Peterson and Repatriation Commission

[2004] AATA 1370

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1370

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1066

VETERANS'     APPEALS      DIVISION

Re:         WAYNE GEORGE PETERSON

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             21 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

CATCHWORDS – Veteran’s Affairs – mild generalised anxiety disorder – alcohol abuse – severe psycho‑social stressors – date of onset of anxiety – stressors occurring both during operational and eligible service

Veterans’ Entitlements Act 1986

Statement of Principles   Instrument Nº 1 of 2000

White v Repatriation Commission [2004] FCA 633

Stonehouse and Repatriation Commission [2004] AATA 707 (2 July 2004)

Repatriation Commission v Deledio (1998) 49 ALD 193

Woodward v Repatriation Commission (2003) 200 ALR 332

REASONS FOR DECISION

21 December 2004  Miss E.A. Shanahan, Member

1.      This is an application for review of a decision of the Veterans’ Review Board (the VRB) dated 3 July 2003. The VRB affirmed a decision of a delegate of the respondent dated 20 February 2002 which denied the claim by Mr Wayne George Peterson (the applicant) for lower back pain, impotence, anxiety, stress and peptic ulcer disease.  The respondent accepted liability for the applicant’s claim of bilateral sensorineural hearing loss, bilateral tinnitus and gastro‑oesophageal reflux disease and the applicant was granted a disability pension at 30 % of the general rate, with effect from 2 July 2001.  The applicant applied for review by the Administrative Appeals Tribunal on the 25 September 2003 limiting his claim to generalised anxiety disorder and alcohol abuse.

2. The applicant was represented by Mr A. Larkin of counsel, instructed by Williams Winter Solicitors, and the respondent by Mr G. Purcell, of counsel. The Tribunal had before it the s 37 documents (the T-documents) of the Administrative Appeals Tribunal Act 1975 which were accepted into evidence as Exhibit R1.  The applicant tendered statements dated 25 September 2003 (Exhibit A1) and 17 September 2004 (Exhibit A2).  The respondent tendered the following documents:

·     Respondent’s Statement of Facts and Contentions (Exhibit R2)

·     Transcript of the VRB Hearing of 3 April 2003 (Exhibit R3)

·     Medical Records of Dr Labrooy (Exhibit R4)

·     Medical File from Medical One Frankston (Exhibit R5)

·     Applicant’s psychological profile on joining the Navy, dated 16 April 1968 (Exhibit R6)

·     Applicant’s Personnel file whilst in the Navy (Exhibit R7)

·     Applicant’s ANZ Bank Personnel file (Exhibit R8)

·     Report of Captain J. McDonald of WriteWay Research Service, dated 21 May 2004 (Exhibit R9)

·     …

·     Report of Captain J. McDonald of WriteWay Research Service, dated 31 May 2004 (Exhibit R14)

·     Report of Captain J. McDonald of WriteWay Research Service, dated 23 August 2004 (Exhibit R15)

·     Report of Captain J. McDonald of WriteWay Research Service, dated 4 October 2004 (Exhibit R16)

·     Letter from Mr R. Fergusson, Advocate of the Respondent, to Dr L. Walton, dated 23 September 2004 (Exhibit R17)

The applicant, Mr W. Peterson and Captain McDonald gave evidence at the hearing.

BACKGROUND TO THE APPLICATION

3.      Mr Peterson joined the Royal Australian Navy (the navy) at the age of 15½ and served from 5 July 1968 until 31 October 1979.   He had operational service in Vietnam from 17 November 1969 to 5 December 1969 and from 16 March 1971 to 11 October 1971.  He continued in naval service until 31 October 1979, following which he was self-employed in several mixed businesses.  He joined the ANZ Bank in its Banking and Financial Planning area in the early 1990s and was dismissed from his position in October 2002 for not meeting his work quota and “lacking in the requisite competence” (Exhibit R8). 

4.      Mr Peterson claims to have experienced several severe psycho‑social stressors during his Vietnam service and a further single episode in 1974 during his period of eligible service.  He claims that the earlier incidents in Vietnam gave rise to his generalised anxiety disorder (GAD), which in turn caused his claimed alcohol abuse.  The stressful incident during eligible service in 1974 is said to have aggravated his war‑caused GAD.  Mr Peterson did not pursue the formerly separate claim for impotence – loss of libido, having accepted that this condition was a manifestation of the GAD. 

EVIDENCE BEFORE THE TRIBUNAL

5.      In his statements dated 25 September 2003 and 17 September 2004, Mr Peterson described four incidents during his operational service that had caused him anxiety.  The claimed psycho‑social stressors were described as:

a)experiencing a typhoon, or in the alternative, very heavy seas, in Vung Tau Harbour on 28 November 1969 while serving on the HMAS Sydney. (the typhoon incident)

b)during his second tour on board HMAS Brisbane he had observed three explosions above a United States’ Navy ship which he interpreted as being enemy fire upon the ship, but which was subsequently shown to be due to defective ammunition fired by the ship.  His fear regarding the use of ammunition remained throughout his service on the HMAS Brisbane. (faulty ammunition fear)

c)the applicant’s involvement in the boat rescue of a sailor who jumped over the stern of the ship off the South Vietnamese coast. (the rescue of the man overboard)

d)constant anxiety caused by failure of aircraft crews to identify themselves until the last minute.

e)In 1974 while serving on HMAS Perth he had been involved in the recovery of aircraft debris and human remains following an aircraft crash at sea.  The pilot of this aircraft was killed and the applicant claimed to have seen some body parts or flesh in the water (the Skyhawk incident).

6.      Mr Peterson was involved in a motor vehicle accident in 1971 while on leave from the navy.  One occupant of the vehicle (the applicant’s brother‑in‑law to be) was killed.  This incident was not service-related. 

7.      In his evidence before the Tribunal Mr Peterson said the typhoon was, in fact, rough seas.  He had been involved in the unloading of troops and equipment and the reloading of damaged equipment and returning personnel.  It was his duty to help with the tidying-up process and ensure that all equipment was well tied down.   He stated that he experienced trepidation that the equipment may move in rough seas.  He otherwise accepted both statements in their entirety.

8.      Mr Peterson said that, following his second tour of Vietnam, he and his parents noted that he was becoming irritable and short tempered.   He found it difficult to relax and while on “rest and relaxation” in the south-west Pacific, he commenced drinking to excess every day; though not when on duty.  His drinking habit continued after he arrived back in Australia. 

9.      In his oral evidence Mr Peterson confirmed his involvement in a motor vehicle accident in 1971 and also the HMAS Perth’s involvement in 1974 in rescue operations, following the crash of a Skyhawk aircraft in Australian waters.  The applicant said he was the designated boat coxswain but he had not been involved in any recovery activities and that he had remained on the HMAS Perth.  This was in contrast to the history that Dr Walton had obtained, when he recorded that the applicant had been directly involved in the recovery of the pilot.  Mr Peterson said he was on the bridge wing during the HMAS Perth’s attendance at the crash site and he saw shredded paper, shredded uniform and flesh in the water.  He had reacted to this sight with shock, followed by great sadness.  Mr Peterson said he had never put these instances behind him but carried some elements of them with him at all times, leading to a level of continuing anxiety.  During his naval service he had suppressed his anxiety with alcohol and would drink up to six beers, three times a week though not on duty. He said he continued to binge drink.  This amounted to one bottle of wine every one to two weeks and perhaps four stubbies of beer per week.

10.     Under cross examination by Mr Purcell the applicant agreed that he had seen the reports of Captain McDonald, of WriteWay Research Services, but did not agree with Mr Purcell’s contention that the need for four reports had been due to Mr Peterson’s “changing of the facts”.  In general, Mr Peterson agreed with the results of Captain McDonald’s research, except that he believed there had been firing in the distance on the day he spent in Vung Tau harbour unloading soldiers and supplies.  He did admit that there were many helicopters around and the noise level was high.  He could not hear the firing but he could see flashes.  However, the distant firing had not caused him any anxiety. 

11.     With respect to the typhoon incident, Mr Purcell took the applicant to Captain McDonald’s report of 13 July 2004 (Exhibit R10, page 3, paragraph 10) which reported that there had not been any typhoon at the time claimed by Mr Peterson, although there had been severe weather nearing typhoon levels some days before.  HMAS Sydney’s log showed an entry of two days of bad weather.  Mr Peterson admitted that his further experience in the Navy after that time had made him realise that it was not a typhoon and, while the seas were heavy, they were of lesser severity than he subsequently experienced.  He had at the time been worried about the displacement of tied down equipment.  He described his reaction to the heavy seas in Vung Tau harbour as frightening and giving rise to trepidation.  While present in Vung Tau harbour, he had been informed of the risk of mines but none were encountered. 

12.     During his second tour to Vietnam, Mr Peterson had been a radar operator.  He had been trained and was experienced by the time he returned to Vietnam.  Mr Peterson agreed that his second tour of duty on board HMAS Brisbane was more arduous than the first tour on HMAS Sydney.

13.     Mr Purcell took Mr Peterson to the report of Captain McDonald, dated 21 May 2004 (Exhibit R9), in which Captain McDonald reported the results of his investigations into the stressor incidents set out in paragraph 5. Captain McDonald had identified that faulty gun ammunition had been used in 1969 but that this problem had been corrected well before 1971 (Exhibit R10, Page 9).  Mr Peterson agreed that while he was apprehensive whenever the guns fired that there might be an explosion this had never occurred on the HMAS Brisbane during his tour of duty.  Mr Peterson agreed that his response to early bursts of fire in the region had been a momentary concern only; as was the episode wherein he had first thought that a US naval vessel had been fired upon and then realised it was flashes from faulty ammunition misfiring on board that vessel.

14.     The incident termed the rescue of the man overboard was substantiated by the ship’s executive officer, senior engineer and a sub‑lieutenant, all of whom recollected the incident when a sailor of Maltese origin jumped off the stern of the ship, while the ship was cruising off the South Vietnamese coast.  These officers reported that it was a sunny day with a calm sea and the man was immediately sighted and the man‑overboard procedure put in place.  The ship had little difficulty in reducing speed, launching the rescue boat and recovering the sailor.  Captain McDonald’s investigation had revealed that at all times the sailor was in clear view of the ship and was quickly recovered.  Captain McDonald later gave evidence to the effect that at all times the man remained within sight of the HMAS Brisbane, and had continued to wave to the ship until he was rescued.  Mr Peterson had been trained in the method of rescuing persons who fell overboard. 

15.     In relation to the last incident, namely the late operation of IFF (Identification Friend or Foe) transponders by returning US aircraft, Mr Peterson agreed he had been trained in radar and that this delay in identification had different effects on different people but for him was a source of stress. 

16.     Mr Peterson agreed with Mr Purcell that he had enjoyed his time in the Navy, that he felt he was doing a good job and that he had the support of his fellow sailors and officers.

17.     In his second statement (Exhibit A2), the applicant had described the crash of a Skyhawk aircraft in 1974, while he was serving on board HMAS Perth.  Following a radio report of the accident, the HMAS Perth had steamed a considerable distance to assist in the recovery.  When it arrived, the HMAS Torrens and several helicopters were on site and according to Mr Peterson; the HMAS Perth stopped on top of the crash site and put out its boats.  He was standing on the bridge wing at the time and was able to view the activities from a distance.  He had seen objects in the water that he described as small and dispersing quickly, but he had also seen one large object which he interpreted as being a part of the pilot’s body.  He stated that he had reacted with shock followed by sadness. 

18.     Mr Peterson agreed with Mr Purcell that the motor vehicle accident in 1971 had been a particularly bad experience and had added to his stress levels for some time.  Mr Peterson stated that he had had symptoms of anxiety for some months up to a year, but the motor vehicle accident had certainly made these much worse.  Mr Peterson stated that this aggravation of his anxiety had reduced with the passage of time but, given that he had married the sister of the victim of the accident, it remained with him at all times. 

19.     Mr Peterson did not believe that his alcohol consumption, previously reported as one bottle of wine every one to two weeks and a maximum of ten pots of beer per fortnight, had any effect on his work with the ANZ Bank. 

20.     Under re‑examination by Mr Larkin, Mr Peterson estimated that the man overboard was probably 1000 yards away from the ship when it stopped, and that at the time he had no idea as to why this sailor had gone overboard.  He did not think the sailor would drown; he was just concerned as to why the sailor ended up in the water.   With respect to the gun line activities, Mr Peterson agreed that no ship had been mined while steaming along the Vietnam coast but said that he had observed the hull of a US ship previously mined.  He agreed that he was instructed to be vigilant at all times.

Evidence of Captain J. McDonald 

21.     Captain McDonald served in the navy from 1957 to 1990 and currently works as a consultant for WriteWay Research Services.   He had served on HMAS Brisbane with Mr Peterson.  Captain McDonald attested to the content of his four reports (Exhibits R9-R12).  Under cross‑examination by Mr Larkin he said he considered it reasonable for a sailor, such as Mr Peterson, to think that the gun line episode could have been gunfire aimed directly at a ship, rather than prematurely exploding shells fired by the ship. 

22.     With respect to the rescue of the sailor overboard incident, Captain McDonald said there were no official records of the event but that he has spoken to the three senior officers on the bridge at the time, who reported that the sailor was always in sight of the ship, was waving to the ship and, to their knowledge, was conscious at all times.

23.     Captain McDonald stated that it had been general navy policy to warn sailors of the risks of enemy mines off the coast of South Vietnam and to advise them to remain alert and vigilant.  A risk did exist while ships were anchored in the harbour, but when steaming along the coast of South Vietnam the risk was so low that no watch was posted for mines in Demilitarised Zone 1.

24.     In relation to the Skyhawk incident, Captain McDonald informed the Tribunal that he had been a friend of the pilot killed in the incident.  Mr Peterson had not, as he had previously advised Dr Walton, been in any of the rescue boats but had been on the bridge wing of HMAS Perth at the time of the rescue attempts.  While the official record contained few details of the HMAS Perth’s role in this rescue, Captain McDonald had spoken to HMAS Perth’s Captain and Chief Executive Officer and had been informed that the pilot’s helmet and one piece of flesh had been collected by HMAS Perth.  Neither officer had seen any objects that could have been identified as human flesh although both were on the bridge at the time.  (Exhibit R12)

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

25.     The Transcript of the VRB hearing of 3 April 2003 dealt predominantly with the applicant’s claim for lower back pain. The Tribunal notes that this claim has since been discontinued.  However, Mr Peterson did give evidence that his alcohol intake was two bottles of wine over one day, every fourteen days, with occasional beer between times.

26.     Mr Peterson described the gun line episodes, where he had misinterpreted flares above the US ship as the ship being fired on rather than the flares arising from the US ship firing at the Vietnamese coast.  Before the VRB he stated that his misinterpretation of the event lasted a couple of seconds only. 

27.     With respect to the incident relating to US pilots not activating their IFF transponders until they were close to their mother ship, Mr Peterson agreed that while there was heavy air traffic, the air traffic in the area was clearly of US origin (Exhibit R3, page 27).

28.     Mr Peterson had given evidence to the VRB that following the motor vehicle accident, in which his brother‑in‑law to be was killed, he had eight weeks leave before returning to naval service. 

29.     The medical reports from Dr Labrooy and Medical One Frankston were before the Tribunal, but did not add any relevant details. 

30.     Mr Peterson’s psychological assessment while in naval service (Exhibit R6) did not reveal any psychological problems at any time.  Mr Peterson’s personnel file (Exhibit R7) confirmed details of his service.

31.     The ANZ Bank file (Exhibit R8) contained numerous assessments of Mr Peterson’s performance, his frequent counselling and his ultimate retrenchment.

32.     Dr Chester, Consultant Psychiatrist, had seen Mr Peterson on 4 October 2001, at the request of the respondent.  Dr Chester had found no evidence of psychiatric disorder.  Dr Chester had obtained a history that Mr Peterson drank up to two bottles of wine or its equivalent once a fortnight and that he had enjoyed his naval service, had not been injured or wounded and did not experience any major personal traumas during his service career  (T11, page 56).  Dr Chester did not believe Mr Peterson’s alcohol intake was either abuse or dependence.

33.     Dr B. Holwill, Consultant Psychiatrist, saw Mr Peterson on 27 November 2002, at the request of the Southern Peninsular Veterans’ Centre.  Dr Holwill diagnosed a mild GAD with alcohol abuse, which he attributed to “at least one frightening and potentially life-threatening event” during his Vietnam service.  Mr Peterson had given Dr Holwill a history of anxiety while serving on the gun line and his worries regarding faulty ammunition being used.  Dr Holwill did note the major motor vehicle accident of 1971 following which, in his opinion, the applicant developed an acute post‑traumatic stress disorder with insomnia, nightmares and a phobic anxiety of car trouble.  Dr Holwill reported that all of those symptoms had subsequently resolved.  Dr Holwill found that Mr Peterson was not incapacitated for work as a result of his mild anxiety disorder but that he did satisfy the Statement of Principles (SoP) for the diagnosis of chronic anxiety and substance abuse. 

34.     Dr L. Walton, Consultative Psychiatrist, had seen the applicant on 17 May 2004 at the request of the Department of Veterans Affairs, and provided four reports dated 25 May 2004 (Exhibit R13), 31 May 2004 (Exhibit R14), 23 August 2004 (Exhibit R15) and 4 October 2004 (Exhibit R16).  .  The three reports after the first one were considered necessary by the respondent because of inconsistencies in the histories Mr Peterson gave to other medical practitioners and as a result of the WriteWay Research data.  Based on the history given by Mr Peterson, Dr Walton identified stressful incidents, as follows:

·the typhoon episode;

·the potential explosions of faulty ammunition;

·the incident where a sailor leapt overboard; and

·anxiety provoked when aircraft did not activate their identification signals.

Mr Peterson also gave a history of the motor vehicle accident in 1971 which was described as being significantly emotionally traumatising.

35.     Dr Walton was also given the history regarding the Skyhawk incident, although a date was not provided and the applicant had said he was serving on the HMAS Brisbane at the time.  Mr Peterson had told Dr Walton that he had been involved in the recovery of the pilot but had stated that body parts were hardly recognisable as human remains.  Mr Peterson described this episode as “bloody horrible”.  Dr Walton obtained a history of drinking 18 stubbies or two bottles of wine once a fortnight.  Dr Walton obtained a full employment history from the applicant which does not differ from the applicant’s evidence before the Tribunal.

36.     Dr Walton diagnosed a mild anxiety disorder which did not meet the diagnostic criteria specified in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV).  Dr Walton was of the opinion that the most severe stressor to which the applicant had been exposed was the motor vehicle accident in 1971 and further relevant stressors related to his work with the ANZ Bank and, to a lesser extent, concerns surrounding his wife’s health.  Dr Walton did not find that the applicant suffered from alcohol abuse or dependence. He found that neither his alcohol use nor his mild anxiety disorder impacted upon Mr Peterson’s capacity to work.  Having reviewed Mr Paterson’s medical history from Medical One Frankston and the historical report from Captain McDonald, Dr Walton did not change his opinion. 

37.     Dr Walton was asked to provide further comment, given the content of Captain McDonald’s report dated 13 July 2004.  In addition, Dr Walton was provided with the ANZ Bank report of Mr Peterson’s employment and retrenchment.  Having examined all this data, Dr Walton concluded that Mr Peterson had been involved in an incident, the Skyhawk incident, in which he was involved in the recovery of body parts following the aircraft crash, and that this would have invoked some substantial distress.  Dr Walton reiterated  his opinion that the applicant’s mild GAD had a clinical onset in 1971 and that the Skyhawk incident in 1974 would be an aggravating factor within the realm of the SoP in relation to clinical worsening.  Dr Walton confirmed that the applicant did not meet the criteria in the SoP regarding Alcohol Dependency or Abuse and probably had never met the criteria in the SoP regarding GAD.  He concluded that the Skyhawk incident was a recognisable severe psycho‑social stressor and in all probability did provoke substantial distress in the veteran (Exhibit R15, page 3, paragraph 5).

38.     Dr Walton was subsequently informed, by letter from the respondent (Exhibit R17), that the applicant was not directly involved with the recovery of the body parts during the Skyhawk incident of 1974, and other minor matters.  Dr Walton advised that, in his opinion, Mr Peterson suffered from mild GAD but he would not dispute a psychiatrist’s diagnosis of no psychiatric disorder.  He affirmed his opinion that Mr Peterson’s condition did not meet the defined clinical components of the relevant Statements of Principle.   Dr Walton also confirmed his opinion that the motor vehicle accident in 1971, which is not service related, was the most relevant event leading to the applicant’s mild GAD.  Having been informed that Mr Peterson was not involved in the recovery of body parts in the 1974 Skyhawk incident, Dr Walton remained of the opinion that such an event would have caused substantial distress but he expressed his concern that the applicant had supplied unreliable information.  Dr Walton also revisited the typhoon incident and said that, given the applicant’s unreliability as a reporter, he had to question whether or not Mr Peterson experienced substantial distress at the time of the storm.

RELEVANT LEGISLATION

39.     As the applicant had rendered operational service, s 120(1) and s 120(3) of the Veterans’ Entitlements Act 1986 (the Act) are applicable.  Section 120A required the Tribunal to apply any relevant Statements of Principles.  The parties agree that the relevant SoP is outlined in the beginning of these reasons.  The Tribunal is satisfied that the psychiatric diagnosis is one of mild GAD.  The SoP thus attracted is Instrument Number 1 of 2000 concerning GAD.  The applicant has relied upon factor 5(a)(ii), which states:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:

(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only

…

(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; …

or in the alternative, factor 5(a)(v) which states:

…

(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; …

40.     In relation to the applicant’s claim in experiencing a severe stressor in 1974 while on eligible service, the applicable legislation is s 120(4), which states:

(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

41.     The Tribunal notes that the majority opinion of all treating doctors is that the applicant does not suffer from alcohol abuse.  Thus, the SoP regarding alcohol abuse or dependence is not attracted.

42.     With respect to the applicant’s operational service, the Tribunal is bound to follow the steps outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, which states:

… in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

43.     Section 120(4) of the Act requires that the Tribunal be satisfied to a standard of proof termed reasonable satisfaction, or alternatively, on the balance of probabilities.

SUBMISSIONS

Applicant’s Submissions

44.     Mr Larkin submitted that the applicant’s injury had a mild anxiety disorder as diagnosed by Dr Walton and Dr Holwill.   The hypothesis raised by the applicant was that, as a result of the previously noted incidents during operational and eligible service, the applicant has developed a mild anxiety disorder.  The SoP applicable was that relating to GAD, Instrument Number 1 of 2000, factors 5(a)(ii) and 5(a)(v).  With respect to the definition of the severe psycho‑social stressor, the applicant referred the Tribunal to the decision of the Federal Court in White v Repatriation Commission [2004] FCA 633, which dealt with the definition of severe psycho‑social stressor. Mr Larkin noted the similarity of the claimed incidents in White with those in the current application although in White the applicant was unsuccessful.

45.      Mr Larkin submitted the Tribunal must take into account both the objective and subjective aspects of any claimed severe psycho‑social stressor (Woodward v Repatriation Commission (2003) 200 ALR 332).

46.     In the alternative, Mr Larkin submitted that if the named stressors did not meet the required SoP level, the applicant’s motor vehicle accident of 1971 had caused an anxiety condition that was subsequently aggravated by the Skyhawk incident of 1974. 

47.     Mr Larkin submitted that the typhoon incident in Vung Tau harbour must be looked at both objectively and subjectively in terms of causing substantial distress.  Mr Larkin concluded that the applicant had a mild disorder in 1971, which was aggravated by the episode of the Skyhawk incident, and on the balance of probabilities this was related to his eligible but not operational service. 

Respondent’s Submissions

48.     The respondent pointed out that the applicant’s case had changed over a period of time and had originally been confined to stressors experienced while on the HMAS Sydney and HMAS Brisbane.  During the course of the hearing, the applicant had conceded that his experiences on the HMAS Sydney were not relevant. 

49.     The respondent agreed that the applicant had a mild anxiety disorder with an onset most probably in 1971, on the evidence of Dr Walton, which had been caused by the non‑service related motor vehicle accident.  The respondent interpreted the applicant’s claim to now be one of clinical worsening of a mild GAD due to the Skyhawk incident of 1974.  The respondent particularly relied on the fact that the applicant had not mentioned the Skyhawk incident until September 2004.  Dr Walton had been the only psychiatrist to comment on this incident and had initially been totally unaware of the occurrence.  When advised of the Skyhawk incident, Dr Walton had expressed his concern regarding the applicant’s reliability as a witness and historian.  Dr Walton had obtained no history of any clinical worsening of the applicant’s general anxiety disorder after the Skyhawk incident.

50.     The respondent relied on the decision of White v Repatriation Commission [2004] FCA 633 and acknowledged that the Tribunal must consider both the objective and subjective responses to any claimed incidents. With respect to the objective test, the respondent contended that the only episodes supported by objective evidence were the 1971 motor vehicle accident (non‑service related) and the Skyhawk incident of 1974.

51.     The respondent submitted that Mr Peterson’s delayed reporting of the Skyhawk incident, first mentioned to Dr Walton on 17 May 2004, and not part of his evidence before the VRB, raised doubt as to what impact, if any, this event had had from the subjective point of view.  The respondent also pointed out that the applicant had not mentioned any subjective response to this episode in his statement of 17 September 2004 (Exhibit A2).  In his evidence before the Tribunal Mr Peterson had described his reaction as being one of shock, followed within moments by feelings of sadness.  The respondent argued this was a normal response to such a tragedy and any suggestion that this incident had aggravated Mr Peterson’s mild GAD, which commenced in 1971, was not supported on the applicant’s evidence.

APPLICATION OF THE LEGISLATION OF THE EVIDENCE BEFORE THE TRIBUNAL

52.     Alcohol abuse: Mr Peterson’s reported alcohol intake of two bottles of wine every one to two weeks, or in the alternative four or so beers, does not meet the DSM‑IV requirements regarding alcohol abuse or dependence.  This claim has not been considered further.

53.     Generalised anxiety disorder:  Having examined all the material before it, the Tribunal accepts the diagnosis of mild GAD.  There exists a hypothesis connecting this condition with the circumstances of Mr Peterson’s operational and eligible service.  The relevant SoP is Instrument number 1 of 2000 concerning GAD.   A “severe psycho‑social stressor” means an identifiable occurrence that evokes feeling of substantial distress in an individual, for example, being shot at, death or serious injury of close friend or relative, assault (including sexual assault), major illness or injury, experience in loss such as a divorce or separation, loss of employment, major financial problems or legal problems. 

54.     In applying the third step of Deledio, the Tribunal is required to assess the claimed incidents in terms of the SoP template.   Thus, the incidents must be assessed as to whether they meet the definition of severe psycho‑social stressor.  (White v Repatriation Commission [2004] FCA 633; Stonehouse and Repatriation Commission (2004) AATA 707).

55.     The typhoon incident:  In his evidence before the Tribunal Mr Peterson said that he had been incorrect, that he had experienced not a typhoon but heavy seas.  However, HMAS Sydney’s log reports that the heavy seas were experienced on the north-bound journey and prior to entry to the Vung Tau harbour on 28 November 1969.  Captain Sketchley was the cargo officer on board the HMAS Sydney on that occasion, as reported by Captain McDonald, had confirmed that the weather had been bad prior to disembarking in Vung Tau harbour and that he had supervised all vehicle/equipment loading and unloading.  Mr Peterson had described a feeling of trepidation that the equipment might move in heavy seas.  The Tribunal does not consider this event to be a severe psycho‑social stressor as considered in White. 

56.     Faulty ammunition/explosions above the US vessel:  Mr Peterson had been aware of a past history of faulty ammunition aboard US vessels and on the HMAS Brisbane; but this had never occurred during the period of his deployment.   The episode where he saw three explosions above a US vessel, which he misinterpreted as enemy fire when it was due to faulty ammunition, momentarily caused him concern.  The Tribunal does not consider this to be a severe psycho‑social stressor.

57.      Rescue of the man overboard: This incident has been confirmed by Captain McDonald’s research but there is no objective evidence that the unknown sailor was in any danger and his recovery was according to well-practiced routines.  The Tribunal notes that there is objective evidence of this event, but does not consider it a severe psycho‑social stressor.

58.     The delayed identification of aircraft:  While the delayed identification of aircraft had the potential to arouse a degree of anxiety in a radar operator, HMAS Brisbane was never attacked by enemy planes during the applicant’s second tour of Vietnam.  There is no objective evidence to support this incident as being a severe psycho‑social stressor.

59.     The motor vehicle accident of 1971:  The Tribunal is satisfied that this particular incident was a severe psycho‑social stressor, although it was not war‑caused.  There is objective evidence that the accident occurred and that Mr Peterson’s brother‑in‑law to be was killed in the accident.  Mr Peterson gave evidence that he had to have six to eight weeks leave following this event.  Dr Walton places the onset of the applicant’s anxiety disorder immediately following this motor vehicle accident. 

60.     The Skyhawk incident:  This incident is well documented in the records of the HMAS Perth and the subsequent enquiry.  Mr Peterson was on the bridge wing at the time of the HMAS Perth’s movement into the area of the crash and it is probable that he did see, what he thought to be, human flesh floating in the water.  His subjective response to this has been described to Dr Walton as “bloody horrible”; and to the Tribunal as one of shock immediately followed by sadness.  However, Mr Peterson failed to report this incident for 30 years.  Thus, the Tribunal is not satisfied that the applicant has the feelings of distress that he claims.  The Tribunal finds that it is more probable than not that his reaction of shock and sadness are the normal responses to such a tragedy. 

61.     The fourth step of Deledio requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that the applicant’s incapacity did not arise from a war‑caused injury.  It is at this stage that the Tribunal is required to find facts from the material before it.  As the Tribunal finds that the first four incidents claimed as severe psycho‑social stressors by Mr Peterson do not meet the definition of a severe psycho‑social stressor, it is satisfied beyond reasonable doubt that his incapacity was not war‑caused. 

62.     Dr Walton has identified the onset of Mr Peterson’s mild GAD as being in late 1971 and attributes it to the motor vehicle accident.  Dr Chester (T11, page 54) reported that Mr Peterson enjoyed his time in the Navy and had not reported any stressful incidents.  Dr Holwill (T21, page 83) was of the opinion that Mr Peterson’s onset of mild GAD commenced following his Vietnam service but had been very mild in nature and became more prominent as a result of the applicant’s poor work performance while working for the ANZ Bank.

63.     In his submission, Mr Larkin relied primarily on the development of GAD following the 1971 motor vehicle accident with aggravation of this anxiety by the Skyhawk incident.  Factor 5(a)(v) of SoP concerning GAD (Instrument Number 1 of 2000) relates to experiencing a severe psycho‑social stressor within two years immediately before the clinical worsening of the anxiety disorder.  There is no evidence before the Tribunal that Mr Peterson’s anxiety disorder worsened following this incident; in fact, the evidence is that his anxiety disorder became more profound during the mid‑1990s.  While the Skyhawk incident has the potential to be a severe psycho‑social stressor, the facts before the Tribunal indicate that Mr Peterson’s response to this incident was a normal response of shock and sadness which he did not report to any psychiatrist or the Repatriation Commission for 30 years after the event. 

64.     The decision under review is therefore affirmed.

I certify that the sixty-four [64] preceding paragraphs are a true copy of the reasons for the decision of:

Miss E.A. Shanahan, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  26 October 2004

Date of decision:  21 December 2004
Counsel for applicant:                  Mr A. Larkin
Solicitor for the applicant:            Williams Winter Solicitors
Advocate for respondent:            Mr G. Purcell

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs