Rafferty and Repatriation Commission
[2003] AATA 639
•4 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 639
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/8
VETERANS’ APPEALS DIVISION ) Re GRAEME JOHN RAFFERTY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date4 July 2003
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans’ Review Board dated 29 November 1999 and, in substitution therefor, decides that the applicant presently suffers from Generalised Anxiety Disorder (“GAD”) and that the applicant’s condition of GAD is a war-caused disease, within the meaning of s9 of the Veterans’ Entitlements Act 1986 (“the Act”), with effect from, and including, 16 August 1998.
The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant in accordance with the Act on the basis of this decision of the Tribunal.
.........(sgd S D Hotop)….......
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1964 to 1973 – applicant rendered “operational service” during 1966 – applicant served in police force from 1973 to 1999 – applicant claimed disability pension in November 1998 in respect of, inter alia, “stress/depression” – whether applicant suffering from Generalised Anxiety Disorder (“GAD”) – whether applicant’s GAD a “war-caused disease” – whether a reasonable hypothesis connecting applicant’s GAD with circumstances of his “operational service” – whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining applicant’s GAD to be war-caused
Veterans’ Entitlements Act 1986 ss 5D(1), 9(1), 120(1), 120(3), 120(4), 120A(3)
Statement of Principles concerning Generalised Anxiety Disorder (Instrument No 48 of 1994, as amended by Instrument No 275 of 1995)
Statement of Principles concerning Anxiety Disorder (Instrument No 1 of 2000)
Benjamin v Repatriation Commission (2001) 34 AAR 270
Deledio v Repatriation Commission (1997) 47 ALD 261
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327
Thomas v Repatriation Commission [2003] FCAFC 122
REASONS FOR DECISION
4 July 2003 Associate Professor S D Hotop, Deputy President Introduction
1. This matter is again before the Tribunal following a remittal by the Federal Court of Australia. The Tribunal, in its previous decision in this matter on 7 May 2001, affirmed a decision of the Veterans’ Review Board (“VRB”) dated 29 November 1999 refusing to accept the applicant’s claim that his post traumatic stress disorder (“PTSD”) is war-caused, within the meaning of s9 of the Veterans’ Entitlements Act 1986 (“the Act”). On 21 November 2001, however, the Federal Court ordered (by consent) that the Tribunal’s decision of 7 May 2001 be set aside and that the matter be “remitted to the Tribunal differently constituted for re-hearing …”.
2. At the re-hearing by the Tribunal, the applicant was represented by Mr H Christie, solicitor, and the respondent was represented by Dr J T Schoombee of counsel. The Tribunal had before it the following exhibits:
·Appeal Papers (pp1-251) in Federal Court of Australia matter No W209 of 2001 between Graeme John Rafferty and the Repatriation Commission, on appeal from the Administrative Appeals Tribunal (AR1);
·Emotional and Behavioural Medical Impairment Worksheet completed by Dr M Woodall on 2 May 2001 (A1);
·report of Dr O Kay, dated 8 April 2002 (A2);
·report of Dr O Kay, dated 9 September 2002 (A3);
·report of Dr P Burvill, dated 6 September 2002 (A4);
·report of Dr R Hester, dated 21 October 1998 (R1);
·letter from Dora Volleman, Health & Welfare Branch, WA Police to the applicant, dated 18 February 1999 (R2);
·report of Medical Board, comprising Drs K Stanton, H Stampfer and G Phillips, convened pursuant to reg 1402 of Police Force Regulations (WA), dated 23 February 1999 (R3);
·report of Dr M Woodall, dated 19 October 1998 (R4);
·report of Dr L Terace, dated 26 October 2002 (R5);
·extract from Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed, 1994) (“DSM-IV”), pp 432-444 (R6);
·report of Dr Z Mustac, dated 21 June 2002 (R7); and
·report of Dr Z Mustac, dated 31 October 2002 (R8).
Oral evidence was given by the applicant and by the following additional witnesses: Mrs J Rafferty, Dr M Woodall, Dr O Kay and Dr P Burvill (who were called by the applicant); and Dr R Hester, Dr L Terace and Dr Z Mustac (who were called by the respondent).
General Factual Background
3. The general factual background to this matter, about which there is no dispute between the parties and as found by the Tribunal on the basis of the documents lodged with the Tribunal by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 in connection with Application for Review No W1999/406 (Exhibit AR1, pp 1-119), is as follows.
4. The applicant, who was born in 28 November 1946, enlisted in the Royal Australian Navy (“RAN”) on 6 January 1964 for an engagement period of 9 years, and was discharged when that period expired on 5 January 1973.
5. The applicant’s service in the RAN included “operational service”, within the meaning of the Act, on board HMAS Yarra from 25 April 1966 to 9 May 1966 and from 26 May 1966 to 9 June 1966, and “defence service”, within the meaning of the Act, from 7 December 1972 to 5 January 1973.
6. On 16 November 1998 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a Claim for Disability Pension in respect of disabilities described as “hearing/tinnitus”, “tinea”, and “stress/depression”.
7. On 13 April 1999 a delegate of the respondent made a decision accepting the applicant’s claim in respect of “tinnitus” and “tinea”, but refusing his claim in respect of “hearing” and “post traumatic stress disorder”. The delegate decided that disability pension was payable to the applicant, in respect of the accepted disabilities of “tinnitus” and “tinea”, at the rate of 20% of the “general rate”, with effect from 16 August 1998.
8. At the request of the applicant, a Senior Delegate of the respondent reviewed the abovementioned decision of the delegate as regards the applicant’s claim in respect of PTSD and, on 21 July 1999, decided not to vary that decision.
9. On 29 November 1999 the VRB decided to affirm the delegate’s decision refusing the applicant’s claim in respect of PTSD.
10. On 7 May 2001 the Tribunal decided to affirm the VRB’s decision of 29 November 1999.
11. On 21 November 2001 the Federal Court of Australia ordered (by consent) that the Tribunal’s decision of 7 May 2001 be set aside and that the matter be remitted to the Tribunal (differently constituted) for re-hearing.
The Applicant’s Evidence
12. The applicant confirmed that he had made a written statement, dated 26 April 2001, in this matter and he verified the contents of that statement. That statement (Exhibit AR1, pp 204-207) reads as follows:
“1. I was born in WA on 28 November 1946.
2. I joined the Navy on 6 January 1964. I was posted to HMAS Cerebus (sic) in Melbourne where I did my initial training.
3. I was then posted to HMAS Vampire, we sailed to the Far East we were involved in Malaysia and Borneo. We were stationed there for 10 months; based in Singapore mainly patrolling the Singapore straits and the straits of Malacca. I was radar operator at that time.
4. There were a few unpleasant incidents when I was on the HMAS Vampire. Twice the ship was caught up in typhoons, which were frightening. On another occasion I recall fishing dead bodies out of sea. This was during the conflict between Indonesia and British Borneo we patrolled to prevent infiltrators from entering British Borneo by sea. On occasions, we fired on small fishing type boats that wouldn’t stop. I don’t recall if the bodies were as a result of this firing or whether we just came across them. This was in 1964 and I was 17 at the time. Another time I almost fell off the ship, when we were replenishing out at sea; I would have crushed between to the 2 ships (sic). These things caused me anxiety at the time, but I do not recall them having any longer term effect upon me and I don’t relive memories of these incidents.
5. When we returned to Australia I did a communications/radio operators course. It was about a 9 or 10 months course in 1965. Whilst doing this course, I first met my wife, Jenny. At the time, I was playing Australian Rules football for the Navy and we first met on bus trip to a football match. We continued to see each other initially just as friends. We mixed as part of large group of friends. I was a very light drinker at this time and I loved my sport.
6. In 1966 I was posted to the HMAS Yarra which escorted the HMAS Sydney to Vietnam. There were no particular problems on the trip up there. As we approached I recall being anxious, as we were warned that we going (sic) to a war zone, and we were told our behaviour would have to change, and that we were going to have to be on alert for anything. The dangers that were described to us were principally the risk of Vietcong frogmen laying mines against the ship and that the Vietcong would hide amongst the floating debris to get close to the ship. That tactic was countered by our own frogmen and boat crews that circled the ship 24 hours a day. Part of the duties of the boat crew were to drop small depth charges at random intervals.
7. I was on a boat crew circling the ship and dropping charges for one shift, it was from 12 midnight and 4 am (sic). I found that at 19, it was absolutely terrifying. It was pitch black although it got a little lighter by 4 am. On the boat, you could see the silhouette of the ships, but there were no lights on the ship or on the small boat and whenever a log went past, my heart would jump to my mouth. I remember coming off that shift and I just couldn’t sleep, I was so anxious.
8. Whilst in the radio room the depth charges went off at regular random intervals. We knew the depth charges were going off, but my initial reaction each time was one of shock and panic, before the rational mind took over and I would realise that, if we were actually being fired upon, we would be informed. We believed were (sic) anchored in range of mortar rockets and I felt that we were a sitting duck. The radio room was in the middle of the ship and I worried about being trapped. The whole experience made me feel very vulnerable and I worried about being killed.
9. I was in the harbour for 2 nights. From then on I had trouble sleeping. I had never had problems sleeping before.
10. We had a second trip back into Vietnam waters but didn’t enter Vung Tau Harbour; we then escorted the Sydney back to Australia. The whole trip I think took about 3 months. I came back to Melbourne and was on leave for a period. The HMAS Yarra went in for a refit. I met up again with Jenny in Melbourne and we went out together. I started drinking a lot more than I had previously and I was still having trouble sleeping. I was having thoughts about not being here on this earth and how close to dying we were.
11. I then got posted to New Guinea to the HMAS Tarangau on Manus Island. I was there for a year. I spent the whole year up there didn’t (sic) have leave during this period.
12. Jenny and I corresponded very closely. We wrote regularly and we spoke on the radio. This was the one thing that kept me sane. I drank too much there; I was having bad dreams and I hit the drink very hard. I found that it was the only way I could cope. I didn’t feel there was anyone I could talk to about it. I noticed that I was very aggressive. I ended up getting charged.. This arose when I was told to update and insert some amendments into a navy rulebook. I told my superior to get fucked. I would have been jailed, but there was no jail, so I was given a 2nd class reduction in pay and extra duties. My response occurred during the day. I had not been drinking at the time, although I had been drinking the previous night as that was my regular routine. I just exploded because I thought he was being unfair.
13. When I came back from HMAS Tarangau, Jenny and I got married. I didn’t actually notice a great change in my personality, but I realised enough to know that I was very volatile which I hadn’t been before. Prior to Vietnam nothing used to phase (sic) me, it would take a lot to upset me. After Vietnam, I became very aggressive. I continued to have sleeping problems. I had occasional nightmares; when I woke the dream would be about being about (sic) out in the small boat and Vietcong behind coconuts trees or in the water etc. I continued to drink heavily at evenings when not on shipboard duty. I would drink in the mess at the shore station, or out with my mates, or on my own at home.
14. I was stationed at Singapore for about 2 years with my wife. That was a shore-based station. We had married quarters up there and my 2 sons were born up there. There were service personnel stationed in the same street and at the time I would drink mainly with friends, either in their house or my house.
15. Part of my duties in Singapore was to decode signals from Vietnam, which was all about the various troop and ship movements there. I could see the dangers that the ships and troops were in and it made me relive my own vulnerability there.
16. After we were finished in Singapore, I was posted on the frigate HMAS Stuart for 3 years. During this period there were 2 long trips to the Far East. I was away when my daughter was born. Nothing traumatic occurred on these postings. We didn’t drink on the ship except on special occasions; but when we went ashore, I would go on a binge. I was away for long periods once for 10 months, once for 8 months. I had only 6 weeks leave a year.
17. After the HMAS Stuart, I considered re-signing, but they mentioned I would be going back to sea immediately the ship was going back to the Far East and maybe back to Vietnam. The thought of Vietnam really put me off and I didn’t sign on again. I was discharged in January 1973. I came to HMAS Leeuwin in Fremantle to be discharged; I spent last 3 months before my discharge there.
18. About 6 months later, I joined the police for almost the next 26 years. I was based in Perth for the whole of my police service apart from 3 years spent in Kalgoorlie from about 1979 to 1981. I continued to drink too much whilst in the Police Force. I continued to have difficulty sleeping and I was irritable and demanding on others. I now realise was (sic) very hard on my children. I believe my condition may have improved for a while whilst in the Police Force and then gradually deteriorated.
19. I had other traumatic events in my life. My father had a heart attack in 1975 when aged 56. I had a brother who was murdered in Kalgoorlie in 1983; he was a policeman. My elder son committed suicide in 1992. I believe that these family traumas may have made my condition worse. I became bitterer, more cynical, and more racist. I have very little patience with people who don’t do the right thing.
20. I significantly reduced my drinking about 15 years ago, it is related to not wanting to mix with people. The desire not to mix socially with people has occurred increasingly from shortly before my son died.
21. I believe my personality has changed since Vietnam and it worsened in more recent years particularly since my son died and I have been increasingly uptight. I blow my top very easily.
22. I realised that my work performance was suffering because of my volatile temper and I organised through my work on my own initiative to attend anger management courses. I realised that my behaviour was wrong and that it would get me into trouble, but I couldn’t stop it. The courses didn’t seem to help a great deal. I talked to a doctor at South Fremantle Football Club after an incident there. He suggested that I see Dr Woodall.
23. I was initially reluctant to go and I put my behaviour down to frustrations and stress at work. In 1996 I went to the USA for a long holiday. I thought the break might cure me. My wife says I just as bad on that trip. When I came back I started to see Dr Woodall. That was in October 1996. He got me to talk about my problems and he also gave me medication. I am on Arapax it is a sedative. It I don’t take them, I really fire off crawling up the wall snapping at my wife. I spoke to Dr Woodall about everything in my life over about 2 years. Dr Woodall then said he considered that my problems started in Vietnam. I hadn’t made the connection between my irritability and my experiences in Vietnam.
24. Although talking to Dr Woodall and understanding what was wrong, helped me to some extent, I really wasn’t coping with work in the sense that I was constantly angry when either the public or my fellow officers didn’t behave as I considered that they should. When things would get too much for me and I was at risk of thumping people, Dr Woodall would certify me for sick leave. However when I went back to work each time, the anger would just come back whenever somebody did something wrong. It came to be that something as small as a slow driver holding up the traffic would set me off.
25. Eventually the police department sent me to Dr Hester as an independent psychiatrist for an opinion to see if we were able to continue because I was having too much time off. Then they sent me to a medical board who agreed that I should be retired from the police force on medical grounds. The assessment was not looking at the causes; it was looking purely whether I was fit to be a police officer. When I was retired unfit I was entitled to superannuation. At no time have I claimed that the police work caused my anxiety condition or made a claim for workers compensation.
26. Once retired I had less frustrations. I feel that I am not as bad, although my wife does not agree with that assessment. I have isolated myself, I don’t have anything to do with anyone. I have only been a train for ages (sic). When recently travelling to Perth, which I don’t normally do, I just about exploded just because some aborigines were running around on the train. I don’t read the papers, I rarely watch the news on TV, and my interest in life is my grandchildren.”
13. As regards oral evidence, the applicant confirmed that he had read a transcript of the oral evidence he gave at the previous hearing on 4 May 2001 and that that evidence was true and correct, and, for the purpose of his evidence-in-chief in the present proceeding, he chose to rely on that evidence and not to add to it or qualify it. That transcript was tendered in evidence (Exhibit AR1, pp120-158). In his evidence at the previous hearing the applicant referred in particular to his service on board HMAS Yarra in Vietnamese waters in 1966. He said that HMAS Yarra was anchored in Vung Tau Harbour for 2 nights and the crew members were informed that the ship was in range of enemy mortar fire and that there was also concern about enemy frogmen in the harbour placing bombs on ships that were anchored there. He said that, as a radio operator, he worked in the radio communications room which was situated in the middle of the ship below the bridge at about water level. He said that while on duty in the radio communications room he occasionally heard “scare charges” going off in the water and his initial reaction “was one of fright and helplessness”.. He also referred to one occasion when, during the midnight to 4.00am shift, he was on board a small patrol boat which circled the ships anchored in the harbour for the purpose of dropping “scare charges” in case there were enemy frogmen in the vicinity. He described that experience – being on a small boat in the harbour in “pitch black” conditions and able to see only the silhouettes of the ships in the distance – as “very frightening”.
14. The applicant was asked to describe the feelings and symptoms he experienced after HMAS Yarra left Vung Tau Harbour. He said that he felt “anxious until we got out of that area” and that he was unable to sleep. He said that his behaviour also changed at that time – he became “moodier”, had “mood swings”, became “aggressive” and “started drinking more alcohol”. He said that after HMAS Yarra returned to Australia in 1966 he had a period of leave and was then posted to HMAS Tarangau on Manus Island off New Guinea. He said that during his period of service on HMAS Tarangau he was “anxious all the time” and would “worry about how things could have gone in Vietnam”, and he drank alcohol heavily – at least 10 “stubbies” per night – because “that was the only way [he] found that [he] could cope with how [he] felt”.. Asked whether there were things, other than Vietnam, that were worrying him, he responded that he did not have any other worries in his life at that time.
15. The applicant told the Tribunal that, after returning to Australia from HMAS Tarangau (in September 1967), he got married. He said that in the early years of his marriage he continued to be aggressive and moody and to drink “a considerable amount”, that he would wake up every couple of hours during the night, and that he had dreams about the events that occurred while HMAS Yarra was in Vung Tau Harbour – in particular, his experience on the patrol boat. He added:
“It was mainly the fear that I had when I was in Vung Tau Harbour of being killed.”
16. The applicant said that his next posting was to a shore-based station in Singapore where he spent the next 2 years (1968-1970). He said that his job there was to decode Vietnamese messages that had been intercepted by the radio operators. He added that those messages related to troop and ship movements in Vietnam and they brought back to him the feelings of vulnerability and helplessness that he experienced when he was there in 1966.
17. The applicant said that he was then posted to HMAS Stuart for 3 years during which he went on voyages to the Far East which involved general exercises and were generally uneventful. He said that during his period on HMAS Stuart he did not drink alcohol while the ship was at sea but that he would binge-drink whenever the ship was in port.
18. The applicant said that at the end of his 9-year enlistment period he had intended to sign-on again, if only so that he would qualify for long service leave after 10 years service, but that, when he was informed that he would have to go back to sea and possibly to Vietnam, he decided not to re-sign and he was discharged in January 1973.
19. The applicant then joined the Western Australian Police Force and, according to his evidence, he “enjoyed” that work, although he continued to have problems with sleeping and “problems at home” which, he added, had “nothing to do with the Police Force”.. He said that he was stationed in Kalgoorlie for 3 years (1979-1981) during which period he resumed sporting activities and began to regain his physical fitness, although he continued to experience mood swings, to have trouble sleeping, and to drink alcohol (but not as much as before, “because of the sport factor”).
20. Upon completion of his period in Kalgoorlie, the applicant returned to Perth where he served as a member of the Liquor and Gaming Squad. He said that in that capacity liquor was freely available to him and the temptation was there to indulge in drinking alcohol. He said that at that time his moods were “getting worse” and he was becoming more aggressive. After completing his service with the Liquor and Gaming Squad, the applicant returned to the Central Police Station where he served for the next 5 years.
21. The applicant said that for the last few years of his service with the Police Force he was stationed at Cannington Police Station and during that period he was “on rehabilitation”. He explained that in 1996, while acting as a trainer with South Fremantle Football Club, he became involved in some “on-field scuffles” and, on one occasion, “held an umpire by the throat after a game” because he did not think the umpire had done a good job. He said that he realised that such behaviour was “not right” so he consulted the South Fremantle Football Club doctor (Dr Reid) who referred him to Dr Woodall, Psychiatrist. He said that, before seeing Dr Woodall, he and his wife went on a planned holiday in the United States of America for 5 months. His behaviour during that trip continued to be abusive and aggressive and, accordingly, when he returned he commenced seeing Dr Woodall (in October 1996). He said that, after seeing Dr Woodall for 2 years, he was advised by Dr Woodall to see the DVA about the matter. He added that the DVA then requested a report from Dr Woodall and the matter has “just gone from there”.. He said that while he was being treated by Dr Woodall he was placed in rehabilitation by the Police Force, during which time his contact with members of the public was kept to a minimum. He was finally retired from the Police Force on medical grounds in early 1999.
22. The applicant said that, since his retirement from the Police Force, he “just potter(s) around the yard” or helps people in their yards. He said that he used to engage in numerous recreational activities, including bushwalking, canoeing, kayaking, camping and acting as a trainer with South Fremantle Football Club, but that he now “just watch(es) the footy on TV and that’s about it”. He explained that the reason he has given up his former recreational pursuits is that he does not want to be with people. He said that, for the same reason, he and his wife rarely go out together (for example, for a meal) because he does not want to go anywhere. He added, however, that occasionally he will go to the movies, “but that’s about it”.. He said that he does not drive a lot because he does not go anywhere that he needs to drive, but that, if he and his wife did go out together, she would do the driving most of the time because of his “temper and aggressiveness”.. As regards public transport, he said that “buses take far too long” and he would not have the patience to sit in a bus; and although trains are “probably the most convenient form of public transport” for him, he avoids taking them because he “get(s) uptight” when on a train.
23. In cross-examination the applicant was referred to a report of Dr R Hester, Psychiatrist, dated 21 October 1998 (Exhibit R1), in which it is recorded that the applicant “enjoyed” his 9 years of Navy service and that he was “successful” in that service, but no mention is made of his experience in Vietnam. The applicant acknowledged that he did not mention his Vietnam experience to Dr Hester but explained that that consultation was arranged by the Police Department solely for the purpose of assessing his suitability to continue to serve with the Police Force, and the cause of the problems he was then experiencing (which he described as “irritability, aggressiveness etc”) was not explored at that consultation. The applicant added that he had also been assessed by Dr Woodall, Psychiatrist, regarding his suitability to continue to serve in the Police Force and that Dr Woodall, in his report (to the WA Police dated 19 October 1998 – Exhibit R4), likewise did not refer to the applicant’s Vietnam experience, although he had been seeing Dr Woodall regularly since October 1996 and had discussed his Vietnam experience with him during that period.
24. The applicant agreed that for the first 15 years of his police service (1973-1987) he had no real problems coping with his duties but that thereafter he became more irritable, aggressive and intolerant of others. He said that during the first 15 years of service he had been able to control his temper and “bite [his] tongue” but that later he found that he was unable to do so. He said that he undertook anger management courses within the Police Force and, when he found that they were not helping him, he decided to seek professional advice, culminating in his seeing Dr Woodall, commencing in October 1996. He said that, prior to that, he did not realise that he had psychological problems and that, earlier in his life, he “wouldn’t have dreamt of ever going to a psychiatrist”.
25. The applicant was questioned about an incident involving “bikies” during his police service. He said that shortly after he joined the Police Force – probably in 1974 or 1975 – he and another officer went to a suburban house following complaints about a noisy party being held there. He said that there were some “bikies” outside the house and, when he told them about the complaints and requested them to reduce the volume of the music, one of them threatened to assault him. He said that, although his “legs were shaking” and he feared for his safety, he managed to “put on a calm exterior” and stood up to the “bikie”. He said that, although he was “a bit tense and uptight that night”, he was able to go to work the next day without any problem and he did not seek any help in relation to that incident.
26. The applicant was also questioned about his experiences in Vietnam in 1966 while serving on HMAS Yarra in Vung Tau Harbour. In particular he was asked whether he subsequently experienced “the re-living of certain events”, and to describe those events. His evidence was as follows:
“Yes. What were those events?--- Well, being on the little boat of a night time, going around and – circling around the ship in the middle of the night looking for enemy divers and mines and things like that. And the waters there are pretty scungy and filthy and you know, we’d been warned that they used coconuts and that sort of thing to hide behind as they’re coming down, that’s what we were told at the time. And I had – that was the most harrowing four hours I’ve ever spent in my life on that boat. A lot of it I – it’s just a blur to me as far as - I was just so happy to get back on the ship, going around there and seeing all this thing, you don’t know whether someone is going to blow you up or whatever.
And you were part of this exercise, you did that once?---Only once, yes.
Only once. And it was the shift from midnight to 4 am?--- Yes.
And you said towards 4am it started getting light but it was dark at the time?---Well, lighter, yes.
Yes. And you dropped overboard from time to time as part of this patrol, you dropped off what has been called scare charges?---Yes.
So would you afterwards have dreams about that?---Of dropping the scare charges?
Yes, going around the boat - - -?---Well, I had memories of being in the boat. I have memories of – dreams of actually being blown up and shot at and that sort of thing.
I understand, in that sort of context?---Yes, of being in the boat, yes, on that rubber boat.
You were really dreaming of what could have happened as far as you were concerned, isn’t it?---Well, dreams did come of it. Because after that I had trouble sleeping, I couldn’t get to sleep and then – and explosions and all that would – made me wake up and then I’d be hyper-ventilating because you didn’t know what was happening around the place but yes, I had a lot of dreams about being in that boat and things that could have happened, etcetera, etcetera.
And did you also when you were awake did you have – sometimes would you suddenly feel that you are back in the boat or something like that?---No, I wouldn’t say back in the boat but I was tense, I was uptight just on edge all the time because this was going on. Because not only the boat is out there but you got scare charges going around the ship as well.”
(Transcript, pp48-49)
27. Finally, in re-examination the applicant said that he continued to be treated by Dr Woodall until early 2002 and since then he has been receiving treatment from Dr O Kay, Psychiatrist.
The Evidence of Jennifer Mavis Rafferty
28. Mrs Rafferty, the wife of the applicant, confirmed that she had made a written statement, dated 26 April 2001, in this matter and that its contents are true to the best of her knowledge and recollection. That statement (Exhibit AR1, pp211-214) reads as follows:
“…
3. I met Graeme when we were both in the Navy. We met at HMAS Cerebus (sic), Mornington Peninsular in Victoria in 1965; I had just joined the Navy and I was doing my basic training when we met.
4. I first met Graeme when he was playing a football match. A group of the girls went out to watch the match and we met on the bus going to the match. We became friends and continued to see each other regularly as part of the same group of friends.
5. I finished recruit training. I was then a radio operator posted to HMAS Lonsdale in Melbourne. Graeme was still at HMAS Cerebus (sic), but we continued to see each other socially. Then he was posted overseas and I was posted to HMAS Harmon in Canberra.
6. After Graeme came back from overseas in 1965/1966, he visited HMAS Harmon for a short period. I believe he was on leave.
7. He transferred back on board for a short period; from there he went to HMAS Tarangau, Manus Island in New Guinea.
8. During this period, I was transferred to HMAS Lonsdale in Melbourne. Later, I was transferred back to HMAS Harmon in Canberra. Graeme was in New Guinea, but we had frequent contact by radio and were writing to each other every day. Greame was in New Guinea for about a year; during that time we decided to marry.
9. Graeme came back with a posting, I am not sure whether it was a ship or shore based posting, and we married almost immediately in September 1967. I had to leave the Navy before I got married. Those were the rules in those days.
10. Initially we set up home in Sydney. We rented a flat and Graeme was working at HMAS Cutterbool (sic) for a few months, and was then transferred to sea. Sometime after this Graeme was posted to Singapore. I was able to join him there.
11. We had 3 children:
a) Michael DOB 18 6 1969
b) Wayne DOB 24 6 1970
c) Sharon DOB 30 6 1972.
12. We were in Singapore for about 2-3 years. Michael and Wayne were born there.
13. After that period overseas, I think that Graeme was posted to Sydney and then to Melbourne and I lived with the children in these cities, but he was mainly away on ships during this period until shortly before he retired he was transferred to WA and he retired from there.
14. When we first met in 1965 and during the period when we knew each other as friends, I noticed nothing strange in his behaviour; he was a nice relaxed guy. The group were just light social drinkers and Graeme definitely didn’t drink to excess during this period.
15. When he came back from sea after his trip to Vietnam in 1966, this was the first time he had been away after we had met, and we met up again. He was more aggressive and was drinking a lot more, but I put it down to just being back from sea and I didn’t think it would last. We became close at this time, but we were posted in different places and it was a relatively shot time that we were together, before Graeme was transferred to New Guinea.
16. Whilst he was in New Guinea we wrote and spoke very regularly. Graeme didn’t talk to me about his problems. He has never been able to speak about his feelings. We spoke by radio when he was on duty so I didn’t know that he was drinking heavily off duty. We he came back, we got marred straight away. Graeme was drinking heavily, we were living in Sydney and I was working at that time. If Graeme was on leave or off duty, he would be drinking. I had alcoholic parents and I was very conscious of his drinking and was very worried, even at this stage, that he would become an alcoholic.
17. Graeme’s drinking behaviour gradually got worse over the early years of our marriage. He controlled it in relation to his work, as he was conscientious about attending work etc. He was not particularly aggressive when drunk, his temper tended to be displayed more often when he was not drinking. When he would drink he would continue until he was drunk; you couldn’t communicate with him or reason with him. He would drink on his own at home and then go to bed and sleep it off. I think the drinking behaviour had reached a plateau by the time he left the Navy and it stayed at much the same level until we went to Kalgoorlie, when it improved for a while.
18. From the time we were married, but getting worse over the years, Graeme was very irritable towards me and later even more so towards the children. If something annoyed him, which was usually something really small, he would jump down your throat. At first, I felt he would settle down and he would get over it, but he never did.
19. From the time of our marriage, I recall he had difficulty in sleeping. He would be thrashing around and would wake me. I would ask what was the matter and he would say nothing; he was not a good communicator. I did think that because he couldn’t communicate, he would build up his frustrations and he would then let fly at something inconsequential.
20. From the beginning of our marriage, Graeme was a good worker around the home, but he was very restless. He would be up and down all the time, he could no longer relax, except perhaps when he was drinking.
21. Graeme would be totally unbending to the children; they had to follow his rules or they were in strife. They all rebelled against it and I was in the middle. You couldn’t reason with him.
22. In the early years of our marriage Graeme’s mother and father both said to me on a number of occasions that Graeme was behaving totally out of his previous character, in that he was angry all the time. They said that he had been a placid, relaxed child and teenager.
23. From my recollection, there was a clear contrast in Graeme’s behaviour before and after he had been to Vietnam. Then over a period of about 2 years from late 1966 to 1968 there was a gradual increase in behaviour over this period although perhaps I noticed it more. It continued to slowly worsen over the next several years. I believe it reached a plateau for awhile from 1978 when Graeme and I had a big falling out and I threatened to leave. Shortly after this he was transferred from Perth to Kalgoorlie with the police and the whole family moved to Kalgoorlie. Once he was in Kalgoorlie, his behaviour improved to some extent. He was drinking quite a bit less and he picked up his sporting interests. I think this was partly because he had fewer people to drink with in Kalgoorlie.
24. We were in Kalgoorlie for three years until 1980 (sic), then we came back to Perth and he was posted at the Victoria Park Police Station, where he was in the Liquor and Gaming Branch. This was not a good time; Graeme would often be on duty out until 3 or 4 in the morning. He wouldn’t sleep much and he was irritable and uncommunicative, picking on the children and me, when he would wake.
25. He left Liquor and Gaming in the late 1980s and Graeme improved, at least to the extent that he significantly reduced his drinking. He reduced his drinking still further when he retired and no longer drinks too much.
26. However Graeme’s irritability hasn’t changed and has continued to worsen. He keeps more to himself, which lessens the opportunity for stress, but he still abuses people for nothing. On our recent trip to Perth on the train he got really upset with some of the other passengers. His aggression is racially directed towards aborigines, Chinese and Vietnamese and yet he has certainly had aboriginal friends. It is just not rational, he makes comments without any reason or provocation and he can be quite vicious; it is very difficult for him to be in public or for me to be with him in public.
27. Since Graeme has retired, I notice the peculiarities of his behaviour more around the home. He is obsessive; everything has to be exact, he tidies his drawers and cupboards once a week; he removes leaves in the garden as soon as they fall. He has the compulsion of expecting everyone and everything to be perfect. The tidiness is not just his room; he also expects me to keep the house perfectly tidy and only sometimes gives me a hand.
28. Graeme still has difficulty with our 2 surviving children, although, as they have become older, they are a bit more understanding of his problems.
29. Graeme’s difficulty in sleeping is exactly the same as it has always been. We have been in separate rooms for many years, because I can’t bear to be continually woken up from his restlessness, but I still hear him often getting up and he complains about not sleeping.
30. We have talked about thinks since he started going to counselling; he has mentioned about Vietnam and thinks it was probably the cause of his problems. However, I don’t really understand the conflicts within him, as he finds it impossible to talk about them.”
29. Mrs Rafferty also confirmed that she had read a transcript of the oral evidence she gave at the previous hearing on 4 May 2001 and that that oral evidence was true to the best of her recollection. That transcript was tendered in evidence (Exhibit AR1, pp176-203). No additional oral evidence-in-chief was given by Mrs Rafferty.
30. In her oral evidence at the previous hearing Mrs Rafferty said that when she first met the applicant in 1965, he was a “very happy-go-lucky” kind of person, and was “lots of fun”, “very easy to get on with” and “caring about his friends”. She said that, at that time, the applicant’s drinking behaviour appeared to be “normal” and not excessive. She said, however, that after the applicant returned from Vietnam in 1966 she noticed that he was “drinking a fair bit” and had a “lack of care of other people”, including friends. She said that, during the first 2 years after she and the applicant were married (in September 1967), she found him “quite irritable, short-tempered, couldn’t sort of cope with things”.. She recalled an incident which occurred 2 days after they were married when he “screamed” at her and reduced her to tears because the alarm clock had been set incorrectly and they arrived late at the airport. She said that throughout their courtship she had never had an “inclination that he would do something like that”. She added that that kind of behaviour on his part “occurred regularly” thereafter and she “put up with quite a bit of … verbal abuse”. She also said that, from the commencement of their married life, she was aware that he did not sleep well and was “up and down throughout the night” and was “restless”.
31. Mrs Rafferty said that when the applicant joined the Police Force in 1973 his behaviour improved in that he became less aggressive, although he was still drinking. She said that his behaviour improved further when they went to Kalgoorlie in 1979 because he “got more into sports once again” and reduced his alcohol consumption. She added, however, that after they returned to Perth in 1981 “the trouble started again” when he went into the Liquor and Gaming Branch of the Police Force and his drinking went “from bad to worse” during the 7-8 years that he spent there.
32. Mrs Rafferty said that the applicant’s anger and intolerance of other people have gradually become worse over time and that now he has “completely closed himself off from other people” and “just doesn’t want to contact anyone”. She said that the applicant “doesn’t have any interests outside the house” and that the only thing that he is interested in is his garden.
33. Mrs Rafferty was cross-examined regarding aspects of the oral evidence she gave at the previous hearing but she generally adhered to that evidence and did not alter or qualify it in any significant way.
The Medical Evidence
Dr M Woodall
34. Dr M Woodall, Consultant Psychiatrist, confirmed that he had given evidence at the previous hearing on 4 May 2001 and, having read a transcript of that evidence, he also confirmed the accuracy of that evidence. That transcript was tendered in evidence (Exhibit AR1, pp159-175). Dr Woodall also confirmed that he commenced treating the applicant in October 1996 and had prepared various reports regarding the applicant psychiatric condition. Those reports will now be set out.
35. A report of Dr Woodall, dated 19 October 1998, addressed to Dr Brian Dare, Health and Welfare Department, WA Police, states:
Thank you for your request for a report regarding Mr Rafferty’s medical condition, his treatment and prognosis ….
Mr Rafferty was initially referred by his general practitioner Dr Dick Reid and I first assessed him on the 25th October 1996.
At that time Mr Rafferty described difficulties with low tolerance of other peoples’ behaviour with irritability and aggressive over-reaction to minor precipitants. These feelings of anger had been increased significantly since the death of his son in 1994 (sic). Mr Rafferty had been involved in group sessions with Police Health and Welfare and been taught various relaxation techniques, which he did not find generally helpful.
He described some symptoms of anxiety and depression and understood that he experiences difficulty because of his high exceptions (sic) of himself and others with significant obsessional and driven qualities to his personality. He finds it difficult to accept the unfairness of the world and his major symptoms were those of a negative and critical attitude with anger easily being triggered by minor changes in routine with a low tolerance to frustration.
His background is characterised by multiple losses which no doubt have predisposed him to developing the symptoms that he has which have been precipitated by events after he had been in the police service.
Treatment was commenced with Paroxetine to which he reported some reduction in irritability and angry outbursts. Fortunately, Mr Rafferty was working in a supervisory position in Cannington which allowed him the benefit of job satisfaction whilst isolating him from contact with the public and allowing some tailoring of his duties to ensure that he could function adequately in those tasks.
He has from time to time required periods of leave where his levels of irritability tensions and distress have been high. Unfortunately once out of the work environment these have generally reduced to levels that have allowed him to resume work.
His symptoms are quite chronic and I do not feel that there is additional treatment that would offer much additional benefit. Mr Rafferty has always been willing to undertake anger management courses and been compliant with medication. It is clear that he is unable to work in a full-time position with a full range of duties and that contact with the general public would be undesirable.
I was hopeful that Mr Rafferty would be able to continue with his current position at Cannington, which he coped with reasonably well and felt productive in albeit with the need for time off work from time to time. Given the extent of his symptoms however, I did not feel that this was excessive and Mr Rafferty always remained well motivated to continue with work.
Should his current position no longer be available I would recommend that rehabilitation be considered to allow him to return to work.”
(Exhibit R4) A report of Dr Woodall, dated 2 February 2000, which supplements the above report, states:
“I wish to advise that a report to Dr Brian Dare prepared by me on 19th October 1998 was written in response to a specific request from Dr Dare for a report regarding Mr Rafferty’s retirement from the Western Australian Police Service, due to ill heath. Although a diagnosis is not formally made, the symptoms that he has been experiencing for many years are outlined in addition to some of the factors relevant to his police service that are aetiologically significant. The symptoms described of anxiety, depression, irritability and angry outbursts are symptoms of Post Traumatic Stress Disorder. A specific diagnosis was not included in the report as the Police Service always obtain an opinion from another psychiatrist in these cases and this indeed occurred with Mr Rafferty.
As is often the case with patients with Post Traumatic Stress Disorder, symptoms relevant to understanding the development of their condition are only gradually revealed, often because of the accompanying sense of shame and a tendency to emotional detachment. Certainly in Mr Rafferty’s case the early stages of treatment were focused on symptomatic relief such that he could continue to work as a police officer and particular emotional reactions such as occurred when he was posted to HMAS Tarangau did not become evident until 1999, when Mr Rafferty was not longer subject to the pressures of work.”
(Exhibit AR1, p208)
36. A report of Dr Woodall, dated 24 January 1999, addressed to the DVA, states:
“Mr Rafferty was referred to me by his general practitioner as a serving police officer for continuing management of problems of depression and anger, which have been present for several years.
Mr Rafferty described increasing difficulty with low tolerance for other people’s behaviour. He described himself as irritable and would aggressively over-react to minor incidents. He described himself of as being ‘explosive’ and he felt that he could not be bothered with many things that he had done previously. He reported low energy and has reduced the amount of contact he has with other people and has significant loss of job satisfaction.
Mr Rafferty has significant symptoms of anxiety with high levels of tension and a tendency to worry excessively. At times he reports hyperventilation and feels restless and unable to settle. There has been increasing difficulty with his concentration and he finds it hard to persist with tasks for more than several hours. He is readily frustrated and there has been an increasing lack of interest in activity, which he previously enjoyed. He rarely socialises and is alienated from others with his relationship with his wife and children having been profoundly affected.
Mr Rafferty reports intrusive phenomena with regular recall of some of the traumatic events to which he was exposed during his operational service aboard ship in Vietnam. He has marked difficulty with sleep, which dates back to the time of his service in the RAN, and his sleep pattern is characterised by initial insomnia, interrupted sleep and early morning wakings. He reports nightmares, the contents of which is his traumatic experiences.
Mr Rafferty is the third of four boys with his older brother having died in 1963 in a motor vehicle accident. His next brother was murdered and he has occasional contact with his younger brother who is an accountant. He grew up in Perth and reported average performance at school feeling he could have done better if he applied himself. He reports a good relationship with both parents who are deceased.
Mr Rafferty enlisted in the RAN at the age of 17 on 6th January 1964. He worked as a storeman for one and a half years prior to enlisting. At the age of 17 whilst on a tour of duty in Malaya and Singapore Mr Rafferty was lookout sentry in an open bridge on HMAS Vampire. HMAS Vampire went through two typhoons with Mr Rafferty lashed to the ship structure so that he could carry out his duties in extremely rough seas. During replenishment at sea with HMAS Supply he was on deck and in very rough weather again, slipped and nearly fell over the side. He felt extremely vulnerable and fearful, however, continued to carry out all his duties.
Whilst sentry while the ship was at anchor in Singapore harbour the ship was on full alert. Mr Rafferty patrolled the deck with a wooden batten and whistle and described extreme anxiety, which he concealed from others. His experiences led Mr Rafferty (sic) feeling unsafe as seaman and he requested a transfer into the communications branch as a radio operator, this resulting in him not having to carry out seaman duties.
Mr Rafferty was accepted into the communication branch and was posted to HMAS Yarra in 1996 after six months training. He served in Vietnam and recalls being told that they would be escorting HMAS Sydney to Vietnam and would not be permitted to fire unless fired upon. A lot of gunnery practice was undertaken prior to entry into Vietnamese waters and Mr Rafferty felt that the ship was a ‘sitting duck’ for the North Vietnamese. He was assigned as a radio operator in one of the boat crews whose job was to circle the ship dropping scare charges into the water whilst divers searched for enemy mines. Most of Mr Rafferty’s duties were action stations in radio operations rooms. He was closed off from the view of the rest of the ship and would often hear explosions outside without knowing what exactly was happening. He was fearful of the danger he was in and described the development of difficulty sleeping. Mr Rafferty was relieved when the ship left Vietnam waters and describes the development of symptoms at this time with poor sleep, excessive worry and thoughts of potential death and fear for his life. He began to isolate himself from others and his alcohol consumption increased significantly. He was posted to HMAS Tarangau on Manus Island off the coast of New Guinea. He began to experience recurring memories and nightmares and explosive behaviour with mood disturbance and anxiety became very evident. At that point he was charged and disciplined under Navy regulations as a result of an incident in which he states he ‘lost it’.
Mr Rafferty did not seek medical attention at this time as he felt that he would be humiliated by others seeing him as being unable to cope. He also felt it may affect any potential promotion.
Between 1968 and 1970 Mr Rafferty was posted to RAF Base Selater in Singapore. This was a top secret spy base where he intercepted Vietnamese morse code and air traffic, work involved in determining the true movements of the Vietcong in Vietnam. Mr Rafferty found this stressful as it made him aware of the vulnerability of Australian Navy ships in Vung Tau and experienced marked feelings of helplessness at knowing information about the threat to others and being unable to use it to warn people.
Mr Rafferty left the RAN as he was concerned at the time he was spending away from his family having married with three children and also due to his anxiety that he may have to return to Vietnam.
Mr Rafferty has worked for 25 years as a Police Officer and during this time has had to deal with further traumatic incidents which have served to maintain the symptoms he developed whilst serving in the RAN. His condition has gradually deteriorated and he is now no longer fit for police service. He has been a conscientious, hard working person who always tended to keep his feelings to himself. His health has been good without any serious illnesses or operations. His eldest son committed suicide in 1992 and he has features of unresolved grief over this with an unsatisfactory relationship with his other son aged 28. He has a daughter who lives with her boyfriend in Waroona in Western Australia.
Mr Rafferty presents with symptoms consistent with a diagnosis of Post Traumatic Stress Disorder. He meets DSM4 Criteria for this condition and the commencement of symptoms can be traced back to his service in the RAN. His family traumas and subsequent experience of traumatic situations in his position as a policeman has served to exacerbate his symptoms which have had a significant impact on his ability to work and enjoy family life and social contact with others. Mr Rafferty is currently unfit to continue his occupation as a police officer and will need continuing treatment including counselling and anti-depressant medication, which he has been taking for the past two years.”
(Exhibit AR1, pp52-54)
37. A further report by Dr Woodall, dated 26 August 1999, addressed to the DVA, states:
“Further to my previous report outlining Mr Rafferty’s symptoms which are consistent with a diagnosis of Post Traumatic Stress Disorder, I wish to provide further details regarding his experience of stressors whilst on operational service in Vietnam.
Mr Rafferty served with the Royal Australian Navy from 6th January 1964 to the 5th January 1973 having joined at the age of 17 years. As previously noted in my report Mr Rafferty described stressful experiences on HMAS Vampire when the ship went through two typhoons and on an occasion in heavy seas when he nearly fell overboard when the ship was replenishing with HMAS Supply. Although describing anxiety at the time there was no evidence of continuing symptoms as a result of these events.
Mr Rafferty undertook operational service in Vietnam from 25th April 1966 – 9th May 1966 and 30th May 1966 – 9th June 1966. During his service in Vietnam Mr Rafferty served as a radio operator holding the rank of able seaman. He served on HMAS Yarra and thought that his life was under threat on several occasions. HMAS Yarra was assigned to escort HMAS Sydney to Vietnam and with it entered Vung Tau harbour. The ship was at anchor and a target for the North Vietnamese due to the proximity of the ship to land. Ships in the harbour were within range of both mortar and rocket fire and he felt that the ship was a sitting duck at anchor. In addition crew had been told that for the safety of the divers who searched the ship for enemy mines, the ships turning gear was engaged. This would require 15 to 20 minutes for the ships engineer to disengage the turning gear and get the ship under way should an attack occur. He found this stressful as he had been informed that the clearing diving team station in Vung Tau had on occasions discovered enemy mines in the area.
During one of Mr Rafferty’s four hours on duty, he was assigned to one of the motor boat crews which circles around the Yarra. His job was to throw scare charges into the water and to assist with towing and aniswimmer/diver device (sic). These duties were performed because of the very real threat of enemy underwater swimmers. Part of this duty was carried out during the hours of darkness resulting in Mr Rafferty feeling intensely fearful and helpless.
At other times Mr Rafferty’s duties were at action stations in the wireless office. He was closed off from view of the rest of the ship and would often hear explosions outside without knowing exactly what was happening and how much danger he was in. The captain of HMAS Yarra had stated that they would not fire upon the enemy unless fired upon first leading to further levels of anxiety and fearfulness.
Mr Rafferty developed symptoms of anxiety during this time and when off duty had difficulty with sleep due to his feelings of fear and helplessness, not knowing whether explosions he could hear under water were attacks on the ship or not.
During his second tour on HMAS Yarra into Vietnamese water the ship did not enter Vung Tau harbour, however, he noticed a worsening of sleep disturbance at that time. HMAS Yarra also acted as a screen escort for the HMAS Melbourne during flying operations and was involved in searching for a missing pilot who had gone into the sea.
Following Mr Rafferty’s service in Vietnam he was posted to HMAS Tarangau on Manus Island off the coast of New Guinea. He continued to experience symptoms of anxiety with more evidence of mood disturbance, recurring memories, alcohol abuse and explosive behaviour. At that point he was charged and disciplined under Navy Regulations as a result of an incident in which he lost control. No medical attention was sought as he felt he would be humiliated by others seeing him as being unable to cope. He was also concerned about the effect this may have on any potential promotion.
Between 1968 to (sic) 1970 Mr Rafferty was posted to RAF Selater in Singapore. This was a secret communications base where he intercepted Vietnam morse code and air traffic. The work involved in determining the true movements of the Vietcong in Vietnam which Mr Rafferty found stressful as it brought back vivid memories of his feelings of vulnerability and helplessness whilst aboard ship in Vung Tau harbour. He experienced marked feelings of anxiety at knowing information about the threat to others being unable to use this to warn people.
Mr Rafferty informed me that the anxiety he felt about going back to sea and possibly to Vietnam were relevant in his decision in apply for a discharge from the Navy.
Mr Rafferty’s further service as a police officer for 26 years exposed him to further traumatic incidents which maintained the symptoms he developed whilst serving with the RAN in Vietnam. His condition has gradually deteriorated and he is now no longer fit for police service. He has been a conscientious hard working person who has always tended to keep his feelings to himself. His health has been good without any serious illness or operation.
Mr Rafferty presents with symptoms consistent with a diagnosis of Post Traumatic Stress Disorder. He meets DSM4 Criteria for the condition and the commencement of his symptoms can be traced back to his operational service with the RAN in Vietnam. His family traumas and subsequent experience in the police service has served to exacerbate his symptoms which have had a significant impact on his ability to work, enjoy family life and maintain social contact with others.
Mr Rafferty has been having treatment for two and a half years. This will need to continue and includes counselling and anti-depressant medication. He has been on medical leave since October 1998. In my view Mr Rafferty is totally and permanently psychiatrically disabled and I had recommended to the WA Police Service that he be considered for retirement on medical grounds.”
(Exhibit AR1, pp73-75)
38. A report of Dr Woodall, dated 3 May 2001, addressed to the applicant’s solicitor, states:
“Thank you for your letter dated 28th January 2001 regarding Mr Rafferty’s claim. I have reviewed my records which date from my initial assessment of him on the 25th October 1996. At that time Mr Rafferty was serving as a police officer and the early stages of treatment were focused on symptomatic relief so that he could continue to work. Mr Rafferty is not a man who readily reveals his emotional state and history relevant to understanding the development of his condition was only gradually revealed, particularly because of an accompanying sense of shame and tendency to emotional detachment.
I have considered the Criteria utilised in the Fourth Edition of the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM4) and the Department of Veterans’ Affairs Statement of Principles concerning Post Traumatic Stress Disorder. I have also considered the criteria for diagnosis of Post Traumatic Stress Disorder in the Tenth Edition of the International Classification of Diseases (ICD10).
Mr Rafferty has clearly described the intense fear that he felt whilst he was serving on HMAS Yarra in Vietnam accompanied by feelings of helplessness and sleep disturbance. Symptoms of restlessness and tension, concentration difficulties, irritability and prominent sleep disturbance have continued from that time. These symptoms have fluctuated in severity and Mr Rafferty has identified particular events that have occurred later in life that have exacerbated his symptoms. He noted that during the second tour on HMAS Yarra into Vietnamese waters in which the ship did not enter Vung Tau harbour, his sleep disturbance and other symptoms became worse. Events that have occurred later in his life have also been associated with exacerbation of his symptoms for varying periods of time.
Mr Rafferty was exposed to situations prior to his service in Vietnam when he was on HMAS Vampire. He gives a clear description of anxiety symptoms on occasions when the ship went through two typhoons and on another occasion in heavy seas when he nearly fell overboard during replenishment at sea with HMAS supplies (sic). Although describing anxiety at the time there was no evidence of continuing symptoms as a result of these events.
Although Mr Rafferty’s response to the situation in Vung Tau harbour involved intense fear and helplessness, he was not directly confronted with events that involved actual threatened death or serious injury or a threat to the physical integrity of others. Mr Rafferty certainly perceived himself to be under threat based on information given to the ship’s company and his own awareness of precautions being taken to counter possible enemy attack.
In reviewing the history and information obtained, I do consider that Mr Rafferty would meet Criteria for Generalised Anxiety Disorder. Mr Rafferty had certainly been exposed to a stressful event, which resulted in the development of symptoms at the time of his exposure. These did not resolve and were associated with changes in behaviour when he was posted to HMAS Tarangau resulting in him being charged and disciplined under navy regulations. The symptoms that Mr Rafferty experienced and which he continues to suffer from include excessive anxiety and worry which he finds difficult to control and which is associated with prominent irritability, sleep disturbance, restlessness and concentration difficulties. I would note that a diagnosis of Generalised Anxiety Disorder is not made when the symptoms occur exclusively during Post Traumatic Stress Disorder. This Criteria highlights the fact that symptoms consistent with a diagnosis of Generalised Anxiety Disorder show a large overlap with symptoms of Post Traumatic Stress Disorder.
Mr Rafferty’s symptoms of Generalised Anxiety Disorder have clearly caused clinically significant distress with his seeking specialist psychiatric care since 1996. His symptoms have led to impairment in his social and occupational functioning. He has evidence of impairment in his relationship with his wife and family members and has few friends or interests generally. The impact on his police career has led to his discharge on the grounds of medical unfitness due to Mr Rafferty’s limited response to treatment.
As requested I have completed the Emotional and Behavioural Medical Impairment Worksheet of the Guide to the Assessment of Rates of Veterans’ Pensions (5th Edition).”
(Exhibit AR1, pp209-210) The Worksheet referred to the final paragraph of the above report was also tendered in evidence (Exhibit A1). The “final impairment rating” for the condition of Generalised Anxiety Disorder, which Dr Woodall diagnosed in respect of the applicant, was determined by Dr Woodall to be 43, which he said represented a “moderately severe psychiatric disorder”.
39. In his oral evidence at the previous hearing on 4 May 2001 Dr Woodall said that his treatment of the applicant comprised the prescription of anti-depressant medication, and psychotherapy which was “focussed on trying to elucidate what factors were relevant in the development of his condition and also assisting him in coming to terms with a number of events that occurred in his life”. He said that the latter was a “particularly slow process because of his tendency to maintain fairly tight emotional control over things”.
40. Dr Woodall was questioned, at the previous hearing, regarding his initial diagnosis of PTSD, and his subsequent diagnosis of Generalised Anxiety Disorder (“GAD”), in relation to the applicant’s condition. His evidence in that regard was as follows:
“MR CHRISTIE: Now, Dr Woodall, as you no doubt recall, you initially diagnosed Mr Rafferty with Post Traumatic Stress Disorder and in your most recent report diagnosis is Generalised Anxiety Disorder?---Hm mm.
And I understand that these are both within the spectrum of the general classification of Anxiety Disorders?---Yes.
Perhaps you could, for the Tribunal’s benefit, describe the nature of an anxiety disorder and describe the differences between the two and the reasons for the change in diagnosis?---Right. There are a number of separate diagnostic categories which are subsumed under the general heading of Anxiety Disorders, and those include Post Traumatic Stress Disorder, Acute Distress Disorders, Generalised Anxiety Disorder, Obsessive-Compulsive Disorder. And they’re considered to be anxiety disorders in that a common feature of all of the conditions is the presence of anxiety symptoms. Those are both psychic symptoms, which include apprehension, sense of fear, dread or worry and physical manifestations of anxiety which include autonomic overactivity, prominently tachycardia or sweating or shaking and those types of symptoms. Within those categories there is often a degree of overlap and it’s fairly unusual to see someone who has symptoms exclusively from one condition or another. Some of the conditions are separated one from another by the identification of particular aetiological factors and certainly acute stress disorder and post traumatic stress disorder, the presence of a stressor, defined by certain criteria, is considered essential to make the diagnosis. So occasionally one comes across the situation of interviewing someone who has all the symptoms of a particular disorder but may not need (sic) the criteria because a particular stressor, for example, cannot be identified. Sometimes that actually occurs because their recollection of the stressor has in fact been affected by the very event itself. Often a patchy or incomplete recollection is present in certainly severe post traumatic stress disorder. Generalised anxiety disorder as a condition includes apprehension and anxious expectation, along with a number of somatic symptoms of anxiety, irritability, motor tension, restlessness are included. And all of those symptoms are commonly seen in post traumatic stress disorder. It would be extremely unusual to find someone who had a diagnosis of post traumatic stress disorder who did not also meet criteria for a diagnosis of generalised anxiety disorder. Because of the nature of classifications, one is considered hierarchically to be on top of the other and so if you have features, or if you meet criteria for a diagnosis of post traumatic stress disorder, then the other diagnosis of generalised anxiety disorder is not made even though all the features may be there. That is a fairly common hierarchical consideration within psychiatric criteria. Certainly obtaining a history from Mr Rafferty of the full range of symptoms that he experiences took time. Understanding the stressors that he had experienced in his life, both from more recent years right through to events in his service life, took even longer and understanding the relative impact of them also took some time. My initial diagnosis of post traumatic stress disorder was made because a particular experience he had whilst serving on HMAS Yarra and being in Vung Tau Harbour was something that he described as being re-experienced – his thoughts would turn to this experience from time to time. Probably more so since we touched on it in the history taking and again, that’s a feature that I tend to see with veterans. They often shelve or put aside experiences and sometimes actually avoid coming in for assessment and treatment because of the - the effect that that has on increasing the experience of symptoms. One of the actual criteria for post traumatic stress disorder is a tendency to avoid conversations or discussion of events that actually represent traumas. In considering the criteria for a stressor, Mr Rafferty’s experience, while that of intense fear and an awareness of very real threat based predominantly on the instructions that the crew had been given and the precautions that he could see were being taken, was very evident. What, however, didn’t occur during that time was any actual threat to his life. He was not, for example, shot at or fired upon. They did not come across any evidence of a threat to the ship at that time. And in that regard, he would not be considered to meet criteria for that particular stressor. His own description of the circumstances and his own emotional reactions I felt would be consistent with the consideration of a stressor that leads to the development of a generalised anxiety disorder, so that he has been through a process which has led to the development of symptoms and those have been evident, certainly, from his history and continued beyond that exposure. Interestingly, he highlighted a couple of other experiences where he was aware of manifestations of anxiety and he gave examples of being in a typhoon when in the – I think he was on watch at the time or in the wheelhouse, and he was aware of anxiety about the potential risk in that situation. However, his symptoms subsided and didn’t persist beyond that experience. He describes another incident during replenishment at sea when he slipped and felt he might might fall between the supply ship and his own ship. And again, he was aware of apprehension which was understandable but settled. And I guess that’s the difference between psychiatric disorder, in which symptoms continue beyond a situation, and what is essentially a normal reaction to a situation which involves a degree of risk and anxiety. So that was the reasoning behind my consideration of the different categories of diagnosis.
And when you originally diagnosed post traumatic stress disorder, it was the event in Vietnam that you considered was the stressor, rather than perhaps the death of his son or the typhoons or some other event?---That struck me as prominent in the sense in which it was re-experienced. He had certainly had quite a long period of time where the death of his son was associated with understandable and appropriate grief symptoms and certainly part of the symptoms of grief is a tendency to think about the person who’s died, to be aware of situations in which they might just walk in a door. All of that followed a fairly – well, I wouldn’t say a typical time course. It was rather prolonged and that’s not unusual given the circumstances of his son’s death. There was a lot of questioning as to the reasons why, but that sense of grief has gradually diminished. There are still some aspects of his son’s death which – which do cause emotional distress, particularly, I guess, the sense of personal involvement in whether anything could have been done to change the circumstances, and I think that also relates to the experience of a father of the children and whether they had any regrets about events that had occurred. But the situation serving on HMAS Yarra was more truly re-experienced in the sense that post traumatic stress disorder incidents are.
Now, your current view is that the correct diagnosis is generalised anxiety disorder, is that right?---In terms of strictly applying a set of criteria, yes, those would be – that would be the condition that he meets criteria for.”
(Exhibit AR1, pp 160-162) Dr Woodall was then referred to Statement of Principles (“SoP”) concerning Generalised Anxiety Disorder (Instrument No 48 of 1994) (“the 1994 SoP”) determined by the Repatriation Medical Authority (“RMA”) under s196B(2) of the Act, and, in particular, to the definition of “generalised anxiety disorder” set out in clause 4 of that SoP. Dr Woodall’s evidence was that the applicant’s condition met all of the elements of that definition. Furthermore, Dr Woodall agreed that the applicant had experienced a “stressful event” (as defined in clause 4 of the 1994 SoP) during his service in Vietnam and that he had developed GAD (as defined in that SoP) within 2 years thereof.
41. Dr Woodall was referred by the Tribunal to the current relevant SoP, namely SoP concerning Anxiety Disorder (Instrument No 1 of 2000) (“the 2000 SoP”) and, in particular, to the definition of the phrase “severe psychosocial stressor” in clause 8 of that SoP. Dr Woodall opined that the applicant had experienced a “severe psychosocial stressor” (as so defined) in Vietnam in that there was an “identifiable occurrence” or a particular circumstance or situation, and the feelings that were evoked thereby in the applicant were certainly of “substantial distress”. Dr Woodall further opined that the applicant’s psychiatric condition also met the criteria for “anxiety disorder not otherwise specified”, as defined in clause 8 of the 2000 SoP. He concluded:
“… I’ve no doubt he has an anxiety disorder, … ”.
Exhibit AR1, p172)
42. At the re-hearing, Dr Woodall confirmed that he had treated the applicant from October 1996 until early 2002 and that the applicant’s condition did not change significantly during that period. He said that he had prescribed Paroxetine (“Aropax”), 30-40 mg per day (the “standard dose” being 20 mg per day), which significantly improved some of the applicant’s anxiety symptoms and irritability but did not completely resolve those symptoms. Asked whether he would expect the applicant’s symptoms to be more severe without medication, Dr Woodall responded:
“Very much so”.
(Transcript, p67) Dr Woodall was questioned about the commencement of his treatment of the applicant and its subsequent course. His evidence was as follows:
“Now, going back to when you first saw Mr Rafferty, which I think was quite a long time ago, in 1996?---1996, yes.
Yes. Can you recall the stated purpose at that time for him coming to see you?---He was initially referred purely for treatment. He had undertaken anger management programs with the Police Service and he had come to seek assistance after a particular incident that occurred in relation to football, where one of the medical officers there had some familiarity with veterans and actually encouraged him to seek help.
The – the aim was to try and improve his level of symptoms so that he was getting on better with people and wouldn’t again run into the same difficulties that he had had, both with his social activities and football but also with his workplace.
And the symptoms that were of concern at that time were symptoms relating to anger?---The anger was certainly the prominent one.
Okay. And did your initial assessment at first consultation involve events in Vietnam?---I do not recall if we specifically went into the details of those events. Mr Rafferty was seen quite frequently on a number of appointments in order to gather the history. He was not a man who revealed much of his emotional state very readily and indeed had the medical officer not strongly recommended he seek treatment I doubt that he would have done so. I think Mr Rafferty had a particular respect for that medical officer and that played a large part in his decision to seek treatment. So at what point we discussed Vietnam I’m – I’m not sure without reference to my specific clinical notes.
Is it something that developed over a period of time or can’t you say?---Details emerged over a period of time, particularly details of Mr Rafferty’s emotional reactions. He was quite good at giving a history of the facts of things, very much more reticent or reluctant to reveal just the extent of his own emotional responses. And the immediacy or the immediate concern that he had was how he was reacting to people in the here and now, rather than thinking about events of -– of some 30 years previously.
And from your point of view in treating someone, is it an important part of treatment or is it simply of academic interest to trace the possible causes of what may be causing the current symptoms?---The aetiology or psychiatric disorders is less critical in – in treatment than it is in some other medical conditions, particularly over a long history establishing the significance of particular events on someone’s emotional state and psychological function. It does take a long period of time, so treatment may well be commenced on the basis of a provisional diagnosis. Hypotheses are then generated about what the possible causes of that may be and explored as more history and a better, closer relationship is developed.
(1)restlessness or feeling keyed up or on edge
(2)being easily fatigued
(3)difficulty concentrating or mind going blank
(4)irritability
(5)muscle tension
(6)sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)
D.The focus of the anxiety and worry is not confined to features of an Axis I disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.
E.The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
F.The disturbance is not due to the direct physiological effects of a substance (e.g. a drug of abuse, a medication) or a general medical condition (e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.”
The Tribunal notes that the abovementioned list of diagnostic criteria accords substantially with the definitions of “generalised anxiety disorder” in clause 4 of the 1994 SoP and clause 8 of the 2000 SoP.
75. In determining whether the applicant is suffering from GAD the Tribunal naturally attaches great weight to the specialist medical evidence before it. That evidence, however, is not entirely consistent as regards either the question whether the applicant is presently suffering from a recognised psychiatric disorder, or the appropriate diagnosis of such disorder.
76. As regards the fundamental question whether the applicant is presently suffering from a recognised psychiatric disorder, the medical evidence, on balance, clearly supports an affirmative answer to that question. Dr Woodall (who was the applicant’s treating psychiatrist from 1996 to early 2002) and Dr Kay (who has been the applicant’s treating psychiatrist since June 2002) opined that the applicant is suffering from a recognised psychiatric disorder, namely, GAD. Dr Burvill, who examined the applicant in August 2002 for the purpose of preparing a medico-legal report, expressed the same opinion in his report, although in his oral evidence he added that the applicant’s GAD is “in partial remission” by reason of the psychiatric treatment he has been receiving. Dr Terace, who examined the applicant in October 2002 for the purpose of preparing a medico-legal report, expressed the opinion in his report that the applicant presently “meets criteria for a recognised psychiatric condition” but did not there specify a precise diagnosis of the applicant’s present psychiatric condition. In his oral evidence, however, Dr Terace thought that a diagnosis of “anxiety disorder not otherwise specified” was “reasonable” in this case. Dr Mustac, who examined the applicant in June 2002 for the purpose of preparing a medico-legal report, stated in his report that he found no evidence for an “Axis 1 mental disorder”, although he was prepared to make a diagnosis of Dysthymia “on the basis of [the applicant’s] subjective complaints”.. Dr Hester, who examined the applicant in October 1998 for the purpose of determining his fitness to continue to serve as a police officer, made a diagnosis of “chronic dysthymic disorder” at that time.
77. On the basis of medical evidence before it, the Tribunal finds that the applicant presently suffers from a recognised psychiatric disorder which constitutes a “disease” (as defined in s5D(1) of the Act) within the meaning, and for the purposes, of the Act.
78. The issue of the appropriate diagnosis of the applicant’s psychiatric disorder is, having regard to the different opinions expressed by the psychiatrists who have examined him in recent times, somewhat more problematic. Drs Woodall and Kay firmly opined that the applicant presently suffers from GAD on the basis that he satisfies the diagnostic criteria for GAD set out in DSM-IV and in the 1994 SoP. Dr Burvill expressed the same opinion but also noted that the applicant’s GAD is “in partial remission” by reason of his psychiatric treatment. Dr Terace, on the other hand, was somewhat equivocal regarding the appropriate diagnosis of the applicant’s psychiatric disorder and he did not clearly reject a diagnosis of GAD and, significantly, he was prepared to regard a diagnosis of “anxiety disorder not otherwise specified” – which, the Tribunal notes, is a category of psychiatric disorder recognised in DSM-IV (at p444) – as “reasonable” in the case of the applicant. Of the psychiatrists who have examined the applicant in recent times, the only one who clearly rejected a diagnosis of GAD was Dr Mustac. Indeed, Dr Mustac went so far as to say – contrary to the opinion of all of those other psychiatrists – that the applicant does not presently suffer from any kind of anxiety disorder.
79. Having regard to the whole of the medical evidence before it, the Tribunal is of opinion that that evidence, on balance, clearly supports a finding that the appropriate diagnosis of the applicant’s present psychiatric disorder or “disease” is GAD. In forming that opinion the Tribunal has attached the greatest weight to the considered opinions to that effect expressed by the applicant’s treating psychiatrists, Drs Woodall and Kay, and by Dr Burvill, a most eminent and experienced psychiatrist. On the basis of that evidence, and the applicant’s own evidence, the Tribunal is satisfied that the applicant presently satisfies the diagnostic criteria for GAD specified in DSM-IV (at pp435-436). In particular, the Tribunal is satisfied that:
· the applicant has experienced excessive anxiety and worry on a daily basis for many years, primarily, but not exclusively, about his experiences during his operational service in Vietnam; [in this connection, the Tribunal notes that, in order to satisfy the relevant diagnostic criterion, it is necessary that there be excessive anxiety and worry about “a number of events or activities”, not that there be excessive anxiety and worry about “anything and everything”];
· the applicant finds it difficult to control his worry;
· the applicant’s anxiety and worry are associated with at least the following symptoms which he has experienced on a daily basis for many years, namely, restlessness and feeling keyed up, irritability, and sleep disturbance;
· the focus of the applicant’s anxiety and worry is not confined to features of an Axis I disorder, such as Panic Disorder or Social Phobia, and his anxiety and worry do not occur exclusively during PTSD;
· the applicant’s anxiety, worry or physical symptoms cause him clinically significant distress and impairment in social functioning;
· the applicant’s disturbance is not due to the direct physiological effects of a substance (including alcohol) or a general medical condition and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
80. Accordingly, the Tribunal finds that the applicant presently suffers from a “disease” (as defined in s5D(1) of the Act), namely, GAD.
Is the applicant’s GAD a “war-caused disease”, within the meaning of s9 of the Act?
81. The question whether the applicant’s GAD is a “war-caused disease”, within the meaning of s9 of the Act, is, in accordance with s120(1) of the Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the applicant’s GAD is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s120(3) of the Act, the Tribunal shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for making such a determination if the Tribunal, after considering the whole of the material before it, is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of” the applicant’s operational service. In this connection, if a relevant SoP determined under s196B(2) of the Act is in force, a hypothesis connecting the relevant disease with the circumstances of the relevant service will be “reasonable” only if that SoP upholds that hypothesis: see s120A(3) of the Act.
82. As previously mentioned, relevant SoPs have been determined under s196B(2) of the Act, namely, the 1994 SoP and the 2000 SoP. The 1994 SoP was in force when the respondent made its decision in this matter on 13 April 1999. That SoP was, however, revoked and replaced by the 2000 SoP which is currently in force. In these circumstances the Tribunal should first consider and apply the SoP which is currently in force, namely, the 2000 SoP; and, if the applicant’s claim fails under that SoP, the Tribunal must then consider and apply the SoP which was in force at the time of the respondent’s decision (namely, the 1994 SoP) because the applicant has an accrued right to have his claim determined by the Tribunal by reference to that SoP: Repatriation Commission v Gorton (2001) 110 FCR 321; Repatriation Commission v Keeley (2000) 98 FCR 108; Thomas v Repatriation Commission [2003] FCAFC 122.
83. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Federal Court outlined the course which the Tribunal must, for the purposes of subss (1) and (3) of 120, and s120A(3), of the Act, follow in a case like the present (at 97-98):
“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). …
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.”
84. Having regard to the whole of the material before it, the Tribunal is satisfied that that material points to, or raises, the following general hypothesis connecting the applicant’s present condition of GAD with the circumstances of his operational service in Vietnam: namely, that while serving on board HMAS Yarra when anchored in Vung Tau Harbour, Vietnam in 1966 the applicant experienced various very stressful incidents including, in particular, the patrol boat incident in the darkness of night, and his periods of duty in the radio communications room during which he heard the sounds of “scare charges” going off, and that he first contracted GAD at that time or at least within the period of 2 years after experiencing those incidents, and that he has continued to suffer from GAD from that time and presently suffers from GAD.
85. As previously mentioned, a relevant SoP determined by the RMA under s196B(2) of the Act is currently in force, namely, the 2000 SoP. The 1994 SoP, which was revoked by the 2000 SoP, was in force at the time of the respondent’s decision in this matter.
86. The Tribunal is next required to form an opinion regarding whether the raised hypothesis is a reasonable one – that is, whether that hypothesis is consistent with the “template” to be found in the relevant SoP. The Tribunal will, for this purpose, first consider the 2000 SoP. Clause 5 of the 2000 SoP sets out various alternative “factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting”, relevantly, GAD “with the circumstances of a person’s relevant service” (including “operational service”). In the present case the only relevant factor is that specified in subpara (a)(ii) of clause 5, namely:
“experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”.
For the purposes of the 2000 SoP, “anxiety disorder” includes, inter alia, GAD: see clause 2(b). Clause 8 of the 2000 SoP contains definitions of various phrases including, relevantly, “severe psychosocial stressor”, “generalised anxiety disorder” and “clinically significant”: see paragraph 69 above.
87. The Tribunal is satisfied, having regard to the material before it – including the applicant’s evidence and the various abovementioned psychiatric reports which contain the relevant history as recounted by the applicant to the psychiatrists – that that material points to:
· the applicant’s having experienced a “severe psychosocial stressor” (as defined in clause 8 of the 2000 SoP) during his service on HMAS Yarra when anchored in Vung Tau Harbour, Vietnam in 1966, in particular, at the time when he was on board a small patrol boat circling the ship in the darkness of night for the purpose of dropping “scare charges”, and thereby was caused to have feelings of substantial distress;
· the “clinical onset” of “generalised anxiety disorder” (as defined in clause 8 of the 2000 SoP) in the applicant at that time or shortly thereafter (and certainly within 2 years thereafter) in that:
–he then suffered, and has thereafter continued to suffer, anxiety and worry on a daily basis about a number of events;
–he then found, and has thereafter continued to find, it difficult to control that worry;
–his anxiety and worry were then, and continue to be, associated with at least the following 3 symptoms which he has continued to experience on a daily basis since the abovementioned patrol boat incident, namely, restlessness and feeling keyed up, irritability, and difficulty falling and staying asleep;
–the focus of his anxiety and worry was then, and continues to be, not confined to features of any other Axis I disorder;
–his anxiety, worry or abovementioned physical symptoms have caused, and continue to cause, him “clinically significant” ( as defined in clause 8 of the 2000 SoP) distress, and impairment at least in his social functioning; and
–his anxiety and worry were then, and continue to be, not due to the direct physiological effects of any substance (including alcohol) or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
· the applicant’s condition of GAD, which he contracted during his operational service (as mentioned above), has persisted and the applicant continues to suffer from GAD at the present time.
Accordingly, the Tribunal is satisfied that the material before it points to, or raises, a hypothesis which is consistent with the relevant “template” found in clause 5 of the 2000 SoP, and which connects the applicant’s GAD with his operational service, and it is therefore of the opinion that that raised hypothesis is a reasonable one.
88. Finally, the Tribunal must consider, pursuant to s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the applicant’s condition of GAD is not a “war-caused disease” within the meaning of s9 of the Act. The Tribunal will be so satisfied if it is satisfied beyond reasonable doubt that the factual basis upon which the abovementioned reasonable hypothesis depends does not exist – that is, if it is satisfied beyond reasonable doubt either that one or more of the facts necessary to support that hypothesis does, or do, not exist, or that a fact which is inconsistent with that hypothesis does exist: Deledio v Repartition Commission (1997) 47 ALD 261 at 275; Repatriation Commission v Hill (2002) 69 ALD 581 at 595.
89. The Tribunal accepts the applicant’s evidence regarding the relevant incidents which occurred while he was serving on HMAS Yarra when it was anchored in Vung Tau Harbour, Vietnam in 1966, and the feelings of distress and the symptoms which he suffered as a result thereof. In particular, the Tribunal accepts the applicant’s evidence regarding the patrol boat incident and that he found that incident “absolutely terrifying” and “very frightening”. The Tribunal finds, therefore, that that incident itself constituted a “severe psychosocial stressor”, as defined in clause 8 of the 2000 SoP, in that it was an “identifiable occurrence that evoke(d) feelings of substantial distress” in the applicant. The Tribunal also accepts the applicant’s evidence that, by reason of the incidents that occurred during his service on HMAS Yarra in Vung Tau Harbour in 1966 – in particular, the patrol boat incident – he immediately became very anxious and was worried, had trouble sleeping, felt uptight and on edge, and became aggressive and moody, and that he continued to experience these feelings and symptoms thereafter.
90. The Tribunal, furthermore, accepts the expert opinion evidence of the applicant’s present treating psychiatrist, Dr Kay, and of Dr Burvill that, on the basis of the history that was given to them by the applicant, he, at the time of the abovementioned incidents in Vietnam or shortly thereafter, developed symptoms that were consistent with a diagnosis of GAD in accordance with the diagnostic criteria specified in DSM-IV and in accordance with the definition of “generalised anxiety disorder” in the 1994 SoP (which is in substantially the same terms as the corresponding definition in the 2000 SoP). The Tribunal notes that the applicant’s former treating psychiatrist, Dr Woodall, is of the same opinion. The Tribunal prefers the considered and unequivocally-expressed opinions of the abovementioned psychiatrists to the somewhat equivocal views of Dr Terace and the sole contrary opinion of Dr Mustac. As regards Dr Hester, his only examination of the applicant occurred in 1998 and was for the sole purpose of determining the applicant’s fitness to continue to serve in the police force (in which he had then served for 25 years) and he was not given any history of the applicant’s Vietnam experience. Little, if any, assistance can therefore be derived from Dr Hester’s evidence.
91. Having regard to the whole of the medical evidence before it, the Tribunal is satisfied, primarily on the basis of the expert evidence of Drs Kay, Burvill and Woodall, that the applicant commenced to suffer from GAD – in other words, that the “clinical onset” of GAD occurred in the applicant’s case – at the time of, or shortly after – and certainly within the period of 2 years after – he experienced the abovementioned “psychosocial stressor”, namely the patrol boat incident, while serving on HMAS Yarra when it was anchored in Vung Tau Harbour, Vietnam in 1966. At the very least, the Tribunal, having regard to the expert evidence of Drs Kay, Burvill and Woodall, cannot be satisfied beyond reasonable doubt that the clinical onset of GAD did not occur within 2 years of the applicant’s experiencing the abovementioned “psychosocial stressor”.
92. The Tribunal also accepts the considered and unequivocally-expressed opinion of each of Dr Woodall, Dr Kay and Dr Burvill that the applicant’s present condition of GAD commenced at the time of his operational service on HMAS Yarra in Vietnamese waters in 1966 and has thereafter continued to, and is continuing at, the present time. The Tribunal accepts, in particular, Dr Burvill’s evidence that his assessment of the “longitudinal history” of the applicant’s present condition of GAD is that it commenced during his operational service on HMAS Yarra in Vung Tau Harbour, Vietnam and can be traced longitudinally from that time to the present, with exacerbations and remissions during that period. The Tribunal notes that Dr Terace was prepared to acknowledge the possibility (but not the probability) that the applicant’s present psychiatric condition, however diagnosed, is related to his operational service in Vietnam.
93. Having regard to the whole of the medical evidence before it, the Tribunal is satisfied, primarily on the basis of the expert evidence of Drs Woodall, Kay and Burvill, that the applicant’s present condition of GAD is causally related, or connected, to his operational service on HMAS Yarra in Vietnamese waters in 1966. Again, at the very least, the Tribunal, having regard to the evidence of Drs Woodall, Kay and Burvill, cannot be satisfied beyond reasonable doubt that the applicant’s present condition of GAD is not causally related, or connected, to that operational service.
Conclusion
94. It follows from the foregoing discussion and findings that the Tribunal, for the purposes of s120(1) of the Act, is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s present condition of GAD is war-caused. Accordingly, the Tribunal, in accordance with s120(1) of the Act, determines that the applicant’s present condition of GAD is a “war-caused disease”, within the meaning of s9 of the Act. It is common ground that the date of effect of that determination is 16 August 1998 (being 3 months prior to the lodgment of the applicant’s Claim for Disability Pension in respect of, inter alia, “stress/depression”: see ss20(1) and 177(2) of the Act).
Decision
95. For the above reasons, the Tribunal sets aside the decision of the VRB, dated 29 November 1999, and, in substitution therefor, decides that the applicant presently suffers from GAD and that the applicant’s GAD is a “war-caused disease”, within the meaning of s9 of the Act, with effect from, and including, 16 August 1998.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Deputy President
Signed: ....…(sgd V Wong).............................................
Associate
Date/s of Hearing 30 October, 3, 4, 10 December 2002
Date of Decision 4 July 2003
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Christie & Strbac
Counsel for the Respondent Dr J T Schoombee
Solicitor for the Respondent Australian Government Solicitor
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