Peace and Repatriation Commission
[2003] AATA 1013
•8 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1013
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1315
VETERANS' APPEALS DIVISION ) Re MAVIS PEACE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date8 October 2003
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS - Operational service in Canada; death by suicide in 1999; whether factors in Statement of Principles for hypothesis and sub-hypothesis were related to relevant service or connected with the circumstances of service; decision affirmed.
Veterans’ Entitlements Act 1986 s119, s120A(2)(4) , s119
Statement of Principles No.71 of 1996
Statement of Principles No.177 of 1996
Statement of Principles No.3 of 1999
Statement of Principles No.54 of 1999
Statement of Principles No.58 of 1998
Statement of Principles No.57 of 1996
Statement of Principles No.59. of 1998
Repatriation Commission v Hancock (2003) FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v McKenna [1998] FCA 787
Benjamin v Repatriation Commission (2001) FCA 1879
Repatriation v Cornelius (2002) FCA 750
Hurn & Repatriation Commission [2001] AATA 907
Repatriation Commission v Bey (1997) FCFCA 1347
REASONS FOR DECISION
8 October 2003 Mr J Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“the VRB”) made on 15 August 2001. The VRB then decided to affirm a decision made by the respondent on 9 June 2000 where it was determined that the death of the late Lyle Arnold Peace was not war-caused.
2. The late Mr Peace, who was the husband of the applicant, was born on 13 November 1925 and died on 1 September 1999. The Victorian Coroner conducted an inquiry into the death of Mr Peace and it was determined that he died from the effects of carbon monoxide poisoning, the consequence of an apparent suicide. Prior to his death, Mr Peace had been an in-patient of the Kerferd Psychiatric Clinic in Wangaratta and had separated from his wife.
3. The late Mr Peace was a member of the Royal Australian Air Force between 28 January 1944 and 26 August 1945. Part of that service was in Canada. The service in Canada was alleged to have significance in these proceedings and it will be referred to later in these reasons. In his lifetime, the late Mr Peace did not have any accepted or rejected disabilities.
4. The hearing of the application commenced in Wodonga on 7 March 2003 and concluded in Melbourne on 15 April 2003. Evidence was heard from Mrs Peace, the applicant’s adult children, some former service colleagues and Doctors Cole and Walton, both consultant medico-legal psychiatrists, and Professor McCarthy a military historian.
5. Ms Black appeared on behalf of the applicant and submitted that the applicable Statements of Principles were Instrument No.71 of 1996 and Instrument No.177 of 1996, both entitled “Suicide or Attempted Suicide”. The applicable factor in the earlier Instrument was 5(c), namely “suffering from post traumatic stress disorder at the time of suicide or attempted suicide”.. Additionally it was submitted that the post traumatic stress disorder (“PTSD”) Instrument would have to be satisfied and to that extent Ms Black relied on Instrument No.3 of 1999 and No.54 of 1999.
6. Mr Douglass appeared on behalf of the Repatriation Commission. He submitted that there were three principle issues in dispute in the present application namely, the relationship between service and the death of Mr Peace, whether the events that he alleged in service did in fact occur and whether a diagnosis of PTSD is appropriate.
Mavis Peace
7. Mrs Peace said that she met her late husband in 1960 and they married in 1966. She said that her husband did not ever discuss his service with her, but he did discuss it with their son Wayne. She recalled that her husband suffered nightmares throughout the marriage, that he would thrash his arms and legs in his sleep and would frequently scream out “don’t shoot me” whilst asleep. She said she attempted to discuss his service and his nightmares with him but he would describe both as being “too horrible”.. Mrs Peace said that her husband did not consult with doctors but on one occasion he attended a psychiatrist but refused to return. (Attempts were made through a former general practitioner to identify that psychiatrist but those attempts were unsuccessful.).
8. When describing the relationship with her husband, Mrs Peace said that there were occasions when they “got on well” but there were other occasions where he would “go off into his own world and he was unbearable”.. She said that he was frequently depressed. Mrs Peace said that her husband often thought and exclaimed that there were problems within the marriage but she did not share those opinions. He had previously attempted suicide in Melbourne and on another occasion in Benalla. Shortly prior to his death by suicide, she and Mr Peace had separated by him leaving the matrimonial home. She recalled prior to that occasion that she and her husband had had a “terrible row” and that he had accused her of “killing his mother”.
9.
Mrs Peace said that she did not know what was the “trigger” which caused him to suicide. She said on the occasions where he had previously attempted suicide he had “been off in his own world and would not talk to me”.. She said following a previous suicide attempt she had spoken to their family doctor in Benalla who arranged for her husband to be admitted to the Kerferd Psychiatric Unit, an annex of the Wangaratta Hospital. Mr Peace was eventually admitted as an
in-patient, on 12 August 1999.
10. Throughout the marriage Mrs Peace said that her husband was difficult to live with, that he was often “in his own world” and that he would attempt to intimidate her. She said that she used to react and said that that would cause him some happiness. She said that when she eventually learnt to ignore him he would then “niggle” at her. She said he would not join in at family functions, would say that he wanted his own space and would then retreat to a lounge room while other family members would be elsewhere.
11. In cross-examination Mrs Peace said that her husband retired in 1986 when they were both living in Melbourne. He was then an employee of the Public Trustee Office in Victoria. Mrs Peace was the proprietor of a childcare centre that she sold in May 1988. She and Mr Peace then moved to live in Benalla. She said her husband only had a small network of friends at the local lawn bowls club. She thought the relationships with her husband’s former workmates were not important because he was keen to retire and did not have an association with his former colleagues thereafter.
12. Between 1960 and 1966 Mrs Peace said that she and her husband would engage socially on one or two occasions per week but he would not ever talk about his service. She said in fact she knew “nothing about him” before 1960. She said that she had previously met his parents and his brothers and sisters (who are all now deceased) but she learnt “nothing about him” from those persons.
13. Mrs Peace was then taken to extracts from the in-patient notes of the Kerferd Psychiatric Unit and said that she was surprised there was no reference at all to his military service recorded as a cause of his apparent stress. She said that she learnt from her son Wayne that her husband had been a member of the Air Force, that he had served in Canada and had been a gunner and a radio operator. She said there were some episodes of “hi jinx” but she knew nothing else. She said that she persisted for a time in seeking information about his service but he constantly refused and she eventually stopped asking. She did not know whether he had nightmares before marriage but did recall that he was “moody” during their courtship and there were times when he would retreat for lengthy periods.
14. With specific reference to the Kerferd Unit notes, Mrs Peace was asked to consider an entry on admission (Exhibit 4 page 29) in the following terms:
States has had lowered mood & depressed appetite, feels lonely, useless unloved and rejected. Disappointed in marriage failure after 34 yrs.
Recent Stressors: Breakdown 1 wk ago of marriage with wife requesting he leave which he did taking his own unit in Benalla.
Lyle relates several threats, attempts at suicide over the years, the most serious being threatening to take cyanide – following which he was encouraged to go to Psychiatrist which he did on one occasion only.
…………. Lyle states childhood sad, broken home aged 10 yrs in Airforce age 18……………. Lyle states sleep is poor of past weeks, & he has no reason to live………
15. Mrs Peace said that she understood that her husband had given a history of a breakdown in their marriage and said that she had reached the stage where she had told him that he should make up his mind whether he wanted to remain married to her and live in the same home. He apparently chose to leave. Mrs Peace also said that her husband had attempted suicide on one occasion in Melbourne by attempting to consume cyanide. Cyanide was apparently available in the home because it was used to develop photographs which was a hobby of Mr Peace. Mrs Peace recalled that that episode occurred after one of his episodes of “moodiness”. At that time she did not recall that there were difficulties in their marriage but she did recall that her husband then expressed (and frequently thereafter) that he was “unloved”. She acknowledged that at page 30 of the Kerferd notes, the author recorded her as having stated that her husband had used “suicide as emotional blackmail off and on in marriage”.. The notes also refer to the possibility of reconciliation. Mrs Peace said that she did not know at that time whether their marriage could be reconciled but she did wish to remain friends with him. She said that an attempt was made to reconcile after he had been an in-patient for some days (this is referred to at page 38 of the notes) where she and her husband agreed to meet. Later, she attempted to speak with her husband at the local bowls club (shortly prior to his death) but he was then angry and she was unable to communicate with him.
16. Page 43 of the Kerferd notes records an interview with Mr Peace where he then stated that he and Mrs Peace had separated and “there is nothing left to live for”. Mrs Peace said that she understood this to be a reference made by her husband to a belief by him that the marriage was over. She said that she did not then believe that the marriage could not be reconciled and she did not believe that the marriage breakdown was the cause of his suicide. She said that he had been moody and irritable for many years throughout their marriage.
17. Mrs Peace said that she believed that there was an association between her husband’s service and his death. She said that he would frequently scream out during his sleep “they’re shooting at me” or words to the effect “they’re chasing me”. He also exclaimed “don’t let them get me”. She said that having discussed her husband’s service with their son Wayne, she understood these references were to her husband being “chased by people with guns”.
18. In answer to some questions from me, Mrs Peace said that her husband’s nightmares and his subsequent behaviour were connected so far as she could observe. She said that there was a pattern of him suffering nightmares leading to him expressing a sense of being unloved. She said that there would then be a period of time when he was not suffering nightmares and their relationship was satisfactory. When the nightmares returned and he would speak in his sleep, he expressed a sense of being unloved. Despite this he persistently refused to discuss his nightmares with her.
Jeanette Peace
19. Ms Peace is one of the daughters of the late Mr Peace. In giving her evidence she relied on a statement found at page 28 of the T-documents which had been forwarded to Mr Colin Handcock, a pensions officer with Benalla Legacy, who had assisted in the claim made initially on the Repatriation Commission. That statement (which was signed by Ms Peace, together with her brother and mother) is reproduced as follows:
RE: LYLE PEACE
Dad relayed to me some recollections from the war at various stages throughout my life. Some of these stories that come to mind are:
Dad told me about the time when stationed at Canada and on a runway one of the aircrew standing nearby turned the wrong way and walked into the propeller of a fighter plane. Dad commented on how horrific the incident was as the gentlemen was decapitated within meters of him and others.
Dad was a tail gunner/wireless operator and relayed his fears of ending up like many of colleagues. Dad described that some tail gunners when they returned from a mission – in his words they had to literally hose out what was left of them from the plane. He explained that an enemy fighter would always attack from the rear and with their sights set on the tail gunner.
Another recollection was of when the machine gun jammed and at high altitude they would have to unjam very quickly, removing three layers of gloves very quickly as they were also risking frost bite from the cold.
From my youth, living at home with dad one night mum came to me very distraught as dad was talking about taking his life. She’d taken a bottle of cyanide from dad and handed it to me to hide from dad. Then asked me to go and talk to him, asking him what was wrong and trying to convince him of our love for him and would miss him if he was gone. He seemed to have the idea he wasn’t needed or loved despite the opposite being true.
When I was young I would hear dad shouting from the bedroom at night “Don’t shoot me”.. Apparently these dreams were recurring and involved being chased by people with guns. He would never tell mum about them when asked – he said they were too horrible.
20. In evidence Ms Peace said that she had a recollection of her father “indicating” to her that he observed a person decapitated in Canada when that person walked backwards into a moving propeller. She said that she could recall that “indication” when she was a young person but when she was older she recalled that her father again told her of that event. She said that she also heard him screaming out in his sleep “don’t shoot me” whilst she was living in the family home.
21. She described her father as having a loving demeanour who would “do anything” for all the children.. She said that he was of considerable assistance to her when she moved out of home and set up a place of her own. She said he would contribute to family activities and after his retirement, he would play Father Christmas each year at her mother’s day care centre in Melbourne.
22. Nonetheless, she said that her father did withdraw from time to time from family activities and on occasions when she asked him why he had withdrawn he shrugged his shoulders and said that he was “happy to be alone”.. She denied that her father and her mother had marital problems but they did occasionally disagree. She said his “mood swings” put pressure on her mother and she also believed that his dreams became more and more prominent and caused him to withdraw.
23. When she was eight or nine years of age she recalled that her father did attempt suicide in Melbourne. She had a memory of her father standing on a ladder reaching into his wardrobe to obtain photo developing chemicals. She said she did not then comprehend what he was doing but learnt later that he had threatened suicide by consuming cyanide.
24. In cross-examination Ms Peace said that her father had spoken to her brother, Wayne, about body parts being hosed out of the aeroplanes in Canada but had never told her that he was under attack. She said that he had spoken to her about the episode where a colleague was decapitated and he had told her about tail guns becoming iced during flights. She said that he had not ever told her that he was shot at or chased in combat but had only referred to these events during his sleep by screaming out words describing those events.
25. She said that it appeared to her that her father was coping with retirement and had been filling in his days “quite well”.
Wayne Peace
26. Mr Peace is the son of the applicant in these proceedings who signed the statement reproduced earlier in these reasons.
27. He said that his father had told him of a number of different events during service which stand out in his memory namely, observing a person walk into the propeller of an aeroplane and being decapitated, fear of being lost whilst flying because of exposure to “phantom signals”, and a fear of turret guns freezing. Mr Peace said that his father was always a “hard nut to crack” and was hard to engage in conversations. He said there were many times when his father was withdrawn and resisted interacting with others.
28. When Mr Peace was 15 or 16 years of age he recalled his mother being distressed and asking him to speak with his father who was threatening to commit suicide by consumption of cyanide. Mr Peace said his mother had told him that his father had been exclaiming that no-one loved him and she could think of no incident or reason for him to have those feelings. He recalled at that time his father’s behaviour was “out of the blue”.. Mr Peace did say that he often heard his father screaming during his sleep, words to the effect that people were chasing him or there were people with guns. He recalled talking to his father about these nightmares yet no explanation was ever offered to him.
29. Mr Peace did recall speaking with his father about tail gunners being hosed out of turrets and said that his father had told him that it was the last job that any person would want to have. He said that his father spoke about tail gunners being reluctant to occupy that position on an aeroplane (because that person would be the first to be targeted).
30. In cross-examination Mr Peace was taken to a report prepared by Dr Holwill, a consultant medico-legal psychiatrist who prepared a report which was eventually lodged with the Veterans’ Review Board. The report is found at page 42-44 of the T -documents and in it Dr Holwill records that the witness had told him that his father “flew a number of missions and was often under enemy fire”. Mr Peace said that Dr Holwill had accurately recorded the history given to him and it would explain why his father had been in fear of his life. He said he could not recall whether his father had ever told him who was firing at him. He also confirmed the history given to Dr Holwill that tail gunners had been hosed out of turrets because he had been told this by his father. He said that his father had observed this and he assumed that it had occurred in Canada. A similar history was given to Dr Cole who provided a report for the purposes of these proceedings. Mr Peace said that he did not recall whether his father had the job of hosing out the turrets but he did recall that his father had seen that occurring. He said he could not recall the type of aircraft in which his father had flown and could not recall his father ever saying to him that he had been attacked by enemy fire or that colleagues had been hit. Rather he said that tail gunners had been targeted.
31. With respect of the history given to Dr Holwill and Dr Cole that guns had jammed at altitude, Mr Peace said that his father had told him that he would have to take off his gloves to unjam frozen .303 Browning machine guns. He said that his father had mentioned to him that he did have to fire the guns in defence of the plane in which he was a passenger and that his father had been recognised as being “a better shot”. Again Mr Peace assumed that episodes of this kind occurred in Canada.
32. With respect to the history taken by Dr Cole of a person being decapitated, Mr Peace said that his father had on several occasions told him that he did observe a person walk into a propeller and become decapitated. Mr Peace said he was told by his father that it had occurred on an airfield where a group of people were boarding an aircraft.
Robert Douglas Thompson
33. Mr Thompson is a former flight sergeant who served with the deceased. In his evidence he referred to a number of episodes during service and also referred to a statement prepared by another service colleague, Mr Vin Mansfield.
34. Because of the significance of the contents of the statement of Mr Mansfield and the references made by Mr Thompson to it in his evidence, the statement of Mr Mansfield is reproduced as follows:
I recall while at Mont Joli No.9 and BOMBING & GUNNERY SCHOOL about November 1944. Knowing about an Australian WAG trainee, with head down against the freezing prop wash walking into the prop and being killed horribly and instantly. I believe his name was “CRASH BUTTERSWORTH”.
I recall speaking with some one who attended the funeral saying how dismal and desolate the burial was lowering this young Aussie into snow smothered freezing grave.
We were constantly related stories of Air Gunners being washed out of turrets with hoses. An instructor taking us through the bail-out procedure on FAIRY BATTLES finished by saying that even if we did everything correctly you would be leaping into the path of the tail plane and you would be decapitated, no one had yet been successful.
35. In his own statement (7 handwritten pages) Mr Thompson referred to a number of incidents in service. Relevant parts of that statement are reproduced as follows:
I believe in his nightmares, he repeatedly saw an Airman walk into a propeller – a Rear gunner remains being hosed out of his rear turret – relived the problem of the WAG getting out of his “Dorsal” turret without hitting the tail of the plane. While I’m pretty sure that Mr Peace did not see an Airman walk into the propeller, I can well understand that having heard of the incident at Mont Joli, and that incident coming back into his mind on several occasions over some time, he could well believe that he did actually see the incident. There was such an incident at Mont Joli, and of course it was much talked about. I’m sure it was not an “Aussie”. Our 97 Squadron comprised over 100 airmen, all bombing and gunnery students, from most parts of the then “Empire” and Americans, Canadians, Nova Scotians, English, South Africans, New Zealanders etc…………………
There is the possibility that the victim was a stray Aussie, even “ground staff” possibly possibly an airman from Canada, South Africa, N.Z etc with Australian connections, but general understanding at the time was that he was Australian and a student. As I remember a few had leave to go to funeral.
Re the turrets, as “Wireless Operator Air Gunners” WAG’s we did not use “Rear Turrets”.. Their casualty rate was huge and well documented, and of course much talked about by Air Crew in general. Our turret, was the “Dorsal”, above and close to the radio. I can understand though if all this came back into his head often, it would be hard to get rid of it.
Re exiting the “Dorsal turret”. That was well drummed into us in training, as a last resort, because of tail assembly, but of course in the event of injury or damage to turret it may be the only way out. One almost needed to be a contortionist to get into, and out of, at anytime. The “type” of “Fairy Battles” we were using at Mont Joli had a “belly hatch”, conveniently close to radio, and provided a safe emergency exit. Mr Peace would be well aware of that hatch, but again, I can well understand, that if he had got to the point, where all that he was remembering, was the instructors dire warning, not to try and exit out of the top of the turret that it would be almost surely be fatal.
The “Troop ship” voyage from Brisbane to San Francisco was full of drama. We had extremely rough weather for practically the whole trip. Our ship – “USS Cape Caruso” was a small version “Liberty Ship” 4000 tons.
We were very lightly loaded: - Many wounded (some badly) Americans from New Guinea area, the small crew, and a detachment of “US Marines”, to protect us, and man the guns, and our own small group of Aussie “Air Crew Trainees” about 200 Aussies at most I think. We travelled alone without an escort, knowing that the Pacific was a pretty dangerous place to go cruising in early 1944. Very early in trip we ran into heavy seas and “Caruso” being small and lightly loaded was being tossed around like a match box. Practically everyman on board was sea sick – very! And knowing reputation of “Liberty Ships” with their then controversial all welded hulls, to break their backs in heavy seas, had to be shut out of our minds. So many of the crew, and of the Marines, being sea sick, and with no-naval escort, the Captain required any “Aussies” (passengers with no-activities) be assigned to the “Marines” to help man the guns (anti Aircraft & Submarines). So those of us who were not sick, were assigned to “gun crews” for training and practice twice daily. It was a fairly heavy, and very noisy commitment. I’m not positive about it, but I think Mr Peace was amongst us.
After berthing at “Fishermans Wharf: we were transferred to a small ferry, to take us Aussies across to “US Army Base”, at Angel Island. On the ferry we experienced a near miss incident, as huge “Consolidated Vultee” Naval flying boat coming in to land on the water, and flying into the setting sun, did not see our ferry.
It was very obvious that on its descent path it had to hit us aft of midship or be very near miss.
Most of us had moved well forward and contemplating whether to jump overboard, until, to our great relief it levelled out, and revved up the engines with a great roar, and flew for some distance before climbing and veering left to do another circuit and berthing approach. Pretty scary stuff in anybody’s book!
Then on getting to Angel Island Base a huge complex with a large Japanese Prisoner of War Compound. There was pandemonium! Several POW’s had revolted and rioted, and some were missing. There were heavily armed American Troops checking out every building and possibly hiding place, in typical American gung-ho style. The “Alert” went on well into early hours of morning. That incident could also be a contributor to have comeback to Mr Peace.
36. In evidence Mr Thompson said that he did serve with the late Mr Peace in Canada having first met him in 1943 during training at Somers in Victoria. He said he also travelled to Canada with Mr Peace.
37. He said that he was “pretty sure the deceased did not see the decapitation”. Mr Thompson said that he had heard about it but did not know who the victim was. He said there was general discussion throughout the base of the incident but it did not affect other persons “a lot”.. He acknowledged that it may have affected other persons. He said that he had spoken to Mr Mansfield who had told him that other persons did attend the funeral.
38. Mr Thomspon said that he recalled the aeroplane approaching the ferry but could not “vouch” if the late Mr Peace was on the deck or whether he was aware of it.
39. With respect to travelling to the United States from Australian on board the US vessel “Cape Caruso” Mr Thomspon was adamant that the late Mr Peace was on board that ship. He said that “Cape Caruso” was a “Liberty ship” which was well known as having a poor structure causing it to be vulnerable in heavy seas. He said that it was known to “break its back” and there were many reported incidents of “Liberty” ships being lost at sea. He said there were occasions during episodes of poor weather during the voyage that decks were flooded to four feet of water.
40. Concerning the escape of Japanese prisoners of war at Angel Island, Mr Thompson said that United States personnel only had conducted searches and it was known by the following day that all persons who had escaped had been located.
41. Mr Thompson said that he did speak with the late Mr Peace on one occasion at a reunion at Somers in the 1970’s. He said the deceased did not speak of any marital difficulties at that time which he said usually occurs during conversations between former service persons at reunions. He recalled that the deceased was then “quiet”.
42. In cross-examination Mr Thompson said that he served with the late Mr Peace in training units at Mont Joli, Winnipeg, Edmonton, Los Angeles and on Angel Island. He said they both participated in wireless and navigation courses at Winnipeg and gunnery training at Mont Joli and at the Gulf of St Lawrence. He said that “Fairy Battle”, “Yale” and “Norsman” aircrafts were used for practice. He said that he did not ever notice any gunners being hosed out of rear gun turrets but said that he was aware that it did occur and there was “plenty of talk about it”. He said that during basic training he and others were instructed to exit from floor hatches located under gun turrets and not to exit from the top of the turret.
43. As to the voyage on board “Cape Caruso”, Mr Thompson said that the weather was continuously poor and that he and other Australian service persons were located below deck. He said the voyage was extremely uncomfortable and all persons on board were sea sick. He said that he could not recall the duties undertaken by Mr Pearce on board the vessel but said that the flooding of decks would have been frightening and whilst he did not know how Mr Peace coped he said that he could understand that some persons would be horrified.
44. Mr Thompson said in cross-examination that he had no knowledge of whether the deceased did or did not witness a person killed by decapitation. He said he had no recollection of ever talking to him about it and whilst he was confident that that event did occur and that it did occur at the Mont Joli base, he could not “swear” that there was discussion about it. He said there were a number of traumatic events that occurred at that base but it was predominantly French speaking and the only “effective” communication was between Australians and New Zealanders. Mr Thompson said that there was an incident at the Mont Joli base where an Australian officer fell out of a plane and suffered a fractured neck. He said that officer was a “weirdo” and recalled observing that person wearing a neckbrace. Mr Thompson said that if a person had been decapitated in the manner described in these proceedings, that “we would get to hear about it”.. He said it was conceivable that if it did occur, Mr Peace could have seen it but that he (Mr Thompson) did not. He thought this was unlikely but he would not rule it out. Mr Thompson also recalled that there was an occasion where a Canadian air force person – Flight Lieutenant Flynn – had returned to Mont Joli and had spoken to the late Mr Peace and others about episodes of torture he had experienced and or witnessed in Asia.
45. In conclusion Mr Thompson spoke of the occasion of a reunion with Mr Peace at the Somers base in the 1970’s. He said he could not recall discussing with Mr Peace any of the service experiences and said that this was typical because at reunions persons only tend to talk about their lives after service.
Vincent Mansfield
46. Mr Mansfield gave evidence and referred to his statement (refer earlier).
47. He said that he served with the late Mr Peace and with Mr Thompson in Canada. Mr Mansfield said that he could not “guarantee” the name of the person “Buttersworth” but said that was his memory of the persons name. He said that person was decapitated whilst he was in Canada and he had learnt of the incident from another Australian service colleague who had attended the funeral. He said that this person had told him that the funeral was the most “dismal thing that he had seen“. He said the person described the person’s coffin being lowered into icy ground with the Australian flag draped over it.
48. In cross-examination Mr Mansfield said the funeral of this person had occurred in November 1944 before he and Mr Peace and Mr Thompson had arrived at Mont Joli. He said the person who described the funeral to him was from another RAAF unit elsewhere in Canada and that the death by decapitation had not occurred at the Mont Joli base. He said he was sure he heard about it at Mont Joli but when asked to recollect he said that the decapitation had occurred somewhere in eastern Canada at or near Quebec. He said that had that episode occurred at Mont Joli he would have either seen it or would have known about it.
49. When pressed as to his recollection of the incident having occurred in November 1944, Mr Mansfield said that he had “estimated” that date.
50. With respect to persons being “hosed out” from gun turrets, Mr Mansfield said that incidents of that type did not occur at Mont Joli. He said that there were “stories” of United Kingdom bombers being “hit” whilst flying over Germany but there were no incidents of this type concerning allied aeroplane at or near Canada.
John McCarthy
51. Mr McCarthy is an associate professor at the Australian Defence Force Academy who provided a number of reports to the respondent.
52. In his report of 20 February 2001 he noted that the late Mr Peace enlisted with the RAAF on 28 January 1944 and subsequently volunteered for aircraft training under the Empire Air Training Scheme Agreement. He was mustered as a “Wireless Operator Air” however other records indicate that he attended a bomb and gunnery school. Mr McCarthy said that the Empire Air Training Scheme was negotiated in Ottowa in December 1939 and in March 1943 to provide aircrew for the Royal Air Force. It was expected to operate until March 1945 but it came to “an abrupt end” in June 1944.
53. To the extent that the information provided to Mr McCarthy contained references to the deceased flying “a number of missions and was often under enemy fire” he reported that “it is difficult to see how such a situation would have arisen”. He said the aircrew that was sent to Canada were under training only and were not operational. He said that from 1941 there would be a period of 18 months of training after enlistment before persons took part in operations and, training experience in Canada was preparatory to operational training in the United Kingdom.
54. Mr McCarthy noted from the service records that after arriving in Canada Mr Peace was stationed at the Manning Depot in Alberta and then spent six months at the No. 3 Wireless School at Tuxedo in Manitoba. He later completed a 12 week gunnery course at Mont Joli in Quebec. He said there were no enemy forces in the vicinity of these training centres. He repeated the issue raised in his report that during the period of the deceased’s service in Canada he was under training only and was not an operational member of aircrew.
55. As to the information concerning incidents of tail gunners being killed and dismembered and subsequently being hosed out of rear gun turrets, Mr McCarthy agreed that tail gunners were vulnerable to enemy attack, however, given the absence of enemy activity at or near Canada, he said that he could not envisage how the deceased could have ever witnessed such events. Additionally he said that the gunnery school where the deceased was being trained was restricted to use of “Fairy Battle” aircraft only which were single engine aircraft with a crew of one or two or three persons only without a tail gun turret.
56. Additionally, Mr McCarthy said that the deceased having to clear guns which were jammed by the effects of weather at altitude would cause him to be vulnerable only if he was under operational activity. Mr Peace was under training only. He said that Mr Peace would have been responsible for wireless operation and helping aircraft navigate return passage. In the information provided to him Mr McCarthy noted that the deceased had expressed to family members or to others that he was concerned that the aircraft would crash into the ocean if he misunderstood radio beacons. Mr McCarthy said that this was not possible because the wireless school at Tuxedo in Manitoba was more than 500 miles from the nearest water (Hudson Bay) and was outside the radius of permissible action involving a “Fairy Battle” aircraft. Additionally he said there was training undertaken during the day but the nearest ocean was 2000 miles away and the chances of a “Fairy Battle” aircraft flying off course over or near the Atlantic ocean would be remote. He said the “Fairy Battle” aircraft would not have been able to carry fuel to permit it to travel that distance.
57. In his report he also referred to the deceased having witnessed a young person becoming decapitated by an aircraft propeller. He said there was no way of confirming or denying this episode, however sources that he had consulted made no mention of such an incident but did say that such an incident “is not uncommon”.
58. In his report of 10 May 2002, Mr McCarthy – apparently in response to further questions put to him by the respondent following the Veterans’ Review Board hearing – reported upon investigations that he made specifically with respect to the incidents of decapitation. Mr McCarthy had access to the deceased’s service record and Royal Canadian Air Force Station Diaries which were the equivalent to Operations Records books maintained by Australian Forces. Additionally he had access to wireless school microfilm and to a number of websites. The only report of a death or serious injury involving a person in any of the units in which the deceased was trained during his period in Canada occurred on 17 June 1944 at Winnipeg to a person named as Flight Sergeant McNeely. The Commonwealth War Graves Commission internet site has a recording of the death of the late Mr McNeely who was a member of the Royal Canadian Air Force but the cause of death is not given. Newspaper records obtained from the Winnipeg Free Press also record the death of the late Mr McNeely in the Winnipeg Deer Lodge Military Hospital. Mr McCarthy concluded that if the late Mr McNeely had been killed by decapitation it would be impossible that injuries associated with that event would have been followed by a period of hospitalisation. Further search of a website dedicated to allied aircrew casualties records Mr McNeely being an aircraft mechanic having died of natural causes at the Deer Lodge Hospital in Winnipeg.
59. Accordingly Mr McCarthy concluded that he could find no reference to any person being decapitated at or near Tuxedo, Manitoba or Mont Joli. Additionally he said that such an event would have been recorded in the Station Diaries because such an event would have been investigated and the circumstances surrounding it would have been recorded.
60. In a further report of 17 January 2003, Mr McCarthy responded to further documentation provided to him, particularly the statement of Mr Mansfield (refer earlier).
61. Mr McCarthy said that he conducted a web search and other enquiries concerning the person “Buttersworth” referred to by Mr Mansfield. He said that only one person by the name of Buttersworth was recorded, who enlisted in October 1940 and was discharged in November 1945, but he served in Australia only. Mr McCarthy concluded therefore that the person killed (if at all) was not by the name of Buttersworth. He then proceeded to check persons of similar names namely Butterworth, Butterfield, Butters and Buttery. He identified 19 servicemen by the name of Butterworth who died between 7 March 1944 and 24 November 1944, however all persons were members of the Royal Air Force and were not members of the Royal Australian Air Force. There were 12 persons by the name of Butterfield who died between 7 March 1944 and 21 October 1944 and all were British but for one Canadian person. None were shown as being members of the Empire Training Scheme. Of the names Butters and Buttery, Mr McCarthy located one Australian RAAF person by the name of Buttery who died on 28 January 1944 but that was the date that the deceased enlisted in the RAAF. Mr McCarthy therefore concluded that if the person Buttery was killed by decapitation at Mont Joli it would not have been witnessed by the deceased.
62. Mr McCarthy also noted that Mr Mansfield recorded the person killed had apparently been given full military honours at his burial and persons would have been permitted to attend the funeral. It follows that Mr Peace may have spoken to or been exposed to persons who did attend the funeral prior to his arrival in Canada. He speculated that such an event may have been “well remembered and discussed”.
63. Upon a further enquiry been made by Mr McCarthy of a “Canadian contact” it was learnt that the station diarist “usually had no formal training in what to record and certainly was not likely to be a trained historian or had any sense of how historical these documents would become – much coverage was given to social activities for example”.
64. The “Canadian contact” concluded that an event of decapitation would have been so significant that it should have warranted inclusion.
65. Mr McCarthy concluded that his “feeling” as a trained historian is “that something did happen at least similar to that recalled by the late veteran. When it occurred, the circumstances surrounding it and those who witnessed all remain unknown”. Additionally he concluded “from the evidence at hand it may be concluded that an incident as described did occur but when and under what circumstances is unknown. Without going to Canada and undertaking an extended search of the records perhaps for the moment there is little more to add”.
66. In evidence Mr McCarthy dismissed allied personnel being hosed out of turrets in Canada because the enemy during WWII was not confronted at or near Canada and the range of enemy aircraft would not have extended to Canada.
67. With respect to the alleged incident of a person being decapitated Mr McCarthy said that an incident of that type would be likely to be recorded in routine orders passed around the deceased’s unit and he would have expected an announcement to have been made.
Web Searches
68. The hearing on the resumed date in Melbourne was adjourned temporarily whilst attempts were made to contact a witness by telephone. During the period that the hearing was stood down Ms Black, Mr Douglass and myself searched the website of the Commonwealth War Graves Commission in an attempt to identify whether records existed of persons killed during or shortly prior to the time the deceased was training in Canada. The search was extensive because it was not possible to identify the location of death other than to search for deceased persons by surname and then trawl through the given list to identify the date of death and location of the cemetery at which the person was buried. There was no separate website permitting identification of the location of death. With regard to the evidence of Mr Mansfield concerning persons attending a funeral at or near Mont Joli and the likelihood of a person killed at Mont Joli being buried, at or near the Mont Joli base or at least in Canada, we were able only to locate three entries. It was noted that Wing Commander Arthur Buckle of the Royal Canadian Air Force died on 23 November 1944 and was buried at St. Stephen’s Cemetery in British Columbia. Cecil Raymond Butters a Leading Aircraftman with the Royal Canadian Air Force died on 29 June 1943 and is buried at the Austin Cemetery in Quebec. Denis Michael Hector Collins died on 19 December 1943 and is buried at the Mont Joli Cemetry in Quebec. Neither entry records the cause of death or the circumstances. Commander Buckle was killed after Mr Peace left Canada and is not relevant to this application. Mr Butters died six months before Mr Peace enlisted.
69. The Commonwealth War Graves Commission website was also used to confirm the content of an email received by the applicant’s advocate at the Veterans’ Review Board, Mr Rob Robertson. In response to a request for information, Mr Stephen Hayter from the Canadian Air Museum replied on 21 June 2001 in the following terms (T-documents page 67):
Without putting too much of a fine point to it, it appears that operations play a very large part in your queries. Operations, in our definition, were missions against the enemy, either over enemy held territory or enemy territory. In Canada this meant going out over the Atlantic and out over the Pacific as well as up the Aleutian chain. Because of the distances involved operational squadrons would not be based inland i.e. Mont Joli, Edmonton, Tuxedo.
Mont Joli was in the Eastern Air Operational Zone but was used as number 9 Bombing & Gunnery School under the control of number 3 Training Command.
Tuxedo was a suburb of Winnipeg and housed the ground training for number 3 Wireless School, Winnipeg under the control of number 2 Training Command.
Edmonton was used as number 2 Air Observer School as well as number 4 Initial Training School under the control of number 4 Training Command.
This information has been excerpted from the book titled "The Creation of a National Air Force" - The Official History of the Royal Canadian Air Force, Volume 11 by W.A.B. Douglas.
The book "THEY SHALL GROW NOT OLD" shows more than one airman killed by a moving propeller. Sgt. D.M.H. Collins was killed when he walked into a propellor at Mont Joli, Quebec. He was killed by the propellor of a #10 Squadron Liberator aircraft. This does not mean that #10 Squadron was based at Mont Joli. It simply means that Sgt Collins, service police, was killed accidently. He would not have been on operations, he would not have bean assigned to #10 Squadron. The Liberator aircraft may not have been on operations and was more than likely on a cross country navigation training exercise.
I trust this helps you. Please do not hesitate to drop us a line if you think we can be of more service to you.
Sincerely - Harry Hayward, Vice Pres.-Admin.
70. The person Sergeant D.M.H. Collins referred to in the email is the same person referred to in paragraph 68 above. Whilst Mr Hayter was not called to give evidence it would appear from the information he provided that a death did occur of a service person by “walking into a propeller at Mont Joli, Quebec”. That death occurred prior to the enlistment of Mr Peace.
Submissions
71. Ms Black submitted that the deceased suffered depression and anxiety subsequent to service pursuant to the evidence of Mrs Peace and her children. She submitted that the evidence of Mr Thompson and Mr Mansfield pointed to another person being decapitated and that event either did occur or an event of that kind was spoken of on base. It was submitted that whilst the deceased may not have seen that event, an event of that kind would have produced symptoms of anxiety and depression on the part of the deceased. Additionally Ms Black pointed to the report of Mr McCarthy who did not dismiss the possibility of an event of that kind having occurred.
72. Ms Black also relied on the voyage of the deceased between Australia and San Francisco and the voyage in San Francisco Harbour which would have produced symptoms of depression and anxiety.
73. Ms Black also relied on the provisions of s119 of the Veterans’ Entitlements Act.
74. Mr Douglass on behalf of the respondent submitted that Mrs Peace was unable to satisfy the Statement of Principles concerning post traumatic stress disorder (”PTSD”) (No.3 and 54 of 1999) or depressive disorder. He said that the deceased was treated at Wangaratta shortly prior to his death where a diagnosis of adjustment disorder was made. PTSD or depression were not diagnosed.
75. To the extent that the widow needed to establish events in service having occurred prior to clinical onset, it was noted that Mrs Peace did not meet her husband until 1960, some 15 years after he was discharged. Mrs Peace said that she knew nothing about her husband prior to meeting him and discussion with his family members were unremarkable.
76. It was submitted that under the Statement of Principles for “Depressive Disorder” (No.58 of 1998) any “severe psychosocial stressor or stressors” by service must have occurred within two years before the clinical onset of depressive disorder. Under the Statement of Principles for “Adjustment Disorder” (No.57 of 1996) an “identifiable psychosocial stressor or stressors” must have occurred within three months immediately before the clinical worsening of the adjustment disorder. Noting that the deceased was discharged on 20 August 1945 the clinical onset, at least of a depressive disorder, must have occurred by 20 August 1947 at the latest, even assuming the alleged events in service did occur. Mr Douglass submitted that the clinical onset by 1947 cannot be established by Mrs Peace because she did not meet her husband until 1960 and nothing is known of him prior to 1960.
77. Mr Douglass submitted however that there was much to suggest from the behaviour and conduct of the deceased in his lifetime that events which may have given rise to his suicide were not associated with service namely, his behaviour within the marriage and the separation shortly prior to suicide.
78. It was submitted that there was no material which pointed to satisfaction of any of the applicable Statement of Principles. Accordingly, it was submitted beyond reasonable doubt that a finding should be made that death was not related to service.
79. With respect to the particular episodes in service which were raised in these proceedings as giving rise to the circumstances of death, Mr Douglass submitted that the deceased would not have observed tail gunners or the remains of tail gunners being removed from tail gun turrets because casualties of that type occurred only over Germany. He acknowledged that tail guns may have jammed but only whilst the deceased was under training and not in operational service. As to the circumstances surrounding the alleged decapitation of another person, it was submitted that the evidence of Mr Thompson should be accepted as Mr Peace not having ever observed such an incident. At best, the evidence of Mr Mansfield was that an incident did occur but prior to the deceased arriving to Mont Joli. Service records did not assist nor did the extensive enquiries of Mr McCarthy.
80. It was submitted, having regard to the deceased never having observed any person being decapitated or having observed tail gunners being killed, that he could not have experienced any “identifiable psychosocial stressor” within the meaning of the “Adjustment Disorder” Statement of Principles or having experienced a “severe psychosocial stressor” within the meaning of “Depressive Disorder” Statement of Principles. Nor could it be said that the deceased experienced a “severe stressor” within the meaning of the PTSD Instrument.
81. These submissions were made because a “psychosocial stressor” within the meaning of the “Adjustment Disorder” Instrument No.57 of 1996 defines such a stressor as:
an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as malignancy or chronic cardiorespiratory disorder).
82. A “severe psychosocial stressor” as defined in the Depressive Disorder Instrument (No.58 of 1998) refers to:
an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
83. The definition of “severe stressor” within the meaning of the PTSD Instrument (No.3 of 1999) is defined:
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 another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressor 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.
84. As to the sea voyages undertaken by the deceased, Mr Douglass submitted that Mr Thompson gave no evidence of the deceased’s response or reaction to those voyages. Additionally, the episode in San Francisco Harbour involving an amphibious aircraft was not mentioned by the deceased to his family, nor was the voyage to San Francisco.
85. The notes of the Kerferd Psychiatric Unit at Wangaratta did not refer to the deceased speaking of service events at all, yet there was much to suggest from that file that interpersonal and relationship issues were responsible for his distress.
86. In conclusion therefore it was submitted that if the hypothesis relied upon by Mrs Peace involved service precipitating stressful events giving rise to either PTSD or a depressive disorder causing the suicide, there is no material which pointed to satisfaction of the diagnostic criteria under any of the above Instruments to satisfy any of the factors. Additionally, there was nothing which pointed to the clinical onset of any of those conditions within either three months or two years. It was submitted in conclusion that other reasons pointed to the suicide of the deceased.
Conclusion and Reasons for Decision
87. A recent decision of Selway J in Repatriation Commission v Hancock (2003) FCA 711 has relevance to these proceedings.
88. In that decision His Honour decided that before the legal issues summarised in Repatriation Commission v Deledio (1998) 83 FCR 82 are considered, there are preliminary issues to be determined. His Honour decided that issues of whether the deceased was a veteran, whether the respondent was his widow and a finding of death were “self evident”. Those three issues in the present circumstance are beyond dispute. The remaining issue was to ascertain whether a Statement of Principles applies and in order to make that determination the “kind of injury” or “kind of death” must be established. His Honour referred to the provisions of s120A(2) and (4) of the Veterans’ Entitlements Act 1986 and said that “the identification of the “kind of death” is the critical step in the analysis. In determining the “kind of death”, proof is on balance of probabilities”.
89. The expressions “kind of injury” and “kind of death” are unfortunate expressions but they have their origin in s120A. In my view, it is an expression referable to either the diagnosis or description of the injury (in the case of a live veteran) or the cause of death (in the case of a deceased veteran) and upon which basis a claim for a Repatriation pension is made either by a veteran or by a widow. In the present circumstance, the deceased died by suicide. There is an applicable Statement of Principles namely No.71 of 1996 as amended by No.177 of 1996 (refer paragraph 5 earlier). Instrument No.71 of 1996 contains eight factors, one of which must exist as minimum before it could be said that a reasonable hypothesis has been raised connecting suicide with the circumstances of service. Those factors are:
(a) being a prisoner-of-war before suicide or attempted suicide; or
(b) suffering from depression at the time of suicide or attempted suicide; or
(c)suffering from post traumatic stress disorder at the time of suicide or attempted suicide; or
(d)suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide; or
(e) suffering from schizophrenia at the time of suicide or attempted suicide; or
(f)suffering from borderline personality disorder at the time of suicide or attempted suicide; or
(g)having experienced, witnessed, or been confronted with a traumatic event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, within the two years immediately before suicide or attempted suicide; or
(h)experiencing a severe psychosocial stressor or stressors within the two years immediately before the suicide or attempted suicide.
90. The enquiry into satisfaction of one of the factors under paragraph 5 is not only necessary but it also involves application of the principles found in the Federal Court decision of Goldberg J in Repatriation Commission v McKenna [1998] FCA 787 (subsequently upheld by the Full Court) namely:
For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles.
91. Accordingly, if the widow is to succeed in the present proceedings, she must not only satisfy one of the factors in paragraph 5 of Instrument No.71 of 1996, but must also satisfy at least one other Statement of Principles which will comprise one of the “links or factors” (a sub-hypothesis) which must be upheld in order to establish connection with service therefore giving rise to a hypothesis which is reasonable.
92. The claim advanced by Mrs Peace was put against factor 5(c) namely suffering from PTSD however having heard and read the medical evidence in these proceedings, it is also necessary to consider factors (b), (g) and (h). These views are expressed at this stage of the process of reasoning per Hancock because of the differing diagnoses advanced by Doctors Holwill, Walton, Cole and as found in the notes of the Kerferd Psychiatric Unit.
93. For the purposes of this analysis I am not satisfied that the remaining factors within paragraph 5 of Instrument No.71 of 1996 apply namely, suffering from psychoactive substance abuse or dependence (d), suffering from schizophrenia (e) or suffering from borderline personality disorder (f). There is no evidence which would support a finding, on the balance of probabilities, that either of these conditions were suffered by the deceased in his lifetime. Factor 5(a) is obviously not relevant.
94. In making a finding as to diagnosis (for the purposes of identifying an applicable factor in paragraph 5 of Instrument No.71 of 1996) I am mindful of the decision of the Full Federal Court in Benjamin v Repatriation Commission (2001) FCA 1879 where it was decided, at paragraph 41, (in upholding the decision of the primary Judge) that diagnosis by reference to a Statement of Principles was impermissible that is, a Statement of Principles is not relevant to the question of diagnosis. The analysis that follows is on the basis of the content of medical reports and the Kerford notes. Doctors were not called to give evidence in these proceedings.
95. Dr Holwill in his report of 9 January 2001 concluded on the information available to him that the symptoms of the deceased “would be in keeping of a diagnosis of a chronic at least moderately severe post traumatic stress disorder and chronic moderate to severe depression”.
96. Dr Cole in his report of 27 July 2002 acknowledged that on the information available to him, it would appear that the deceased was suffering from a post traumatic stress disorder but he concluded that there was “insufficient information to satisfy the requirement of the Statements of Principles for such a diagnosis”. He concluded that the deceased apparently did suffer from chronic anxiety and depressive disorder yet he was unable to make a specific DSM-IV diagnosis. Nonetheless he was confident that the deceased did suffer from “chronic depressive disorder” which led to his death by suicide.
97. Dr Walton, in his report of 25 March 2001, considered a number of different potential diagnoses but like Dr Cole attempted to form a diagnosis by reference to a Statement of Principles. Dr Walton examined the possibility of a diagnosis of PTSD but dismissed it under the definition appearing within the applicable Instrument. He considered “depressive disorder”, again by reference to a Statement of Principles and on the history given to him he “could not exclude” it.
98. On balance Dr Walton preferred the alternate diagnosis made by Dr Holwill namely, “chronic depressive condition”, “rather than an adjustment disorder”. In reaching this conclusion Dr Walton then concluded “I have applied myself to Instrument No.57 of 1996 concerning adjustment disorder especially as that was the preferred diagnosis of the treating doctors in relation to the period of hospitalisation in August 1999”.
99. Instrument No.57 of 1996 is in fact the Instrument applicable to “Adjustment Disorder”. It is a little difficult in the circumstances to comprehend the opinion expressed by Dr Walton nonetheless, he concludes “if a diagnosis of adjustment disorder is to be made then it would be of the chronic rather than the acute variety”.
100. The notes of the Kerferd Psychiatric Unit of the Wangaratta District Base Hospital were received into evidence. The diagnosis made upon the deceased being discharged from treatment on 13 August 1999 was “adjustment disorder”.
101. On balance I prefer the diagnosis made at the Kerferd Psychiatric Unit.
102. The three medico-legal psychiatrists who provided reports in this application did not ever examine the deceased. They relied on histories given to them by family members. There is a consistency between the three reports of the deceased being depressed, but that is a feature also of the competing diagnoses in this application namely, depressive disorder, adjustment disorder and PTSD.
103. Nonetheless, there would appear to be some subtle differences in the criteria giving rise to a diagnosis of each of these three conditions and I prefer the diagnosis made at Kerford because it was made following extensive assessment of the deceased. I acknowledge that it was made on 13 August 1999, at discharge, and upon the day following admission but it was a diagnosis made by Dr Ian Douglas, a consultant psychiatrist who had the opportunity of observing the deceased and having access to his in-patient records for a period of two days. That is of course a relatively short period of time but it is two days more than either Doctor’s Walton, Cole, or Holwill had to assess the veteran in his lifetime. More so, it contains a history taken by Dr Douglas and his staff from the deceased himself. That was of course denied to three medico-legal specialists in these proceedings, a fact of which I do not believe is insignificant.
104. I am satisfied therefore, on the balance of probabilities, that the deceased did suffer from adjustment disorder at 13 August 1999 being less than three weeks before he committed suicide on 1 September 1999.
105. The condition however of “adjustment disorder” is not a factor within paragraph 5 of Instrument No.71 of 1996 but it is a “psychiatric disorder with depressive features” within the definition of “depression” found at paragraph 6 of that Instrument. “Adjustment disorder” is deemed to be “depression”. The definition includes the psychiatric disorder of “adjustment disorder with depressed mood” attracting ICD codes 309.0, 309.1, 309.4 or 309.28. The same ICD codes apply to the condition “adjustment disorder” as defined by Instrument No. 57 of 1996. For the purposes of this analysis I am satisfied that the condition of adjustment disorder is the condition of “depression” for the purposes of comprising the “number of links or factors each of which must be upheld by a Statement of Principles” (refer McKenna).
106. Instrument No.58 of 1998 entitled “Depressive Disorder”, contains 10 factors one of which must exist as a minimum before it can be said that there is a connection between depressive disorder and death.
(a)being a prisoner of war before the clinical onset of depressive disorder; or
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
(d)having a major illness or injury within the two years immediately before the clinical onset of depressive disorder; or
(e)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
(f)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
(g)having a major illness or injury within the two years immediately before the clinical worsening of depressive disorder; or
(h)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder; or
(j)suffering from chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder; or
(k)inability to obtain appropriate clinical management for depressive disorder.
107. As referred to earlier, in order to determine that the death of a veteran is related to service, the four stages of analysis as recorded in Deledio must be satisfied namely:
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.
108. There is a hypothesis satisfying stage one and there are Statements of Principles which satisfy stage two.
109. Stage 3 will only be satisfied, that is, a finding of the factor existing as a minimum thereby constituting a hypothesis which is reasonable if there is material raised pointing to the existence of a named condition occurring within a specified time. For example, it is not enough for the purposes of factor 5(b) or (f) that the deceased suffered a severe psychosocial stressor – it must have been experienced within two years immediately before the clinical onset or clinical worsening. Without this material, it cannot be said the hypothesis is reasonable (refer Repatriation v Cornelius (2002) FCA 750).
110. Against the conditions referred to in factor 5 are time limits of six months and two years. The conditions must be “connected” with “the circumstances of a person’s relevant service” and or be “related to any relevant service” (paragraph 4).
111. Mr Peace was discharged in August 1945. Mrs Peace did not meet him until 1960 and knew nothing about him before then. There was no medical or any other evidence pointing to clinical onset or clinical worsening of any of the cited conditions, within six months or two years respectively of 1945. (“Clinical worsening” has its own peculiar and distinct feature having regard to the provisions of paragraph 6 of the Instrument. There is nothing which points to any material contribution or aggravation of the conditions at 5(f) – (j) where one of the conditions was suffered or contracted before or during service).
112. The above analysis concerns factors 5(b) – (j) only. Factor 5(a) is obviously inapplicable and nothing points to any material being raised in support of factor 5(k). Apart from the difficulty which I find is insurmountable as alluded to above, if any factor did have application it could only be (b) or (c). Experiencing a “severe psychosocial stressor” is defined at paragraph 8 as:
an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
113. The words “clinically significant” are defined also at paragraph 8 as meaning:
Sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner.
114. A “psychiatric condition” is defined as meaning:
Any Axis 1 disorder of mental heath that attracts a diagnosis under DSM-IV.
115. There is no material at all pointing to the deceased having a clinically significant psychiatric condition within the meaning of 5(c). Whilst I am satisfied that the deceased did not observe a decapitation or persons being hosed out of gun turrets – but may have heard of these events (refer later) – there is no material pointing to the satisfaction of 5(b). Additionally the language of the definition suggests the identifiable occurrence must be objectively understood and the feelings evoked must have a subjective response. (refer Hurn & Repatriation Commission [2001] AATA 907). The examples cited in the definition are not exhaustive but they do suggest a personal/subjective connection to the occurrence. This is absent in the present application.
116. I am therefore satisfied that a finding cannot be made that the hypothesis raised is reasonable. If I am in error in this analysis, I could not be satisfied for reasons which follow, that the death of Mr Peace was war-caused.
117. It is only at stage four of the Deledio analysis that findings of fact are made. The Tribunal must consider pursuant to s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused. It is necessary at this stage to restate the hypothesis which comprises the links of service giving rise to a number of events in service precipitating a depressive disorder precipitating suicide.
118. Whilst a number of factors are recorded at paragraph 5 in Instrument No.59 of 1998, clause 4 of the Instrument provides that at least one of the factors set out in paragraph 5 must be related to service rendered by the person. Irrespective of the time limits as to clinical onset or clinical worsening in each of the ten recorded factors, there must be a finding as to whether the events giving rise to the hypothesis actually occurred. Those findings must be made on the balance of probabilities.
119. In making the findings which follow, I am acutely aware that the present application continues to highlight the disadvantage suffered by widow’s of veterans in having to place material before the Tribunal. No less in the present case where the deceased veteran – not unlike many other veterans – refuse or are reluctant to speak about the intimacy of events in service and where surviving witnesses are disadvantaged by the passage of time or by poor or confused or failing memory. The present application presents even greater difficulty for Mrs Peace because she did not meet her husband until 1960, being almost 15 years after he was discharged from service. She was therefore denied the knowledge that some widow’s have of being able to compare a deceased veteran pre and post service. Additionally she was unable to learn anything about him prior to his service from either he or his family members and throughout their marriage her husband did not discuss the circumstances of service with her.
120. The predominant event in service which was said by these proceedings to give rise to the depressive disorder suffered by the deceased was witnessing the decapitation of another service colleague in Canada.
121. The deceased did not ever discuss his service events or circumstances with Mrs Peace, the applicant in these proceedings. It was said by Wayne Peace and Jeanette Peace, the children of the deceased, that he discussed this incident with them. Wayne Peace said in evidence that his father told him of an airman that walked into a propeller and being decapitated. That was consistent with the history Mr Peace gave to Dr Cole. Jeanette Peace said that her father told her that he saw someone decapitated when backing into an aeroplane. Both Jeanette and Wayne Peace together with their mother gave a similar history in a statement which is found at page 28 of the T-documents (refer paragraph 19 earlier).
122. In his statement received into evidence as Exhibit 4, Mr Thompson said “I’m pretty sure Mr Peace did not see an airman walk into a propeller”.. In evidence he said he was “pretty sure” the deceased did not see the decapitation.
123. Mr Mansfield in his statement received into evidence as Exhibit C said that an Australian trainee walked into a propeller in about November 1944 and identified that person as “Crash Buttersworth”. Whilst he could not “guarantee” that persons name, Mr Mansfield was confident that the incident occurred when he was in Canada and that it did not occur at Mont Joli.
124. Mr McCarthy was unable to find any reference to a person being decapitated during the period of service of the deceased whilst in Canada but he concluded that his “feeling” as a trained historian was that “something did happen at least similar to that recalled by the late veteran”.
125. I am satisfied that a service person in Canada was killed when he walked into the propellers of an aeroplane. That is evident from the photocopy of the email found at page 67 of the T-documents (refer earlier) that records that a Sergeant DMH Collins was killed when he walked into the propeller of a “Liberator” aircraft at Mont Joli. That email was apparently not made available to Mr McCarthy, however the enquiries made of the Commonwealth War Graves Commission website (refer earlier) reveal that Denis Michael Hector Collins, a sergeant in the Royal Canadian Air Force died on 19 December 1943. He was buried at the Mont Joli Cemetery in Quebec. The circumstances of the cause of his death was not recorded. For the purposes of this analysis I am satisfied that Denis Michael Hector Collins is the same “Sergeant DMH Collins” referred to in the email at page 67. That death occurred in December 1943. The late Mr Peace did not enlist in the RAAF until 28 January 1944. The incident involving Sergeant Collins therefore occurred at a point in time when the deceased was not present in Canada. Mr Mansfield referred to an event of a person being decapitated in November 1944. If that were so, it would have been before Mr Peace, Mr Thompson and Mr Mansfield arrived at Mont Joli (refer T-documents page 1). There is no material which points to any other death by decapitation of any person by a moving aeroplane propeller during the period of time the deceased was in Canada. I am therefore satisfied and find as a fact that the late Mr Peace did not observe an incident of that type. It is conceivable that Mr Peace would have known about the circumstances of the death of Sergeant Collins or the catastrophe in November 1944 (if it then occurred) because it is likely that events of that type would be so traumatic and horrifying that it would be the type of event that would be spoken about from time to time and for that reason, Mr Peace would have learnt of it.
126. With respect to the concern expressed by the deceased of service persons being killed in rear gun turrets and their dismembered bodies having to be “hosed out”, I am satisfied on the evidence of Mr McCarthy, Mr Thompson and Mr Mansfield that the late Mr Peace would not ever have observed such events. At all relevant times Mr Peace was engaged in training and not in operational flying service. The nature of the aircraft used and the geographical location of the bases in Canada where he served were so remote from enemy activity that allied aeroplanes returning to base with dismembered service persons in rear gun turrets would not have occurred. I am satisfied on the evidence of Mr Thompson that the training aeroplanes involved dorsal turrets only. I am satisfied that there would have been discussion amongst Mr Peace and his colleagues of the potential for persons occupying rear gun turrets to be wounded or killed during operational service and this would be consistent with the statement of Mr Mansfield who recorded “we were constantly related stories of Air Gunners being washed out of turrets with hoses”. That is to say, events of that type were not ever observed by Mr Peace but he was subjected to “stories” of such events. Mr Mansfield spoke about United Kingdom bombers being hit over Germany which he described in evidence as “stories” yet he said to his knowledge persons were not “washed out” from turrets at Mont Joli. Mr Thompson also said that he never noticed any rear gunners being hosed out of rear gun turrets.
127. It would appear that the explanation given by Wayne Peace, Jeanette Peace and Mrs Peace in their statement at page 28 of the late Mr Peace explaining that enemy fighters would attack from the rear with tail gunners being hosed out from turrets, in fact did occur, but not in any episode or incident involving the late Mr Peace. The late Mr Peace was not involved in operational flying and was engaged in training only, away from enemy activity. (Also refer the email of page 67 where it is recorded that operational squadrons were not based inland).
128. With respect to the material advanced by Wayne and Jeanette Peace and Mrs Peace of the late Mr Peace being exposed to jammed guns in a rear turret, I note that neither Mr Thompson nor Mr Mansfield speak of such events. Mr McCarthy acknowledges that if the late Mr Peace did have a jammed gun in a rear turret that he would be vulnerable if in an operational context, but he was at all relevant times under training and was not engaged in operational warfare. Mr Peace would not have been vulnerable to enemy activity nor would he have been unable to defend himself by a jammed gun because at no time was he engaged in operational activity.
129. The statement at page 28 does not refer to the voyages of the late Mr Peace to San Francisco or in San Francisco Harbour nor was it referred to by Mrs Peace, Wayne Peace or Jeanette Peace in evidence. This evidence emerged only from the statement of Mr Thompson. Mr Thompson did speak about the journey to San Francisco involving storms and rough seas apparently causing sea sickness to the ship’s occupants and the taking of water. Mr Thompson said he and the deceased did speak of the risk of the “Liberty” ship “Cape Caruso” being lost at sea however that risk must be acknowledged on any sea voyage and apparently it was a voyage which was not discussed by the deceased with his children.
130. As to the event in San Francisco Harbour involving a sea plane, Mr Thompson said that he did not know whether the passage of that plane was observed by the deceased. As to the break-out of Japanese prisoners of war on Angel Island, Mr Thompson said that all escapees were located by US personnel.
131. I accept the evidence of Mrs Peace and Wayne and Jeanette Peace that the late Mr Peace did thrash his arms and legs in his sleep, that he did suffer nightmares and that he did frequently talk in his sleep using words which were suggestive of former military service. I am not satisfied that the events giving rise to the hypothesis advanced in this review did in fact occur, that is I am not satisfied on the probabilities that Mr Peace observed a person being decapitated after walking into a propeller nor did he observe body parts being hosed out of gun turrets. The deceased was only ever engaged in training. The jamming of a rear gun, if it occurred, would not have exposed him to any threat or risk. The other events - the voyages to and in San Francisco - were learnt only during these proceedings and were apparently not known by the deceased’s family. They appear therefore to be of no consequence. I assume that the “stories” (refer evidence of Mr Thompson) of tail gunners being hosed out of turrets and of a person being decapitated at Mont Joli would have been well known on base and may have caused the deceased to react in a way which, when he related these events to others, assumed a status of fact. For the foregoing reasons that status is not supported by the evidence.
132. In conclusion, all of the necessary links or factors of connection with service, constituting the hypothesis and sub-hypothesis have not been upheld by the Statement of Principles. The application is therefore unsuccessful and the decision under review must be affirmed.
133. Submissions were also made that I should have regard to s119. This may be rapidly dismissed. It is not a provision which cures a deficiency or absence of material pointing to connection with service (Repatriation Commission v Bey (1997) FCFCA 1347).
I certify that the 133 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.
Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 7 March (Wodonga) & 15 April 2003 (Melbourne)
Date of Decision 8 October 2003
Representative for Applicant Ms I Black
Counsel for the Respondent Mr R Douglass
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