PETER QUINN SINCLAIR Applicant And REPATRIATION COMMISSION Respondent
[2007] AATA 6
•5 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 6
ADMINISTRATIVE APPEALS TRIBUNAL ) No Q1998/924
) Q1999/76
VETERANS’ APPEALS DIVISION ) Q1999/562 Re PETER QUINN SINCLAIR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M J Carstairs Date5 January 2007
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
........[Sgd]........
MJ Carstairs
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – service in RAAF – post traumatic stress disorder – alcohol dependence – depressive disorder – anxiety disorder – gastro-oesophageal reflux – cerebral atrophy – evidence accepted for only one claimed trip to Vietnam as supernumeracy – claimed stressors involving shooting incident, enemy gun, coffin incident and drug smuggling – evidence of stressors not accepted – not exposed to traumatic events required for diagnosis of post traumatic stress disorder – PTSD not accepted but psychiatric disorder accepted – psychiatric conditions found not to be war-caused – other conditions found not to be war-caused as claim for alcohol abuse/dependence failed – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6, 7, 9, 13, 120(1)(3)(4), 120A(3).
Mines v Repatriation Commission (2004) 86 ALD 62
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 131 FCR 473
Byrnes v Repatriation Commission (1993) 177 CLR 564
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Milenz [2006] FCA 1436
Hill v Repatriation Commission [2005] FCAFC 23
REASONS FOR DECISION
5 January 2007 Senior Member M J Carstairs 1.Mr Peter Sinclair seeks a review of the respondent’s decisions to reject his claims that post traumatic stress disorder, alcohol abuse, gastro-oesophageal reflux, and cerebral degeneration are related to his service in the Royal Australian Air Force and should be accepted as war caused as provided for within the Veterans’ Entitlements Act 1986.
2.Where a veteran has become incapacitated from a war-caused injury, s13 of the Act makes the Commonwealth liable for payment of pension by way of compensation to the veteran. For liability to arise, the person must be able to show that they come within the terms of the Act, by satisfying a number of matters including that they are a veteran. In Mr Sinclair’s case he must show that he has eligible war service as provided for in the Act. Next he must show that he is suffering from disease or injury. Finally he must show the necessary causal factors relating any injury or disease to war service.
Background
3.Mr Sinclair was born on 20 July 1948 at Beaudesert in Queensland. He joined the RAAF on 27 January 1967 and served until 23 June 1971 including serving with 37 Squadron at Richmond from 1968 to 1970, and subsequently with 36 Squadron. He trained in the RAAF as a fitter before taking up duties at Richmond airbase as a leading aircraftsman.
4.Most of Mr Sinclair’s service was within Australia. It is acknowledged by the respondent that Mr Sinclair had 4 days service with the RAAF in an operational area, which brings him within the coverage of the Act with respect to those four days. Other than that his service was within Australia and is not covered by the Act. If Mr Sinclair had served within Australia after 1972 he would come within its provisions, however by then he had left the RAAF.
Issues
5.The issues in this case are of threefold:
§ the determination of what operational service Mr Sinclair had;
§ the identification of the diseases or injuries which he suffers; and
§ an examination of the causal relationship, if any, of his diseases or injuries with his service.
6.The extent of Mr Sinclair’s operational service was pivotal for the proper consideration in his claim and that issue must be addressed first.
Mr Sinclair’s operational service
7.The Act provides for a particular standard of proof for issues of causation where a person has operational service as defined in the Act. The Act provides that a person who has rendered operational service will have rendered eligible war service.[1]
[1] Veterans’ Entitlements Act 1986, section 7.
8.What constitutes operational service is set out in sections 6, 6A to 6F of the Act, and by reference to operational areas (within designated time periods), more fully set out in Schedule 2 of the Act. Relevantly here, one of the operational areas provided for in Schedule 2 (where operational service might be carried out) is in Vietnam (Southern Zone) during the period 31 July 1962 to 11 January 1973. Mr Sinclair’s service in the RAAF falls within that time period. To the extent he can establish that he took part in activities in that operational area, the time he was so engaged would be his period of operational service.
9.Mr Sinclair maintains that he participated in four flights with the RAAF into Vietnam during 1968 and 1969. Mr Sinclair says that he travelled as supernumerary to the flight crew - a practice in Mr Sinclair’s squadrons about which I heard evidence from a number of sources in the course of the hearing. With respect to one flight where there are official records of Mr Sinclair’s presence as a supernumerary on a flight to Vietnam[2] - the flight taking place between 6 and 10 December 1968[3] - the respondent concedes that Mr Sinclair had four days operational service.[4] But the respondent concedes no other operational service.
[2] Exhibit R3, Appendix 3: Personnel Occurrence Report for 37 Squadron.
[3] Document T4 Matter No Q99/562.
[4] Section 6C of the Act.
10.Mr Harding, counsel for Mr Sinclair, submits that, despite the absence of official records of the other three flights, the Tribunal should accept Mr Sinclair’s evidence that he travelled on four trips as supernumerary crew. Mr Harding submits that errors have been made in recording the presence of supernumeraries on these flights.
11.However Mr Sinclair has not been consistent in what he has said about the flights. In his initial statement Mr Sinclair referred to the last flight as taking place in December 1969.[5] He now says that all four flights took place within a period of about 2 to 3 months, and as Mr Sinclair agrees that the flight on 6-10 December 1968 was his first, that dates his last flight at about March 1969.[6] There were records of the flights that went to Vietnam from his squadron during that time. Mr Sinclair’s name appears only once.
[5] Exhibit R11.
[6] Exhibit A2.
12.Discrepancies concerning dates and times are understandable given how long ago these events took place. However, other discrepancies in Mr Sinclair’s evidence were more troubling. Mr Sinclair stated initially that he was required to attend to aircraft damaged in heavy landings at the airbase at Vung Tau. But he now agrees that there was no such reason for his attendance on flights. All sources contacted - people who were in a position to know - said that there were no such incidents at Vung Tau involving either 36 or 37 Squadron. Mr Sinclair conceded ultimately in his oral evidence that his attendance on flights into Vung Tau was purely voluntary and that, being present as a supernumerary, he had no particular role to play during the flight or on the ground.
13.Mr P McNeile, a researcher with Writeway Research Service, compiled a report based on information from various sources that might possibly shed light on Mr Sinclair’s claims and on the practice of ground crew travelling as supernumerary crew.[7] Mr McNeile contacted retired Wing Commander Mr G Leo, who said that those in command of 36 and 37 Squadrons extended the opportunity to ground crew to travel as supernumerary crew, so that ground crew could gain a better appreciation of the work of a transport squadron and hence enable more effective interaction between them, and additionally provide ground crew with the experience of an overseas trip and the ancillary benefits such as duty-free shopping. According to Mr Leo, the trips were considered a reward and a privilege, offered to those with the necessary maturity and experience. Mr Leo said that one trip a year would be the norm, it being a reward keenly sought after. He said the presence of supernumeraries on flights was recorded.
[7] Exhibit R3.
14.On the other hand I heard evidence that some ex-RAAF servicemen who travelled as supernumerary crew have had difficulty establishing their flights through record searches. Mr T Culhane, who served with the RAAF between 1964 and 1989 and with 37 Squadron between 1966 and 1969,[8] gave evidence to the effect that until recently he had been unable to substantiate his flight to Vietnam as a supernumerary, when he was attached to 37 Squadron. Mr Culhane said that Mr Sinclair’s solicitors discovered his name on a supernumerary list when carrying out investigations on Mr Sinclair’s claim, but until then he had been denied recognition for his service because he could not provide any supporting evidence.
[8] Exhibit A2.
15.Mr A Twible, who as a general hand served with the RAAF between 1966 and 1972 and with 37 Squadron at Richmond, gave evidence at the hearing, recalling that he had several trips travelling as supernumerary to aircrew. The only two flights of any relevance to Mr Sinclair’s case were those when Mr Twible was based at Richmond. Mr Twible’s other flights took place when he was temporarily stationed at the air force base at Butterworth. That did not apply in Mr Sinclair’s case. Mr Twible stated that he faced difficulty proving his qualifying service when he applied for service pension.
16.Mr A Miller, also called by the applicant to give evidence, said he had four flights. To his best recollection these took place in the early 1970’s - rather later than the period to which Mr Sinclair’s claim relates.
17.I must decide these initial questions that relate to the kind of service to the same standard of proof applied to characterising the nature of disease or injury – that is to the standard of reasonable satisfaction under s120(4) of the Act.[9] Mr Harding submitted that in approaching this task I should be mindful of the evidence of others who have experienced difficultly proving they travelled on these flights. Mr Harding submits that I should have little confidence in the completeness of the official records; and I should take into account that there may be records, not yet produced, which would confirm that Mr Sinclair did indeed have four trips as he asserts.[10]
[9] Mines v Repatriation Commission (2004) 86 ALD 62.
[10] Applicant’s Outline of Submissions – 7 September 2006.
18.I have concerns about that approach generally. It seems to entail a logical fallacy to attempt to derive a positive factual conclusion from a negative (the absence of records). It does not seem to me that such a conclusion can derive merely from the absence of evidence, particularly where, as here, other evidence suggests that conclusion is wrong.
19.There was convincing evidence which I accept as true (including that from Mr Leo) that these trips were in great demand and were not repeatedly given. This makes unlikely Mr Sinclair’s claim to have had four trips in 3 months. Extensive searches of the records have been carried out. I note that Mr Sinclair’s applications have been on foot in the Tribunal for a considerable period of time, allowing all the necessary investigations to be completed. It is telling that the records of flights that were produced showed only a single instance where one person went more than once. The evidence of other ground crew was of little assistance to Mr Sinclair’s case. Mr Twible’s claim to more numerous trips relates to his being stationed at Butterworth. Mr Miller’s travel referred to a later period. Mr Culhane might have faced delays in substantiating his claim, but there were records of his presence on a flight. Finding his records adds nothing to an argument based on the absence of records.
20.I was asked to place reliance on Mr Sinclair’s evidence about the number of trips he made, but after hearing all the evidence I was not satisfied that any confidence could be placed on the reliability of Mr Sinclair’s recall about the trips he made. If I thought Mr Sinclair gave an accurate account, which was supported in any way by other evidence, there perhaps might be some foundation for Mr Harding’s submission. However Mr Sinclair frequently changed his evidence, including details about when the trips occurred and the reasons for his travel. In view of this, I do not accept that Mr Sinclair had four trips to Vietnam in the absence of positive supporting material from other sources.
21.I was satisfied that much of what Mr Sinclair said about events on his alleged trips was inherently improbable. I prefer the evidence of Mr Leo and Mr K Henderson (retired Air Commodore) that no-one from among the ground crew would have travelled 4 times in 3 months. I accept that the travel was a privilege to be shared; it was rare for anyone to travel as a supernumerary more than once.
22.I am satisfied that Mr Sinclair had no more than one flight and hence 4 days operational service, being that recorded as taking place between 6 and 10 December 1968.
Injury or Disease
23.The other question which is decided on the reasonable satisfaction standard of proof is whether the veteran suffers from a particular injury or disease. In other words, matters of diagnosis are decided to this standard.[11]
[11] Benjamin v Repatriation Commission (2001) 70 ALD 622, at [54] – [55].
24.There was broad agreement between doctors about some of the diagnoses. Dr R Troup, who, as a clinical psychiatrist, has been involved in Mr Sinclair’s treatment over a number of years, and Dr P Mulholland, consultant psychiatrist, agreed that Mr Sinclair suffers alcohol abuse or dependence. The condition is considered to be in remission from the time that Dr Troup referred Mr Sinclair for detoxification (in about 1998).
25.Next, Dr Troup diagnosed Mr Sinclair as suffering from mild cerebral atrophy, confirmed after CAT scans were conducted in 1998.[12] Dr Mulholland agreed, stating that he suspected Mr Sinclair sustained early brain damage from long term excessive use of alcohol.
[12] T Documents, matter Q1998/924, T4 folio 25: report dated 15 June 1998.
26.There also was no dispute that Mr Sinclair suffers from reflux. Although a gastroscopy performed in 1998 showed no digestive tract abnormality, this seems to be as a result of effective treatment with Zantac.
27.As to post traumatic stress disorder, this diagnosis was the real source of dispute. Dr Troup thought that Mr Sinclair had the disorder. However as a diagnosis it was put into contention because of the unreliability of Mr Sinclair’s evidence in relation to possible stressful events said to have occurred during his RAAF service. I turn to the evidence in that regard.
Post Traumatic Stress Disorder
28.A diagnosis of post traumatic stress disorder requires that there be an event of a particular character that gives rise to particular symptoms. Using words taken from the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) at paragraph 309.81, what is required is that:
The person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(ii) the person’s response involved intense fear, helplessness, or horror…
29.Thus, as a matter of diagnosis, there must be both a traumatic event, which answers the quoted description, and a response of the required intensity. It is relevant to note the decision of Gray J in Mines v Repatriation Commission[13] where his Honour said:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
[13] (2004) 86 ALD 62 at para [48].
30.The case for Mr Sinclair, as outlined in his Statement of Facts and Contentions,[14] was that he had four trips travelling as a supernumerary to Vietnam and in the course of these trips, experienced four “stressors” that may meet the description of traumatic events as provided for in the definition of post traumatic stress disorder - if those events occurred.
[14] Exhibit A1.
31.I have already indicated that I am not satisfied that Mr Sinclair had four trips to Vietnam. As a consequence, I had difficulty accepting Mr Sinclair’s evidence about stressful events that might have occurred. It has never been his evidence that all events could have taken place on one trip to Vietnam. In written statements, and in evidence to the Veterans' Review Board and to this Tribunal, Mr Sinclair has maintained that each of the trips was the occasion of a separate stressful event. As I do not accept that Mr Sinclair had four trips to Vietnam, it follows that he did not have four stressful experiences on those trips. This makes uncertain what, if anything, did occur on one flight.
32.The stressful events that Mr Sinclair has referred to are elaborated upon below. In summary form:
§ Flying over Vung Tau peninsula within range of an enemy gun positioned there
§ Seeing Vietnamese civilians shot by police on the US base at Vung Tau (the shooting incident)
§ A trick played on Mr Sinclair on a flight back to Australia involving a body in a coffin (the coffin incident).
§ Being questioned by RAAF police at Darwin airport over allegations of body tampering and drug smuggling.
33.The respondent disputes that any of these events occurred. Mr Harding no longer presses the last of these events and in his outline of submissions filed after the hearing, he mentioned the first three stressors only and in oral submissions placed his emphasis on the second and third.
34.Mr Sinclair has referred to all stressful events when he has attended consultations with various psychiatrists. Dr Troup diagnosed Mr Sinclair as suffering from post traumatic stress disorder in addition to alcohol abuse, and in her report after the first consultation in 1997 Dr Troup set out the following account based on what Mr Sinclair told her: [15]
…Mr Sinclair went on several flights into Vietnam during the war. In 1968 he went on a medivac flight into Vung Tau where they had to drop off 80 tons of high explosives. He stated it was very tense with everybody walking around with guns. The aircrew had to have guns and as they were coming over the peninsula at Vung Tau they passed over a US military ship and he stated that they were told that they had to watch for Vietnamese who would shoot at them from the peninsula with a 50 caliber [sic] gun. He stated that the range of the gun was 3 to 4 miles. He stated that they, themselves, were not armed only the pilot and copilot had side arms. He stated that the plane was very low over the peninsula…and they were within point blank range of the Vietnamese gun on the peninsula...He said it was very tense going over the peninsula because if the plane had been hit it would have exploded.
…He stated when they were at Phan Rang six aluminium boxes were placed on the plane with bodies in them….they then flew to Butterworth and subsequently back to Darwin with the body boxes.
Mr Sinclair’s job was to work all the hydraulics in the plane and he stated that he had to scramble over the boxes in order to obtain access to the main door…..
Mr Sinclair stated that soon after this he went on another flight to Vung Tau with a load of spare parts and again they brought body boxes back…Mr Sinclair stated that when they arrived back in Darwin customs came in …they were told not to go anywhere and they were taken to cells in the service police station. They were questioned about their flight …apparently the bodies had been tampered with and that drugs were found in the bodies. The abdomens had had their inside removed and there were bags of white powder placed into the abdomens of the bodies. He stated that he was very nervous and did not know until the questions started, what was going on.
…on one particular flight he was making coffee for the crew and somebody said how about one for the “bloke down the back”. He could not go against the Squadron Leader and half believed that there was somebody down the back. He did not think about it and opened up the back bolts and a body sat up and he stated that the hand waved. He stated that the rest of the crew had some how tied the body to the lid so that when he opened the lid of the box up came the body. He stated when this happened he got such a fright that he felt like jumping out of the plane without a parachute….He stated the body was covered in blood and mud. This worried him excessively and he stated he can still see the image of it in his mind…..
He stated on one occasion when he went to Vung Tau he was in the service canteen and suddenly two Vietnamese came in who were being followed by American police. He stated that a shot was fired and everyone in the canteen moved away very carefully leaving the Vietnamese to the American police.
….Mr Sinclair fulfils criteria A.1 and the traumatic experiences were carrying bodies in the plane on the first run from Vung Tau and Phan Rang and not knowing who was in them and then being in Phan Rang when every afternoon mortaring would start. He stated he felt the ground shake and often saw fire and he was near high octane fuel. The main traumatic event was when the practical joke was played on him by his own RAAF colleagues.
[15] T Documents, matter Q1999/76, T4 folio 39: report dated 1 September 1997.
35.Dr Mulholland provided reports that were more tentative in conclusions about whether Mr Sinclair had post traumatic stress disorder. He observed that Mr Sinclair has some features that suggest post traumatic stress disorder but does not have the full syndrome and in any event the Criterion A issues are contentious. In his report dated 11 May 1999[16] Dr P Mulholland recorded the following history taken from Mr Sinclair:
He told me that there was concern about flying over a peninsular near Vung Tau as there was supposed to be a Viet Cong there with a 50 calibre machinegun…
He described a particularly distressing event when he claims to have witnessed a Vietnamese civilian being shot by civilian SVN police.
He described a macabre practical joke that was played upon him over a body that had been set up to move when he opened the coffin. He felt distressed about it and obviously still is.
It is noted that when working with Ford in Innisfail some years later he had a similar joke played upon him. Ford did the servicing of hearses and a funeral home employee played a trick upon him by jumping out of coffin.
[16] Exhibit R16.
36.Dr Mulholland noted in his report of 11 May 1999[17] that Mr Sinclair had long term problems with irritability and aggression but observed that it was difficult to know whether this related to his alcoholism, to his general personality, or whether he possibly suffered post traumatic stress disorder. It is a fair summary of Dr Mulholland’s written reports that, having expressed reservations about the presence of criterion A elements, he expressed other reservations about Mr Sinclair experiencing symptoms under criterion B and C of the diagnostic criteria.[18]
[17] Exhibit R16.
[18] The diagnostic criteria require symptoms of re-experiencing the event (criterion B) and
avoidance and numbed responsiveness (criterion C): DSM-IV at 309.81.
37.In a later report of 11 February 2005[19] Dr Mulholland concluded by stating Mr Sinclair presented an overall clinical picture consistent with the presence of psychiatric disorder, which he thought was most likely dysthymia (a form of depression). In cross-examination, Dr Mulholland was taken to symptoms or signs he had identified in the 1999 report under Main Psychiatric Concerns, and said that some suggested a profile of anxiety (including Mr Sinclair feeling tense and uptight, and having a fear of fires) while others could indicate either anxiety or depression (e.g. Mr Sinclair’s irritability and aggression). Dr Mulholland acknowledged that Mr Sinclair could be diagnosed as suffering, co-morbidly, both dysthymic disorder and generalised anxiety disorder. Dr Mulholland said that Mr Sinclair’s anxiety and depression probably reached a clinical level in the 1990’s.
[19] Exhibit R1.
38.Dr Troup had based her conclusions about post traumatic stress disorder on her acceptance that the events occurred as Mr Sinclair described. She specifically referred, when first diagnosing post traumatic stress disorder, to the coffin incident as being the main stressful event. At the time she made that diagnosis, Dr Troup did not regard Mr Sinclair as particularly worried by the shooting incident. However she said in her oral evidence that after resuming her treatment of Mr Sinclair in 2005, she has observed him to be more inclined to talk about the shooting incident. As to his change in this regard, Dr Troup implied that it might be explained by Mr Sinclair’s memory and recall improving since he gave up drinking.
39.Dr Troup holds the opinion that Mr Sinclair is not consciously changing versions of the events to best suit his interests. She confirmed her belief that he provides information as accurately as he can. She said he is easily stressed, and once stressed can be very confused.
40.I should also at this juncture mention a report by Dr Wright, who treated Mr Sinclair in 2004 when Dr Troop was away from her practice. I formed the impression from Dr Wright’s report of 9 May 2005 and his oral evidence that Dr Wright adopted Dr Troup’s diagnosis of post traumatic stress disorder, rather than re-examining its basis. Like Dr Troup, Dr Wright thought that Mr Sinclair was trying to tell the truth as he saw it, but he noted that it was difficult to get a clear history from him, and he needed prompting from his wife. Dr Mulholland broadly agreed.
41.Having had the opportunity of seeing and hearing Mr Sinclair giving his evidence over the course of a day, I accept these doctor’s assessments. He was readily confused by questioning, and became quite emotional and at times distressed, but nevertheless he seemed to be doing his best to sort out his thoughts. However, even if I accept that Mr Sinclair was trying to be truthful, this does not make what he said true. There are too many inconsistencies in his evidence for me to be satisfied that was the case. At one point in his evidence Mr Sinclair said I don’t know what I am saying anymore. By the end of the hearing, I was faced with a confused array of information, some of it frankly improbable. It could not possibly all be true.
42.A few instances will suffice to illustrate these inconsistencies. Different details emerged about the shooting incident each time Mr Sinclair recounted the event. Dr Troup recorded Mr Sinclair as saying that it took place in the service canteen, and two Vietnamese were pursued by American police who fired a shot, at which point everyone in the canteen moved away very carefully leaving the Vietnamese to the American police. When he gave evidence to a Veterans' Review Board in August 1998, Mr Sinclair described the incident as taking place on the airstrip, and as occurring on the first flight.[20] Mr Sinclair said that a Vietnamese person was chased by a South Vietnamese civilian policeman who shot him. At the next Veterans' Review Board hearing and in his written statement of 13 February 2006[21] Mr Sinclair said that the shooting incident took place on the second flight.[22] To the members at the second Veterans' Review Board hearing, Mr Sinclair described the incident as involving two Vietnamese nationals, not one. Mr Sinclair said that he heard, but did not see, a shot fired but observed one of the Vietnamese nationals fall to the ground.
[20] T Documents, matter Q1998/924, T5 folio 29: Veterans' Review Board decision dated 14
August 1998.
[21] Exhibit A2.
[22] Exhibit R13: Veterans' Review Board transcript dated 17 November 1998.
43.In reference to the shooting incident, in his statement of 13 February 2006, Mr Sinclair said that he saw blood pooling under the one who was shot; and he was screaming in pain.[23] This version is at odds with each of the accounts he has given earlier, and at odds with evidence given to the Administrative Appeals Tribunal in 2000,[24] where he said that although he had heard a shot he did not bother looking. He repeated this in his evidence to me during cross examination, admitting that he just wanted to get out of the area.
[23] Exhibit A2 at [57].
[24] Exhibit R 14: Administrative Appeals Tribunal, transcript dated 25 October 2000.
44.Dr Troup gave another and quite different account, based on what Mr Sinclair told her more recently about the shooting incident. In this version he told Dr Troup that the police bashed the second Vietnamese civilian. On this, as on other matters relating to changed details in Mr Sinclair’s evidence, Dr Troup offered the explanation that Mr Sinclair’s memory has improved since he gave up alcohol.
45.Mr Sinclair was taken in cross-examination to other parts of his experiences as reported to Dr Troup. It will be recalled that Dr Troup referred to Mr Sinclair as saying his flight was diverted to Phan Rang where they picked up six coffins, which were then taken back to Darwin. That version mentioned Mr Sinclair scrambling over the coffins to carry out his duties which had been dealing with the hydraulics on the plane. Mr Sinclair had also told Dr Troup about being questioned in Darwin about body tampering, when bodies in the coffins on the aircraft were found to be implanted with drugs.
46.Mr Sinclair now acknowledges that:
§ contrary to what appears in Dr Troup’s report, he did not have to operate the hydraulics on the plane, nor was he required to attend to repairs arising from heavy landings, and his presence on flights to Vietnam was purely voluntary. Mr Sinclair said that Dr Troup misunderstood him on these matters;
§ he never went to Da Nang or Phan Rang and was not present when any shelling took place there (he had told Dr Troup that he had felt the ground shake from the shelling when he was in Phan Rang and was worried because of the location of high octane fuel); and
§ his story about the incident involving body tampering at Darwin airport was not true.
47.Equally there are now a number of versions concerning the incident involving the body in the coffin. Dr Troup was first told, in the context of Mr Sinclair stating that the sight of blood upsets him, that he opened a coffin that was being carried on a return flight from Vung Tau, when told to take a coffee to the back of the plane where the coffins were located. He said that when he opened the lid of the coffin, the body, described as being covered in blood and mud, sat up and its hand waved.
48.Mr Sinclair went into considerable detail at one Veterans' Review Board hearing,[25] describing how he was able to open the coffin easily, releasing clasps securing the lid of the coffin. Mr Sinclair specifically disavowed a possibility put to him by one of the Veterans' Review Board members that someone from the crew hid in the coffin to play a joke on him. At that Veterans' Review Board hearing, Mr Sinclair described the body as being in a body bag and referred again to the face being covered in blood or mud. However in his evidence now, Mr Sinclair says that most likely the loadmaster had played a trick on him by lying in the coffin, and it was not a dead body in the coffin. [26] His evidence now is that the coffin was not locked; there was no body bag; and there was no blood or mud.
[25] Exhibit R13: Veterans' Review Board, transcript of hearing dated 17 November 1998.
[26] Exhibit A2.
49.Mr Sinclair’s evidence about the coffin incident was not supported by other evidence given in relation to the transport arrangements for coffins, and the respect accorded to by the RAAF to the transport of deceased servicemen. That evidence included evidence about the hermetic sealing of coffins and their strapping during flight so that any movement on the plane was avoided. I concluded from the evidence that it would have been impossible to undo a sealed coffin in transit. Taking the latest version, that the incident was a practical joke played out in an empty coffin, I also take account of the evidence given by Mr Henderson and Mr B Wiggins that, given the evident purpose of coffins, empty ones were not being taken back to Australia.
50.These matters lead me to conclude that I can place no reliance upon the evidence of Mr Sinclair in relation to four claimed stressors. It is an inescapable conclusion from the various versions Mr Sinclair gives about the alleged stressful events that Mr Sinclair is not accurate when recounting a history of traumatic events. I do not accept Dr Troup’s suggestion that the different versions are explained on the basis that Mr Sinclair’s memory has improved since he ceased drinking. There are simply too many versions of the events and there is no justification – medical or otherwise - for suggesting that the latest version should somehow be preferred.
51.I note that even Dr Troup was troubled by what the inconsistencies in the coffin story meant for her initial diagnosis of post traumatic stress disorder, which had been based largely upon the coffin incident. When the latest version of the coffin incident was put to Dr Troup, she agreed that Mr Sinclair had never told her any version of the story that suggested that the “body” in the coffin was one of the crew. She said that if he had told her that that, she would not consider that such an incident would be a sufficient stressor upon which to base a diagnosis of post traumatic stress disorder.
52.I was satisfied after hearing Dr Troup’s oral evidence, and taking into account the inconsistencies in Mr Sinclair’s evidence, that there was insufficient here to be satisfied that Mr Sinclair had been exposed to any traumatic event, as is a necessary foundation for a diagnosis of post traumatic stress disorder. It seems to me that Dr Troup too readily accepted at face value the matters Mr Sinclair recounted to her.
53.Having made my finding that Mr Sinclair had only one trip to Vietnam, it is inconceivable that all he said occurred could have taken place. It defies credibility to suggest that all the alleged incidents could take place in the space of four days operational service and indeed no such claim was made. However at the end of the day the evidence left in a state of complete uncertainty what, if any, incident took place. I prefer the opinion of Dr Mulholland, that a diagnosis of post traumatic stress disorder is not warranted, in view of the inconsistencies and in the face of other explanations of Mr Sinclair’s symptoms.
54.Whilst satisfied that Mr Sinclair does not suffer from post traumatic stress disorder, I am left with Dr Mulholland’s evidence that Mr Sinclair does suffer from psychiatric disorder. Dr Mulholland identified this in his oral evidence as generalised anxiety disorder and dysthymia. Dr Wright also alluded to depression and anxiety. In the end, Dr Troup acknowledged that if post traumatic stress disorder was not the correct diagnosis, then Mr Sinclair could be diagnosed as having generalised anxiety disorder. I was mindful that relevant Federal Court authorities make plain that a decision-maker must identify the collection of relevant symptoms, so that a proper consideration is given to the veteran’s claims without relying solely on medical labels.[27]
[27] Mines v Repatriation Commission (2004) 86 ALD 62; Benjamin v Repatriation Commission
(2001) 70 ALD 622.
55.With regard to the diagnosis of alcohol abuse, I took account of Mr Derrington’s submissions that Mr Sinclair did not meet the diagnostic criteria for alcohol abuse until 1997 and was not suffering the condition at the time of his claim, with his consequential inference that Mr Sinclair does not suffer any relevant injury or disease for the purposes of the Act.[28] However, contrary to Mr Derrington’s submission, I do not accept that the question of diagnosis of a medical condition is resolved by reference to definitions of diseases in Statements of Principles. It is proper to rely upon the evidence of medical practitioners on questions of diagnosis, especially when, as here, that evidence is in agreement. Mr Sinclair’s alcohol abuse appears to be ‘in remission’ - however that does not mean ‘cured’. DSM-IV notes in that respect the distinction between remission and clinical assessment of recovery, about which in this case there was no evidence at all.[29] Mr Sinclair is entitled to have his claim for an alcohol disorder considered, even if it is now in remission.
[28] Respondent’s Outline of Submissions.
[29] At p2 – Severity and Course Specifiers.
56.I was satisfied that the diagnoses of generalised anxiety disorder, dysthymia; alcohol abuse, gastro oesophageal reflux; and cerebral atrophy are made out on the evidence before me. These conditions now must be examined by applying the steps set out in the Federal Court decision of Repatriation Commission v Deledio[30] to establish if they are connected to Mr Sinclair’s war service.
[30] (1998) 83 FCR 82.
The Deledio Steps
57.Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s120(1) of the Act. That sub-section requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
58.For claims made after 1 June 1994 there is the additional requirement that any hypothesis advanced must be considered by reference to a Statement of Principles formulated by the Repatriation Medical Authority.[31] I am required to determine issues of causation by reference to the four step process identified by the Federal Court in Deledio. That process proceeds by reference to factors set out in a Statement relating to the particular claimed condition.
[31] See s 120A(3) of the Act.
59.I note at this point that Statements of Principles have been determined in respect of four of the medical conditions that arise for consideration as a result of Mr Sinclair’s three initial claims:
§ alcohol dependence[32]
§ gastro-oesophageal reflux[33]
§ depressive disorder[34]and
§ anxiety disorder[35]
[32] Instrument No 76 of 1998; Instrument No 5 of 1994 (revoked).
[33] Instrument No 11 of 2005; Instrument No 52 of 2002 (revoked).
[34] Instrument No 58 of 1998; Instrument No 65 of 1996 (revoked).
[35] Instrument No 1 of 2000; Instrument No 48 of 1994 (revoked)..
60.More than one Statement must now be considered, because over the course of the claims, relevant Statements of Principles have been amended or revoked. The general rule is that the Tribunal must apply the Statement in force currently, but earlier Statements may be considered if the veteran’s claim fails under the Statement in force at the time of the Tribunal’s decision.
61.The Repatriation Medical Authority has not determined a Statement of Principles with respect to cerebral atrophy. In line with authority[36] this part of Mr Sinclair’s claim falls to be determined under s 120(1) and 120(3) of the Act, and in accordance with Byrnes v Repatriation Commission.[37]
[36] Woodward v Repatriation Commission (2003) 131 FCR 473 at 483, para. [55].
[37] (1993) 177 CLR 564 at 571.
62.I will firstly set out the relevant Statements of Principles for the medical conditions where Statements of Principles have been gazetted and identify the factors within the Statements that are relevant to the case. I will deal with the psychiatric disorders first, and specifically those hypotheses that rely on a connection between stressful experiences in Vietnam and the development of psychiatric disturbance.
Alcohol Dependence
63.One factor relied upon in the Statement of Principles for alcohol dependence or alcohol abuse, Instrument No. 76 of 1998, was:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
64.‘Experiencing a severe stressor’ is defined in this Statement of Principles as
…the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
65. At the time of Mr Sinclair’s claim for alcohol dependence or abuse, the relevant Statement of Principles was Instrument No. 5 of 1994. Mr Sinclair may have his claim considered, as an accrued right, under the factor in force at that time, which provided for:
(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service…
where stressful event was defined as
…an incident in which there were external stimuli (such as combat) that would result in psychological stress and where there were subjective symptoms of increased stress.
Dysthymia
66.For depressive disorder the current Statement of Principles is Instrument No. 58 of 1998 which lists a number of factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder (defined as including dysthymia) with the circumstances of relevant service. Mr Sinclair relied upon:
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
where severe psychosocial stressor is defined elsewhere in that Statement of Principles as meaning:
…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.
67.However at the time of Mr Sinclair’s 1997 claim, the Statement of Principles for depressive disorder was Instrument No. 65 of 1996. The factors in that Statement included:
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder
Severe psychosocial stressor was at that time defined as
…an identifiable occurrence that evokes feelings of substantial anxiety in an individual or which is perceived as stressful, for example, being shot at, experiencing a loss such as divorce, separation, severe illness or injury, assault, legal problems, loss of employment, major financial problems, death or serious injury in a close friend or relative.
Anxiety Disorder
68.Generalised anxiety disorder is one of the anxiety disorders provided for in the current Statement of Principles, Instrument No. 1 of 2000, and in its current form the relevant factor is:
(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder
where a severe psychosocial stressor is defined as meaning an identifiable occurrence that evokes feelings of substantial distress in an individual, including, by way of example, being shot at. Again, at the time that Mr Sinclair made his claim for post traumatic stress disorder, a different Statement of Principles was in place, one specifically for generalised anxiety disorder. The relevant factor from the earlier Statement of Principle was:
(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;
where stressful event was defined as
…an occurrence which evokes feelings of anxiety or stress.
Consideration of the claims that the three psychiatric conditions are related to stressful experiences in Vietnam
69.To the extent that Mr Sinclair’s claim relies on stressful experiences, in ordinary circumstances I would approach my task by applying each of the steps set out in Deledio sequentially to each of the three psychiatric conditions. But in Mr Sinclair’s case, having already outlined my strong reservations about the reliability and accuracy of Mr Sinclair’s evidence it is appropriate, in my view, to go directly to these fundamental issues, which have significance ultimately at the fourth Deledio step where findings of fact must be made.
70.In approaching Mr Sinclair’s matter this way I assume, without deciding, that Mr Sinclair meets the first three of the Deledio steps with respect to each of the three psychiatric conditions, at least to the extent that his case relies on stressful events, regardless of the different definitions of these in Statements of Principles. A benefit of this approach, it seems to me, is that it accommodates Mr Harding’s broader submission, which was to the effect that, underneath the apparent inconsistencies in detail, there was a kernel of truth behind Mr Sinclair’s evidence, as shown by his genuine emotional distress when speaking of his experiences, as well as by his repeated recounting, in particular, of the coffin and shooting incidents.
71.In taking this approach I put Mr Sinclair’s case at its highest and disregard any reservations that, at stage 3 of the Deledio process, I might have otherwise held about whether the evidence (as a whole) points to clinical onset of any psychiatric condition within 2 years of operational service. Clinical onset (in all of the applicable Statements of Principles before me for the psychiatric conditions) must occur within two years of the experience of the stress.
The fourth Deledio step – stress and the psychiatric conditions.
72.At step 4, I must decide whether I am satisfied beyond reasonable doubt that the three psychiatric conditions were not war-caused within the relevant senses set out in s9 of the Act. It is said of this part of the consideration that the claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. The authorities make clear that there are both objective and subjective elements in play when assessing what are alleged as stressful circumstances.[38]
[38] See Stoddart v Repatriation Commission (2003) 197 ALR 283.
73.Turning to each of the incidents raised as stressors, it was tolerably clear at the end of Mr Sinclair’s evidence that, as to the first of them, he did not take seriously what he acknowledged were merely rumours about a 50 calibre enemy gun emplacement near the airstrip at Vung Tau. He had said also to one Veterans' Review Board that he did not take much notice of the rumour about an enemy gun.[39] Mr Harding did not press this claim in final submissions.
[39] Exhibit R13.
74.In light of the evidence of Mr Henderson that there was nowhere on the approaches to the Vung Tau air base that a gun could be located and that the RAAF would not have flown in if there were any such threat I was satisfied beyond reasonable doubt that there was no objective threat. Mr Sinclair’s evidence does not accord with him experiencing any stress arising from rumours he might have heard about a supposed gun. I find that he did not experience a severe stressor or stressful event, or a severe psychosocial stressor because there was no occurrence or event.
75.With respect to the coffin incident I find as a fact that no such incident took place on the one flight that I accept Mr Sinclair had from Vietnam. There is no doubt in my mind that no incident involved a dead body. It is inconceivable that serving members of the RAAF would treat corpses in any way other than with the utmost respect, and I accept without reservation the evidence of Mr Leo and Mr Henderson on that point. I concluded that it would be impossible to open a sealed coffin in flight, given the way coffins were sealed and strapped. I also have no doubt that no incident took place involving a trick played by someone hiding in a coffin. I accept the evidence that there would be no empty coffins being returned to Australia. This incident could not have occurred.
76.As to the submission that I should place some weight on Mr Sinclair returning to this incident in some form or other in all his statements and in histories to medical practitioners, it is not without significance, in my view, that a practical joke involving a coffin was played upon Mr Sinclair later in his civilian life, when was servicing a hearse for Ford Motors. At the funeral parlour someone played a trick on him, by sitting up from a coffin on a trestle and giving him a fright.[40] Mr Sinclair may well have experienced distressed at this occurrence; clearly it was unrelated to his service.
[40] Administrative Appeals Tribunal, transcript dated 17 July 2006, folio 56.
77.I have sufficiently set out earlier the inconsistencies and the number of versions that Mr Sinclair has given about the shooting incident. I do not accept Mr Sinclair’s evidence about the shooting incident as truthful. Furthermore I was convinced by other evidence that this incident, in any of the versions that Mr Sinclair has given of it, simply could not take place at the heavily secured Vung Tau base. That was the effect of Mr Henderson’s evidence, which I accept. Others agreed with Mr Henderson that if such an incident had taken place it would be notorious. Mr Laurie, who had been a military policeman at Vung Tau, said it could not have occurred. I accept his evidence that Vietnamese police did not go unaccompanied around the base at Vung Tau and I find as a fact that the shooting incident as Mr Sinclair described it did not take place.
78.I am unable to accept Mr Sinclair’s evidence as a truthful or accurate account, and find that Mr Sinclair did not experience any stressful event in his period of four days operational service. There is too much inconsistency to give credence to any one of the incidents he described as possibly happening. His becoming emotional when giving his evidence does not make more believable an inherently unbelievable account.
79.As I do not accept that any stressful event or occurrence of any kind alleged took place during Mr Sinclair’s operational service, the facts necessary to support any hypotheses that link the experience of stressful events on service with the development of alcohol dependence, generalised anxiety disorder and dysthymia are disproved beyond reasonable doubt.
Factors in Statements of Principles that relate to the presence of a psychiatric conditon before the onset of another psychiatric condtion
80.Mr Harding sought to rely in addition upon the factors in each of the Statement of Principles that referred to the presence of a psychiatric disorder prior to the onset of the condition (generalised anxiety disorder, alcohol dependence, and/or dysthymia). I note that several of the Statements of Principles allow for this connection with service.[41] However in each instance, the first occurring psychiatric disorder must itself be related to service.
[41] Alcohol Statements of Principles: Instrument No 5 of 1994 - Factor 1(b); Instrument No 76 of
1998 - Factor 5(a).
Depressive disorder: Instrument No 65 of 1996 - Factor 5(c); Instrument No 58 of 1998 –
Factor 5(c)
Anxiety: Instrument No 1 of 2000 – Factor 5(a)(iii).
81.I should say something at this juncture about the evidence as it related to clinical onset of psychiatric conditions, whether alcohol related, depressive in nature, or the posited generalised anxiety disorder. Clinical onset must be addressed as an expressed requirement in all the factors under examination, whether the Statement of Principles expressly requires it as occurring within 2 years, or it is expressed more generally, using terms like ‘prior’ or ‘before’.[42]
[42] As is the case in the Statements of Principles for alcohol: Instruments No 5 of 1994 and 76 of
1998.
82.The evidence of clinical onset has been taken as referring to the point at which symptoms described to a medical practitioner enable the practitioner to state that the presence of those symptoms at that time indicate that the condition was then present.[43] Questions of clinical onset and clinical worsening are medical questions, and must be addressed using the diagnostic criteria provided for in the Statement of Principles for the particular condition.[44]
[43] Repatriation Commission v Cornelius [2002] FCA 750.
[44] Repatriation Commission v Milenz [2006] FCA 1436.
83.There was limited medical evidence suggesting clinical onset of any psychiatric condition at any time close to Mr Sinclair’s service. It does not seem to me that Dr Troup truly turned her mind to questions of clinical onset. Her reports of symptoms deal more directly with Mr Sinclair’s current symptoms. Her earliest report does contain material referring to behavioural changes during Mr Sinclair’s service, however the factual material presented to Dr Troup by Mr Sinclair as true, has been so discredited as to make unreliable any conclusions that Dr Troup drew as a result of it. Dr Troup did not address diagnostic criteria, apart from those for post traumatic stress disorder, which Mr Sinclair does not have.
84.With reference to alcohol abuse, apart from a brief mention of some increase in alcohol consumption after experience of supposed stressors (now discredited) Dr Troup did not refer to the diagnostic criteria for alcohol abuse or dependence at any time that related to clinical onset of another psychiatric condition. Indeed, some of the evidence is to the contrary, Mr Sinclair having told Dr Troup that the responsibilities of ensuring the safety of aircraft meant that he was never drunk on duty.[45] Diagnosing the presence of the condition of alcohol abuse requires more than a reference to quantities of alcohol consumed or to an increase in a pattern of consumption. Additionally we know that Mr Sinclair was drinking alcohol before he flew to Vietnam. In Mr Sinclair’s Amended Statement of Facts and Contentions[46] it is said that Mr Sinclair’s alcohol consumption increased dramatically after the second or third journey to Vietnam. However I have concluded that there were no second or third trips to Vietnam so this evidence cannot be accepted.
[45] T Documents, matter Q1998/924, T4 folio 14: report dated 1 September 1997.
[46] Exhibit A1.
85.Furthermore Mr Sinclair’s evidence about what quantities he consumed was something of a moveable feast. He told Dr Mulholland in 2005 that he was consuming approximately 36 standard drinks per day,[47] which Dr Mulholland clearly regarded as implausible. Mr Sinclair reported a consumption of 3-4 beers, and not every day, in 1993. The notes of his general practitioner indicate no alcohol problems until about 1997. The consumption of the higher amounts that Mr Sinclair claimed would have been inconsistent with his involvement in car racing during the 1990’s – a pursuit which he failed entirely to reveal to examining psychiatrists.
[47] Exhibit R 1: report dated 11 February 2005.
86.Other plausible evidence supports a view that Mr Sinclair’s psychiatric problems are of recent onset. An insurance claim in 1998 identified Mr Sinclair as experiencing disturbances after being retrenched from work in March 1997.[48]
[48] Exhibit R12.
87.This means that hypotheses relying on the presence of psychiatric disorder are not reasonable hypotheses and those hypotheses fail at the third stage of the Deledio steps.
Conclusions on the psychiatric conditions
88.I am thus satisfied that the conditions of dysthymia, generalised anxiety disorder, and alcohol abuse or dependence are not war-caused, either on the grounds of stresses on service, or the grounds of a prior psychiatric condition related in any way to Mr Sinclair’s service.
Gastro-oesophageal Reflux
89.Various Statements of Principles have been in place for this condition in the course of Mr Sinclair’s claim,[49] each Instrument providing for an hypotheses relying on a factor connecting either the condition of alcohol abuse or dependence (as in Instruments No 121 0f 1995, 62 of 1999 and 52 of 2002) or the consumption of a stated quantity of alcohol – and average of at least 300 grams per week – with the onset of gastro-oesophageal reflux. It is a well settled principle that the material raising the hypothesis contain all the elements prescribed by the Statement of Principles[50] and that the elements must themselves be connected with service. In view of my findings above in relation to the applicant’s condition of alcohol abuse not being related to service, it seems to me that any further hypothesis relying on the consumption of alcohol or the presence of an alcohol related disorder will not be a reasonable hypothesis and fails at the third Deledio step.
[49] Namely Instrument No 11 of 2005, which revokes relevant Instruments No 52 of 2002; No 62
of 1999; and No 121 of 1995.
[50] Repatriation Commission v Hill [2002] FCAFC 192.
Cerebral Atrophy
90.The argument advanced with regard to Mr Sinclair’s cerebral atrophy, as I understand it from paragraph 25 of the Applicant’s Amended Statement of Facts and Contentions,[51] also posed a connection between cerebral atrophy and alcohol consumption, as providing the necessary connection with Mr Sinclair’s operational service.
[51] Exhibit A1.
91.Section 9(1)(b) of the Act provides that injury or disease will be taken to be war-caused if it arose out of or was attributable to that service. The term attributable in the subsection is not limited to a single cause, nor need the cause be the sole or dominant cause.[52] It seems to me that once Mr Sinclair’s claim for alcohol dependence or abuse failed his claim for cerebral atrophy cannot succeed.
[52] Repatriation Commission v Law (1981) 147 CLR 635.
DECISION
92.The Tribunal affirms the decisions under review.
I certify that the preceding 92 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.
Signed: Michelle Brazier
Legal Research OfficerDates of Hearing 17, 18, 19, 20 July 2006 and 7 September 2006
Date of Decision 5 January 2006
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr R Derrington
Solicitor for the Respondent Australian Government Solicitor
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