Profitt and Repatriation Commission
[2006] AATA 250
•16 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 250
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/109
VETERANS’ APPEALS DIVISION ) Re JOSEPH PROFITT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date16 March 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
........[Sgd].......
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – defence service with Royal Australian Navy and Royal Australian Air Force – application of Statements of Principles - no experiencing of a severe stressor - no diagnosis of post traumatic stress disorder - smoking habit not service related - ischaemic heart disease not defence-caused – decision affirmed
Administrative Appeals Tribunal Act 1975 s37
Veterans’ Entitlements Act 1986 ss 5D, 6D, 69, 70
Repatriation Commission and Tuite (1993) 29 ALD 609
REASONS FOR DECISION
16 March 2006 Mr RG Kenny, Member Background
1. Joseph Profitt, the applicant, served in both the Royal Australian Navy (RAN) and the Royal Australian Air force (RAAF) and he lodged claims with the Repatriation Commission (the respondent) for a pension in relation to incapacity associated with “ischemic heart disease” and “post traumatic stress disorder”. On 7 February 2002, the first of those claims was rejected on the basis that the condition was not related to Mr Profitt’s RAN or RAAF service. On 23 December 2003, the claim for the psychiatric condition was rejected on the grounds that Mr Profitt was not suffering from post traumatic stress disorder.
2. On 8 December 2004, the Veterans Review Board (the VRB) affirmed the decision in respect of ischemic heart disease and varied the decision in respect of post traumatic stress disorder by determining that Mr Profitt did suffer from that psychiatric condition but that it was not related to his RAN or RAAF service. On 23 February 2005, Mr Profitt sought review of those decisions by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. Mr Profitt attended the hearing and was represented by Mr R Clutterbuck of counsel. The respondent was represented by departmental advocate, Mr J Kelly. The evidence before the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
4. It is not disputed that Mr Profitt served in the RAN from 12 July 1969 until 3 September 1978 and that the period from 7 December 1972 until his discharge constitutes defence service as provided for in sections 68 and 69 of the Veterans’ Entitlements Act 1986 (the Act). Further, it is not disputed that Mr Profitt served in the RAAF from 21 August 1979 until 3 May 1992 and that this also constitutes defence service under the Act.
5. Before a condition can be accepted as related to service, it must meet the definition of “disease” or “injury” in subsection 5D(1) of the Act which provides that a disease is “any physical or mental ailment, disorder, defect or morbid condition” and an injury means “any physical or mental injury other than a disease”. One issue for determination is whether post traumatic stress disorder is a condition in Mr Profitt which meets that description.
6. Once conditions have been found to be present, their relationship to service must be considered under the causal criteria which are listed in section 70 of the Act. In so far as is relevant in this matter, it provides that an injury or disease will be taken to be defence-caused if it arose out of, or was attributable to, any defence service of the member.
7. The standard of proof for determining issues of diagnosis and causation is provided for in sub-section 120(4) of the Act and this requires all relevant matters to be determined to the Tribunal’s reasonable satisfaction.
8. In applying the causal criteria in section 70 of the Act, it is also necessary to give effect to relevant Statements of Principles which have been published by the Repatriation Medical Authority. It is common ground, in this case, that the relevant Statements of Principles are Instrument No 54 of 2003 (as amended) for ischemic heart disease and Instrument No 4 of 1999 (as amended) for post traumatic stress disorder.
Applicant’s Case
9. For ischemic heart disease, it was submitted that this had manifested itself in 1999 when Mr Profitt collapsed from a heart attack. It was further submitted that the condition had developed in response to the effects upon him of cigarette smoking and pipe smoking in which Mr Profitt had engaged because of the circumstances of his service.
10. For post traumatic stress disorder, it was submitted that the condition had been diagnosed by psychiatrist, Dr Christopher Danesi, who had identified two stressors which had been experienced by Mr Profitt in 1974 whilst he was in the RAN.
Respondent’s Case
11. Mr Kelly conceded that the onset of ischemic heart disease in Mr Profitt was in 1999 but he submitted that, while it may have developed because of smoking, Mr Profitt’s smoking habit did not have a relationship to service.
12. For post traumatic stress disorder, Mr Kelly submitted that a diagnosis of that condition could not be made because the events relied on by Dr Danesi had not occurred in the manner detailed by Mr Profitt or with the effect upon him that he claimed.
Mr Profitt’s Evidence
13. Mr Profitt was 15 years of age when he joined the Navy as a junior recruit and he completed a period of 12 months apprenticeship in engineering in Western Australia. He then served at HMAS Leeuwin and was posted to HMAS Vendetta in October 1973. He carried out his duties as an engine room artificer in the boiler room and engine room. He said that he began smoking at that time and did so at the rate of around 3 to 5 cigarettes a day and gradually increased to about 20 cigarettes a day by late 1973 early 1974. He said that everyone smoked and that he was encouraged to do so, particularly when he and other sailors went ashore and consumed alcohol.
14. Mr Profitt was referred to particular incidents that occurred to him in 1974. In his evidence in chief, he said that these had caused him to increase his smoking but, in cross examination, he said they did not because he was already smoking heavily by that time. Mr Profitt was also referred to various notations in his medical records where he declared that he was not a smoker. However, he said that he did this either because he was in a brief period of cessation or, in the case of the occasion when he had a vasectomy operation, to ensure that the process wouldn’t be delayed due to the existence of the smoking habit. Mr Profitt said that there were various occasions where he tried to stop smoking and recalled that he and his wife ceased smoking whilst she was pregnant with their first child who was born in August 1978. He said that he remained a non-smoker for 12 to 18 months including the time when he joined the RAAF but then took up the habit again. Mr Profitt also smoked a pipe while he was in the Navy and said that he found this more effective when he was working in a hot and moist boiler room.
15. Mr Profitt was referred to a file note prepared by Andrew Lewis, an officer with the respondent, on 2 November 2001. Mr Lewis had spoken to Mr Profitt by telephone and he wrote:
“Cigarette Smoking
The veteran stated that he began smoking when he turned 16, on the 25th of November 1969. The initial amount of cigarettes was approx 20 a day. The smoking habit increased to 60 a day from late 1970, early 1971. Mr Profitt stated that he ceased smoking in early 1998.
Pipe Smoking
The veteran stated that he began smoking a pipe on the 7th of December 1972 as it was easier to smoke a pipe whilst on the ship. The amount of tobacco smoked during his pipe smoking period equates to 56 grams a day, or two ounces. The veteran ceased smoking a pipe in December 1991.”
16. In his evidence, Mr Profitt said that he had been intoxicated at the time when Mr Lewis phoned him and that the dates written by Mr Lewis were all incorrect. He said that the amounts referred to were correct but in different time-frames. He denied saying that he commenced smoking a pipe on 7 December 1972, but conceded that he may have said that it was after that date.
17. Mr Profitt completed two smoking questionnaires, dated 7 December 2004 and 27 April 2005, respectively. In the first of those, he said that he started smoking about October 1973 at the rate of three to five per day and ceased in 1998 and that he increased his smoking after the incidents that occurred to him in Asia in 1974. In the second questionnaire, he said that he started smoking in December 1973 or January 1974 at the rate of three to five per day and ceased in 1998 and, again, said that he increased his smoking in late 1974 stating the habit had formed because of the stress he experienced in Asia.
Subic Bay Incident
18. The first of the stressful events relied on by Mr Profitt was said by him to have occurred in Subic Bay whilst Vendetta was based there. He was on his own on a footpath when a boy, aged about 10 years, was shot and killed. Mr Profitt has given various versions of what occurred at that time. In a statement he completed on 27 November 2002, he said:
“… a ‘kid’ about ten years old, ran out behind me then around me. He was followed by a guard who chased him and then let rip with his hand gun. He aimed at the kid who just dropped. It was futile to do anything for him as his head was ½ gone. I was terrified that I would also be killed. The boy’s body had been mutilated and it was a sickening sight.”
19. In his evidence to the VRB, Mr Profitt said:
“…that he heard a shot 3-4 feet behind him and then saw a kid drop 20 feet in front of him. Everyone else scattered however Mr Profitt raced over to the kid. He rolled the kid over and observed that he had a hole in his chest. Others started to gather around and Mr Profitt just left. He said that the kid was shot by a security guard in a jewellery shop, probably because he had stolen some goods.”
20. Mr Profitt also detailed the event to Dr Danesi who, in his report of 17 March 2003, wrote:
“He described being in Subic Bay walking down the street. A kid ran out of a shop and bumped into him. Then a gun shot went off right next to his ear, probably 3 feet behind him. The kid was hit in the back of the head about 10 feet in front of him. He hit the deck. When he got up he went to the kid, his face and head were gone.”
21. The incident was again noted by Dr Danesi in his subsequent report, dated 27 July 2005, which was after the VRB hearing. Dr Danesi wrote:
“He said he was unsure why he told me that in the Subic Bay incident that the boy had lost his face and head. This is what happened on the shore patrol. He said the child was shot in the back and the bullet exited his chest. He said he walked out of the shop, the kid bumped into him running past him. Someone was screaming out stop. He said there was a bang next to him. Someone just behind him had discharged a firearm. He hit the deck. He said people scattered everywhere. The child 10-15 ft in front of him was on the ground. He ran to the child to see if he could help him. He couldn’t see much on his back but when he rolled over it was obvious he was dead.”
22. Psychiatrist, Dr Wainwright, saw Mr Profitt in March 2005. He also recorded the incident in his report, dated 6 April 2005, and wrote:
“I was on shore leave going down the main street and there were shops everywhere. I hear this yelling behind me, screaming out. A kid ran past me, he had a red shirt on. About 2-3 feet behind me ‘bang’ this gun went off. The kid was about 20-30 feet in front of me. He went down and a bloke ran past me. I presumed a security guard for a shop. I just ran to the kid (he was 8-10 years of age). He was quite dark-skinned – the Indian-look about him. I walked up and saw this indentation in his back. I rolled him over and there was this mass of blood. He was dead. People came from everywhere. I walked away and I presumed that the kid had knocked something off.”
23. Dr Maxwell Katz, psychiatrist, was Mr Profitt’s treating psychiatrist from May 2000 and, on 28 October 2001, Dr Katz completed a report in which no reference is made to any incident of trauma in Asia and, indeed, apart from an occasion when he injured his shoulder, Dr Katz noted that there was no other significant sensitising or traumatising experiences by him in the Navy. In his evidence, Mr Profitt said that he wasn’t sure whether he’d told Dr Katz about the incident. He said it hadn’t been a problem for him at that time.
24. In his evidence, Mr Profitt said that he saw the kid run past him and a bloke run out behind him. He said the man pulled out a gun and shot the boy. He said that half of the boy’s face was gone and the man who shot him reached down and took something from his hand and he believed this to be something which the boy had stolen. He said that he rolled him over and noted that half his face was gone. He was able to estimate the value of the item that the boy had at around $5.00. In his evidence to the VRB, he said the guard had probably come over and taken the stolen property off the kid’s body after he left the scene.
25. Mr Profitt denied that he had said to the VRB in his evidence that the boy had been shot in the chest. He said that he was confused at the time. He said that the face was half gone but it was the bottom of the face. He said there may have been a hole in the chest. He said he wasn’t sure and that there may have been more than one gun shot and more than one wound. He then said that there was more than one shot and, when asked why he hadn’t mentioned this to the VRB or to Dr Danesi, he said that it hadn’t occurred to him at the time.
26. Mr Profitt said that he had not reported to anyone in authority about the incident but had spoken to fellow sailors shortly afterwards and was told that it was the sort of thing which happened in Subic Bay and, therefore, he decided to put it out of his mind.
Bangkok Incident
27. The second incident of trauma described by Mr Profitt occurred whilst Vendetta was in Bangkok. He and another sailor, “Smiley” McConnell, had been selected to undertake a shore patrol which was tasked with working with civilian police in monitoring the activities of sailors onshore. In his statement of 27 November 2002, he wrote:
“I was on shore patrol with ‘Smiley McConnell. We were to assist at the local police station.
After some time they received a ‘call out’ and we all jumped in the back of a WWII Jeep (or a vehicle that looked like one) with two or three local cops. We arrived at an industrial area where all the police hooded up. They left us at the cars, just outside the building.
All of a sudden we found that they were involved in a fire fight. Smiley and I hid behind the truck and ‘literally shit ourselves!’ I said “shit, what are we doing here?” There was gun fire everywhere. Coppers were being shot as well. We thought that if the cops were shot then we would be next. We only had batons to defend ourselves. We said ‘if these coppers don’t come out in the next thirty seconds we are out of here’. One of the cops appeared and called us over to assist him to drag the bodies of two people behind him. There followed two lengthy red streaks of blood on the white concrete. The top half of one of the bodies was half missing. I picked the body up and put it in the back of the truck. It was pretty scary and I was petrified.
We later asked questions as to what it was all about and were told that the fight was with drug dealers.
I felt very stressed following this incident and was told to go ashore for a few hours. I spent the time drinking alcohol to try and blot out these memories. I felt very depressed for some time and this feeling of depression has been with me more often than not over the years.”
28. His evidence to the VRB was summarised in the following way:
“The second incident reported by Dr Danesi was in 1974. He was on shore patrol with the Bangkok police. He was driven to an industrial area and into a car park. They were told to wait in the car and the next thing they knew there was gun fire. The gun fire lasted about 15-20 minutes. Then it went quiet for a while. He helped carry four deceased men and put them in the truck. He said one of them was missing all the upper half of his body.
….. He said that he and his friend Smiley were already out of the police vehicle when the shooting started. The two of them ‘hit the deck’. The shooting seemed to go on for quite a few minutes. He and Smiley decided to make a run for it to a nearby container. When he turned around and stood up Mr Profitt noticed a bullet hole above where his head was. They sat back down. Then they saw a warehouse in which there were police officers. They were called over and ordered to help. He observed two wounded police officers being attended to by other police officers. He also saw a wounded civilian with blood on his shirt tied up. He and Smiley put one body in a truck. When they dragged the second body to a different truck Mr Profitt pulled back the curtain and saw bags of what he assumed to be drugs. The police officer yelled at him. He and Smiley were taken to the police office. There was a senior police officer adorned in much gold jewellery sitting behind the desk. Two other officers both armed stood beside them. They were grilled about what they saw. Three or four of the police kept throwing questions at them. They were told by the Thai police ‘you will keep quiet’ and ‘we can always get you’, and ‘we know where you are’. When they said they saw nothing the chief police officer said ‘good answer’ and they were allowed to go. They did not report the incident to their superiors as they were scared that they would be hunted down by the Thai police. Although they left Bangkok two days later Mr Profitt said he still felt his life was threatened as the ship was headed to a neighbouring country and the Thai police would still have access to them there. At the time, he and Smiley discussed the incident with a mate and they all agreed it was best not to report it. The first time he has spoken about the threat to his life was with the Board today.”
29. In his evidence, Mr Profitt said there were three men dead and others injured as well as two police officers but he denied saying to the VRB that he had been “covered in blood”. He also said that he and McConnell had dragged a body into the jeep. He said that he took him by the legs and McConnell got his arms. He said it was a real mess but he was not able to explain why he didn’t get any blood on his uniform. He said that he only got blood on his gaiters.
30. Mr Profitt also said that, after he and McConnell had been picked up at the start of the shore patrol, they had gone to the local police station where they stayed for some two or three hours which he found very boring. Two police were then going on patrol and he and McConnell accompanied them. He described the vehicle as a jeep with an open back and metal seats on the sides. He said he was dressed in his “6A’s” which he described as being white shirt, white trousers and white gaiters. He said that, when they were driving, a message came over the radio. The vehicle then did a u-turn, the driver said “gotta go, you come”. He said they then went to the dock area where there were shipping containers and warehouses and about twelve or so other police officers and various vehicles. He said that the shooting started and he and McConnell jumped out of the jeep and took cover behind it. At one stage, he stood up to have a look around and noted a bullet hole in the metal behind him. He wasn’t sure how long the firing lasted. When it stopped, two police came over to him and required him and McConnell to help. He said that he took a body, half of which was “gone”, to the truck. He then was told to go back and retrieve a second victim and then a third one. With the third victim, he was told to place the body in the back of a different vehicle and he opened the back door and, at that stage, a police officer put a gun in his ribs. He said that he believed that what he saw in the back of the truck were bags of drugs.
31. Mr Profitt said that, shortly after that, they returned to the police station and they were accompanied by the police officer who had placed the gun in his ribs. He said that he was terrified at the way in which that police officer looked at him and that the same police officer did not leave them at any time thereafter until they were released form the police station to go back to the ship. Whilst in the police station, he said they were “grilled for a couple of hours” about what they had seen. He said that eventually they said that they’d seen nothing and they were warned to say nothing to anyone about what they’d seen. Mr Profitt said that they believed that they would be killed if they revealed the information to anyone and so they made no official complaint. When they got back to the ship they went to the mess where they encountered another sailor by the name of Brian Marriott. He told Marriott what had happened and they all agreed nothing would be said officially.
32. Mr Profitt did not mention this event to Dr Katz. However, he told Dr Danesi and Dr Wainwright of the event. Dr Danesi, in his first report, wrote:
“He said in 1974 he was in Bangkok on shore patrols with the local police. There was a call out and he got into the back of the jeep with another Australian sailor and two police officers. They were driven to an industrial area and into a car park. There was a building up across the car park with large doors and two little doors inside the bigger doors. They were told to wait in the car. The next thing he knew, there was gun fire. They jumped out next to the jeep. They didn’t know what was happening. All he had was a baton and torch. The gun fire lasted 15-20 minutes. He said it was a drug raid. It was quiet for a while. He had wondered what had happened – whether all the police were dead? Then the Police yelled out it was all over. He helped carry four deceased men and put them in the truck. There was a big red streak of blood from when they dragged them. He said one of them was missing all the upper half of his body. Two were still alive. One policeman was severely wounded.
So when he got back to the ship they asked him whether he was all right as he was covered in blood.”
33. Dr Danesi’s report was prepared before the VRB hearing. He did not mention the incident in his second report. Dr Wainwright recorded the following account:
“… We were out driving around and they headed off down to this area, I presume the wharf area. There were containers and cranes and we pulled into this yard area. It was reasonably well lit and it was about 10 or 11 o’clock. The 2 cops told us to wait here. We were sitting in the back of the truck and next thing it is on for young and old – gun shots, all sorts, you name it, I heard it. We jumped out the long side of the truck and crouched down beside the wheel. We heard a few bullets crunch down around us. I was absolutely petrified to the point of pissing myself. Then the gun shots stopped. Time was really distorted – it seemed like a while. I did not see anyone shooting. It went quiet, I though ‘what now?’ I slowly turned around and stuck my head up above the truck. About 30 metres away 2 cops were walking towards us. I sank back down again. They called out ‘you come, you help’. We walked in and they pointed to the door of the warehouse. We walked inside. It was half lit up and there was a cop dragging a body. I helped him drag it towards the truck. Three of us put the body in the back of the truck. He (the policeman) said ‘come, go help’ pointing to another 2 cops. I opened the back of the truck up and threw the canvas back. There is this pile of bags of white drugs – plastic bags of white stuff. Then I felt a jab in my back and a hand on my shoulder and I turned around and a cop was pointing a gun at my chest shouting and screaming at me. The other cop came over yelling at him. The cop we were with initially said ‘come, we go now’. Smiley was sitting in the back of the truck. There was a body in the back of the truck – 3 bodies altogether. They took us back to the cop shop and put us in the back. After about 30 minutes our original cops came in. Mr Profitt states that they said: ‘Come, come’. And that they therefore ‘went down this hallway’. A couple of cops opened the door. There were 2 or 3 cops in there. One of them was the one that held a gun on me. They sat us down, didn’t ask us many questions. ‘What did you see: What was in the truck?’ I said ‘nothing’. He just looked at me and I will never forget the look as long as I live. He looked straight through me and said ‘good answer, you go now’. I saw death in his eyes. A look of absolute ‘I will kill you without any problem at all’. I was absolutely ….. terrified was an understatement. We were shaking like you wouldn’t believe. I still believe they were in on the drug raid and we weren’t supposed to see what was in the truck.”
34. Dr Wainwright ended the account with what occurred when Mr Profitt got back to his ship. He said that he had to tell a fellow sailor what had happened because he had blood on his gaiters and on his whites.
35. Mr Profitt said that the incident at Subic Bay happened a few weeks before the incident at Bangkok. He was referred to a report of Mr P Mulcare who was engaged by Writeway Research Service to examine the background to Mr Profitt’s claims. Mr Mulcare completed two reports. In the report dated 17 November 2005, he recorded the HMAS Vendetta program in the Far East in 1974 as including a visit to Bangkok on 25 to 29 April and to Subic Bay on 18 to 21 May. Those dates were put to Mr Profitt and he said that he still recalled the Subic Bay incident as having happened first and then observed that this may be because it was the more serious of the incidents. In Dr Wainwright’s report, the Bangkok incident is noted to be the incident which really “haunts” Mr Profitt. He said that the events affected him differently and that the Bangkok incident was one where he was in the greatest danger. His vision of the kid being shot was the worst in its effect on him. In his first report, dated 16 December 2003, Mr Mulcare wrote that he had contacted various officers who had been serving on Vendetta at the time of the incidents. None of them was able to recall either of the incidents and were unaware of any official report in respect of them.
36. In evidence were statements by Gary Connell, who served with Mr Profitt in Malaysia, and Brian Marriott who spoke to Mr Profitt after the Bangkok incident. They also gave evidence. Mr Connell said that he had been told by Mr Profitt while serving together in 1995 of the incident in Bangkok and recalled being told by him that three people had been shot fatally and this had occurred in the full view of Mr Profitt. Mr Marriott recalled that, when Mr Profitt returned to the mess of HMAS Vendetta, he noted that there were splotches on his gaiters. He could not recall how many there were but he said that the gaiters “looked dirty”. He was unable to recall a reference to the loading of bodies but recalled Mr Profitt describing some involvement in the shore patrol with drugs, local police and shots being fired.
Medical Evidence
37. Dr Katz diagnosed Mr Profitt as suffering from alcohol abuse and major depression. Dr Danesi diagnosed post traumatic stress disorder and identified the two incidents at Subic Bay and Bangkok as being the severe stressors which precipitated the condition. Dr Danesi referred to the diagnostic criteria for PTSD and was satisfied that they had all been met.
38. Dr Wainwright’s opinion was that Mr Profitt did not suffer from any psychiatric condition. In relation to post traumatic stress disorder, he based that on a lack of persistent symptoms of increased arousal which is one of the diagnostic criteria for the condition. Dr Wainwright said that he had conducted his interview with Mr Profitt over a period of 3½ hours and, during that time, saw no evidence of any hyper arousal. He said that he gave his account of events in a calm manner and there was no evidence of any tremor or agitation.
Consideration
post traumatic stress disorder
39. For post traumatic stress disorder, the Statement of Principles lists six criteria to be met before a diagnosis of post traumatic stress disorder can be made. The first of these is that the person must have been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;
40. The Statement of Principles also lists the factors, one of which must exist before a service relationship can be found, and it includes:
experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.
41. The definition of experiencing a severe stressor is given in the Statement of Principles and it 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 another person’s, physical integrity.”.
42. Each of the events described by Mr Profitt has the potential to meet the definition of experiencing a severe stressor and to constitute the first of the factors required for a diagnosis of post-traumatic stress disorder. However, on the balance of probabilities, I do not accept that either of the events occurred as he has stated. I found Mr. Profitt to be an unconvincing witness and consider that his evidence was unreliable. While the incidents were alleged to have occurred many years ago, the descriptions of them by Mr Profitt are characterised by many inconsistencies which can not be attributed solely to the passage of time.
43. In relation to the Subic Bay incident, he gave differing descriptions of the distance between himself and the victim, the actions of the gunman in retrieving the “stolen item” from the victim and his own reaction at the time. His descriptions of the position of the gunman also varied with the gun being fired from behind him without warning, in some versions, and in a position where he was able to describe the gunman as aiming at the boy, in another. Importantly, he gave very different versions of the nature of the injuries that the victim sustained. Although he had given various accounts to medical practitioners and in statements to the respondent and to the VRB, he did not assert that there was more than one shot fired. Yet, during his evidence, he came to the conclusion that this had happened. He also gave differing accounts of the victim’s injury to Dr Danesi which is difficult to understand when the incident was such a significant feature in the development of the condition into which Dr Danesi was specifically inquiring.
44. Important inconsistencies are also revealed in the various versions given by Mr Profitt of the incident in Bangkok. He described being called out of the police station to attend the warehouse area; and he also said that they were diverted to the warehouse area while they were driving around. He gave differing accounts of the number of and condition of the bodies he was asked to move as well as the extent to which his white uniform was marked by blood. His accounts to medical practitioners and tribunals that he heard the shooting without witnessing the killing were different from that which Mr Connell described in his evidence. He recalled being told by Mr Profitt that he saw three men get shot. Mr Profitt insisted that he was in fear of his life and, for that reason, was not able to mention the matter to authorities or, indeed, anybody because he was fearful that, if he was in Asia, retribution may be sought. Despite that, he did reveal details of the incident; and did so in Malaysia to Mr Connell. He said that the Thai police officer who accosted him with a weapon when he was found looking into the back of a truck did not leave him at any time until he was released from the police station. He also gave an account that, in the police station, he was taken from one room to another in which that policeman was located with one or two other police officers. He gave different accounts of the extent to which questioning took place in the police station after the incident stating on one occasion that they were not asked many questions and on another occasion that they were “grilled” for a “couple of hours”.
45. A diagnosis of post-traumatic stress disorder has been made by Dr Danesi on the basis that either or both of the incidents at Subic Bay and Bangkok occurred in the manner described to him by Mr Profitt. I am satisfied that neither of those incidents occurred in that manner. Dr Wainwright was of the opinion that there was no relevant stressor and Mr Profitt made no reference to either incident to Dr Katz who was also investigating his service background to determine whether there were incidents which may have been responsible for the development of a psychiatric condition. On the basis of my findings, I am satisfied that post-traumatic stress disorder is not a condition which can be diagnosed in Mr Profitt. It was on that basis that the original decision of the Repatriation Commission was made and I affirm that decision.
Ischaemic heart disease
46. The Statement of Principles for ischemic heart disease sets out the relevant smoking factor in the following way:
“where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within three years of cessation; or
(ii)smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 5 years of cessation.”
47. In addition to the quantification and appropriate timing of the smoking habit, it is also be the case that the elements of that factor “must be related to any relevant service rendered by” Mr Profitt. Apart from being necessary in order to satisfy the causal requirements of section 70 of the Act, this is also specifically required by clause 4 of the Statement of Principles.
48. Mr. Profitt has not given consistent accounts of his smoking habit. In the version of his smoking history that he is recorded as having given to Mr Lewis, he was smoking a substantial amount well before the commencement of his defence service. I have noted his contention that he was affected by alcohol when he had the telephone conversation with Mr Lewis and also his evidence that, in those years, he was not in a position where he could afford to pay for large quantities of cigarettes. He is also recorded as being a non-smoker on at least three occasions in his service medical documents. One of these was on 29 May 1984 when he was to undergo a vasectomy. His evidence was that he may have falsely stated his position because he was fearful that the procedure would be delayed if he was known to be a smoker. He also said that his declarations of not smoking may have been at times when he was attempting to give up the habit of smoking which he said he did from time to time and for a period of some 18 months after his son was born. That long period of cessation included the date of his enlistment in the RAAF. However, the question to which he answered “no” on his Air Force Entry History Questionnaire was not whether he smoked but whether he had “ever smoked tobacco regularly”. On his evidence, he clearly had done so. Another medical record completed whilst he was still working with the Air Force described him as smoking “never”. Mr Profitt also gave inconsistent versions of his smoking habit whilst giving his evidence. In examination in chief, he described himself as becoming a heavier smoker after the incidents in 1974 but, in cross-examination, he said that he could not have increased because he was already smoking heavily at that time.
49. Mr Profitt said that he started smoking after he went to sea at which time he was able to afford to buy them and also because he was able to buy them more cheaply duty free. He also said that he increased his smoking especially when he associated with other sailors particularly on shore when he was consuming alcohol.
50. I am satisfied that Mr. Profitt began smoking cigarettes once he was serving on Navy vessels after his defence service commenced. I am satisfied that he gradually increased his consumption in part because of his improved financial circumstances and because of the availability of cheap cigarettes and tobacco which he enjoyed particularly in the company of other sailors while on leave and consuming alcohol. Whilst this gives a temporal connection between smoking and his defence service, it does not bespeak a causal association: see Repatriation Commission and Tuite (1993) 29 ALD 609. I am satisfied that Mr Profitt’s cigarette smoking was not related to service and, in that situation, the requirements of the Statement of Principles for ischemic heart disease are not met. For that reason, the decision under view relating to that condition is affirmed.
Decision
51. The Tribunal affirms the decisions under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Leisa Pendle
Associate
Date of Hearing 16 February 2006
Date of Decision 16 March 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Ms C Haney, Haney Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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