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)Under the relevant factor of each SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(d)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraph (b).
31. I am mindful that paragraphs (b) and (d) above address issues that are related to a point expressly reserved by the Full Court in Woodward (supra). After quoting from extracts of the judgment of Mansfield J at first instance in Stoddart, the Full Court said that it considered His Honour’s reasoning persuasive and that it should be followed, but added (at [141]):
“… we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
32. Whilst noting the Full Court’s reservations as set out in the preceding paragraph, I consider that the summary in paragraph 30 above sets out the effect of the present state of the relevant authorities. Of course, the requirement for a decision-maker to determine whether a particular occurrence satisfies the objective requirements of the definition of the stressor raises difficult issues where there is no evidence as to any specialised meaning or usage. In Delahunty (supra), Tamberlin J pointed out that the concept of the man on the Clapham omnibus was inappropriate in the present context. I consider that the objective requirements of the definition should be assessed from the point of view of the perception of a member of the Navy who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart (supra)). Even so, this suggested characterisation is of only limited assistance, because the Navy might include experienced sailors who had been exposed to combat situations on prior occasions, as well as (particularly in the case of veterans who have seen service in Vietnam) young sailors who had completed their formal training, but had not previously been in a war zone or been involved in combat experience.
33. I have referred above to the hypotheses arising from the enemy swimmer event. I take into account in considering the evidence before me that Mr Nitz was aged 21 at the time of this event, and he had never been on sentry duty before the event; his work on the Perth was as a radar technician. There is evidence before me that Mr Nitz was convinced that there was a diver in the water and that he was there to plant mines on the hull of the Perth; he was terrified, and thought they were going to die; he fired six shots; when he looked again and the object was still in the water, he fired another five shots, and then called the bridge to advise that there was a diver in the water; and he was terrified when the object was still there after the second round of shots. Mr Nitz’s evidence is consistent with the history obtained by Dr Ewer. In his report dated 31 January 2002 (exhibit A1, T13, page 102), Dr Ewer recorded that Mr Nitz thought that the diver was attempting to attach a mine to the hull of the vessel, that he fired 11 shells at what he thought was an enemy diver, that he was “scared shitless” and was “so frightened (he) was willing to kill”. Dr Ewer considered from the basis of Mr Nitz’s history that the event satisfied both the objective and subjective elements of the stressor (transcript 10.06.04, page 29, line 17). Further, a fair reading of the evidence of Dr Terry Stevenson, another sailor on board the Perth at the time, also indicates that Mr Nitz was visibly shaken and distressed by the incident (as well as being distressed because the presence of an enemy diver could not be corroborated, so that his credibility was in question). I will refer further to Dr Stevenson’s evidence later in these reasons.
34. In my opinion, the above evidence satisfies the requirements of factor 5(a) of the PTSD SoP and factor 5(b) of the Alcohol SoP, and is consistent with the requirements of the definition in each SoP of “experiencing a severe stressor”. I further consider that there is material before me that Mr Nitz experienced a reaction of intense fear at the time when he fired his rifle at the perceived enemy swimmer. This makes it unnecessary for me to decide the contention of Mr Ower that on the proper construction of the relevant SoPs, the subjective reaction of “intense fear, helplessness or horror” is not required in order to satisfy the definition of “experiencing a severe stressor” in each SoP.
35. In reaching the conclusion referred to in the previous paragraph, I make it clear that I have considered all of the material before me, as required by such cases as Bull v Repatriation Commission (2001) 188 ALR 756 at [21], Elliott v Repatriation Commission (2002) 73 ALD 377 (where Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated), and the recent decision of Hill J in Hardman v Repatriation Commission [2004] FCA 1174 at [39] to [41]. I will refer to other material before me later in these reasons. In particular, I have had regard to certain other evidence which suggests that the further sequence of events described by Mr Nitz (that is, that the ship weighed anchor, went into action stations, moved further off the coast and then anchored again to enable divers to search the hull) did not occur. However, this material does not displace my view that there is material before me which fits the template of the two relevant SoPs.
36. I further consider (once again, after taking into account all of the material before me) that the hypothesis arising from the firing at the enemy swimmer could not be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” and so not reasonable (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517).
Consideration of facts re enemy swimmer event
37. As I am satisfied that the enemy swimmer event constitutes a reasonable hypothesis by reference to the two SoPs, I will not at this point discuss the other hypotheses referred to by Mr Ower in the context of the third step in Deledio. Instead, I will now turn to the fourth step in Deledio, that is, to consider whether I am satisfied beyond reasonable doubt that Mr Nitz’s incapacity did not arise from a war-caused injury or disease. If I am not so satisfied, Mr Nitz’s claim must succeed by virtue of s 120(1) of the VE Act. In examining this question, I note that there is no onus of proof (see s 120(6) of the VE Act, and the role of this Tribunal as an administrative decision-maker was explained in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). I also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at [13], where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.”
38. I recounted in paragraph 12(c) above Mr Nitz’s description in his evidence-in-chief of the enemy swimmer event. He was also asked to look at paragraphs 6, 7, 8 and 9 of Commodore Mulcare’s historical report dated 16 May 2003 (exhibit R2) relating to an incident involving a perceived enemy diver on 11 October 1970. He said that he did not think that it was the incident he had described. He said that there had been other incidents involving swimmers reported in the water but there were no shots fired on those occasions; further, the incident on 11 October 1970 happened at a different time, namely early in the night, and it entailed two electrical branch sailors, whereas he was a leading seaman weapons radar technician and Mr Plews (who was on sentry duty with him) was a leading seaman weapons radar technician.
39. In cross-examination, Mr Nitz said that it was he who contacted the bridge to report what he thought was an enemy diver, and that it was his decision to do so. He said that he was later charged with discharging a firearm negligently as a result of the incident, but he said that his orders had been to fire at anything suspicious, and when his advocate pointed this out, the charge against him was dropped. He said it was only later that he learned that what he had shot at was a sonar dome, which is yellow in colour and is located below the waterline at the front of the ship. He said that he had not told Dr Ewer about this incident on the first occasion he had seen him, because he was in a very bad state then. He also said that he had contacted the witness Pope on the Sunday before the hearing, but had not spoken to him for 17 years before then.
40. Mr Plews confirmed in his evidence that he served with Mr Nitz in HMAS Perth and that they were on sentry duty together on the forward gun deck one night when Mr Nitz drew his attention to a pale object in the water near the sonar dome on the starboard side of the vessel. He said that Mr Nitz asked him what he thought it was, and he said he did not know. He said they watched the object for a couple of minutes and then all of a sudden he heard shots being fired and saw that Mr Nitz had fired into the water. He was unsure who reported the matter to the bridge. He said he thought there were two bursts of shots but he could not be absolutely sure. He said that after the shots they were recalled to the bridge and asked what they had been doing, and they were both asked questions as to what had happened. He said that that night they were preparing for action the next morning for a dawn offensive. He said he could not remember the ship going into action stations after the incident involving Mr Nitz firing into the water.
41. The witness Pope provided a letter to Mr Nitz’s solicitor which is exhibit A4, and also gave evidence by telephone. In his letter Mr Pope refers to an incident that occurred off Da Nang Harbour in either late 1970 or early 1971. He refers to the Perth being at anchor and to there being “armed night sea-watch sentries” on duty. His letter continues:
“A suspected sighting of enemy divers in the ocean caused Bill (Nitz) to open fire, discharging in the vicinity of ten or more rounds, this being close to the ship, alerted the Sonar Watch to the disturbance, this prompting the ship’s Captain to assume full action stations.”
The letter then describes the ship moving out to sea and clearance divers being put overboard to scan the hull. In his evidence he said that he had been about to go off duty, but received a call and had remained on duty at his computer below decks for about 2½ to 3 hours whilst (as he later found out) clearance divers were put overboard for the purpose of scanning the hull. He said he received a phone call while he was at his computer and was told that there had been shots fired at a suspected diver, resulting in a suspected limpet mine. He confirmed that before that the Perth had put out to sea slowly. He said that the next day he found out that the person who had fired the shots was one of the electricians, and soon afterwards found out that it was Mr Nitz who did this. He said he was not aware that Mr Nitz had been charged in relation to the discharge of the firearm.
42. In accordance with the leave that I had given to Mr Nitz to call further evidence in the second phase of the proceedings (which leave was consequential upon my giving the Commission leave to recall Commodore Mulcare and others from whom he had obtained statements), Mr Nitz called three additional witnesses who served in the Perth during its 1970-71 deployment to Vietnam.
43. The first additional witness, Dr Terry Stevenson, said that at the time of the incident involving Mr Nitz he was a Systems Artificer Weapons (3) and was on his second deployment to Vietnam. He said he eventually served in the Royal Australian Navy for 22 years and reached the rank of Lieutenant Commander, and he is currently the Chief Technology Officer for Raytheon Australia. He said that he could not recall whether the incident involving Mr Nitz occurred in Da Nang or Vung Tau Harbours, but he remembered the incident because Mr Nitz took a considerable amount of criticism over the incident. In his witness statement he said that the key points were that there was an Operation Awkward; Mr Nitz was on watch on the focsle; there was an incident and Mr Nitz fired shots; there was a considerable amount of comment after the incident; and Mr Nitz was the brunt of the criticism for some time. In cross-examination, Dr Stevenson recalled the essential aspects of the events of 11 October 1970 (being the events described in detail in Commodore Mulcare’s further report of 4 August 2004). Dr Stevenson said he also remembered a separate incident. He thought that it occurred at dusk or late afternoon. He said he was in the gun plot, and during his watch the ship went to a higher state of readiness. He then went to the station in his own area where he had to be accounted for, and after probably 20 to 30 minutes, the ship resumed its previous state. He then came off watch and was on number 1 Deck after the focsle. He remembers Mr Nitz coming through the bulk head doors. He said he assumed that Mr Nitz had come off sentry duty, but also said that as far as he knew, damage control parties would have been despatched to their posts, and Mr Nitz himself would have been required to go to his station.
44. Dr Stevenson said that he had a discussion with Mr Nitz after he had come through the bulk head doors. He said it was quite obvious to him from Mr Nitz’s physical state that he (Mr Nitz) was distressed. He was asked in cross-examination: “What did he say to you precisely?” Not surprisingly, it was apparent that Dr Stevenson could not remember precisely, and his answer was as follows:
“Precisely – it would be very difficult to say but I can recall that he was visibly shaken, he was recounting the incident and basically he felt that he had actually seen something and he’d fired in response to that. But basically, because nothing was found, that his word wasn’t being trusted.” (transcript 16.2.05, at page 10, line 35).
Dr Stevenson said that there was also a credibility issue in that Mr Nitz had seen something, had fired at it, but people were not necessarily believing him because they did not find the diver. Dr Stevenson said that the incident was the subject of many a discussion for probably two to three weeks. Dr Stevenson could not remember anything about Mr Nitz being charged subsequently. Later in his cross-examination when again asked what was discussed, Dr Stevenson said:
“Okay. He didn’t say he – I don’t believe – I can’t recall if he said the number of shots but he said “shot” or “shots” were fired at something he saw in the water. It was like – it could have been – I think it was – I remember something to do with light, there was a light or sort of – like torch light type of thing in the water. He saw that, he fired the shot or shots – I’m not sure how many – and then reported the incident. And he would have reported the incident through the communications person on the focsle.” (transcript 16.2.05, page 12, line 8).
45. The applicant next called Robert Wayne Ashton. He provided a letter to Mr Nitz which was tendered as exhibit A15. The letter reads relevantly as follows:
“I do know that we were at anchor and you were sentry at the time that you fired into the water.
By doing this you caused an uproar and we all went to Action Stations.
I had to go to the anchor, wind, and up anchor.
Divers went over the side for mines. We didn’t anchor again that night.
My memory says that it was in Vung Tau.”
In cross-examination, Mr Ashton said he was in his bunk at the time. He said that he could only remember one incident when the Perth was under threat by a suspected swimmer which subsequently led to the Perth assuming action station status. He could not remember a specific time or place where he learned that Mr Nitz had fired into the water, and he did not see this. He could not recall whether Mr Nitz told him of what had happened or whether he heard it from discussions by other sailors. He did not know how many shots had been fired. He did not know whether Mr Nitz had been charged. He did not know the date when the incident happened. He said he could not specifically remember discussing the incident with Mr Nitz, but said the whole ship knew about the incident and the discussion on the whole ship was why the ship had to move.
46. The third additional witness called by Mr Nitz was William John Collidge, a senior sergeant employed by the Western Australian Police Force. In a witness statement which was admitted as exhibit A16, Sergeant Collidge said he had been carrying out some routine maintenance on the forward gun mount in his capacity as gun captain in the Perth. An incident occurred in the late afternoon or early evening. Mr Nitz was acting as a sentry and was armed with a self-loading rifle. The ship was at anchor, and this was not common. There were other armed sentries posted on the upper decks of the ship while she lay at anchor. His written statement continues:
“I did not see or hear any of the sentries fire a weapon on that occasion; however I was informed later that evening that one of the forecastle sentries, Bill Nits (sic), had engaged a target in the water near the bow of the ship.
There was quite a discussion in the mess-deck regarding the incident and comment was made regarding the effects of a round striking the hull when the Sonar operators were closed up on listening watch.”
He added that from memory the ship did not go to action stations, and he was not aware of whether or not Mr Nitz was disciplined over the incident.
47. In cross-examination, Sergeant Collidge was also clear that the incident he described was not the incident that occurred on 11 October 1970. From his memory, the incident involving Mr Nitz occurred when the Perth was anchored off Vung Tau, around Christmas time. He saw Mr Nitz and another armed sentry late in the afternoon or early evening, and some time later he said he heard talk in the mess deck of Mr Nitz having fired a rifle into the water. He did not hear the rifle fire and had nothing to do with it. He said that there was conjecture on the ship that Mr Nitz may have fired at the ship itself. He said he heard the discussion at least an hour or two later, but it could have been two, or three, or four hours later. He said that he could not remember going to the position he had to man at action stations, and was not aware of any divers being put into the water to sweep the hull. He said that the ship was at action stations most of the time on the gun line, but he thought he would have remembered if they had been at action stations on the occasion in question. He could not say whether or not Mr Nitz was charged as a result of the incident, although there was speculation about this. He said that he did not recall the Perth moving specifically as a result of the incident involving Mr Nitz, but later that evening or early morning it weighed anchor and moved back to the gun line. He could not recall it taking up a defensive position.
48. In the first phase of the hearing, the Commission called Commodore Mulcare, an historian. He reported on his investigations into an incident on 11 October 1970 involving a possible enemy diver in paragraphs 6 to 9 of his report (exhibit R2). He found in the report of proceedings of HMAS Perth reference to this incident, and he said that this was the “only incident that resembles the veteran’s contention”. He said that the incident is described in the ROP as follows:
”At1945, two electrical branch junior sailors on 1 deck by Mount 51 and one LSRP1 on the port wing of the bridge independently observed what they thought to be a swimmer in the water close to the ship on the port side. As conditions at the time were calm, with bright moonlight and excellent visibility and the ships (sic) movements had been restricted to a small area for some time, the report was evaluated as possibly correct. The ship immediately proceeded to the south east to clear the area. Once clear the ship stopped in the water and a bottom search was conducted. Nothing was found however and at 2300 HMAS PERTH returned to the gunline. This incident served to underline the possible threat of mining and underwater attack in the area close to the DMZ.2”
49. Commodore Mulcare further reported that in other areas, the Perth sometimes anchored offshore during firing missions, but there was no record of any other diver incidents during the deployment, nor was there any record of a sentry opening fire on a suspected diver. In his oral evidence, Commodore Mulcare also said that there was no indication in the report of the incident on 11 October 1970 that the Perth went into action stations. He said that from his experience, if there was an episode where it was suspected that limpet mines had been attached to the hull of the ship, the ship would not have been put into action stations, but sailors would have been cleared from between the decks and all hands would have gone to the deck except for damage control parties. He said that in a hypothetical situation where it was suspected that limpet mines had been attached to a vessel the captain would go into Awkward State 1, which entailed clearing people out from between the decks and getting all hands on deck except for damage control parties.
50. When the hearing resumed on the first day of its second phase, the Commission recalled Commodore Mulcare. He tendered a further lengthy report, which was dated 4 August 2004 (exhibit R4). This report also focused on the incident on 11 October 1970. Annexed to this later report were statements from the following personnel who were serving in the Perth at the time:
· Commodore I M Burnside OBE RAN Rtd, the then Captain of the Perth;
· Mr John Cairns, then a Leading Seaman;
· Rear Admiral K A Doolan OA RAN Rtd, then a Lieutenant Commander and the Navigating and Operations Officer;
· Lieutenant Commander D D J Marrable MBE RAN Rtd, then a Lieutenant and Gunnery Officer; and
· Captain T O’Sullivan RANR, then a Lieutenant and in charge of a watch in the Combat Information Centre.
These statements also relate to the event on 11 October 1970.
51. Commodore Mulcare’s second report sets out the relevant entries from the Perth’s ship’s log, starting with an entry relating to 18:00 on the evening of 11 October 1970, and concluding with an entry relating to 22:30. In his further oral evidence, Commodore Mulcare explained the meaning of the relevant entries in the ship’s log. The second report also explains the meaning of the names given to degrees of readiness for combat, water-tight conditions and nuclear, biological chemical defence and damage control (“NBCD”) states of readiness. According to the ship’s log, on 11 October 1970 the Perth assumed NBCD State 1 Condition Z at 20:17. Commodore Mulcare explained this was the highest state of NBCD preparedness, with all positions fully manned, and this state was assumed when an attack was imminent. Condition Z (or “Zulu”) described the state of control of water-tight doors, hatches, ventilation openings etc. In condition Z, all X, Y and Z doors, hatches and openings were closed, and condition Zulu was the usual condition at action stations. Based on the Perth’s records, Commodore Mulcare reports that the Perth effectively assumed Awkward State 1 when the ship stopped at 20:17 and assumed NBCD State 1 Condition Z prior to the divers searching the hull, but the term “Awkward State 1” was not used. The ship did not, however, assume action stations on 11 October 1970.
52. Exhibit R6 is an aide memoire prepared by Commodore Mulcare and sets out the dates, locations and periods when the Perth was at anchor off Vietnam during its deployment from 1970 to 1971. It is also relevant in this regard to refer to paragraph 9 of Commodore Mulcare’s earlier report (exhibit A2) where Commodore Mulcare records that according to January’s ROP, the Perth sometimes anchored off shore during firing missions. The report also states that there is no record of any other diver incidents during the deployment, and nor is there any record of a sentry opening fire on a suspected diver.
53. The later report from Commodore Mulcare also included as Attachment 8 drawings of HMAS Perth. From the description given by Mr Nitz of his damage control station, Commodore Mulcare was able to locate the position of this station on the drawings, and fixed that position as being on 2 Deck. From the profile drawing, he concluded that this state was above the waterline.
54. The Commission also called the ship’s captain, Commodore Burnside, in the second phase of the hearing. He provided a written statement which was tendered, and gave evidence by telephone. He said that he had a clear recollection of the events of 11 October 1970, because it was the first week or so of the Perth on the gun line, and the particular occasion was one of the first occurrences where he was really concerned about the possible safety of the ship. In his written statement, Commodore Burnside said that the Perth never anchored in the firing box just south of the demilitarised zone (“DMZ”) but stayed under way at a speed of at least four knots for operational reasons, and was usually between 6,000 and 10,000 yards from shore. He said there were no sentries posted on the upper deck and there was no need for such sentries. He recalled a report of a suspected swimmer from junior electrical sailors who had been enjoying fresh air near the forward five inch turret at the time. However, a leading seaman radar tot had also seen something, and so he decided to treat the matter as a suspected attack. He confirmed that the Perth then left the area at speed, stopped when well clear of the DMZ, and divers then searched the hull of the Perth. His written statement then continues:
“There was no rifle fire directed at a “suspected swimmer” on 11 October 1970. Two bursts from a sentry in the bows of the ship, one of six rounds and a second of five rounds, would have signified a serious situation and could not have gone unnoticed. Also, there was no other “swimmer” incident during the 1970/71 deployment, or occurrence of sentries opening fire on a suspected swimmer at any time. I believe it outrageous that the circumstances described by Mr Nitz are said to have occurred and I am also certain that such an incident, would have been recorded in both my Report of Proceedings at the time and the Deck Log.” (exhibit R4, Attachment 3).
55. Commodore Burnside was not prepared to concede that there had ever been any incident involving Mr Nitz firing into the water, or firing at a suspected swimmer, and stated that evidence or statements from other people to that effect was wrong, and if any shots had been fired that would have come to his notice.
56. Lieutenant Commander Marrable was the Perth’s gunnery officer in its 1970-71 deployment to Vietnam. In a written statement, which is Attachment 6 exhibit R4, Lieutenant Commander Marrable made certain statements which were not specific to the events on 11 October 1970. These statements were as follows:
“I do not recall that PERTH had sentries posted on the upper deck that evening or at any other time when patrolling off the DMZ. To my knowledge no shots were fired by a sentry at any time during PERTH’s 1970/71 deployment. Such action would have been outside the rules of engagement. Sentries did not have permission to shoot unless they were in immediate personal danger or were acting on permission from the command.”
He added that he was also responsible for the accounting of all ammunition, and to his recollection it was never reported to him that live ammunition had been fired, although for the rest of that night (that is 11 October 1970) he was heavily engaged in directed fire missions. He also said that the firing of shots so close to the bridge would certainly have been heard and recorded by the officer of the watch in the log.
57. It appeared likely from all of the evidence before me, and I so find, that the firing at the suspected enemy diver relied upon by Mr Nitz as a stressor was a different event than the event described in the Perth’s ROP for 11 October 1970. Quite apart from Mr Nitz’s reasons for thinking this, it seems clear from Commodore Burnside’s evidence that the Perth was not at anchor on 11 October 1970, and there was no cause for sentries to have been deployed, because the Perth was in motion and was too far off shore to be threatened by enemy swimmers. However, confirmation that the ship was at anchor at the time of the asserted stressor was provided by Sergeant Collidge, and also by Mr Ashton, who said that he went to the forward capstan and raised the anchor at the time of the incident. Further, Mr Nitz and the evidence of all of the other witnesses called by him provided direct or indirect confirmation that Mr Nitz was on sentry duty at the time of the asserted firing at the perceived swimmer. There is no report of shots having been fired on 11 October 1970, and Lieutenant Commander Marrable’s statement strongly confirms this. Apart from Mr Nitz’s evidence that he fired shots, there is direct confirmation of this from Mr Plews, and the four remaining witnesses called on behalf of Mr Nitz all confirmed that the firing of shots by Mr Nitz was talked about extensively by sailors on the Perth after the incident had occurred. In her address following the conclusion of the evidence in the second phase of the hearing counsel for the Commission, Ms Maharaj, said that the Commission accepted that Mr Nitz was talking about a different incident from the incident on 11 October 1970.
58. Nevertheless, in her address Ms Maharaj drew attention to a number of inconsistencies between Mr Nitz’s account of the incident he relies on and the account of other witnesses. In particular, she referred to the question of the conflicting evidence as to the communication with the bridge, and also to the inconsistencies between Mr Nitz’s evidence and the evidence of Dr Stevenson as to Dr Stevenson’s recollection of what Mr Nitz told him as to the number of shots fired. Further, she pointed out that other witnesses could not recall the Perth going into action stations and Sergeant Collidge said that if this had occurred he would recall it. She also pointed out that there was no record of this aspect or of the firing at a suspected swimmer in the ship’s records. Indeed, Commodore Burnside and Lieutenant Commander Marrable said that no shots were fired during the relevant deployment, and if that had happened, they would have learned of it. Counsel also contended that certain other witnesses could not recall, or disputed, that the Perth weighed anchor and moved off shore after the incident. She also referred to the lack of confirmation from other witnesses that Mr Nitz had been charged over the incident.
59. Ms Maharaj further submitted that the firing at the perceived enemy swimmer event was a minor incident and observed that Mr Plews, the sentry on duty with Mr Nitz, was not distressed about the incident. She also pointed out that Dr Ewer had not referred to the incident until his second report of 31 January 2002 (exhibit A1, T13, page 102), and that this was after a representative of the Vietnam Veterans’ Association of Australia had advised Dr Ewer of this additional asserted stressor following the rejection of Mr Nitz’s application by the VRB (see exhibit A6, being a copy of the request to Dr Ewer for a further medical report). Counsel contended that Mr Nitz had dramatised the evidence, and had sought to exaggerate the seriousness of what was a minor incident.
60. In addressing the fourth step in the Deledio test, I bear in mind the provisions of s 119(1)(h) of the VE Act. This provides relevantly that I must take into account any difficulties that for any reason lie in the way of ascertaining the existence of any fact, including any reason attributable to the effects of the passage of time, including the effect of the passage of time on the availability of witnesses, and the absence of, or a deficiency in, relevant official records. In this matter, s 119(1)(h) was considered by Mansfield J recently in Fenner v Repatriation Commission [2005] FCA 27 at [26 ] to [29], and I note his Honour’s remarks as to the limited effect of this provision. In the present matter, following the first phase of the hearing, the Commission attacked Mr Nitz’s credibility because of inconsistencies between his account of the swimmer event and the report of the events of 11 October 1970. However, as mentioned above, after the second phase of the hearing, the Commission conceded that there were two distinct events, notwithstanding the absence of any record of the firing of a rifle by a sentry at a perceived enemy swimmer, and notwithstanding the evidence led by the Commission that such an event would have been recorded. It also appeared that at an earlier stage the Commission were proposing to question Mr Nitz’s evidence of the withdrawal of charges against him on the ground that no record could be found of the advocate who he said had represented him, namely Lieutenant Commander Moore. However, the last witness to give evidence, Sergeant Collidge, confirmed that this person had indeed served in the Perth and was well known to him, because he was his boss. These matters indicate to me that the absence of records is not a consideration to which I should attach significant weight in this case.
61. I have carefully considered the submissions made by counsel for the Commission. However, after the very long interval of time since the occurrence of the relevant events, it is not surprising that there would be differences in the recollections of persons who were present at the time. Nevertheless, I am satisfied that all of the witnesses, including Mr Nitz, did their best to remember the relevant events. In view of the impact on Mr Nitz of the perceived swimmer event and his central role in that event, I think it likely that his recollection of the event is more likely to be correct than that of the other persons who gave evidence, and I accept Mr Nitz’s account of the event when he fired at the perceived enemy swimmer. Further, some confirmation of various aspects of Mr Nitz’s account is provided by various witnesses. All five witnesses called by Mr Nitz confirm directly, or by describing the talk on the Perth at the time, that Mr Nitz fired at a perceived enemy swimmer when he was on sentry duty. Sergeant Collidge and Mr Ashton confirmed that the Perth had been at anchor, and Messrs Ashton and Pope said that the Perth weighed anchor after the incident, and went out to sea, and divers were put over the side and searched for mines. It is possible that these witnesses and also Mr Nitz in this part of their evidence were confusing the event when Mr Nitz fired at the perceived enemy swimmer with the aftermath of the suspected sighting of a diver on 11 October 1970 (although counsel for Mr Nitz was instructed to disavow that Mr Nitz was so confused). It is also significant that while Dr Stevenson could not recall the ship going into action stations, or moving out to sea or divers being put over the side to search for mines after Mr Nitz fired at the perceived swimmer, he did recall the Perth going into a higher state of readiness, because he had to go to the station in his own area to be accounted for. Further, it appears from Commodore Mulcare’s evidence that damage control parties (of which Mr Nitz was a member) would be despatched if the Perth entered certain more intense states of readiness which did not, however, constitute action stations.
62. I have noted that Mr Nitz did not refer to the swimmer event at the time of his first consultation with Dr Ewer. However, in his first report Dr Ewer records that Mr Nitz told him that he was exposed to “a range of stressful experiences during his operational service” (exhibit A1, T7, page 73). Dr Ewer then described only two specific experiences, which were the Viet Cong hospital event and the Hoi Chanh event. It would appear therefore that there were other events which Dr Ewer did not obtain a history of. Dr Ewer also said that in his experience often further information comes out at a patient’s second interview with a psychiatrist.
63. After considering all of the evidence before me (including the evidence as to the other asserted stressors and also submissions as to credibility made with reference to those stressors), I am not satisfied beyond reasonable doubt that Mr Nitz did not experience the event he described, including its aftermath when he was in charge of the damage control party, or (if this is necessary under the relevant SoPs) that he did not have a subjective reaction of intense fear, helplessness or horror during both the initial incident when he fired at the perceived enemy swimmer, and at the later time when he was at his station with the damage control party. Further, I am not satisfied beyond reasonable doubt that one or more facts necessary to support the hypotheses arising from the enemy swimmer event have been disproved beyond reasonable doubt, or that the truth of a fact inconsistent with the hypotheses has been proved beyond reasonable doubt. As a result, in accordance with s 120(1) of the VE Act, I determine that Mr Nitz’s conditions of PTSD and alcohol dependence are war-caused.
Other Asserted Stressors
64. In view of my findings in relation to the “enemy swimmer” incident, it is not necessary for me to consider in detail, or to make any findings of fact in relation to, the other asserted incidents. However, for the sake of completeness I will deal with them briefly in turn. I will also record my finding, where relevant, as to whether Mr Nitz suffered a subjective reaction of intense fear, helplessness or horror, but in view of my conclusion based on the enemy swimmer event, it is not necessary for me to determine whether such a subjective reaction is required in order to satisfy the relevant factors of the PTSD SoP and the Alcohol SoP.
65. The Viet Cong Hospital Incident Lieutenant Commander Marrable gave oral evidence in the first phase of the hearing that he was the gunnery officer on HMAS Perth at the time of this incident. He said that he was in the CIC during all spotter firings by the Perth, and he recalled the incident involving a Viet Cong hospital. He said that the target coordinates were provided to the bridge and then to the CIC, and were then plotted in the CIC following the initial call for fire. The practice was then for a second call to be made in which the target was identified. On this occasion the spotter described the target as an enemy field hospital. Lieutenant Commander Marrable said he then reacted to this and discussed it with Captain Burnside, and advised the captain that they could not fire on a hospital. He said that the target was changed, and the coordinates were changed by at least 500 metres, and the Perth did not in fact fire on the hospital. He thought it extremely unlikely that Mr Nitz heard what the spotter said, because normally only the radio officer heard from the spotter and he took notes and then relayed them to the captain. He did not believe that the spotter’s communication was broadcast live, but said that if it was, Mr Nitz would have known that the coordinates and target had been changed. (Of course, this would not be the case if Mr Nitz arrived at the CIC after the co-ordinates had been changed but before the damage assessment report by the spotter). Further, Lieutenant Commander Marrable said that a person standing in the CIC would not have heard the gun damage assessment report from the spotter, assuming (as he believed) that it was not broadcast. He also said that he was not aware of any announcement having been made by the captain to the crew to the effect that the Perth had shelled a Viet Cong hospital, or to deny that that had occurred.
66. I note that in his cross-examination, Mr Nitz admitted that in the proceedings before the VRB, he had referred to the Perth’s guns firing white phosphorous rounds. He said he did not know why he thought this, but it might have been because he heard someone talking afterwards in the CIC. Finally, he said that he thought that referring to white phosphorous rounds would make the incident sound more impressive, because such rounds would potentially cause more damage. It was submitted that this last admission should lead to an adverse finding of credibility. However, that admission is not necessarily inconsistent with an honest belief, however obtained, that white phosphorous rounds were in fact used.
67. This event is referred to in paragraphs 2 to 5 of the first report of Commodore Mulcare (exhibit R2). I note that in narrating the information provided by Lieutenant Commander Marrable, Commodore Mulcare says that he (Lieutenant Commander Marrable) believes that the incident “occurred early in the deployment when exchanges with spotters were sometimes broadcast live over the main broadcast, to give the ship’s company a feel for what was going on.”
68. Commodore Mulcare’s first report also incorporates the gun damage assessment reports for the months covered by Mr Nitz’s service in Vietnam. These reports are detailed, but there is no reference to damage to an enemy hospital.
69. Mr Pope referred to the hospital incident in his evidence and he said that he understood later that the target the Perth had shelled on the evening in question was a hospital, whereas “we had been told that it was an ammunition dump.” He said that he had been on duty at the time of the shelling, and assumed that Mr Nitz was also on duty at that time, because their shifts were parallel. In cross-examination, Mr Pope said that it had been given out over the main broadcast system of the ship that they had shelled a hospital and that it had caused a large number of deaths. He denied that the coordinates had been changed, apart from a possible minor adjustment. In a letter to Mr Nitz’s solicitor (exhibit A4), Mr Pope said that his recollection of this incident was not as clear as his recollection of the “enemy swimmer” incident.
70. On the evidence before me, I am satisfied that the Perth did not shell a Viet Cong hospital, and I accept Lieutenant Commander Marrable’s evidence that when it was realised that the target was a hospital, the coordinates were changed. However, under the definition of “experiencing a severe stressor” in the two relevant SoPs, it is relevant to consider the relevant event judged objectively from the point of view of a reasonable person in the position of Mr Nitz, and whether the events were capable of conveying and did convey a threat of death or serious injury. Once again, the evidence is contradictory, but some confirmation of Mr Nitz’s perception is provided by Mr Pope, and Lieutenant Commander Marrable’s evidence that Mr Nitz would not have heard the spotter’s report might be inconsistent with the reference in Commodore Mulcare’s report to an acknowledgment by Lieutenant Commander Marrable that early in the Perth’s deployment, spotters’ reports were broadcast. In these circumstances, I am not satisfied beyond reasonable doubt that Mr Nitz did not experience this event, in the sense that he did not perceive the threat of death or serious injury.
71. Accordingly, on the analysis of the SoPs contended for by counsel for Mr Nitz, this event would also satisfy factor 5(a) of the PTSD SoP and factor 5(b) of the Alcohol SoP. However, if a subjective reaction of intense fear, helplessness or horror is required by the SoPs, I further find beyond reasonable doubt that Mr Nitz did not suffer such a subjective reaction having regard to his evidence as to his reaction to this event, as set out in paragraph 12(a) above.
72. The Hoi Chanh Event Commodore Mulcare deals with this event in paragraphs 11 to 15 of his first report (exhibit R2). His report indicates that after the prisoners’ boat had been boarded and brought alongside HMAS Perth, the prisoners were brought on board, stripped and searched by the boarding team, in the presence of the ship’s doctor and observing Red Cross rules. After the search was completed, the prisoners’ clothing was returned and they were provided with food and cigarettes. The prisoners were later transferred to a South Vietnamese patrol craft to be taken ashore.
73. Photographs of the prisoners are attached to Commodore Mulcare’s first report. Further photographs are shown in exhibit R1, an extract from Up Top, the Official History of Australia’s Involvement in South East Asian Conflicts 1949-1975, by Jeffrey Grey, and the T-Documents include, at pages 79 to 83, an extract from a Department of Defence publication entitled “The Royal Australian Navy in Vietnam, Dealing with the Deployment of HMAS Perth from 14 September 1970 to 8 April 1971”. This material is consistent with Commodore Mulcare’s report, and the photographs depict the prisoners being interviewed and given cigarettes. There are no photographs that are consistent with Mr Nitz’s evidence of prisoners being bound and dressed in blue overalls on the deck.
74. I am satisfied beyond reasonable doubt that Mr Nitz’s account of this event was incorrect, and that there was no reasonable basis for any perception that the prisoners were booby trapped or that they presented a threat to the safety of the Perth or its crew, including Mr Nitz.
75. The Napalm Incident Commodore Mulcare deals with this incident briefly in paragraph 10 of his report, and whilst conceding that on occasions Mr Nitz may have seen what he believed were napalm bombs being dropped some miles away on land, he disputes that he would have smelt burning skin. I note that none of the other Navy witnesses referred to this matter. Dr Ewer did not refer to it in his final report of 30 August 2002, although apparently Mr Nitz had referred to this prior to that report.
76. I am not satisfied beyond reasonable doubt that Mr Nitz did not witness napalm bombing or that he did not reasonably perceive this to entail a threat of death or serious injury. Accordingly, if the contention that a subjective reaction of intense fear, helplessness or horror is not a requirement of the factors in the relevant SoPs is correct, then I would find that this event also satisfied the definition of experiencing a severe stressor in the SoPs. However, if the contention that the above subjective reaction is not required in order to satisfy the SoPs is wrong, then I would further find beyond reasonable doubt that Mr Nitz’s reaction did not amount to intense fear, helplessness or horror.
Conclusion
77. For all of the above reasons, I have concluded that Mr Nitz’s conditions of PTSD and alcohol dependence are war-caused.
Decision
78. I set aside the decision under review, and remit the matter to the Commission with a direction that the Commission assess Mr Nitz’s entitlements on the basis that his conditions of PTSD and alcohol dependence are war-caused.
I certify that the 78 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 9-11 June, 16-17 June 2004 and 15-17 February 2005
Date of Decision 24 March 2005
Counsel for the Applicant Mr S D Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S Maharaj
Advocate for the Respondent Mr G Doube
Solicitor for the Respondent Australian Government Solicitor
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