Philip James Green v Repatriation Commission
[2007] AATA 40
•30 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 40
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/100
VETERANS' APPEALS DIVISION ) Re PHILIP JAMES GREEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member
Dr GJ Maynard, MemberDate30 January 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – war-caused condition – Statement of Principles for Alcohol Dependence or Alcohol Abuse – Statement of Principles for Anxiety Disorder – ‘experiencing a severe stressor’ – ‘severe psychosocial stressor’ – objective and subjective considerations – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 37
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 120, 120B, 196BBenjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Law (1981) 147 CLR 635
Wedderspoon v Minister of Pensions [1947] KB 562
Stoddart v Repatriation Commission (2003) 74 ALD 366
Delahunty v Repatriation Commission (2004) 38 AAR 511
Gerzina v Repatriation Commission (2003) 79 ALD 400
White v Repatriation Commission (2004) 39 AAR 67Instrument No 77 of 1998
Instrument No 2 of 2000Instrument No 4 of 1999 and as amended by Instrument No 55 of 1999
REASONS FOR DECISION
30 January 2007 Dr KS Levy, Senior Member
Dr GJ Maynard, Member
Introduction
1. The applicant, Philip Green, has applied under s 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of a decision under the Veterans’ Entitlements Act 1986 (the Act). The decision was originally made by the Repatriation Commission on 28 November 2002 which determined that personality disorder and alcohol dependence/alcohol abuse were not related to military service under the Act. That decision was affirmed by the Veterans’ Review Board on 25 November 2004.
2. This matter was heard over two days, on 2-3 November 2006. At the hearing, Counsel for the applicant indicated the claim for personality disorder would no longer be litigated. The present claim is based on the applicant’s contentions that the condition of alcohol dependence/alcohol abuse satisfies the definitions and diagnostic criteria prescribed in the Statement of Principles (SoP) No 77 of 1998. Counsel for the applicant also submitted that it may be open to the Tribunal to conclude from the evidence that the applicant suffered from Post Traumatic Stress Disorder (SoP No 4 of 1999 and as amended by Instrument No 55 of 1999) or Anxiety Disorder (SoP No 2 of 2000).
3. The applicant was represented by Mr R Clutterbuck of Counsel, instructed by Gilshenan and Luton, Solicitors. The respondent was represented by its Advocate, Mr M Smith.
Background
4. The applicant is currently 55 years of age. His date of birth is 20 April 1951. He was born and raised in Western Australia and is the third of eight siblings. His father was killed in a motor vehicle accident when the applicant was nine years of age. His mother remarried four years later, but the applicant did not have a close relationship with his step-father. He was educated to a Grade 10 level but was unsuccessful in the public school exams.
5. After leaving school, the applicant had a history of instability in employment, commencing as an apprentice electrician (which was uncompleted), an electrician’s assistant with Ashton’s Circus, a machinist in a paper products company, a factory hand, a postman, a labourer, and a driller’s assistant. He then joined the Army in 1974 aged 23 years. He served there for just over three years in the Australian Regular Army from 20 August 1974 to 29 November 1977. There, he qualified as an infantryman and was posted to the 6th Battalion, Royal Australian Regiment in 1975. He undertook three months security duties with 6 RAR in Malaysia from March to June in 1976 (approximately). On return to Australia he qualified as a mortarman and as a driver. He was discharged involuntarily on 29 November 1977.
6. As a result of the applicant’s defence service he has the following conditions accepted by the Department of Veterans’ Affairs as being service related:
· Bilateral tinnitus
· Fracture of the lower jaw
7. The applicant currently suffers from anxiety and alcohol related conditions, which he attributes to his military service in Malaysia.
Issues for Determination
8. The issues for determination in this case are:
(i)Whether a diagnosis of Post Traumatic Stress Disorder (PTSD) or Anxiety Disorder (AD) together with Alcohol Dependence/Alcohol Abuse are appropriate diagnoses for the applicant’s psychiatric condition?
(ii)Whether any accepted diagnoses of psychiatric conditions are defence caused/service related within the meaning of the Act?
(iii)Whether any of the incidents experienced by the applicant during his service in Butterworth, Malaysia, could be regarded as a “severe stressor” or “severe psychosocial stressor”.
Legislative Framework
9. It was submitted by both the applicant and the respondent that any psychiatric condition must be shown to be defence caused. The Tribunal agrees that the applicant has eligible defence service. The Tribunal also considers that the definition “injury/disease” within section 5D of the Act is also relevant to the Tribunal’s consideration. Section 120(4) deals with the standard of proof for non-operational service, and directs the Tribunal to decide the matter to its reasonable satisfaction. Section 120(4) is also affected by s 120B when applied to the present application. Section 120B(3) directs the Tribunal to be reasonably satisfied that the injury/disease claimed is defence caused and amplifies the mechanism for being reasonably satisfied only if:
“Sect 120B(3)
…
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
10. Statements of Principles as referred to above are in force and were determined by the Repatriation Medical Authority under s 196B. Therefore, the relevant standard of proof in this matter is on the balance of probabilities. The parties were not in dispute about that standard of proof.
Evidence
11. The following documents were admitted into evidence:
·Exhibit 1 T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 2 Letter from the Department of Veterans’ Affairs dated 26 April 2005
·Exhibit 3 Statement by Richard Green dated 29 April 2005
·Exhibit 4 Statement by Phillip Green dated 9 May 2005
·Exhibit 5 Report by Dr Gelb dated 27 July 2005
·Exhibit 6 Statement by Jayne Goodes dated 14 October 2005
·Exhibit 7 Statement by David Piggott dated 10 October 2005
·Exhibit 8 Statement by Phillip Green dated 24 October 2006
·Exhibit 9 The Applicant’s Statement of Facts and Contentions dated 28 September 2006
·Exhibit 10 Report by Dr David Alcorn dated 27 July 2005
·Exhibit 11 Report by Dr David Alcorn dated 2 November 2005
·Exhibit 12 Report by Dr David Alcorn dated 16 February 2006
·Exhibit 13 Report by Dr David Alcorn dated 7 July 2006
·Exhibit 14 Statement by Richard Piggott dated 9 August 2005
·Exhibit 15 Report of Writeway Research Service dated 13 March 2006
·Exhibit 16 Report by Writeway Research Service dated 6 October 2006
·Exhibit 17 The Respondent’s Statement of Facts and Contentions dated 24 August 2006
·Exhibit 18 The applicant’s Army psychological records dated 28 February 2006
·Exhibit 19 Statement of Richard Piggott dated 2 November 2006
· Mr Phillip Green
12. This witness was the applicant in this matter. He described his military service through recruit training and corps training in 1974 and then was posted as a rifleman. He was a machine gunner on Kangaroo II exercises in Shoalwater Bay and then accompanied A Company 6 RAR (approximately 130 soldiers) for a 3 month tour of Malaysia. The role there was to perform ground defence for the Royal Australian Air Force (RAAF) Base in Butterworth. The applicant stated that he was told that there were active communist terrorists there who were coming down from the Thai border, however he did not see any terrorists.
13. He described undertaking guard duty whereby he slept in a hut but he was required to undertake patrols of the perimeter once or twice per night. He stated that soldiers were issued with SLR self loading rifles, the second in command had an M60 and he as the machine gunner had a Bren gun. He stated that soldiers did not have rounds in their SLRs and only he and the Section Commander each had ten rounds. The magazines were taped over.
14. He said there was a roster for undertaking guard duty. He was on guard duty approximately every nine days. He drank in Malaysia but told the Tribunal that before he went to Malaysia he only drank if he went to a party. He said he did not otherwise drink except perhaps a couple of beers. When on guard duty, one person would watch a machine which detected vibrations while the others walked around on patrol.
15. The applicant submitted that the following incidents were stressful and constitute a “severe stressor” or “severe psychosocial stressor” and led to his increased alcohol use:
(i)The fact of being in Butterworth. The applicant stated that before he arrived in Malaysia, he was told that an Australian truck driver who had hit a young Malaysian girl had been beaten to death by the local people.
(ii)Communists blew up cars, police stations, etc.
(iii)Field training in Jahore Bahru – these were field exercises, and at night, he could hear movement, but he could not tell whether it was human or animal movement.
(iv)Red letter day incidents – any day of celebration of the Communists. He described people rattling on the perimeter wire at night and that they would set off fire crackers in the dark.
(v)The machete incident – a friend returned from a social outing and had been cut by a machete.
(vi)The ferry incident – the applicant described a ferry which had a top deck for pedestrians and a bottom deck for vehicles. He and a fellow soldier, Richard Piggott, were standing on the dock adjacent to the ferry and looked where a crowd of people were observing vehicles disembarking on the bottom deck. He noticed the police had three men handcuffed and were removing weapons from the boot of a car. They noticed a policeman speak to observers, but they did not understand what he had said as it was not in English, after which the policeman pointed a weapon in their direction. He said everybody then moved quickly. He and Richard Piggott then got a taxi back to the RAAF base.
(vii)Identification cards incident – he said they usually went to the south gate which was manned by Malaysian guards, although the northern gate was manned by Australian RAAF personnel. At the south gate, the guards would usually get aggressive and point their machine pistols at Australians when they were presenting ID cards for identification. The applicant described this incident as “devastating”.
(viii)The truck incident – the applicant was in a truck which drove slowly past one of the Malaysian guard houses and which was called upon to stop. One of the Malaysian guards then pulled a weapon and another guard had shouted “stop” in Bahasa. The driver of the truck had not heard the call to stop on the first occasion but stopped on the second command to stop. When the guards saw they were Australians, the situation was calmed.
(ix)The communist hotel incident – the applicant and Richard Piggott went on a bus to Ipoh as Richard Piggott liked a girl there. The applicant and Richard Piggott could not get into a particular hotel in Ipoh so they were taken by the girl to another hotel. They were followed there by a concierge to make sure the girl did not stay with them. This was apparently over the road from a building known to be Communist headquarters.
(x)The Ah Choo Bar incident – this was a brothel which the applicant visited with Richard Piggott. Richard had a favourite girl (Appeasa) there but she was not there on one particular night, so he got another girl. The applicant’s evidence was that on returning to the Bar about a week later, Appeasa appeared and found out about the other girl. She became upset and a brawl ensued, which the applicant said was “very scary” (see Exhibit 4, pages 5-6).
16. It was submitted that each of these incidents were capable of constituting a “severe stressor” or a “severe psychosocial stressor”.
17. The applicant also gave evidence of being subjected to disciplinary action whilst still in the Army upon his return from Malaysia. He described himself as being irritable.
18. He stated that on return to Australia he drank more, up to 15 cans of beer per day. He stated that he drank excessively mostly within the Army barracks. He married in 1976. That marriage lasted 12 years. He thought he had failed, not because of his drinking, but because he was not there much. He went on to say that he was not drinking much after he left the Army and stopped for the rest of his marriage. He took up drinking again in 1988 two years after his marriage broke up. He stated it was then that nightmares started about his former Army service, and these included images of someone trying to kill him or that he was falling and could not stop.
19. He described his current psychological state and said that he does not sleep, he has no emotions, that his daughters are wary of him, and that he does not like socialising.
20. Under cross-examination, he told the Tribunal that he first made a claim in 1997. On referring to the incidents, he told the Respondent’s Advocate that his guard duty was to a point, “cushy”. He said he only did guard duty ten times during his posting to Malaysia (ie every nine days). In relation to the Red Letter Day he said this only happened three or four times while he was there and that there was rattling on the wire some of the time and not all night. He said he did not talk to anyone about it and no one else talked about being worried about these incidents.
21. In relation to the truck incident when the driver was called upon to stop, the truck was going at approximately 5km per hour and went past the guard hut only to the length of the truck. He agreed that it had not gone far and it all happened within a matter of a few seconds before the truck stopped.
· Richard Green
22. This witness is the brother of the applicant, Phillip Green. He stated that he did not see his brother for many years, but saw him some years after he was discharged. He recalled speaking to him when he was in Amberley in 1987. He thought his brother was not the same person he remembered and was not very eager to stay in contact with his family. He seemed to have nothing nice to say about anyone. He knew his brother had served in Antarctica in 1987-88 and lived in Brisbane. Shortly after his contact with him in early 1987, his brother split up with his wife. He then did not have contact again with him until he met him at Redcliffe, Brisbane five or six years ago, ie about 2000. He said he was a changed person from when he was a child.
· Ms Jayne Goodes
23. Ms Goodes is the sister of the applicant and provided similar evidence to Mr Richard Green, however she has had little contact with the applicant since he joined the Army in 1974.
· Mr David Piggott
24. This witness said he did not know the applicant. He knew the applicant had worked with his brother when he was in the Army and indicated that he also had served in the Army and in Malaysia and Singapore. He said he was in Butterworth in Malaysia in 1971-73 and again in 1979-1980. He commented that the Malaysian guards were aggressive and he thought his experience was similar to that suggested by the applicant. He said he thought there were threats from Communists and he recalled Red Letter days and gave similar evidence to the applicant in that he recalled the perimeter wire being shaken on Red Letter days and fire crackers being let off. In relation to ammunition and weapons, the witness said that everything was controlled and only Non-Commissioned Officers carried live ammunition. He also recalled being physically assaulted or arrested by guards at the south gate when he had to show an ID card. He stated that if Australian soldiers were intoxicated, things got belligerent.
· Mr Richard Piggott
25. This witness is the brother of Mr David Piggott. Richard Piggott met the applicant in the Army in 1975 and did training with him in A Company 6 RAR. He said he got on very well with him at that time and they were very good friends. They would socialise together.
26. They went to Malaysia together and were stationed at Butterworth. He recalled trouble with Communists and gave similar evidence that weapons had magazines taped up in basic pouches. While in Malaysia he and the applicant went out together and went on holidays to Ipoh. He said they were very good friends in Malaysia also.
27. On returning to Australia he moved into a flat together with the applicant, but the applicant drank a lot and was moody. The applicant was argumentative and little things would “set him off”. This started about two weeks after they started living together in a flat. He said he moved out after two months, which would have been about August 1976.
28. In cross-examination by Mr Smith, the witness agreed he returned to Australia in June 1976 and moved straight into a flat with Mr Phillip Green. When asked where the applicant’s wife or wife-to-be was at that time, the witness could not recall.
· Medical Evidence
Dr Joyce Arnold
29. Dr Joyce Arnold provided a report dated 5 November 2002. Dr Arnold diagnosed the applicant as having alcohol dependence/alcohol abuse and also a personality disorder with sociopathic or psychopathic and dependency traits. She said there was no link between the diagnosed conditions and the applicant’s service in Malaysia. Dr Arnold was challenged about some of the contents of her report as the applicant disputed either some of the things she had stated in her report or the content of some aspects which her report indicated the applicant had denied. She was asked whether a statement in her report that the applicant did not feel he was going to die was recorded in her contemporaneous notes. She said it was not. She also stated in her report that “he never felt personally threatened”. When asked if that was in her contemporaneous notes, she said she could not find a note where he said that.
30. It is noted that Dr Arnold carried out psychiatric assessment of the applicant on 31 October 2002 and signed the report on 5 November 2002. Dr Arnold responded to a question by the applicant’s Counsel as to whether she was suggesting he was a malingerer. Dr Arnold replied that she was merely saying that her report was her observations and a summary of the history of the client. In re-examination Dr Arnold was asked whether the applicant did not regard incidents which he puts forward as stressors as being traumatic. Dr Arnold replied that that was what the applicant told her which is either in her notes or in the report.
31. In evidence-in-chief she indicated that his reaction to the events in Malaysia was that he was not sad or distressed and that they had minimal impact on him either then or subsequently. In cross-examination in relation to her conclusion about the applicant’s sociopathic or psychopathic traits, she said her conclusion was based on his long term relationship with his family and that he and his family had moved further away from each other. She also based her conclusion on the following:
· Difficulty in settling into jobs
· Difficulty with alcohol
· Antisocial traits
· Dependency traits
· Absence without leave – irresponsibility about others’ needs
32. When asked in cross-examination whether these traits became evident only after he returned from service in Malaysia in 1976, Dr Arnold said that he had difficulty settling into jobs prior to joining the Army and seemed to have difficulties with attachments and relationships. She said she could review her diagnosis but would need more evidence than what she was told by the applicant. Her assessment went for approximately 60 minutes and noted that he recalled bad dreams, but his concentration was normal. When it was suggested that he had told Dr Arnold that he had had suicidal thoughts, Dr Arnold responded that she specifically asked him about that but he denied having suicidal thoughts. In relation to his overseas service specifically, she said he was “never threatened”. She did acknowledge however that he said that when there were fireworks on Red Letter days, that they were “scary”.
Dr Rosalie Troup
33. Dr Troup provided a report dated 18 June 2003. She was his treating psychiatrist for a time and diagnosed Generalised Anxiety Disorder. She also said that it occurred within a two year period of the stressor of having a pistol pointed at him on the ferry. She also concluded that he had a secondary alcohol dependence and thought he was unable to work. Dr Troup did not give oral evidence.
Dr Jerome Gelb
34. Dr Gelb provided reports dated 25 June 2004, 21 September 2004, and 27 July 2005. Dr Gelb diagnosed the applicant with post traumatic stress disorder and said that the opinions of Dr Arnold and Dr Troup were both misdiagnoses. In his last report, he reiterated his diagnosis of PTSD and said that the applicant satisfied criterion A of the definition in that he had a “perception” of a traumatic life threatening event.
35. In oral evidence-in-chief, he told the applicant’s Counsel in response to a statement by Dr Alcorn that he (Dr Alcorn) would have used more clinical questioning than what Dr Gelb appeared to have done. Dr Gelb stated that he did both PTSD testing as well as clinical questioning. He stated that he spent a lot of time with the applicant and his wife documenting his symptoms.
36. In cross-examination by Mr Smith, he said the applicant was drinking heavily when he made his diagnosis. He relied also on confirmatory statements by the applicant’s wife who said that even when he was sober, he was “cranky”. Dr Gelb said he looked for signs of whether the applicant was consciously thinking about trauma or re-experiencing it and if so, it would be more likely that the trauma would be PTSD. He said he weighed the likelihood that the applicant amplified and exaggerated his claims. He said compensation issues are complex and said there were a range of possibilities between complete honesty and complete dishonesty. But once he made a diagnosis, he then tried to identify the cause of the symptoms. In relation to symptoms like nightmares, Dr Gelb said he would need to ask a patient to provide further information so that he could be more confident about his diagnosis. He thinks in relation to the applicant’s military service, that he was not happy with his performance and would have liked to have been more motivated and performed better.
37. Mr Smith also asked Dr Gelb about the applicant’s claim of dreams where somebody was trying to kill him. Mr Smith said that was nothing like the reality. Dr Gelb said he considered that dreams are always a symbolic representation of life events and that the persistent nature of the theme eg violence, would indicate a likely representation of trauma. In further explanation, Dr Gelb said sometimes victims might actually have images of killing, but if a memory is distressing and it is intrusive, then that would be “re-experiencing” a trauma.
38. Dr Gelb also referred to PTSD not occurring in a vacuum. He said certain people were more likely than others to be susceptible and he thought the applicant was a vulnerable person.
Dr David Alcorn
39. Dr Alcorn provided written reports dated 27 July 2005, 2 November 2005, 16 February 2006 and 7 July 2006. In Dr Alcorn’s report of 27 July 2005, he diagnosed alcohol abuse (in remission) but said that there was insufficient evidence that the applicant’s Malaysian service permanently aggravated his alcohol abuse. He also concluded that the applicant probably met the diagnostic criteria for some features of narcissistic interpersonal attitudes and behaviours. He also said that there was a possible diagnosis of Generalised Anxiety Disorder but he would need further material to confirm this. Dr Alcorn also concluded in that report that the possible anxiety disorder is complicated by the presence of an irritable and dysphoric mood. He said that the mood disorder was likely to be a consequence of his alcohol abuse, although he noted that the applicant had ceased drinking in the previous 12 months but still had ongoing problems with mood irritability. Dr Alcorn also concluded “[t]here is no cogent evidence that the alcohol abuse, which in my opinion predated the Malaysia service, was permanently aggravated by service in Malaysia”.
40. In his report of 2 November 2005, Dr Alcorn considered additional evidence which were statements of siblings and a former Army colleague. He concluded “…the additional written materials provided support for the presence of such an anxiety disorder”. He thought, based on that evidence the onset of the anxiety disorder occurred with two years of his Malaysian service.
41. Dr Alcorn’s report of 7 July 2006 considered further evidence again, this time of disciplinary and psychological records from the applicant’s military service. He said the diagnosis of Alcohol Abuse reasonably explains the applicant’s behaviour over time. Consistent with his opinion of 27 July 2005 where he thought the alcohol abuse predated the applicant’s Malaysia service, Dr Alcorn concluded “it cannot be established on the balance of probabilities that the Malaysia service had a permanent effect on the subject’s alcohol consumption”.
42. In oral evidence-in-chief, Dr Alcorn said that the date of onset of the anxiety disorder, on the balance of probabilities, was not clear. He gave no particular date for onset. In relation to alcohol abuse, he said that the date of onset should be considered in the light that his drinking seemed to be a problem early in his Army service and he said he regarded it as a significant problem from about 1974 and 1975 at Enoggera, that is, before he served in Malaysia. While there were no disciplinary offences before Malaysia, Dr Alcorn said it appeared that he did most of his drinking off the Army base before Malaysia. He also noted he had difficulty with authority figures, including with his step-father.
43. In relation to Dr Gelb’s diagnosis of PTSD, Dr Alcorn thought this diagnosis could not be sustained. He said he did not display avoidance, and whether there was a possibility of delayed onset until 1997, Dr Alcorn said such cases were less frequent. He said such patients will tend to describe symptoms earlier in the piece such as nightmares. Also, he said that concentration, which is a key feature of anxiety disorder, was not a problem at least at first, in Malaysia. He agreed however, there were concentration difficulties within 12 months of the applicant’s Malaysia service. He also referred to the fact that there was “plenty of evidence of irritability”. However, he said 1997 was the first time in which the applicant would formally meet the criteria for an anxiety disorder.
44. Dr Alcorn was asked by the Tribunal to clarify his comment about narcissistic personality. He referred to Dr Arnold’s report referring to the applicant as having psychopathic traits. Dr Alcorn said that this helps to understand the behaviour and the problem of the applicant. In relation to narcissistic traits, Dr Alcorn said the applicant lacks empathy and lacks the ability to relate to the feelings of others. He described it as haughty behaviours towards others and an arrogance. He said there were other features such as the person with narcissistic traits would have a sense of entitlement.
Consideration
45. We have reached a decision in this matter after taking account of all the relevant documentary and oral evidence, as well as all of the statutory and common law authorities.
Diagnosis
46. The full Federal Court has held that the most appropriate diagnosis must be determined according to the standard of proof in s 120(4) (Benjamin and Repatriation Commission (2001) 70 ALD 622 at 634).
47. This case has evidence from four psychiatrists, two treating psychiatrists who support the applicant’s contentions. Two other assessing psychiatrists do not support, or do not strongly support, the applicant’s contentions.
48. The treating psychiatrists Dr Troup and Dr Gelb have based their reports on the evidence of the applicant and the applicant’s wife. The Tribunal notes that they have endeavoured to rationalise the quality of information provided to them. But we note that there is inconsistency between some of the information provided by the applicant and his wife to those doctors and to the independent psychiatrists, Dr Arnold and Dr Alcorn. Despite the applicant challenging some of the accuracy of Dr Arnold’s report, we note some inconsistencies in the evidence provided both by the applicant and his wife. For example, Dr Arnold noted that the applicant said he had difficulty falling and staying asleep. He gave contrary indications to her. He tried to rationalise this when challenged by Dr Arnold. Dr Arnold noted that the applicant’s wife had told Dr Gelb that her husband was “cranky” even when he was not drinking. Dr Arnold noted this was at odds with the reason for the applicant separating from his first wife because of his irritable moods. Dr Alcorn also noted the inconsistency between his wife saying that the applicant was drinking heavily, while the applicant himself said that he had abstained from alcohol for the previous 12 months.
49. The Doctors’ reports are of course relied upon and based upon the version of events provided by the applicant, and in this case also, with some information provided by his wife. The Tribunal notes the applicant has been inconsistent on a number of occasions in relation to what he regarded as the most stressful events.
50. We note also that there were developing concentration problems which is a feature of anxiety disorder. However, as noted by Dr Alcorn, the applicant, on returning to Australia, attended a mortar course and in fact achieved first place on the course. We note that he also attended and qualified in a driver’s course.
51. We take account of the fact that Dr Alcorn sought further information and firmed up his opinion as he progressively received more information. His analysis appeared to be objective but realistic. He formed his opinions by the conclusion of his fourth report based on additional material provided by family members and also took account of the military psychological records which raised some suspicion as to the applicant’s instability both on enlistment and while at 1 RTB. His military disciplinary record was also considered by Dr Alcorn which reveals that the applicant was convicted of offences of disobeying a lawful command in February 1977. His first offence was clearly a serious offence as it was dealt with by a District Court Martial. He was convicted and sentenced to serve four days detention. Then in September 1977 he went absent without leave for 30 days. That clearly also is a serious offence as it was also dealt with by a District Court Martial and the applicant was convicted and sentenced to 7 days detention as well as incurring non-effective service. He also was charged with two other offences – conduct to the prejudice of good order and military discipline; and disobeying a lawful command. These were dealt with summarily and he was convicted and fined for those offences.
52. Of these latter offences, particularly the offence concerning the long period of absence without leave, was towards the end of the applicant’s period of enlistment and when he was due for re-engagement. It is noted that the applicant was warned on 7 October 1977 that his re-engagement would not be recommended unless he improved. He was classified as being “inefficient”. Clearly, he did not convince military authorities that he was likely to rehabilitate himself as he was discharged formally from the Army on 29 November 1977 on the basis that his “[r]etention in the military forces not being in the interest of those forces’: AMR 176(1)(n)”.
53. Despite the opinion of Dr Gelb being comprehensive, the Tribunal prefers the opinion of Dr Alcorn who has diagnosed the applicant as having alcohol abuse (in remission), albeit on the balance of probabilities he says that it cannot be established that the applicant’s Malaysia service had any permanent effect on his alcohol consumption. He also diagnosed an anxiety disorder based on the additional written evidence he received. He noted also that the applicant’s anxiety disorder is impacted by a co-morbid mood disorder, which Dr Alcorn thought was secondary to alcohol abuse.
54. We therefore find that the applicant suffers alcohol abuse (in remission) and anxiety disorder.
Are these conditions defence caused?
55. Whether the applicant’s conditions arose out of his defence service depends on whether there is a causal connection between his conditions and that defence service (see section 70(5)(a) of the Act). The connection between the injury or condition and the defence service need not be the dominant cause but it must be a contributory cause or connection (Repatriation Commission v Law (1981) 147 CLR 635 at 647-8 per Aickin J) (with whom Gibbs CJ, Stephen and Mason JJ agreed). There the court held that a causal connection must be demonstrated, not merely a temporal connection with the defence service and the condition suffered. Mere personal activities of the applicant are the dominant cause and the defence service merely specifies an environment in which the cause operated. Therefore, the injury or disease could not be said to arise out of or be attributable to defence service (see Wedderspoon v Minister of Pensions [1947] KB 562 at 563-564 per Denning J).
56. The central issue in this case is whether the applicant has experienced “a severe stressor” as defined in Instrument No 77 of 1998 (Alcohol Dependence or Alcohol Abuse); or whether he has experienced a “severe psychosocial stressor” as defined in Instrument No 2 of 2000 (Anxiety Disorder).
Relevant SoPs
57. In respect of alcohol abuse, the Tribunal must be satisfied on the balance of probabilities in terms of factor 5 of Instrument No 77 of 1998. Relevantly, these are:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service are:….
(b)experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse;
or
…
(d)experiencing a severe stressor within the one year immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…”
58. The term “experiencing a severe stressor” is defined in paragraph 8 of that SoP as follows:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror;
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
59. In relation to anxiety disorder, the Tribunal must be satisfied that the applicant satisfies factor 5(a)(i) of Instrument No 2 of 2000, as follows:
“Factors 5
..
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder; or
…”
60. The term “severe psychosocial stressor” is defined in that Instrument as follows:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;’
Alcohol Dependence or Alcohol Abuse
61. In considering the terms of the relevant SoP, the Tribunal must consider the purpose of the SoPs. It must come to an assessment of the actual risk or threat of death or serious injury (Stoddart v Repatriation Commission (2003) 74 ALD 366 per Mansfield J at 377. There is a subjective element of "experiencing" a severe stressor, which simply put requires "that the threat should in fact be met, undergone or felt” (at 376).
62. In considering the word "threat", Mansfield J. said there must also be a consideration of the facts objectively. This does not mean that there must be an "actual threat of death or serious injury". That is, it does not exclude from the meaning of the term "threat", the situation "where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity" (at 378). Equally, it does not provide for "idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause" (at 378) ("that involved actual or threat of death or serious injury").
63. The objective requirements must also be comprehensive in the assessment taking account of the person’s age and experience in the Armed Forces, including their formal training and whether the stressful situation involved combat. (See Delahunty and Repatriation Commission (2004) 38 AAR 511 per Tamberlin J).
64. The examples listed in the SoP provide some guidance as to the benchmark of a severe stressor eg “threat of death or serious injury, or engagement with the enemy, or witnessing casualties or participation in, or observation of casualty clearance, atrocities or abusive violence”.
65. But the incidents must also satisfy that part of the definition which provides that the event or events “… might evoke intense fear, helplessness or horror”. This term has been considered in conjunction with definitions of those words in the Oxford Dictionary, where “intense” means inter alia, “…and very deep; feeling ardent … feeling or susceptible to, intense emotion”. That connotation of “intense” qualifies the words “fear” (which was defined as “the emotion of pain or uneasiness caused by the sense of impending danger”); “horror” (which is defined in the Oxford Dictionary as “…a shuttering with terror and repugnance, feeling excited by something shocking or frightful…”): (Gerzina v Repatriation Commission (2003) 79 ALD 400 at 406).
Anxiety Disorder
66. In White v Repatriation Commission (2004) 39 AAR 67, it was held that there is also subjective and objective aspects to this assessment. As to the subjective element, see Stoddart (supra). In relation to the objective element, if "any occurrence, no matter how trivial or innocuous it objectively is, can be a ‘severe psychosocial stressor’, means that the examples given in the definition of ‘severe psychosocial stressor’ would be not only irrelevant and devoid of utility, but positively misleading" (at 73). In considering the term “experiencing a severe psychosocial stressor”, the incident or occurrences relied upon must evoke feelings of substantial distress which are exemplified in the Statement of Principles as “being shot at, death or serious injury of a close friend or relative …”. That is indicative of the magnitude of event which is likely to have a serious psychosocial impact which results in the condition under consideration, and which has been approved as such by the Repatriation Medical Authority.
67. We have considered the incidents as related to us by the applicant both in his written submissions and his oral evidence, as well as information provided through other witnesses and the medical expert evidence. We accept that the incidents occurred and that some emotional disturbance to the applicant could result from some of those incidents. However, we are not satisfied on the balance of probabilities, that any of the events as specified, could be regarded of a level where they evoked intense fear, helplessness or horror, or would be responsible for the feelings of substantial distress as defined in terms of a “severe psychosocial stressor”, either in the applicant himself or in any reasonable person in the same circumstances and with the same level of training and experience.
Application of the Evidence to the Law
68. We cannot find that any of the incidents as outlined, would be regarded as significant by anybody serving in Malaysia in those circumstances. They were the circumstances of undertaking guard duty in the RAAF base in a period of non-operational service. Many of the incidents claimed are not incidents of any direct relationship to the applicant’s service, other than the fact that there is a temporal connection, ie they occurred while in Malaysia, but they were whilst on a period of leave or not on duty. They were also in some cases, either not raised at all in the evidence (such as incidents (i) to (iii) in para15 above) or they involved the applicant being involved in personal activities when he was likely to have been inebriated. In any event, despite claiming these events as being stressful, he regularly went to bars and proceeded through the south gate entrance on a regular basis despite his claim of them being disturbing events. These were clearly incidents where there was some degree of control over his own situation. Dealing with the incidents seriatim, we are satisfied that the applicant did not experience a severe stressor or a psychosocial stressor as a result of these incidents.
· Incidents 1 and 2 are broad assertions which were not raised with the Tribunal nor was any evidence led about them.
· Incident 3 apart from the assertion in the applicant’s outline of submissions and a reference to having attended field training elsewhere in the evidence, it was not raised in the oral evidence or specifically in submissions.
· Incident 4 – Red Letter Days. The evidence is that the applicant went on guard duty and saw individuals at night 10 to 15 metres from the fence. If an incident had occurred, he could have called the Section Commander who would then have also called in Malaysian guards. In his oral evidence in cross-examination, the applicant agreed that this posting was in some respects a “cushy” job in that he did guard duty every nine days. In other words, he only did guard duty 10 times in the period of three months he was there. He also stated that in relation to the Red Letter Days, that rattling on the wire only occurred three or four times.
· Incident 5 – The Machete Incident. This was the observation of an incident of someone returning from a social outing and was clearly a personal activity. The effect of this incident on the applicant seems to have been relatively minor given that there was essentially no reliance on this incident in the evidence or in relation to information related to the psychiatrists.
· Incident 6 – The Ferry Incident. On two occasions in the evidence, the applicant indicates that this is the most stressful event. He has also claimed the Truck incident was the most stressful (see T Documents folio 109). On questioning by Brigadier Maynard, he said it was the second most stressful event. On the other hand, it was ranked sixth out of seven when he responded to the same question by Dr Alcorn. The applicant’s evidence was that they were standing on the top deck of the ferry (elsewhere said to be standing on the dock) and with other observers looking down into the bottom deck where there were vehicles and police arresting three people. The distance from the Malaysian police involved, the fact that it was not specifically directed at them but rather to a group of people to move on and that they left immediately and got into a taxi and went back to the RAAF base, is not indicative of a stressful event that would cause ongoing alcohol abuse or anxiety disorder. Dr Alcorn makes a similar observation.
· Incident 7 – Identification Cards Incidents. There was some suggestion in the written evidence that there was a possibility that the Malaysian guards may have been “on drugs”. It was not raised again or put to the Tribunal in oral evidence. Taking account of the evidence of the applicant and of David Piggott in particular, we find that the applicant has overstated the position about this incident.
· Incident 8 – The Truck Incident. In the applicant’s submissions it states that he was driving a truck slowly past a Malaysian guard house and was called upon to stop. He also claimed to have aimed his M60 machine gun at them and was about to cock it. In his oral evidence, it is not apparent that he is either driving the vehicle or operating an M60 machine gun. But in cross-examination, he said that the truck was going at only 5km per hour and only moved the length of the truck. He agreed with Mr Smith that the truck would only have moved for a few seconds before it stopped. Nothing happened and it was resolved quickly.
· Incident 9 – The Communist Hotel Incident. The stressful point of this incident is that this hotel is apparently over the road from Communist headquarters. However, elsewhere in the evidence, it is stated that they moved out of that hotel and went down the road to stay at a four star hotel. This latter aspect of the evidence was not relayed to most of the psychiatrists.
· Incident 10 - The Ah Choo Bar Incident. This incident involved a fight between a Malaysian woman and locals. This incident does not include any description that would have been life threatening or a perception of threat of injury or death for the applicant based on the evidence presented.
69. We are therefore not satisfied that the evidence of the incidents claimed, would meet the standard required of a “severe stressor” or a “severe psychosocial stressor”.
70. We also have some concern about the credibility of the applicant as a witness. While some of the facts are accepted by the Tribunal, there is sufficient inconsistency in the evidence to lead us to believe that the applicant and/or his wife have not been entirely truthful or accurate in their recollections of the extent of events. Some of the evidence of family members is now very distant and they have had little experience with the applicant to add much weight to the applicant’s evidence. The inconsistency in what the applicant regarded as the most stressful of events seems to us that some of the evidence is not entirely satisfactory or reliable. The functional nature of the applicant’s life until 1997 at least, does not point to any significant memory problems, although we are conscious of the lapsed time since his service in Malaysia and his alcohol abuse. Nevertheless, considering which might be the most stressful event, one would expect it not to be too difficult for the applicant to determine.
71. In addition, we find the evidence of Mr David Piggott supportive and “convenient”. Likewise, Mr Richard Piggott, who gave evidence which is corroborative of the applicant’s version of events, lives in Nanango, the same town as the applicant, but states he has not seen him or spoken to him for 20 years. That witness lacked credibility in the view of the Tribunal. The assertion that he had not seen the applicant for 20 years, despite attempting to do so the Tribunal finds most unlikely. They both live in Nanango, a relatively small town, and have done so for some time. The evidence of Mr Richard Piggott also seemed far-fetched when he observed no mood aberration with the applicant in his time serving in 6 RAR prior to and while in Malaysia and where it appears he worked and socialised with the applicant daily, but within two weeks of returning to Australia and moving into a flat with him, he suddenly noticed mood changes. He apparently moved out within two weeks because of this. This happened to coincide with the applicant being about to marry within a month or so of that time. These factors have diminished significantly the weight which was placed on the evidence of Richard Piggott.
72. It follows that one or more of the factors in the SoPs are not satisfied. We are therefore not satisfied on the balance of probabilities that he has experienced a “severe stressor” or a “severe psychosocial stressor”.
73. In making that finding, we are also mindful of Dr Alcorn’s opinion, which we have adopted, that the applicant’s alcohol abuse was in existence before he went to Malaysia. In that respect, we do not accept that it would be possible for the applicant therefore to satisfy the requirement of Factor 5(b) of Instrument No 77 of 1998 that one of the incidents could be a severe stressor prior to the onset of alcohol dependence or alcohol abuse. Nevertheless, having made that finding, the question would arise whether one or more of those incidents could be a severe stressor within a year of a clinical worsening of alcohol dependence or alcohol abuse (Factor 5(d) of Instrument No 77 of 1998). We have already formed the view that none of the incidents are in fact severe stressors. However, even if that was not the case, the evidence does not lead us to the conclusion that there was a worsening of the applicant’s alcohol abuse when he returned to Australia. In fact, there is evidence that he got married within two months of returning to Australia and then had a 12 year marriage which the applicant said was not aggravated by his drinking problem. This only became evident in 1988 or within a period of time after his first marriage collapsed. We therefore find that this factor would also not be satisfied.
74. Therefore, the decision under review is affirmed.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member and Dr GJ Maynard, Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 2-3 November 2006
Date of Decision 30 January 2007
For the Applicant Mr R Clutterbuck, of Counsel
Gilshenan and Luton, Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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