Peckham and Repatriation Commission
[2004] AATA 1329
•14 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/255
VETERANS' APPEALS DIVISION ) Re DONALD PECKHAM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Associate Professor J Maynard, Member
Mr C Ermert, MemberDate14 December 2004
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – applicant engaged in FESR service – hypothesis of alcohol and cigarette consumption precipitating colorectal cancer and traumatic injury precipitating cervical spondylosis – application remitted for rehearing by Federal Court – concession of requisite quantities of alcohol and cigarettes consumed – prior history of alcohol and cigarette consumption – whether an increase by service – sub hypothesis of generalised anxiety disorder or depressive disorder – significant pre FESR event – raised facts not accepted beyond reasonable doubt – no sufficient grounds for the factual foundation of the hypotheses – decision under review affirmed
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1992) 109 ALR 30
Repatriation Commission v McKenna (1998) 28 AAR 7
McKenna v Repatriation Commission (1999) 29 AAR 70
Statements of Principles Instrument No. 1 of 2004
Statements of Principles Instrument No. 25 of 1996
Statements of Principles Instrument No. 31 of 1999
Statements of Principles Instrument No. 50 of 2002
Statements of Principles Instrument No. 81 of 2002
REASONS FOR DECISION
14 December 2004 Mr J Handley, Senior Member
Professor J Maynard, Member
Mr C Ermert, Member1. This application has a long history and is summarised as follows.
2. Mr Peckham is presently 70 years of age having been born on 15 May 1934. He was a member of the Australian Army between 10 August 1956 and 7 October 1976. Relevantly he served in Malaya as part of the Far Eastern Strategic Reserve (“FESR”) between 25 September 1957 and 18 October 1959. He was engaged as a vehicle storeman and was attached to the 28th Commonwealth Brigade which consisted of 4 Infantry Battalions made up of English, Australian and New Zealand personnel. The Battalion was under the control of the British.
3. On 19 September 1994 the respondent decided that a claimed condition of carcinoma of the rectum was not war-caused. The applicant challenged that decision and on 27 February 1996 the Veterans’ Review Board (“VRB”) affirmed it.
4. In 1999 the applicant made another application upon the respondent for acceptance of the conditions of malignant neoplasm of the rectum, incisional hernia, ocular hypertension, chronic bronchitis and emphysema, cervical spondylosis, myopia and diabetes. That claim was rejected. It was challenged before the VRB and on 27 March 2001 the VRB decided to affirm that decision except that it did find that ocular hypertension was war-caused and the application was remitted to the respondent for assessment of pension.
5. The applicant appealed against that decision in proceedings lodged in this Tribunal by application V2001/443. The review was heard by a Senior Member of the Tribunal on 27 March 2002 who published a decision on 28 June 2002 affirming the decision under review.
6. An examination of the Transcript of those proceedings indicates that the matter proceeded only to challenge the decision of the VRB in so far as it concerned the malignant neoplasm, the hernia and cervical spondylosis. The challenge to the decision with respect to chronic bronchitis and emphysema remained “alive” however counsel for the applicant indicated that evidence would not be called with respect to that condition and the Transcript indicates that an appropriately qualified medico-legal witness practising in respiratory medicine, who had reported, was not called. Counsel for the applicant indicated to the Tribunal that the review of the decision with respect to myopia and diabetes were not being pursued.
7. The representatives of the applicant lodged an appeal against the decision of the Senior Member of this Tribunal who heard the application and proceedings commenced in the Federal Court by V486 of 2002. The appeal was resolved between the parties and on 7 February 2003, Gray J made Consent Orders (omitting irrelevant parts) in the following terms:
1. THAT so much of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 June 2002 as determined that the veteran’s malignant neoplasm of the rectum and cervical spondylosis were not war-caused be set aside and, to that extent, the matter be remitted to the Tribunal to be heard and determined according to law.
2. THAT those parts of the Tribunal’s decision which the parties agree disclose errors of law are identified from the record in accordance with the decision of Kovaley v Minister for Immigration & Multicultural Affairs [1999] FCA 557 at [19] as follows;
Malignant neoplasm of the rectum
Cigarette smoking
(a)The AAT fell into an error of law when it considered whether there was a reasonable hypothesis, upheld by clause 5(b) of SoP No 25 of 1996, connecting malignant neoplasm of the rectum with the Applicant’s war service. Clause 5(b) required the smoking of at least 10 pack years (73,000 cigarettes) 25 years or more before the clinical onset of malignant neoplasm of the rectum.
(b)The Tribunal failed to ask whether the material before it pointed to the hypothesis that the Applicant had smoked that amount of cigarettes, related to his war service, in the period ending in 1964. Rather, the Tribunal dealt with the question by evaluating the Applicant’s evidence and making a finding of fact – “it would appear that he was smoking . . .” (paragraph 15 at AB 399).
Alcohol consumption
(c)The Tribunal erred in two ways when it considered whether there was a reasonable hypothesis, upheld by clause 5(c) of SoP No 25 of 1996, connecting malignant neoplasm of the rectum with the Applicant’s war service. Clause 5(c) required the drinking of at least 250 kg of alcohol within any 25 year period before the clinical onset of malignant neoplasm of the rectum.
(i)First, the Tribunal assumed (in paragraph 16 at AB 400) that only alcohol consumed between December 1964 and December 1989 was relevant – but the SoP refers to “any 25 year period before the clinical onset . . .”, which could (for example) be the period from 1957 (when the Applicant’s war service began) to 1982.
(ii)Secondly, the Tribunal made findings of fact by declaring itself “satisfied” (in the same paragraph) as to the various matters that bore upon the Applicant’s consumption of alcohol. The Tribunal did not ask whether the material pointed to each element of a reasonable hypothesis as required by the SoP.
Incisional hernia
(d)This condition was a direct sequela of the malignant neoplasm of the rectum. If the latter condition was war-caused, so was the incisional hernia, and vice versa – see paragraph 17, at AB 400-401.
Cervical spondylosis
(e)The Tribunal considered the question whether the Applicant’s cervical spondylosis was war-caused by reference to SoP No 31 of 1999, which was in force when the Repatriation Commission made its decision and when the Tribunal reserved its decision on 27 March 2002. However, the SoP was replaced by SoP No 50 of 2002 on 4 June 2002, 24 days before the Tribunal’s decision.
(f)The AAT was apparently not aware of that change. Nevertheless, the Tribunal was required to apply that SoP in its review of the Applicant’s claim [Repatriation Commission v Gorton (2001) 33 AAR 370 at [60], [62]]; it did not do so; and, to that extent, the Tribunal erred in law.
(g)Because the new SoP contained additional factors that might be relevant to the Applicant (including “being obese for at least 10 years”) and a new definition of “trauma to the cervical spine” (omitting the adjective “acute”), the Tribunal’s omission to apply the new SoP could have affected the outcome of the appeal. On that basis, the Tribunal’s decision that cervical spondylosis is not war-caused should be set aside and the matter remitted to the AAT for determination according to law.
(h)There is an additional deficiency in the Tribunal’s reasoning on this aspect of the case. In applying the former SoP, the Tribunal appears to have been influenced by the judgment of Sundberg J in Arnott v Repatriation Commission [2000] FCA 1336: see paragraph 19 of the Tribunal’s Reasons at AB 402. However, that judgment was reversed by the Full Court [Arnott v Repatriation Commission (2000) 32 AR 445; see especially at [30], [31].
Chronic bronchitis and emphysema
(i)The Tribunal’s consideration of this aspect of the Applicant’s claim was not infected by error of law. It plainly concluded, to its reasonable satisfaction, that the Applicant was not suffering from chronic bronchitis and/or emphysema or any other significant respiratory problems – see paragraph 18, at AB 401-402. The Tribunal reached that conclusion by applying the correct standard of proof [Benjamin v Repatriation Commission (2001) 34 AAR 270 at [54], [55].
3. THAT the said decision of the Tribunal be otherwise affirmed; and
4. . . .
8. New proceedings were ultimately lodged in this Tribunal by application V2003/255. When the matter was heard Mr De Marchi appeared on behalf of the applicant and Ms Macdonnell of Counsel appeared on behalf of the respondent.
9. The application proceeded in effect as a rehearing. However the applicant only pursued the rejected conditions of the malignant neoplasm and cervical spondylosis. The hypothesis with respect to the malignant neoplasm was an association between service and the increased consumption of alcohol and cigarettes thereby satisfying applicable Statement of Principles (“SOPs”).
10. The hypothesis with respect to the cervical spondylosis was the applicant suffered a traumatic injury in a motor vehicle accident during his service in Malaya which gave rise to that injury.
11. At the commencement of the hearing, both representatives conceded that the relevant quantities of alcohol and cigarettes and the applicable periods of time within which the alcohol and cigarettes were consumed satisfied the applicable SOPs. The review with respect to the bowel cancer proceeded only upon the issue of whether there was an increase in the consumption of cigarettes and alcohol by reason of operational service.
12. Prior to the hearing, SOPs were issued with respect to the condition of malignant neoplasm of the rectum by Instruments No. 25 of 1996, No. 3 of 1998 and No. 58 of 2002. Mr De Marchi relied on factors 5(b) and (c) of Instrument No. 25 of 1996 which record that the factors (as reproduced below) must exist as a minimum before it could be said that a reasonable hypothesis had been raised connecting malignant neoplasm of the rectum with the circumstances of service. Those factors are:
(b)smoking cigarettes or other tobacco products, where the equivalent of at least 10 pack years were consumed 25 years or more before the clinical onset of malignant neoplasm of the rectum; or
(c)drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the rectum.
13. Subsequent to the hearing another SOP has been issued revoking Instrument No. 58 of 2002 (which revoked previous Instruments) and was issued in the name of “Malignant Neoplasm of the Colorectum”.
14. Paragraph 5(b) and (c) of the new SOP, Instrument No. 1 of 2004, contains varied quantities with respect to tobacco and alcohol consumed and a variation also of relevant periods of time (in comparison to Instrument No. 25 of 1996 upon which the applicant relied at the rehearing). Those sub-paragraphs are reproduced as follows:
(b)smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum, and
(i)smoking commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum, and
(ii)where smoking has ceased, the clinical onset has occurred within 30 years of cessation; or
(c)drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum; or
15. With respect to the issue of clinical onset of the condition of the colorectal cancer, the applicant was diagnosed with the carcinoma in 1989 and then had surgery. He then ceased smoking for approximately four years but ultimately resumed the habit. Having regard to the concessions made by the respondent as to quantities of tobacco and alcohol consumed (those concessions being in my view properly conceded) and, having regard also to the period of time within which the applicant consumed alcohol and tobacco, I am satisfied that the factors within the SOPs within the assessment period exist as a minimum.
16. The SOPs applying with respect to the condition of cervical spondylosis within the assessment period are Instruments No. 31 of 1999, No. 50 of 2002 and No. 81 of 2002.
17. Factor 5(h) of Instrument No. 31 of 1999 is reproduced in the following terms:
(h)suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis.
18. The expression “trauma to the cervical spine” is defined at paragraph 8 of that Instrument as follows:
“trauma to the cervical spine” means a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a)immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c)surgery to the cervical spine.
19. Instrument No. 50 of 2002 contains an identical factor 5(h) but a different definition of “trauma to the cervical spine” by deletion of the word “acute” as it appears on both occasions within the former Instrument.
20. Instrument No. 81 of 2002 amends Instrument No. 50 of 2002 but the amendments are not relevant to these proceedings.
the evidence
21. A summary of the evidence follows with respect to the applicant’s smoking and alcohol consumption and the evidence with respect to the alleged neck injury. The sources of the evidence are the applicant’s testimony at the first and second hearing and where applicable, references will be made to the Transcript. Reference will also be made to the applicant’s evidence at the VRB.
22. Later, we will discuss the events within and the circumstances of service which were alleged by the applicant as giving rise to the injuries which are the subject of these proceedings.
smoking
23. At the first hearing the applicant said that during his national service training he was issued with a ration card which entitled him to a packet of 10 cigarettes per day. Additionally he said that he purchased a packet of 10 cigarettes per day and he therefore acquired a smoking habit of 20 cigarettes per day during training. He said that after he commenced service in Malaya his smoking habit increased. At page 13 of the Transcript during the first hearing the applicant said that he was initially smoking between 20 or 30 cigarettes per day in Malaya and eventually he was smoking between 40 and 50 cigarettes per day. He agreed that his smoking habit “significantly increased” and said that it “At least doubled. May be more”. He also said that cigarettes were “Never out of my hand” and that he eventually became a “chain smoker”. To illustrate his addiction to cigarettes he said there was an occasion whilst smoking in bed that the mattress ignited and he was burnt.
24. In cross-examination at the first hearing Mr Peckham agreed that he had given evidence earlier that he was smoking between 20 and 30 cigarettes per day but did not regard consumption at that level to be “heavy”. He said “That’s light to me”. He did agree that he had a poor memory which he associated with the ongoing effects of an anaesthetic that was administered to him when he had surgery in 1989. Mr Peckham disagreed with a finding made by the VRB in its decision that he was an established smoker upon arrival in Malaya and his smoking habit did not then change. Mr Peckham said that he could not imagine having given evidence to permit a finding of that type. When he was advised that a finding had also been made by the VRB that he had been smoking 80 cigarettes per day until 1963 when he then reduced to 60 per day (which would suggest that he had been “smoking heavily prior to eligible service”) Mr Peckham again said that he could not comprehend how the VRB could have made that finding. Additionally he said that he was unable to explain why his advocate then did not quarrel with these findings of the VRB which had apparently been discussed during the hearing.
25. Mr Peckham was then asked (page 22-23 of Transcript) to comment on differences in the quantities of cigarettes smoked as recorded by him in questionnaires from time to time and in histories given to doctors. He was asked to note that medical records in November 1966 recorded him smoking 30 cigarettes per day and the notes of his local medical officer (“LMO”), Dr Pearce, consistently recorded a smoking habit of between 20 and 30 cigarettes per day in the 1980’s. It was therefore suggested that the history of smoking between 20 and 30 cigarettes per day was consistent from the 1960’s until the 1980’s which would not indicate any increase in his smoking habit. Mr Peckham responded to that suggestion by explaining that whilst he would not have attempted to mislead a medical officer he:
Wouldn’t know how many cigarettes I smoked a day. I would have to think about it and make a guess at it. If you said to me, do you smoke, I would have said, yes, I smoke 50. I don’t count cigarettes and I don’t count drinks and when I filled out that life thing for the first time I claimed, I just thought it was the biggest load of rubbish I had even seen, because I had no way of saying how many – the way my memory is, of what cigarettes – I would have said anything. If he said, do you smoke 40, I would have said 40.
When it was then suggested that he would agree with a nominated figure for cigarettes consumed, Mr Peckham said “to a degree yes. The doctor said how many do you smoke a day 40, 50, 60. I think what is a fair thing. I say 50”.
26. Perhaps to also explain Mr Peckham’s attitude to giving a history of cigarette smoking to his doctors, the Transcript records at page 23 Mr Peckham as having said:
Its what the doctors have an idea of what – you know the doctors have a set idea. How many do you smoke 40 or 50 and they might say gee if he smokes 50 he is a villain. If he smokes 30 he is reasonable. They might have put that figure to me. I must emphasise its that – before I burnt myself is the defining date for the cigarettes.
27. Mr Peckham was then taken to a smoking questionnaire that he completed in March 1999. The form indicated that he commenced smoking in 1952 or 1953 and at that time he recorded that he was smoking between 20 and 30 cigarettes per day. Later the questionnaire asks whether there had ever been a change in the smoking habit to which Mr Peckham answered “Yes”. The form then directs the applicant to complete the remainder if the smoking habit did change and the response then recorded by Mr Peckham was “I gave away smoking for approximately 4 years after 1989 but took up smoking again and now continue to smoke”. Mr Peckham was challenged upon the failure by him to then record that he increased his smoking habit in Malaya. When it was suggested that the answers given by him in the questionnaire were consistent with the histories taken by the doctors Mr Peckham said “I never give it a thought there. Its definitely incorrect”. When he was asked why he did not disclose the increase in smoking in Malaya but did refer to it in his evidence at the first hearing Mr Peckham said “Yes it didn’t enter my mind. It didn’t even enter my mind”.
28. In his evidence before us during the second hearing Mr Peckham estimated that he consumed 50 cigarettes over a period between 1 and 1½ days that were rationed to him and thereafter he would purchase cigarettes because he was smoking “continuously”. He estimated that he either “doubled or trebled” his consumption of cigarettes whilst in Malaya compared to his smoking habit prior to leaving Australia.
29. We note that the applicant is a very poor historian and explained that he has a poor memory by reason of the effects of an anaesthetic administered to him in 1989. Additionally, it would appear that he either has a careless or negligent attitude when completing departmental questionnaires. The history given to doctors of a smoking habit would again also appear to be careless but the reference by the applicant to being perceived as a “villain” is consistent with the evidence heard from many other veterans in similar circumstances who either underestimate or fail to disclose a smoking habit because of a perception of being censured by their doctors.
30. In fairness also to the applicant – irrespective of the stated cause of his poor memory – to ask him to estimate the quantity of cigarettes smoked in Malaya some 40 years later in these proceedings would be a difficult, if not impossible, task.
31. Rather than make findings as to the quantities of cigarettes that the applicant smoked before and after he commenced his service in Malaya we would prefer to find that there was an increase in the smoking habit in Malaya by reason of the applicant’s evidence that his smoking whilst overseas either doubled or trebled, by his evidence that a cigarette was never “out of (his) hand” and his evidence subsequent to Malaya that he became a chain smoker. Those features of his smoking habit were occurring during and, or after service in Malaya. Those same features did not exist prior to travelling overseas. In those circumstances and applying a beneficial approach to this part of the applicant’s evidence, we are prepared to find and are satisfied that there was an increase in the applicant’s smoking habit in Malaya and thereafter the applicant became an entrenched smoker, that he was heavily addicted to cigarettes and continued to smoke cigarettes at a level or quantity far greater than the level or quantity prior to commencement of his service overseas.
alcohol consumption
32. The applicant said that he “learned to drink” after he enlisted. He agreed that he had consumed alcohol on some occasions prior to enlistment but he regarded those occasions as being “special”. He also agreed that there was an occasion when he was found to be drunk and disorderly in Russell Street, Melbourne and was locked up by police overnight. Nonetheless he said that he consumed alcohol heavily whilst in Malaya and was sharing one dozen bottles of beer per night with another colleague. He said he developed an entrenched alcohol habit by reason of his service in Malaya and when he was promoted to Sergeant after he returned to Australia he was then consuming between 10 and 20 ten ounce pots of beer per day in the Sergeants’ Mess.
33. In evidence at the second hearing before us Mr Peckham said that alcohol was readily available in Malaya and he would consume four pints of beer each day after work and would then share one dozen 26 ounce bottles of beer with another colleague. He emphasised that he was drinking “pints” of beer as opposed to “pots”. In cross-examination Mr Peckham said that he was drinking between four and six pints of beer after work and also drank 26 ounce bottles of beer. He explained that he drank beer because “if I drank water I would sweat more”. Additionally he said there were occasions when he was provided with beer by his supervising Sergeant whilst working at night because local water could not be consumed.
34. Mr Peckham disagreed with the finding made by the VRB that he was a “binge drinker”. It appears that the VRB made that finding by reference to the applicant’s evidence that he was drunk at his 21st birthday, that he was found to be drunk and disorderly in Russell Street, Melbourne and was locked up and some evidence of the applicant enjoying drinking beer. Mr Peckham said that it was harsh to assess him as being a “binge drinker” prior to his service in Malaya based on those episodes only. He acknowledged that those events did occur but they were “special occasions”. Mr Peckham acknowledged that he had said to the VRB in the first proceedings of 1996 that he could not recall his drinking habit in Malaya but on reflection he assumed that he was then being asked to refer only to the quantities of alcohol consumed. He said that he has been able to recall the quantities of alcohol that were consumed in Malaya and he was surprised that he had been drinking the quantities that he now indicates were actually consumed. Mr Peckham also agreed that there were occasions in Malaya where he was disciplined – including one occasion when he was demoted – for reasons associated with his consumption of alcohol.
35. On balance we are satisfied that the applicant did consume alcohol on some limited occasions prior to commencement of service in Malaya but we are satisfied on the evidence heard that he did commence to consume alcohol heavily and regularly during his service in Malaya. We are satisfied that he ultimately became dependent upon it and drank alcohol regularly and in large quantities after he returned to Australia. We are satisfied that the applicant does suffer from poor memory (for reasons given earlier) and perhaps also because of the influence upon him by alcohol which has been consumed in large quantities over many years.
neck injury
36. At the first hearing the applicant said that he suffered back and neck injuries in 1959 when he was a passenger in a truck. He said that he and other persons were occupying the rear of the truck. The truck apparently was making a left hand turn but struck a road marker which caused part of it to be lifted into the air. The applicant said he lost his seated position by being thrown up and when he came back to his seat he “belted (his) neck and back on the side of the truck”. Mr Peckham said that he immediately felt back pain at a level approximately six inches above his waist and thereafter suffered back pain, for a few days. On closer questioning Mr Peckham said that the pain was “hard” and lasted for between 10 and 15 days (Transcript 1st hearing p17). Mr Peckham said that he continued to perform his duties, he was not able to obtain medication and he did not seek medical attention. He acknowledged that there were doctors on base but said “you had to be there at six o’clock in the morning and you had to wait until two o’clock in the afternoon to get attention and I didn’t feel like doing that”.
37. Mr Peckham agreed in cross-examination that the incident involving the truck was not ever reported. He was then challenged as to his reasons for not seeking medical treatment. He agreed that a hospital existed on the base in Malaya and his personnel records indicated that he attended that hospital on 11 occasions whilst he was in Malaya. He said that he would have attended the hospital for treatment of other illnesses or injuries on Sundays because the time spent waiting for treatment from a doctor would be less than the time spent waiting on week days.
38. Additionally Mr Peckham was challenged as to whether the injuries to his back and neck occurred at all. Page 71 of the T-documents records the truck accident occurring sometime between 11 October 1959 and 30 November 1959. The form where this information was contained was signed by Mr Peckham but was completed by another person (as evidenced by the handwriting). Mr Peckham could not recall who completed the form nor could he recall advising that person of the information that was recorded. When he was advised that the service records indicated that he evacuated Malaya on 5 October 1959 to return to Australia – and the truck accident therefore could not have occurred – if it occurred – between 11 October and 30 November 1959, Mr Peckham then said that the contents of the form must be incorrect. He remained adamant that the truck accident did occur and that it occurred in Malaya.
39. Mr Peckham agreed that the first complaint of neck pain is found in the notes of his LMO of January 1991.
40. Dr Cole, a medico-legal psychiatrist, examined Mr Peckham on two occasions in July 2001 and July 2003. He did not obtain any history of the applicant being involved in an accident whilst seated in a truck in Malaya. Mr Hadley, a medico-legal orthopaedic surgeon did obtain a history of the applicant being involved in an accident in 1959 in Malaya but obtained no history at all of the applicant having suffered injuries whilst employed by Ansett Airlines in 1986 which was the subject of Workcover proceedings. Mr Peckham said that he could not recall suffering injuries when employed by Ansett and could not recall making any Workcover claim.
relationship between service and the increase in smoking and consumption of alcohol
41. The applicant relied on a number of events and circumstances which he connected to the circumstances of his service in Malaya and which he said contributed to the increase of the consumption of cigarettes and alcohol. Those events will be dealt with separately hereunder.
unit conditions; work duties; food and provisions; recreation facilities
42. At the first hearing Mr Peckham said that his FESR duties involved being part of a four nation unit located in Taiping in the State of Perak in Malaya. He said this was a “big military area” but his unit was isolated in an “old convent located approximately two miles from Brigade headquarters”. He said the conditions in his unit “were entirely different in the Australian Army because for a start the food was very bad”. He said compensation was paid because there was a lack of meat, working conditions were arduous and hours were long. He said it would not be unusual for him to manually load a three ton truck with automotive parts from a rail siding, transport the goods back to base and manually unload. Mr Peckham said that he and others were rewarded by a sergeant for working overtime by the provision of beer which he said “was the only suitable liquid . . . to work with”. He said the weather was humid and hot and “water was no good” (Transcript p11).
43. Mr Peckham acknowledged that there was a canteen to which he had access where beer was provided. He said it was staffed by Chinese persons “and they were to look after us” and who provided “little pies which were inedible”. He said the only provisions available in the wet and dry canteens were “the few savoury things and beer”. He acknowledged that staff were available to clean their boots and undertake laundry but “we never had a Mess or anything like that. We lived mainly on bread and potato from my recollection of it”.
44. With respect to recreation facilities, Mr Peckham said that he had read a proof of evidence of Lieutenant Colonel Deane who spoke of recreation facilities available to Mr Peckham and others. Mr Peckham disagreed with the statement. He said there was one occasion where he and others attempted to locate a swimming pool. He said when it was eventually found it was unfenced and he and others “were attacked by Gibbons . . . so we never got to swim. And I never knew of any other swimming pools or any other facilities whatsoever”.
45. Frederick Deane a retired Lieutenant Colonel gave evidence at the first hearing. Mr Deane was the Staff Captain at the 28th Commonwealth Brigade Headquarters in Malaya between 25 August 1958 and 2 November 1960. He said that as the Staff Captain he was responsible for staff working in relation to logistics and he was also indirectly involved in the applicant’s unit. He said that when he arrived at Taiping the facilities available to soldiers had been “built up over a number of years”. He said the amenities were substantial including wet and dry canteens, a cinema, swimming pools, sports grounds, rest and recreation facilities, together with civilian facilities and an Australian hostel, located 50 miles North of Taiping, where persons frequently took their annual leave. Additionally he said annual leave was available outside Malaya in Singapore, Bangkok or Hong Kong where most persons took advantage of trips to those destinations with the RAAF where free flights were available on a standby basis.
46. Mr Deane said that the sporting facilities extended to football, cricket, golf, tennis, volley ball and badminton. He said there were also a number of swimming pools. He acknowledged that headquarters were located in an operational area and the 28th Commonwealth Brigade was on operational alert the whole time but when the degree of alert was low sports were encouraged.
47. Mr Deane thought that it was unlikely that Mr Peckham would be unaware of these facilities. He said the existence of the facilities and the activities undertaken would be recorded in unit routine orders which were compulsory reading and were also posted on notice boards. He said there would be discussion amongst personnel, sporting teams would be organised and competitions would be undertaken. He said that Mr Peckham was a unit clerk and “he would be one of the first to know of these because he would be involved in the preparation of Unit Orders” (Transcript p55).
48. Mr Deane acknowledged that there would have been occasions where the unit would have been engaged in operations and there would have been occasions also when he would have been “extremely busy”. However he said there were occasions when “things would quieten down”.
49. In re-examination Mr Deane said that
Malaya was a posting which most soldiers in Australia would have given their right arm to go there and those that did get there many of them sought to extend their postings because they enjoyed it so much. Very few of them were allowed an extension because there were so many people waiting to take their places . . . and to be perfectly frank I didn’t meet any person up there who regretted going . . .
50. Kenneth Morris Batters gave evidence. He is a retired Colonel in the Australian Army who served in Malaya between September 1957 and October 1959. Mr Batters was the second in command of the Australian Unit of the 28th Commonwealth Independent Infantry Brigade Ordnance. Mr Batters said that he recalled Mr Peckham and said that he knew him well. He recalled that Mr Peckham was a technical clerk responsible for calculating unit supply requirements. Additionally he said Mr Peckham would have been required to load and unload ordnance stores. He said that Mr Peckham performed his duties well and acknowledged that some duties were onerous. He also said that the Ordinance Field Park was a mobile unit within the Brigade and which could be ordered to move on four hours notice. This would require packing up of all equipment and it meant that all vehicles were serviced, maintained and checked on a daily basis.
51. With respect to references contained within some records of the applicant being engaged in patrols, Mr Batters said that his unit was engaged on a “mobility exercise” on two occasions. He said the patrols described by Mr Peckham to the unit doctor would not have been undertaken by his unit. He said there were occasions where ordnance was supplied outside the base which he described as being a normal field role and which would require setting up field defences if overnight travel was required. However, apart from patrols around the perimeter of their base, Mr Batters said that he knew of no other patrols that would have been undertaken by his unit.
52. With respect to recreation facilities, Mr Batters said that there were inter-unit sporting competitions mainly involving soccer because of the presence of British troops. He said most daily work was completed between 4.30 and 5.00pm which would leave little time on a daily basis for sporting activities but in his experience most members of the unit were glad to return to their own units and “have a quiet beer”. He said that his unit had their own canteen. He disputed the applicant’s evidence that a supervising sergeant would have given beer in lieu of water during night work because “there were no public funds available for that”. Mr Batters said that soft drink and water was readily available and consumption of local water “was not a problem”.
suicide attempts; bullet discharged
53. There were three specific events in service alleged by Mr Peckham which he said contributed to his distress in service which was responsible in part for an increase in smoking and alcohol consumption. During the first hearing (page 13-15) Mr Peckham said there was an occasion when he was on guard duty when an escaped English prisoner was returned to the Unit. He said that person became verbally critical of the British Army and said that he intended to shoot himself. Mr Peckham and others thought that person was not serious and joked with him and asked him to leave the guard room because he would “make a mess”. A few minutes later they heard the sound of a gun discharging and noted that the Englishman had shot himself in the stomach with a carbine rifle. Mr Peckham said that he was then required to guard that person at a hospital to ensure that he did not cause any other harm. Mr Peckham described the episode as causing “a bit of a shock but it didn’t really – he wasn’t a friend or anything”.
54. On another occasion Mr Peckham said that another English soldier walked into a dormitory and slashed both of his wrists. The applicant said that he was shocked by that event and he was again required to guard that soldier at the hospital including keeping him under close observation because there was a fear that the soldier would again attempt suicide.
55. On another occasion when he was in a camp he said “a shot rang out . . . it missed me and went above my head. I did have recurring problems – you know – when I got home when a car backfired I would sit upright in bed”.
56. In cross-examination Mr Peckham said that Colonel Batters would have been aware of a shot being fired in the circumstances as described and would also have been aware of suicide attempts. He said that those episodes would have been reported to him and there should have been a record of those events. When pressed on this issue and when Mr Peckham learnt that both Mr Deane and Mr Batters would say in evidence that no such events occurred, Mr Peckham said that he did not know whether reports would have been made to them concerning the British soldiers.
57. Mr Deane said that persons who attempted suicide would require medical attention which would have caused medical personnel to complete reports to Unit Headquarters. In turn the Unit Headquarters would have completed reports for Brigade Headquarters. Whilst Mr Deane said that he would not have been directly responsible for preparing reports he worked alongside a Staff Captain who would have completed such reports and he (Mr Deane) would be aware of such reports if they were made because he would have been required to take over from the Staff Captain in the event of a temporary absence. Mr Deane said
Never at any stage while I was there did I ever hear of an attempted suicide and neither was there any anecdotal evidence that I was aware of – of such things occurring in the previous year or two. I think from my knowledge of the way that both the British Army and the Australian Army work I would say that it would be almost impossible for somebody to attempt to commit suicide without the matter being reported. And a matter of such seriousness would have been at least reported to the next higher formation such as the Brigade Headquarters.
58. With respect to the bullet being discharged as recalled by Mr Peckham, Mr Deane said that bearing in mind that the unit was located in an operational area and acknowledging also the possibility of an attack upon the unit any rifle discharge would have caused all guards to be called out and commence immediate investigation. Additionally he said the local terrain and the shape of surrounding mountains would have caused such a sound to reverberate and for that event not to have been heard by others or investigated was “highly unlikely”.
59. Mr Batters was asked to comment upon the applicant’s evidence with respect to the suicides and said that “I can’t imagine that those things would occur without me knowing about it”. Mr Batters gave examples of the trust in which he was held by Australian personnel and by others and his responsibility to be available to other persons. He said that knowledge of suicide attempts “must have become known” by others if such events occurred.
60. With respect to the bullet being discharged Mr Batters said that “any gunshot that is unauthorised had to be reported and accounted for”. He said that ammunition is only issued for training purposes or for operations. It is not the subject of audit if issued for operations but its issue is audited for training purposes and if ammunition is found to be in the possession of personnel, an offence will have been committed. Additionally he said that the sound of the discharge of a bullet would have been noted, it would have been immediately investigated and rifles would have been inspected and the smell of a discharged bullet would have been noted. Mr Batters however conceded that if a bullet was discharged and a rifle was cleaned quickly, (and no one had heard the bullet being discharged), the event could have been “concealed”.
guard duty
61. Mr Peckham said that a contributor to his stress in service in Malaya was the extent of guard duty that he performed and the absence of sleep, consequent upon undertaking guard duty. At the VRB, Mr Peckham said that his unit was short staffed which caused a consequent increase in workload and he was required to perform guard duty every third night. Later he said the guard duty was performed “every other night” (VRB Transcript p13). Similar evidence was given on the first day of hearing (Transcript p11).
62. Mr Peckham was then asked to comment upon the contents of the statement of Mr Batters who disagreed with the applicant’s estimate as to the frequency of guard duty. Mr Peckham agreed that “the norm would have been five days”. It followed that Mr Peckham acknowledged that his estimate of guard duty every third night was incorrect. Mr Peckham said that his complaint was not as to the frequency of guard duty but as to the absence of sleep. He said that he was required to sleep in the guardroom whilst not on duty on a wire mattress under a light with noise from other guards around him. He said that he was unable to sleep and was therefore affected on following days.
63. Mr Deane said in evidence that having to perform guard duty every fifth day was not unusual in an operational environment. He said that six persons would be detailed for guard duty operating two hours on and four hours off.
64. Mr Batters gave similar evidence as to the frequency of guard duty and the duration on each occasion. He agreed that little sleep might be obtained on those occasions. He said that guards were required to rest or sleep in the guardroom because they remained on duty and they may be affected by surrounding noises by other personnel and by telephones. Nonetheless he said the unit was “fairly quiet” and “there was not a great deal going on once you have rounded up the drunks and put them to bed it was reasonably quiet”.
discipline
65. Another feature of the applicant’s service in Malaya – to which he held responsible in part for his increase in smoking and drinking – was his exposure to discipline from British soldiers. At the VRB (Transcript page 14) Mr Peckham described the discipline as “unbelievable” and “ridiculous”. He said that “if you did something wrong they just picked on you and picked on you till you got gaoled. I got that way. I couldn’t stand it”. Mr Peckham said that he requested that he be court martialled because he believed that the British Officers would not pursue that course. He said “I just couldn’t stand it anymore. I was – even one time there I took – I got special leave to go and lay in a hotel room for a week just to calm down” (Transcript p14).
66. On the first day of hearing Mr Peckham specifically referred to Major Styles, a British Officer, who was referred to as a strict disciplinarian. Mr Peckham described him as being “strange” but he was “admired”. Mr Peckham referred to a number of examples of events occurring to illustrate his belief that Major Styles was “strange”. One such event included being directed to find a parcel concealed amongst long grass. He said he would be penalised if he failed to locate the parcel. On other occasions, Mr Peckham said that he and others were charged with minor offences and after the “new CO was in command the NCOs would chase you until they got you for a serious crime and you would end up doing time in the pokey and that was one of the things I feared . . .” (Transcript pp15 and 19).
67. In evidence during the second hearing Mr Peckham said that Major Styles replaced Captain Beattie who had previously been in command. Mr Peckham said that in his first year in Malaya he was “not stressed”. However after Major Styles arrived he was thereafter subject to his strict discipline.
68. Mr Deane said that the Australian Unit was under the command of the British and any difference between an Australian command and a British command would be an increase in paperwork being completed by a trained ordnance clerk as was the case with Mr Peckham. He said that he and all others were subject to British military discipline “and quite frankly we didn’t experience any difficulties there”. He emphasised that the unit was located in an operational area and he acknowledged also that there would have been occasions when his unit would have been “extremely busy”. He also said there would have been occasions when things would “quieten down”.
69. In cross-examination Mr Deane said that the Malayan location was “not a holiday camp” and he agreed that there would be stresses associated with military service and undertaking of physical fitness and mental alertness. He acknowledged that persons might consume alcohol and tobacco to excess as a reaction to stress in service. However Mr Deane said that Mr Peckham would have been aware as the unit clerk of recreational and sporting facilities which in part would have been provided to relieve stress.
70. Mr Batters said that Major Styles was an ammunition examiner or in Australian terms a “bomb disposal man who was utterly nerveless and who had been awarded a St George Medal for his service in Northern Ireland”. He was described as being “slightly eccentric” and was “mad on ammunition and things that go bang – you know that sort of thing”. Mr Batters said that the British system of discipline was foreign to Australians but “we all knew the rules. We were sent from Australia to work under the British system and we just had to adapt to it”.
71. Mr Batters said that complaints about British discipline were made to him by Australian personnel and he “would just say to them look there is nothing we can do about it just simmer down”.
motor car accident
72. Prior to completion of his training in Australia and before travelling to Malaya Mr Peckham was involved in a motor vehicle accident. He said when driving to the Bandiana Base he struck a child who was riding a bicycle. The child was later diagnosed with a fractured skull and Mr Peckham was charged by the police for driving offences.
73. At the first hearing Mr Peckham said that he was worried about that episode and “that got me down a bit” (page 18).
74. In cross-examination Mr Peckham was asked to comment on notes completed by Major Reed, a medical officer who took a history on 8 May 1958 from Mr Peckham concerning the motor vehicle accident. He recorded that the applicant was then worried at the risk of having to pay damages to the child and that he had been suffering “continued emotional conflict as he has not confessed his guilt to his parents”. In those circumstances it was suggested that Mr Peckham had been anxious from the commencement of his service in Malaya by reason of that motor vehicle accident. Mr Peckham acknowledged that he was anxious and that he had not told his parents of it because they were “too elderly”. He also acknowledged that he was “upset that I might have - you know - injured a child seriously”.
75. It was suggested that Major Reed must have been concerned about the emotional health of Mr Peckham because he spent some time speaking with him about the episode and the applicant’s reaction to it. It was suggested that the use of the expression “confessed his guilt to his parents” suggested that Mr Peckham was disturbed by the event. Mr Peckham responded “there is nothing to confess. I mean its an accident. I’m not guilty of anything. I might have discussed it wrongly to him. I wouldn’t tell him the whole truth or you know give him a half truth. He said what’s wrong with you? I said oh I’ve had an accident or something or other but I wouldn’t – guilt?”
76. Mr Peckham was then referred to another extract from the notes of Major Reed who on 5 June 1958 – a month following the above consultation – recorded “the patient has not yet faced up to problems as advised”. It was suggested that the applicant then continued to worry about the motor vehicle accident. Mr Peckham understood Major Reed to be suggesting to him that he should not worry about that accident. However Mr Peckham said “I couldn’t do anything else but I was worried”. It was noted that this consultation occurred approximately six months after he had arrived in Malaya. When it was suggested by Mr Rudge that “this was a continuing problem” Mr Peckham said “apparently it went for six months at least” (Transcript pp29-31).
77. In evidence at the second hearing Mr Peckham said that he was charged by the police in Victoria and did attend a Magistrates’ Court where he pleaded guilty. He said he could not recall the penalty imposed and the proceedings against him were completed before he travelled to Malaya. He said he had no recollection of being worried about having to pay damages but did agree that the episode was “playing on my mind when I left to go to Malaya” and said that the incident also did “play on” his mind whilst onboard the vessel transporting him to Malaya. Nonetheless he said he did not seek comfort from alcohol whilst on board the vessel and whilst he had access to alcohol in Malaya he did not drink it for comfort or relief from any anxiety or distress associated with the injury suffered by the infant.
medical evidence
Neck Injury
78. The applicant was examined by Mr Hadley an orthopaedic surgeon who provided a report dated 21 July 2003. Mr Hadley reported that he attended the applicant on 8 July 2003 – which was after the Consent Orders were made by the Federal Court – but curiously, Mr Hadley reports that he saw Mr Peckham “again at your request”. We can find no other reports completed by Mr Hadley and we are not aware of any prior consultations.
79. Mr Hadley took a history of the applicant striking his head whilst a passenger in a truck in 1959 in Malaya. The history refers to the applicant striking his head and his back after he fell when a vehicle turned suddenly causing him to be thrown from his seat. He also obtained a history of the applicant suffering pain, tenderness and restricted movements of his neck “for at least 10 days”. It was reported that the applicant had access to a British Army Hospital but it gave preference to British Army staff and their dependents and whilst the applicant would be required “to attend at 6.00 am in the sick parade . . he would not be seen until about 2pm during which time he would be unable to get food and he therefore did not attend”. Mr Hadley reports that the applicant continued to work on a full time basis performing normal duties with some discomfort and stiffness in his neck which varied in degree.
80. The report does not have a history of any other episode within or outside service. There is no history by Mr Hadley of the applicant falling from a ladder when employed by Ansett. Mr Hadley concluded that the applicant suffered from advanced spondylosis at C3/4 and C6/7 and advanced facet joint arthritis at C3/4/5/6. It was his opinion that the spondylosis and facet joint arthritis in the cervical spine were contributed to by service in the Army in Malaya in 1959 and having regard to the history of pain and tenderness and stiffness in the applicant’s neck within 24 hours of the episode occurring and then lasting for ten days that an applicable SOP was satisfied.
81. Appended to the report of Mr Hadley were X-ray reports taken on 30 November 1999 and again on 8 December 1999. The contents of the X-ray reports are consistent with the opinion as to injury expressed by Mr Hadley.
82. The applicant was examined by Mr Shannon on behalf of the respondent on 12 September 2003. This examination was conducted after the Consent Orders were made by the Federal Court. Mr Shannon reported that he completed the examination without any file being provided by the respondent although a file was subsequently provided. Mr Shannon did obtain a history of the applicant suffering a back injury in 1959 whilst he was a passenger in the back of a truck and where he was dislodged from his seat. He also has a history of the applicant striking his head.
83. Mr Shannon obtained a history principally of the applicant suffering back pain. He reported “I asked him specifically about his neck and he states that he first had trouble with his neck a couple of years ago. He found that the neck was getting stiff and he did exercises”.
84. Mr Shannon concluded that he was aware that the applicant had X-rays of his cervical spine in December 1999 but he was unable to locate the radiologist’s report. He also noted that the applicant did fall from a ladder at work in October 1988 where he struck his head but he did not lose consciousness. He concluded that on the history obtained from Mr Peckham a neck injury was not sustained in service. It was his opinion that the applicant did suffer from cervical spondylosis but on the history that he obtained it had only been symptomatic “for the last few years”. Mr Shannon speculated that the applicant may have injured his neck when he fell from the ladder but he could find no reference to it in the notes of the general practitioner. He therefore concluded that on the history that he obtained, and from the documents that he ultimately observed, there is nothing which indicated that the applicant suffered any neck injury in service.
85. Neither Mr Hadley nor Mr Shannon were called to give any evidence in the second hearing. There was no evidence called from any practitioner at the first hearing with respect to the applicant’s neck injury. We draw no inferences against either party with respect to the failure to call these witnesses. In the second hearing Mr Peckham was asked by Mr Rudge to comment on the absence of a history from Mr Hadley of falling from a ladder whilst employed by Ansett. Mr Peckham said that he was “surprised at this”. Mr Peckham was also asked to comment on a notation in his LMO’s notes of attending in January 1991 with a complaint of neck pain. Mr Peckham said that he could not recall that presentation but agreed that the visit then to his LMO would have been the first occasion that he had ever attended a medical practitioner for treatment of his neck injury subsequent to the truck accident in Malaya.
psychiatric evidence
86. Dr Edward Cole a medico-legal psychiatrist gave evidence on behalf of the applicant during the first and second hearing before this Tribunal. He also provided two reports dated 31 July 2001 and 22 July 2003.
87. In the first report Dr Cole obtained a history of the applicant serving in Malaya and whilst he was informed by Mr Peckham that he “did not see action” he was engaged on a number of patrols through jungle, paddy fields and rubber plantations where there were hostile forces. He said there were occasions when on bivouac that they would “live in the rubber for as long as a month”. He obtained a history of other members of his unit being fired upon and being killed but Mr Peckham was “shot at only once and then by one of his own troops”. He obtained a history of the applicant being anxious and apprehensive when on patrol, that he worked long hours with little time off, that he was exposed to strict British discipline, that he was engaged in unescorted milk runs in trucks through areas occupied by Communists, that he performed guard duty without sleep and he was given leave on three occasions per year at 48 hours on each occasion. Dr Cole also obtained a history of the applicant being exposed to three attempted suicides and on another occasion another person “attempted to push a broken bottle into his face”. He said Mr Peckham reported that for 27 months a mess hall was not available and they had nowhere to sit down and eat. He also obtained a history that the applicant was required to maintain a truck in his own time.
88. Dr Cole noted that Mr Peckham was nervous, jumpy and easily startled by noises whilst in Malaya. He continued to suffer similar symptoms, that he worried excessively, suffered from anxiety attacks, was depressed and at times felt suicidal. He noted that Mr Peckham had made “half hearted attempts to hang himself” on three or four occasions. He noted that the applicant found it difficult to concentrate, had a poor memory, was indecisive and lacked confidence. He noted that the applicant had attended a psychiatrist for treatment and whilst in Malaya “he had what he thought was a nervous breakdown”.
89. Dr Cole obtained a history of the applicant’s consumption of alcohol prior to enlistment at six glasses per day. However his alcohol consumption increased after enlistment “as there was nothing else to do”. He also noted that the applicant “drank much more in Malaya”.
90. Dr Cole concluded that the applicant gave a straight forward account of himself, that he was suffering from a chronic generalised anxiety disorder and it was his opinion that Mr Peckham suffered from alcohol dependence and abuse which he regarded as symptomatic of an anxiety disorder. He thought on the history given to him the applicant would have consumed at least 250 kilograms of alcohol within a 25 year period.
91. In evidence at the first hearing Dr Cole recited much of his first report. In answer to questions from Mr Hyde he said that in his experience persons who suffer emotional stress and where they are also “extremely bored” tend to smoke and drink heavily and more so “than they would under happier circumstances”. He also thought that if a person reacted to discipline which was regarded as being petty it could cause anxiety and contribute to abuse of alcohol and cigarettes because of a sense of irritation and tension. In his experience persons who suffer from an anxiety disorder seek comfort – and obtain comfort – from smoking and drinking because they become relaxed.
92. In cross-examination Dr Cole confirmed that he had obtained a history of the applicant consuming six glasses of beer per day prior to enlistment which he then did not regard as dependence but rather it was indicative of a “habit”. He noted that the applicant increased his alcohol consumption at Bandiana which would have given rise to concern that the applicant was then becoming dependent. Dr Cole was then asked to comment upon the reports completed by Major Reed who attended the applicant in 1958 (Exhibit 10). Dr Cole was also asked to consider (because he had not obtained a history) of the effect upon the applicant of being involved in a motor vehicle accident prior to travelling to Malaya where a young child was injured when struck by a motor vehicle being driven by him. Dr Cole was asked to consider the earlier evidence of the concern expressed by the applicant towards the health of the child and the failure of the applicant to notify his parents of that accident. Dr Cole thought that in those circumstances Mr Peckham “was having trouble with anxiety before he stepped off the transport to Malaya”.
93. Dr Cole was then referred to parts of the reports completed by Major Reed referring to the failure of Mr Peckham “to confess” to his parents that he had been involved in a motor vehicle accident. Dr Cole thought that skin complaints recorded in the report could have a psychological origin and in his experience dermatologists might enquire as to whether a patient suffers from emotional stress. Dr Cole was unsure why Major Reed would use the word “confess”. However it was his opinion that “confession and guilt go together”. Whilst Dr Cole could not comment on the language used by Major Reed and thought to do so would amount to speculation, he was confident in his opinion that the applicant “had some sort of anxiety about the issue on 5 June 1958”.
94. Dr Cole provided another report to the applicant’s solicitors on 22 July 2003. He took a history of the applicant’s present health and noted that he had ceased consuming alcohol and had given up cigarettes. He concluded that there was little he could add to the opinions expressed in his earlier report.
95. Dr Cole gave evidence at the second hearing and confirmed the history that he obtained as recorded in his first report. In cross-examination he acknowledged that he had not ever obtained a history from the applicant of being involved in a motor vehicle accident where Mr Peckham had struck a child riding a bicycle. He said that in those circumstances he would expect a person to suffer “adverse emotional effects and guilt”. Additionally Dr Cole had not ever obtained a history of the applicant being involved in a motor vehicle accident in Malaya when he was thrown from a seated position whilst a passenger in a truck and subsequently suffering from neck pain. Dr Cole agreed with a proposition put to him by Ms Macdonnell, who appeared at the second hearing, that the applicant was a vague historian and he was unable to “rule out that he did not have an accurate account of the applicant”. He reaffirmed the opinion expressed in his first report that a history had been obtained of the applicant being depressed where there had been a half hearted attempt to hang himself.
96. Dr Lester Walton is a consultant medico-legal psychiatrist who examined Mr Peckham on 4 December 2001 on behalf of the respondent and provided a report dated 14 December 2001. His report was exchanged with the applicant’s representatives prior to the first hearing however, Mr Hyde indicated that he did not require Dr Walton for cross-examination and in those circumstances Mr Rudge elected not to call him. His report however was received into evidence.
97. Dr Walton obtained a similar history as to service in Malaya as was obtained by Dr Cole although he did report that the applicant told him that with respect to a shot being fired in his direction by another soldier that he regarded the episode as “accidental” but expressed concern that the soldier might be charged with attempted murder. Dr Walton was not prepared to accept Mr Peckham’s explanation that “it didn’t really worry me”. Dr Walton also obtained a history different to that of Dr Cole with respect to the applicant’s alcohol consumption. He was informed by Mr Peckham that he had not commenced drinking alcohol prior to service but became “a regular drinker” after enlistment and commenced to drink to excess whilst in Malaya.
98. Dr Walton did obtain a history from Mr Peckham of being involved in a motor vehicle accident prior to service in Malaya where a child was injured. He noted that Mr Peckham found that incident to be “quite distressing” and recorded Mr Peckham informing him that his service in Malaya “was a bit of a jolt. I had a lot of trouble settling in”.
99. Dr Walton concluded that Mr Peckham was suffering from chronic anxiety disorder however he disagreed with an opinion with Dr Cole that alcohol abuse was secondary to the anxiety disorder. Dr Walton was of the opinion that the applicant had a history of excessive alcohol consumption prior to anxiety symptoms. He noted that the applicant was anxious after the motor vehicle accident at Bandiana and there was a contribution to his anxiety state by the living conditions in Malaya and the degree of alert when on patrol when in Malaya. He also thought that the episode where the applicant was “shot at by another soldier” was “psychologically traumatic”.
100. Dr Walton was satisfied that the applicant had “been involved in a maladaptive pattern of alcohol abuse leading to clinically significant impairment and distress” however he noted that the applicant had ceased consumption of alcohol. He was not satisfied that the prior alcohol abuse contributed to anxiety whereas the anxiety was of a reactive nature. He was satisfied that a diagnosis of generalised anxiety disorder could properly be made.
101. It is noted that Dr Walton did not record any history of the applicant suffering neck injury when he was a passenger in a truck in Malaya. It is also noted that there is no reference in his report to the applicant smoking cigarettes.
robert marshall
102. Mr Marshall is a general surgeon who examined the applicant at the request of his solicitors on 6 July 2001 and provided a report of the same date. He found that the applicant underwent an abdomino/perineal resection in 1989 because of carcinoma of the rectum. He also noted that as a consequence of that surgery the applicant has a large incisional hernia.
103. Mr Marshall obtained a history from Mr Peckham of him having commenced smoking during National Service in 1952 and thereafter smoking heavily until 1989. He learnt from Mr Peckham that “at least a pack every day (that is 20 cigarettes per day)” was smoked and an average daily consumption of eight pots. Mr Marshall was aware of the applicable SOPs and it was his opinion that the relevant factors were satisfied.
104. Mr Marshall gave evidence at the first hearing. He confirmed that the hernia was a consequence and a direct result of the bowel surgery.
105. Mr Marshall said that he did not have any history from the applicant of an increase in his smoking habit after service commenced in Malaya.
106. In cross-examination Mr Marshall said that the history he obtained was that the applicant commenced smoking in 1952 when he enlisted but on closer examination Mr Marshall said that he had “assumed” that smoking then commenced.
107. Mr Marshall again examined the applicant on 24 July 2003 and provided a report of the same date. It adds nothing to the first report. Mr Marshall was not called to give evidence at the second hearing.
submissions
108. At the conclusion of the hearing Mr De Marchi, on behalf of the applicant, submitted that regard should be had to the applicant who he said was obviously unwell and who had a poor memory. It was submitted that the applicant should not be found as a person who attempted to mislead or embellish his evidence.
109. Mr De Marchi submitted that the applicant did consume alcohol and cigarettes prior to his service in Malaya but thereafter considerably increased his habit. It was submitted that on the evidence it could be found that the consumption of alcohol and cigarettes was 100% greater than it was previously and the increased habit of consumption of cigarettes and alcohol should be found to be attributable to service.
110. It was submitted that the applicant satisfied all four stages of the analysis in Repatriation Commission v Deledio (1998) 49 ALD 193 (“Deledio”) and in those circumstances there should be a finding in favour of the applicant.
111. Despite the invitation to both parties to lodge written submissions, Mr De Marchi preferred to give oral submissions as above. Ms Macdonnell on behalf of the respondent preferred the opportunity to reflect on the evidence and the transcript and subsequently provided written submissions. Mr De Marchi later provided submissions in reply.
112. Ms Macdonnell confirmed that the repondent conceded that the applicant did suffer from malignant neoplasm of the rectum with an incisional hernia as a sequel together with cervical sponylosis. It was also conceded that the applicant satisfied the quantities of cigarettes and alcohol relevently prescribed under SOPs. The respondent specifically denied that the applicant satisfied the SOP with respect to cervical spondylosis.
113. With respect to the history of cigarette smoking it was submitted that the material before the Tribunal demonstrated many inconsistencies. It was submitted that there was some history of the applicant smoking between 10 and 15 cigarettes per day shortly after commencement of service increasing eventually to between 20 and 30 cigarettes per day. Many other references in the oral and documented evidence were referred to with respect to the numbers of cigarettes smoked by the applicant from time to time which ultimately caused the respondent to conclude that no reliable finding could be made as to the quantity of cigarettes consumed by the applicant prior to his service in Malaya nor subsequently.
114. Similarly the respondent submitted that no reliable finding could be made as to the quantity of alcohol consumed by the applicant before, during and subsequent to his service in Malaya. The respondent pointed to the episodes of alcohol consumption prior to service in Malaya which was described by the VRB on one occasion as constituting “binge drinking”. Whilst it was acknowledged by the respondent that Mr Peckham had dismissed this reference, there was material which pointed to the applicant drinking alcohol on occasions prior to his overseas service. Additionally it was submitted that if the applicant’s evidence was accepted that his service was strenuous and he was busy and he was frequently engaged in patrols, it would be inconceivable that he could have consumed the quantities of alcohol he alleged.
115. With respect to the issue of whether there was a relationship between the increased consumption of alcohol and cigarettes and service in Malaya, Ms Macdonnell pointed to the evidence with respect to the applicant being involved in a motor vehicle accident in Bandiana and some history taken and notes made by Major Reed. It was submitted that the accident, together with the applicant’s failure to notify his parents of it, amounted to stresses which were outside service. It was noted that Dr Cole had an absent or incomplete history with respect to that accident and the effect upon the applicant of it.
116. To the extent that the applicant said that he was subjected to discipline of the type which caused him stress, being responsible in turn therefore to increased consumption of cigarettes and alcohol, it was noted that he said in evidence that for the first 12 months in Malaya he enjoyed his service but thereafter felt stressed upon the appointment of Major Styles. It was also noted that the applicant was charged and disciplined on seven occasions before, and after, the appointment of Major Styles.
117. The applicant alleged that he was exposed to persons who attempted suicide which in turn was responsible in whole or part for his increased consumption of cigarettes and alcohol. It was submitted however that the evidence of Mr Batters and Mr Deane should be accepted and a finding should be made that no such events occurred. A similar finding was urged with respect to the applicant’s evidence that he was exposed to a stray bullet. Additionally the evidence of Colonel Deane and Colonel Batters should be preferred with respect to the applicant’s evidence that the facilities as to recreation, accommodation and meals in Malaya were poor. It was submitted that the base in Malaya was large with many recreational type facilities of which the applicant would have been well aware.
118. Ms Macdonnell submitted that the applicant’s evidence with respect to his cervical spine injury should be rejected. It was submitted that the history of the event, the reporting of it (with emphasis upon back pain) together with the evidence of the reasons why the applicant did not seek treatment were implausible. It was also noted that the medico-legal witnesses had differing or incomplete or absent histories with respect to this event.
119. On balance it was submitted that the material before the Tribunal during the second hearing did not raise or point to a reasonable hypothesis, connecting the claimed conditions with service.
120. In his written reply, Mr De Marchi submitted that the contradications or inconsistencies in the applicant’s smoking and drinking history did not defeat his claim. It was submitted that there is material that points to the hypothesis raised as being reasonable and in those circumstances there should be a finding in favour of Mr Peckham.
121. It was submitted that there was evidence of the applicant smoking 10 to 15 cigarettes per day prior to his service in Malaya with additional evidence of the applicant consuming much greater quantities of cigarettes after he commenced service in Malaya. Similarly there was evidence of the applicant drinking some alcohol prior to his overseas service but there was an abundance of evidence pointing to consumption of alcohol in excessive quantities whilst overseas.
122. It was submitted that there is material pointing to the increased consumption of cigarettes and alcohol by reason of stress during operational service and any inconsistencies in the applicant’s histories are associated with his “psychological problems and memory loss associated with his heavy alcohol consumption over the years”. Accordingly the applicant should be entitled to obtain the benefit of s119 of the Veterans’ Entitlements Act 1986 (“the Act”).
conclusion and reasons for decision
123. In Deledio at 206 the Full Federal Court, by reference to s120(1), (3) and s120A of the Act, discussed and summarised what was required from a decision-maker in the following terms.
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.
124. In the present application hypotheses have been advanced, SOPs have been in force and – subject to whether the applicable factors within the SOPs are “related to the person’s service”, the first three stages of the Deledio summary are satisfied.
125. Having regard to the concessions made by the respondent as to the quantities of cigarettes and alcohol consumed and the concession that the applicant does suffer from malignant neoplasm of the rectum with a consequent incisional hernia, it is our view that the real focus of this review is upon the fourth stage of Deledio.
126. In Bushell v Repatriation Commission (1992) 109 ALR 30 (“Bushell”) at 36 Mason CJ, Deane and McHugh JJ, discussed the relationship between s120(3) and (1) in the following terms:
Likewise, it is the duty of the Commission under s 120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s 120(1). But once the material raises such a hypothesis, the operation of s 120(3) is spent and the case falls to be determined in accordance with s 120(1). That is to say, the Commission must determine that the injury etc was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination.
The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, “beyond reasonable doubt, that there is no sufficient ground for making the determination” even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.
cervical spondylosis
127. The applicant said that he injured his neck when he was dislodged from his seat whilst he was a passenger in the back of a truck in Malaya. He said that he was propelled from his seat and struck his head and upon returning to his seat he felt pain in his back and neck. He said that he suffered pain thereafter, however he also said that the incident was not reported, that he did not seek treatment, that he was not able to obtain medication and he did not suffer any incapacity. Mr Peckham acknowledged that there was a hospital on base. He said in order to obtain treatment he would be required to attend it at 6.00 a.m. and it was unlikely that he would be seen by a doctor until 2.00 p.m. He acknowledged that Sundays were “quiet” days at that hospital but did not explain why he did not attend the hospital on the Sunday following the day of the alleged incident. He did acknowledge that he had attended the hospital for treatment for other illnesses on 11 other occasions during his period of service in Malaya.
128. Mr Hadley reported that the applicant told him that preference was given in that hospital to British persons and whilst again indicating that he would not be attended by a doctor until 2.00 p.m., he would not, in the interim, be able to “get food” and he therefore did not attend for treatment. Mr Hadley also obtained a history that the applicant returned to work on a full-time basis immediately following the alleged motor accident.
129. Mr Shannon obtained a history that the applicant struck his head in a truck accident but was told by the applicant that he “first had trouble with his neck a couple of years ago”.
130. We also note that the applicant first attended for treatment for his neck in 1991 when he attended his LMO.
131. Additionally we note that the applicant completed a form indicating that the truck accident occurred between 11 October 1959 and 30 November 1959, however, the movement records of the applicant indicate that he evacuated Malaya on 5 October 1959.
132. Upon the contents of the report of Mr Hadley and by reference also to the X-ray reports and CT scan films referred to by him, we are satisfied, and find as a fact, that the applicant does suffer from cervical spondylosis. However we are satisfied beyond reasonable doubt that the facts raised by the applicant cannot be accepted. Put in the alternative, we are satisfied beyond reasonable doubt that the accident as alleged did not occur. Being satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis (refer “Bushell”) connecting cervical spondylosis with service this part of the claim cannot succeed and the decision to reject it as war-caused must be affirmed.
133. There is doubt, on the applicant’s evidence, whether the accident occurred at all. The period of time within which Mr Peckham recorded that the accident occurred was after he left Malaya. The failure to obtain treatment and the explanation for not seeking treatment – for the alleged neck injury – if indeed there was an accident, is implausible, when he had attended the hospital on a number of occasions for other injuries. The absence of a report of the incident suggests to us that the accident, even if it occurred, was trivial. This may also explain the absence of treatment. The explanation to Mr Shannon of the duration of symptoms is probably consistent with a person who worked for many years after discharge from service but who, with advancing years, first sought treatment in 1991. If the applicant did suffer a “trauma” to the cervical spine, (being factor 5(h) of Instrument No. 50 of 2002) it was not, in our view connected with his relevant service. There was references made during both hearings of the applicant having fallen at work after discharge which resulted in Workcover proceedings. Little is known about that event and whether any traumatic neck injury then occurred or whether a cervical disease process – perhaps being the origin of the spondylosis – was then aggravated or accelerated.
134. In the decision of Gray J which caused this matter to be remitted and reheard, His Honour referred to the failure of the Tribunal at first instance to consider a new SOP No. 50 of 2002 after the hearing and before delivery of the decision and some of the factors within it.
135. The sole focus on the rehearing was of the applicant having suffered a cervical spondylosis by a trauma to his cervical spine, the trauma being the injury arising out of the alleged motor vehicle accident in Malaya. We have dealt with that alleged event above. There was no material at all, at both hearings, pointing to satisfaction of any other factor in any of the three SOPs applying to cervical spondylosis. We heard nothing of whether the applicant had inflammatory joint disease or septic arthritis or cervical intervertebral disc prolapse, being examples of the factors found within paragraph 5. Additionally, none of the doctors were asked for opinions on these factors and, pursuant to our inquisitorial responsibility, we can find nothing in any of the reports which would suggest that any other factor within the SOPs is applicable.
malignant neoplasm of the colorectum
136. The hypothesis advanced by the applicant was of exposure to stressful events in service which gave rise to an increase in the consumption of cigarettes and alcohol which in turn precipitated a malignant neoplasm of the colon. As a fact we are satisfied that that condition did or does exist and we are also satisfied that the incisional hernia suffered by the applicant is a consequence of the colon surgery.
137. It was apparently obvious to both parties that there was an element within the above hypothesis of stress because each party engaged medico-legal psychiatrists. No attention was given by either representative in their submissions to the need to satisfy the sub-hypothesis of stress resulting from service. There was however a focus upon whether the alleged stressful events did, or did not occur, but the written submissions did not allude to whether the applicant met applicable SOPs with respect to generalised anxiety disorder or depressive disorder, being the diagnoses variously advanced by Dr Walton and Dr Cole.
138. In Repatriation Commission v McKenna (1998) 28 AAR 7 Goldberg J decided that for the purposes of s120A(3) of the Act, a hypothesis upheld by a SOP must connect the disease suffered by the veteran with the circumstances of service and the connection must comprise a number of links or factors which must be upheld by SOPs. Specifically His Honour decided “if need be, by more than one Statement of Principles”.
139. The above decision was affirmed upon appeal by a Full Federal Court of Branson, Sundberg and Kenny JJ, in McKenna v Repatriation Commission (1999) 29 AAR 70. The Full Court then coined the expression “sub hypothesis” and further decided that the sub-hypothesis of itself must be a hypothesis connecting the disease with the circumstances of service.
140. It therefore follows that whilst the applicant has – upon our earlier findings – satisfied the requisite quantities of alcohol and cigarettes in order to meet the applicable criteria within the SOP concerning malignant neoplasm of the colon, he must also satisfy applicable factors under the SOP for either generalised anxiety disorder or depressive disorder.
141. Within the assessment period the only Instrument concerning depressive disorder is No. 58 of 1998 and the only Instrument concerning generalised anxiety disorder is No. 1 of 2000.
142. Each Instrument has relatively similar factors being either the “experiencing of a severe psycho-social stressor” or “a clinically significant psychiatric condition” within two years before the clinical onset or worsening of either depressive disorder or generalised anxiety disorder.
143. The Instrument with respect to depressive disorder has a factor of suffering from chronic pain of at least six months before the clinical onset or clinical worsening of depressive disorder. However we are of the view that no attention is required of that factor because there was no material heard in these proceedings which would permit us to find on the balance of probabilities that the applicant did suffer from chronic pain or if he did that it arose from a war-caused injury or from a condition which would satisfy (another) sub-hypothesis.
144. With respect to the factors recited above “a severe psycho-social stressor” is defined in each Instrument as:
“severe psychosocial stressor” means 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;
145. A “psychiatric condition” in each Instrument is defined as:
“psychiatric condition” means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
146. The expression “clinically significant” is defined in the depressive disorder Instrument as meaning:
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
However in the generalised anxiety disorder Instrument it is recorded in similar (but different terms) as follows:
“clinically significant” means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
147. Some of the features of service relied upon by the applicant to explain the increase in his smoking and alcohol consumption were conditions that appear earlier in these Reasons under the sub-heading “Unit conditions, work duties, food and provisions, recreation facilities”.
148. With respect to these features of service the applicant said that the food was “bad” and he “lived on bread and potatoes” and was paid compensation because of the “lack of meat”. He said he performed arduous duties over long hours and when working overtime he was provided with beer by a sergeant because he could not drink the water. He said he did not know of recreation facilities on base other than a swimming pool that he attended one day but declined use of it because of the presence of native gibbons.
149. Mr Deane gave evidence of the extensive recreation and sporting facilities and opportunities on base and said that the applicant would have known of these facilities because of him preparing unit orders. He acknowledged that there were occasions in Malaya where personnel were busy but on other occasions they were quiet. At paragraph 49 earlier, part of his evidence of the first hearing is recited. The sentiment expressed by that evidence is inconsistent with a location which is devoid of adequate food and water and recreation and sporting facilities.
150. Mr Batters recalled the applicant and said that he “knew him well”. He confirmed that some duties were onerous and the applicant performed his duties well. However work was usually finished on a daily basis between 4.30 and 5.00 p.m. and the opportunity then existed to relax and consume alcohol in a Unit Mess. He acknowledged that the applicant would be engaged from time to time on patrols and on mobility exercises on two occasions but would not have undertaken the patrols as indicated by the applicant or by the applicant to Dr Cole (as evident by the history taken). Mr Batters confirmed that the water consumed on base was satisfactory and a sergeant would not have made beer available because there would not have been funds available to acquire it.
151. Dr Cole took a history from the applicant of him being engaged in a patrol described as “lived in the rubber” for approximately a month and on occasions members of his Unit being killed or being fired upon. There was no material to support these propositions.
152. Dr Walton obtained a history that the applicant suffered “a bit of a jolt” upon arriving in Malaya and had trouble settling in but he did not have any history of the applicant consuming alcohol prior to commencing service in Malaya. He thought the applicant was anxious and it arose out of the living conditions, as he understood them and the degree of alert to which the applicant was exposed in Malaya (as he understood the history given to him), being shot at (refer later) and as a reaction to the motor vehicle accident in Bandiana prior to leaving Australia to travel to Malaya.
153. The applicant also relied on events in service where he said that he was exposed to two persons who attempted suicide and on another occasion being in the proximity of a bullet which was accidentally discharged.
154. The applicant said that there were two persons who attempted suicide – one by shooting and another by slashing his wrists – and he was thereafter required to guard them whilst they were inpatients of a hospital.
155. Mr Deane said that attempts at suicide would have been reported to both Unit Headquarters and to the Brigade Headquarters. He said that he did not ever receive a report of any attempted suicide nor was there any anecdotal evidence of such events having occurred. He said events of that type would have been treated seriously, that they would have been reported and it would have been impossible for those events to have occurred without a report being made. With respect to the discharge of a bullet, Mr Deane said that the incident would have required guards being called out and an investigation being conducted. He said the sound of a bullet being discharged would have reverberated having regard to the geographical location of the base and in his opinion such an incident having occurred was highly unlikely.
156. Mr Batters said that if there had been attempts at suicide he would have known about it and he had no knowledge of such events. With respect to the discharge of a bullet he said that ammunition is audited, the sound of a bullet being discharged would have been heard and there would have been an investigation of weapons. He dismissed that incident as having never occurred.
157. Dr Cole took a history from the applicant of him being exposed to three attempted suicides. He also obtained a history from the applicant that he was exposed to an assault when another person attempted to push a broken bottle into his face and a history that the applicant had made “half hearted attempts” to hang himself on three or four occasions. Dr Walton obtained a history of the bullet being discharged and recorded that the applicant told him that it was “accidental” and that it “didn’t worry”. Whilst Dr Walton dismissed that response he was of the opinion that the event would have been psychologically traumatic.
158. Other events in service alleged by the applicant as causing him stress were a lack of sleep associated with having to perform guard duty. Initially the applicant’s evidence was that he would perform guard duty “every other night” and later the evidence was that he performed guard duty “every third night”. When he learnt that Mr Batters would given evidence that guard duty was performed every fifth night, the applicant agreed with that evidence. Eventually the applicant’s complaint was of an absence of sleep associated with performing guard duty as opposed to having to perform guard duty. It was said by the applicant that when he did undertake guard duty he would be exposed to noisy surroundings and his sleep would be disturbed.
159. Mr Deane said that guard duty was performed every fifth night on a roster of two hours on and four hours off. Facilities existed within the guard house to sleep and he acknowledged that the applicant would have been exposed to noise from other guards and from telephones.
160. Mr Batters said that the applicant’s sleep was likely to be affected by noise when in the guard house but on balance he said that the facility was usually “fairly quiet after the drunks were rounded up and put to bed”.
161. The applicant said in evidence that he was affected by the discipline exercised by the British at the base in Malaya. He described it as being “unbelievable” and “ridiculous”. He said that he was “picked on” by British officers and eventually he “couldn’t stand it”. There was an occasion when the applicant reacted to that discipline by having to rest in a hotel room for one week to recuperate from the effects of the discipline upon him. Mr Peckham specifically referred to the command of Major Styles who he described as being “strange” yet “admired”. Later the applicant said that in his first year of service under Captain Beattie he was “not stressed” but the strict discipline emerged upon the appointment of Major Styles.
162. Mr Deane said that the effect of being under the command of the British was an increase in paperwork but in his opinion the Australians “didn’t experience any difficulties”. He acknowledged that there were busy periods on base but on other occasions work requirements would “quieten down”. He acknowledged that the base in Malaya was not “a holiday camp” where there was an emphasis upon fitness and being alert. He acknowledged that persons did smoke cigarettes or did drink alcohol to excess because of stress however he reaffirmed that there were recreational facilities on base available to all personnel for the relief of stress. Mr Batters described Major Styles as “slightly eccentric”.
163. Dr Cole reported that a person might react to petty discipline by anxiety which in turn might cause the consumption of alcohol or cigarettes.
164. The other event to which the applicant was exposed – yet discounted by him – was a motor vehicle accident in Bandiana prior to leaving Australia to travel to Malaya. On that occasion the applicant whilst driving a motor vehicle struck a young child riding a bicycle. The infant apparently suffered a fractured skull and was admitted to hospital. The applicant was charged by the police with motor car offences. In part of his evidence the applicant acknowledged that that event “got (him) down” and upon the notes of Major Reid he was found to be anxious and suffered from guilt because he had not notified his parents of the accident. The applicant acknowledged that the charges against him were heard by a local Magistrates’ Court to which he pleaded guilty. However his evidence, when asked questions about the notes of Major Reid, seemed – in the circumstances – bizarre (refer extract from evidence at paragraph 75 earlier). Later however the applicant did acknowledge that he was “worried” about the accident and it was “playing on (his) mind” when he left Australia to travel to Malaya.
165. Dr Cole did not have any history of the applicant being involved in this accident. When he learnt that Major Reid had used the expression “confess” in his notes, it suggested to Dr Cole that the applicant was then feeling guilt and it was likely in those circumstances that the applicant was suffering from anxiety before he arrived in Malaya. Dr Cole also acknowledged that he did not have any history of the applicant being involved in a motor accident in Malaya. In the circumstances of not having any history of both motor vehicle accidents, Dr Cole acknowledged that the history that he had obtained was inaccurate.
166. Dr Walton reported that the accident at Bandiana would have been “quite distressing” and thereafter the applicant was anxious.
167. On balance we are satisfied beyond reasonable doubt “that there is no sufficient ground for making” a finding that malignant neoplasm of the colon is related to service because we are satisfied beyond reasonable doubt that the raised facts cannot be accepted.
168. We thought that much of the evidence of the applicant was the subject of exaggeration or that it was untrue. We are satisfied and find as a fact that the picture painted by the applicant of his Unit having poor quality food and drinking water was untrue. It is inconsistent with the evidence of Mr Deane and Mr Batters with respect to persons wanting to be posted to Malaya. We also note that Mr Deane said in evidence that he did not ever meet any person who regretted serving in Malaya. The applicant’s evidence that he did not know of recreational facilities defies belief when he would have been publishing and posting Unit Orders as part of his duties as a clerk where those facilities and sporting events would have been described.
169. Of course the applicant would have been exposed to heavy work in a hot, humid climate and he would have been exposed to some patrolling. But consistent with the evidence of Mr Batters, work would have finished on a daily basis between 4.30 and 5.00 o’clock where the opportunity then existed to obtain refreshment. Mr Deane did say that the base was not a “holiday camp” but again – because we were impressed by this part of the evidence – it was a base where persons did seek a posting.
170. We would prefer to find that the alleged suicide attempts referred to by the applicant were events that were either misunderstood or misconceived but we are unable to reach such conclusions. On balance – and having regard to the evidence of Mr Deane and Mr Batters – we are satisfied that these events did not occur. We also find that the discharge of the bullet, as alleged, is untrue. The procedures in place as described by Mr Deane and Mr Batters do not permit us to reach any other conclusion on the balance of probabilities.
171. We would agree with the applicant, and with the evidence of Mr Deane and Mr Batters, that on the occasions that guard duty was performed, the opportunity to sleep would have been broken, despite having to work a shift of two hours on and four hours off. We would acknowledge that the noise from surrounding personnel and telephones would disturb sleep but as a fact we find that guard duty was performed every fifth night. We are satisfied that despite interrupted sleep on every fifth night, there were many other occasions where the applicant was able to rest or recover lost sleep.
172. The applicant said that he was exposed to “British discipline” which he apparently found uncomfortable and from which he reacted. However he also said that for the first 12 months of his service in Malaya under Captain Beattie he was not stressed. The applicant was posted to Malaya for approximately two years and would have been exposed to Major Styles and his form of discipline for approximately 12 months (Mr Batters described Major Styles as slightly “eccentric”). Mr Deane said that the effect of serving under the British was an increase in paperwork but he was not aware of persons experiencing difficulties.
173. The opinions of Dr Cole concerning alcohol and cigarette consumption being a consequence of boredom or “nothing else to do” is inconsistent with the history he obtained of the applicant being extensively engaged in service duties and activity.
174. The histories given to the doctors contain various inconsistencies, exaggerations and on occasions significant omissions. Dr Cole obtained a history of the applicant being exposed to three suicide attempts and being exposed to an assault by a person attempting to push a broken bottle into his face. He also obtained a history of the applicant making half hearted attempts on three or four occasions to commit suicide by hanging. None of that evidence was heard from the applicant and we would have thought that if those events had occurred, and were true, they would have been advanced by him. Dr Walton thought that the stray bullet was psychologically traumatic to the applicant despite the history that he obtained from Mr Peckham that its discharge was “accidental” and that it “didn’t worry (him)”. For reasons given earlier we are satisfied and find as a fact that no bullet was discharged in the manner described. Similarly Dr Cole obtained a history of members of the applicant’s unit being killed and fired upon yet there was no evidence from the applicant in support of that history.
175. On balance therefore none of the events in the FESR service – amount to a “severe psychosocial stressor” or a “clinically significant psychiatric condition” within the meaning of the applicable SOPs for depressive disorder or generalised anxiety disorder.
176. The most significant event in our view was the motor vehicle accident at Bandiana prior to departure for Malaya. The reactions of the applicant to that event ranged between either an acknowledgement of his anxiety and disturbance to a reaction of indifference (refer paragraph 75). We note that Dr Cole did not have a history of that event but upon learning of it acknowledged that the applicant would have been anxious before he left Australia. Dr Walton did have a history of it and thought that it caused the applicant distress and anxiety.
177. That episode en route to Bandiana did not occur during a period of operational service. We are satisfied that the occurrence of the accident, the worry concerning the health of the infant, the police charges and the impact upon the applicant’s parents would have caused him anxiety. We are satisfied that upon arrival in Malaya the applicant was anxious. Perhaps his increased consumption of alcohol and cigarettes are associated with the event at Bandiana and the subsequent emotional reactions.
178. For the reasons as outlined above we can find nothing from the service in Malaya which would permit us to find, on the balance of probabilities, that the increase in consumption of cigarettes and alcohol in Malaya were connected with service and which would satisfy the sub-hypothesis which, if satisfied, would ultimately cause the SOP for malignant neoplasm to have been satisfied. Again adopting the rationale of “Bushell” we are satisfied beyond reasonable doubt the raised facts are not accepted because of their unreliability. We are satisfied that there are no sufficient grounds for the factual foundation of the hypotheses.
179. In the circumstances, and for the reasons given above, we are satisfied that the decision under review should be affirmed.
I certify that the 179 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Associate Professor J H Maynard, Member
Mr C Ermert, MemberSigned: Holly Weston
AssociateDate of Hearing 19 November 2003
Date of Decision 14 December 2004
Counsel for the Applicant Nil
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Ms J Macdonnell
Solicitor for the Respondent Australian Government Solicitor
0
10
0