Re Kelly and Repatriation Commission - [2001] AATA 254

DECISION AND REASONS FOR DECISION [2001] AATA 254

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1641

VETERANS' APPEALS DIVISION       )
           Re      Brian Joseph KELLY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

No. N1998/1696

Re REPATRIATION COMMISSION

Applicant

And Brian Joseph KELLY

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 March 2001
PlaceSydney

Decision The Tribunal – 1. In respect of application N1999/1641, affirms that part of the decision of a delegate of the Repatriation Commission dated 25 May 1996 that determined that the claim lodged by Brian Joseph Kelly in respect of lumbar spondylosis is not war-caused. 2. In respect of application N1998/1696, affirms that part of the decision of the Veterans' Review Board dated 3 August 1998 that determined that the anxiety condition suffered by Brian Joseph Kelly was war-caused pursuant to s.9(1)(b) of the Veterans' Entitlements Act 1986.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether anxiety condition was war-caused – whether lumbar spondylosis was war-caused – function of Explanatory Notes when reading Statements of Principles – meaning of "trauma to the lumbar spine" in interpreting Statement of Principles.

Veterans' Entitlements Act 1986, ss120(1),120(3), 120(4,) 9(1)(b), 5C, 7(1)(e)

Statements of Principles – Instrument No 106 of 1995, No 335 of 1995, No 359 of 1995, No 49 of 1994, No 276 of 1995, No 53 of 1998,

Harris v Repatriation Commission (2000) 31 AAR 270
Harris v Repatriation Commission [2000] FCA 1687
Miller v Minister of Pensions (1947) 2 All ER 372
Re George Ablett and Repatriation Commission (V95/1111 AAT No. 12210)
Re Harris and Repatriation Commission [1999] AATA 136 (5 March, 1999)
Re Huszczo and Repatriation Commission [1999] AATA 1027 (21 December 1999)
Re Rose and Repatriation Commission [1999] AATA 105 (26 February 1999)
Repatriation Commission v Keeley (2000) FCR 98 FCR 108
Repatriation Commission v Law (1980) 47 FLR 57
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of decisions made respectively by the Repatriation Commission ("the Commission") and the Veterans' Review Board ("the VRB") in respect of applications lodged by Brian Joseph Kelly ("the Mariner")
The first application, N1998/1641, was lodged by the Mariner on 16 November 1998, seeking a review of that part of a decision made by a delegate of the Repatriation Commission ("the Commission") on 25 May 1996, that refused the Veteran's claim in respect of lumbar spondylosis.
The second application, N1998/1696, was lodged on behalf of the Commission, seeking a review of that part of the decision of the VRB dated 3 August 1998 that accepted that the Mariner's anxiety condition was war-caused.
The Tribunal had before it the documents provided by the Commission pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Mariner gave oral evidence at the hearing and tendered the following documents:

Reports from Professor Philip N. Sambrook, rheumatologist, dated 31 May 1999 and 26 July 1999 with annexure dated 27 May 1999 from Dr J Christie, North Shore Radiology and Nuclear Medicine (exhibit A)
Report from Dr Anthony Dinnen, consultant psychiatrist, dated 29 July 1999 (exhibit B)
Statements of the Mariner dated 23 April 1999 (exhibit C) and 13 June 2000 (exhibit D)

The following documents were tendered as evidence on behalf of the Commission –

Reports from Dr A S Murray, consultant psychiatrist, dated 3 May 1999 and 3 June 1999 (exhibit 1)
Report of Dr Chapman, Orthopaedic Surgeon, dated 13 May 1999 (exhibit 2).

legislation and issues

The Mariner served in the Merchant Navy from 21 July 1944 to 31 July 1945 on the "SS River Burdekin". The parties agreed that he is an "Australian mariner" within the meaning of s5C of the Veterans' Entitlements Act 1986 ("the Act") and that he has rendered "eligible war service" within the meaning of s7(1)(e) of the Act. Both the Commission and the VRB decided these matters using the standard of proof set out in s120(1) and (3) of the Act, that pertains to operational service only. However, as the Mariner rendered eligible war service only, and not operational service, this matter falls for consideration pursuant to s120(4) of the Act. This was one issue that motivated the application for review by the Commission in respect of the Mariner's anxiety condition. The other issue was whether he met the relevant Statement of Principles.
The parties agreed that the Mariner has an accrued right to have the Tribunal determine his claim by applying the Statements of Principles that were applicable when the primary decision was made: Repatriation Commission v Keeley (2000) FCR 98 FCR 108. The primary decision in respect of both conditions was made on 25 May 1996. Counsel advised that the Mariner wished to exercise his accrued right in this matter. Consequently, the Statements of Principles to be applied in respect of Lumbar Spondylosis is Instrument No.335 of 1995 as amended by Instrument No.359 of 1995. In respect of the anxiety condition, the relevant Statements of Principles for Generalised Anxiety Disorder in place at the time of the primary decision was Instrument No.49 of 1994, as amended by Instrument No.276 of 1995.
N1998/1641 - Lumbar Spondylosis
The Mariner was born on 20 January 1928. He lodged a claim for "chronic back condition" on 13 December 1995 in which he noted that the cause of the condition was "regular heavy work on service" (T4 p20). He said that he first became aware of the condition in "1945-6". In his oral evidence he agreed that he had provided instructions to that effect in respect of this claim.
In his statement dated 21 October 1997 (T14, p56) the Mariner stated that he first received treatment for his back pain at Newcastle hospital in1948.
The Mariner stated in a letter dated 7 December 1995 in support of his claim (T4, p23) –
The ship I joined, SS River Burdekin was, although fairly new very heavy work at times for a lad of my size, but I was keen and eager to pull my weight. I think this contributed to the fact that I had a recurring back problem all my working life, even though I didn't lose very much working time.

He agreed in cross-examination that these were the only instructions he provided, either to his advocate or to the Commission, in support of his claim.

In his statement dated 21 October 1997 (T14, pp56-57) the Mariner stated that his back condition had stayed with him throughout his life and was something he had "come to terms with". He also stated that because his back trouble started when he was young, he was certain it was caused by the work he undertook during the war.
In a written statement dated 23 April 1999 (exhibit C) the Mariner recounted a particular incident where he hurt his back while lifting cargo hatches on a ship that he was working on at the time. He wrote –
I recall one incident in particular when I tried to lift a hatch board and it was stuck. I attempted to lift the hatch and pulled too hard not knowing that it would not move. I was in so much pain that I went down on to my knees and had to be helped to my feet. The bosun came and told me that I had better lay down. He sent the third mate down to me. We had no medical officer on board so the third mate used to look after us. He came down and gave me liniment and told me to rest up for a while. The bosun came back and rubbed my back. He continued to do this a number of times during the next week or so. I also took asprin constantly as I was in so much pain although by the end of the week it had begun to ease somewhat.
I began to move around after 3 or 4 days but still spent time in bed some of the day and was still taking asprin and having rub downs. I returned to light work after a week or so. I just cleaned up around eg sweeping up the decks and washing down the ship with the crew but I didn't really do anything much but lean on the broom. I was able to do this as the other fellows were working with me and they knew that I was having a lot of trouble.
After this incident I had continuing problems with my back. I used liniment on and off though fairly regularly. When I had to do heavy work in future I was very careful because I knew that it wouldn't take much for my back to be a problem for me.
The Mariner agreed in cross-examination that the abovementioned statement was the first time he had disclosed this event, and that he "probably" had not mentioned it when giving a clinical history to Dr Chapman, orthopaedic surgeon, in April 1996. He said that Dr Chapman asked only very general questions about his attitude to work and work conditions. The Mariner also said he "probably" had not mentioned the incident earlier, as it occurred so long ago and he had not been asked about it. However, he said he remembers the incident vividly.
X-rays of the Mariner's lumbar-sacral and dorsal spine dated 26 March 1996 (T5) were reported as showing degenerative disease of the L3/4 and L4/5 discs. The X-rays also showed gross degenerative disease of the L5/S1 disc associated with osteoarthritis of the lower lumbo-sacral spine and marked spondylosis deformans at the L2/3 disc level. There was slight dorsal scoliosis, slight degenerative disc disease in the mid dorsal spine, marked ankylosing hyperostosis of the mid and lower dorsal spine and slight osteoarthritis of the lower costo-vertebral joints, associated with rather marked sclerosis of the proximal left rib and appendage of T11 vertebral body. Whilst this could be accounted for by the degenerative change already present, the possibility of sclerotic metastasis could not be excluded.
In his report dated 11 April 1996 Dr D. Chapman (T7) observed that the Mariner had experienced intermittent back pain over the years, but his symptoms did not restrict his activities significantly. Dr Chapman noted the radiologist's report that raised the possibility of sclerotic metastasis. However Dr Chapman dismissed this diagnosis and considered that no further investigation was needed. Dr Chapman diagnosed the Mariner's back condition as generalised spondylosis consistent with his age.
In a subsequent report dated 13 May 1999 (exhibit 2), Dr Chapman observed there was no sign of any fracture in the X-ray dated 26 March 1996, although he noted that the film showed well marked degenerative change. He also opined –
Spinal contours are normal and there is no muscle spasm present. He tells me that his symptoms arise mainly in the thoracic region of his spine between the shoulder blades at about the mid level. Flexion of his spine is restricted. There is no tenderness present in the region today.
…he reports intermittent discomfort in his back for many years and x-rays in 1996 have shown degenerative change in his back. At the time these films were taken he was aged 68 and I would say that 100% of the population of that age would have radiological evidence of similar changes. I can see no good scientific reason whatever to relate these changes to war service.
Dr P. Lightfoot, LMO, in a medical impairment assessment dated 12 April 1996 (T6) noted that the Mariner had recently suffered symptoms of chronic back condition, noting that the back caused no problem unless he "uses back for activities (physical)" (T6, p30). In terms of restrictions, Dr Lightfoot recorded that the condition means the Mariner has to be careful when lifting, it has "really no effect" on his ability to walk, that when climbing stairs the Mariner "feels has to extend spine" and when using transport he has to get out of the car regularly to move around.
Dr Baz, occupational physician, in a report dated 9 December 1997 (T11), noted that the Mariner provided a long history of back trouble, with pain radiating to the buttocks but not to the legs. However, Dr Baz also noted that the Mariner –
… is able to garden for 30 minutes. He cannot dig as it would cause weakness. He would become short of breath and would "fall over" if he kept on going. He is able to mow the lawn as long as the lawn mower starts easily. He does this job with breaks because of weakness and also some shortness of breath. He feels weak and dizzy if he reaches up.
He describes walking about 200 yards at a moderate pace without becoming breathless. He is unable to hurry, for example to cross the road, because of the breathlessness. He is not breathless with showering or dressing and does not feel weak while doing these activities.
In his report dated 31 May 1999 (exhibit A) Professor P. N. Sambrook, rheumatologist, referred to the Mariner's statement dated 23 April 1999, noting, in particular, the incident involving the hatch board. He stated that the Mariner noted that he continued to experience back problems intermittently thereafter, needing regular treatment with liniments. He also noted that in the late 1940s the Mariner recalled having an injection into his back at Newcastle Hospital for back pain. Professor Sambrook also noted the X-ray report dated 26 March 1996, in particular where it stated that in the thoracic spine there was a slight dorsal scoliosis with marked sclerosis of the proximal left rib and appendage of the T11 vertebral body. He considered that this might correspond with the Mariner's previous statement about an X-ray in the 1950s showing "a crack" in a small bone in the lower part of his back".
Professor Sambrook diagnosed lumbar spondylosis. He noted that the Mariner's service was quite arduous and would nominally satisfy the definition of "trauma" in Instrument No.53 of 1998, in that one of the episodes described by the Mariner involved a discrete injury causing symptoms and signs of pain, tenderness and altered mobility within 24 hours lasting for approximately 10 days. However, there was no documentation of this episode. Professor Sambrook also noted:
The radiological appearance, as described in the report of 1995, does not correspond to any definite demonstrable lesion associated with trauma that can be linked to his service and, as such, unless the statement about this episode is accepted as a true version of events, I suspect his case will not succeed.

Annexed to Professor Sambrook's report was an X-ray of the thoraco-lumbar spine from Dr J Christie, North Shore Radiology & Nuclear Medicine, dated 27 May 1999, in which Dr Christie noted:
There does appear to be some increased density in the region of the head of the left 11th rib. This appearance is non specific ? healing fracture. I am not sure if this was the area previously identified as being abnormal. In addition there is flowing pre-vertebral ossification typical in appearance for DISH. No other abnormality is seen.

Professor Sambrook commented on this X-ray in his report, that the appearance of sclerosis of the left transverse spinous process of T11 was of uncertain cause, and there was also evidence of diffuse idiopathic hyperostosis.

In his report dated 26 July 1999 (exhibit A), Professor Sambrook addressed Instrument No.27 of 1999. He stated in relation to "trauma" –
Again, as noted in my earlier report, the definition is nominally consistent with the episode described by Mr Kelly, as he recounted a discrete injury causing symptoms and signs of pain tenderness and altered mobility within 24 hours lasting for at least seven. However, there is no actual documentation of this episode. In other words, if the history is accepted, then he satisfies this criterion, although it has been my experience that further documentation of an episode is required before it is generally accepted by the tribunal. Matters that may assist the tribunal in assessing the likelihood of trauma include the degree of change on x-rays and there were certainly gross degenerative changes at the L5/S1 level on the x-rays in 1996, although Dr Chapman has previously opined that these changes were just consistent with Mr Kelly's age.
It was submitted for the Mariner that factor 1(f) of Instrument No.106 of 1995 (as amended by Instruments Nos.335 of 1995 and 359 of 1995) "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis" has been met. The significant part of this general submission was that the hatch board incident, outlined in paragraph 9 of the Veteran's statement (exhibit C), demonstrated that the damage leading to the condition was war-caused.
It was submitted for the Commission that the evidence of Professor Sambrook and Dr Chapman can be read as congruent and they have come to the same diagnosis, that is, that the Mariner suffers from generalised spondylosis consistent with his age (T7). Dr Chapman did not obtain any history of a serious back injury. He noted an X-ray of 26 March 1996 that showed marked degenerative change. He considered that the X-ray changes were consistent with those seen in 100 percent of the population of the Mariner's age, and he found no good scientific reason to relate those changes to the Mariner's war service.
It was submitted for the Commission that although Professor Sambrook accepted that the Mariner's service was "quite arduous" it was for a period rather less than ten years. He accepted that if the history provided by the Mariner about the discrete injury was accepted by the Tribunal then he would nominally satisfy the definition of 'trauma' in Instrument No.53 of 1998, in that the episode involved a discrete injury causing symptoms and signs of pain, tenderness and altered mobility within the twenty-four hours lasting for approximately ten days. It was noted for the Respondent that Professor Sambrook's reference to "approximately ten days" was a reference to the Mariner's statement (exhibit C) that the bosun rubbed his back with liniment a number of times during the "next week or so", he was given asprin for the pain, and told to rest, and "by the end of the week it had begun to ease somewhat".
It was submitted for the Commission that "altered mobility within 24 hours lasting for approximately 10 days" is a construction of Professor Sambrook and is not what the Mariner had said. It was submitted that Professor Sambrook considered there was no definite demonstrable lesion associated with trauma that can be linked to the Mariner's war service.
It was also submitted for the Commission that Professor Sambrook in his report dated 26 July 1999 (exhibit A) incorrectly referred to factor 5(h) of Instrument No.27 of 1999 rather than Instrument No.359 of 1995, the latter being the relevant Instrument to apply in relation to lumbar spondylosis. He also incorrectly referred to factor 5(g) of Instrument No.28 of 1999.
It was submitted for the Commission that the status of the Explanatory Notes for Tabling, relevant to Instrument No.359 of 1995 are akin to an explanatory memorandum. They merely emphasise what is in any case discernible in the movement of language from one Instrument (No.335 of 1995) to another (No.359 of 1995). It was submitted for the Mariner that that the Explanatory Notes only have a role where there is an ambiguity in interpretation.
Referring to the new definition of "trauma to the lumbar spine" introduced by Instrument No.359 of 1995 and paragraph 3 of the Explanatory Notes, it was submitted for the Commission that there is nothing in Professor Sambrook's reports to suggest that the Mariner suffered initial internal damage to the joint or disc. Accordingly, it was submitted that the claimed disability of lumbar spondylosis does not come within the Statement of Principles and should be refused.
It was submitted for the Mariner that the Commission has overstated or misstated the requirements of the Statement of Principles. Firstly, it was submitted that there is no requirement or "requisite" in paragraph 5 of Instrument No.359 of 1995, that refers to the concept of "initial internal damage to the joint or disc". This is included only in the Explanatory Note. Secondly, it was submitted that the Tribunal does not need to refer to the Explanatory Notes as there is no ambiguity in the definition of "trauma in the lumbar spine" in the Statement of Principles itself when applied to the facts of the case. Moreover, it was submitted that the Commission's inference, that if there is a need to establish initial internal damage then it must be to such a degree that it remains visible on X-ray 50 years later, cannot be sustained. However Professor Sambrook concluded that there may be an association between the hatch board incident and the later X-rays which showed certain indications in the thoracic spine.

It was submitted for the Commission that, on the basis of the Mariner's statement dated 23 April 1999, one cannot say on the balance of probabilities or at all that the crack in the small bone pointed out on the X-ray derived from the episode described by the Mariner. In any event, the requisite manifestation of acute symptoms and signs of at least ten days' duration straight after the injury, is, on the Mariner's own evidence, not met. Moreover, Professor Sambrook's reference to "tenderness and altered mobility within twenty four hours lasting for approximately ten days" does not accurately reflect the Mariner's evidence. It was also submitted that the bosun's rubbing the Mariner's back and the taking of aspirin does not constitute "medical intervention" within the meaning of the exception in the definition of "trauma to the lumbar spine".
It was submitted for the Mariner that once his written and oral evidence are accepted, the lacuna between the incident and the diagnosed condition of lumbar spondylosis is fulfilled. He suffered acute symptoms and signs of pain within 24 hours and these continued for 10 days, as accepted by Professor Sambrook. This is consistent with the Mariner's description of events. The pain continued, necessitating medical intervention in 1947 or 1948, which demonstrates that the pain and acute symptoms continued for a period considerably past 10 days.
In the alternative, it was submitted for the Mariner that the activities of the bosun constituted a "medical intervention" when all the circumstances are taken into account, particularly that they were on a ship without access to a registered medical practitioner. His intervention reduced or ameliorated the Mariner's acute symptoms but did not completely remove them and the pain continued through his life. It was submitted that he had acute symptoms as required in the Statement of Principles, since there were immediate symptoms and immediate onset, accepting "acute" in the manner used by the medical profession: Re Huszczo and Repatriation Commission [1999] AATA 1027 (21 December 1999); Re George Ablett and Repatriation Commission (V95/1111 AAT No. 12210), Re Rose and Repatriation Commission [1999] AATA 105 (26 February 1999).
It was submitted for the Commission that the relevant definition of "trauma to the lumbar spine" is contained in Instrument No.359 of 1995, viz:
'trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;
In relation to this definition it was submitted for the Commission that, relying on the decision of the Tribunal Re Harris and Repatriation Commission [1999] AATA 136, the question to be resolved is not whether there was "pain, tenderness and altered mobility", but whether there were acute signs and symptoms of pain, tenderness and altered mobility of the requisite kind. At the time of the hearing of this matter the appeal from the Tribunal's decision had not been finalised. Subsequently the decision of Finn J in Harris v Repatriation Commission (2000) 31 AAR 270 held that the Tribunal should have applied Instrument No.105 of 1995 as amended by No.334 and No.358 of 1995, that is, the equivalent Statements of Principles to those in this case, but for operational service. An appeal to the Full Federal Court was subsequently dismissed: Harris v Repatriation Commission [2000] FCA 1687. In respect of the trauma definition, Finn J stated (at paragraphs 30-33):
In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by a person.
Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to "acute symptoms and signs of pain and/or tenderness, and [meaning "together with"] altered mobility" etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words "and where such acute symptoms and signs last for a period of at least one week") and to what, ordinarily, would be the work done by the preposition "of" in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that that construction is the one propounded by the respondent.
The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury.
What is notable about both the Tribunal's decision and the applicant's argument before me is that they focussed on whether or not Mr Harris had suffered, or should be assumed to have suffered, altered mobility. In the usual case this focus would be both explicable and unexceptionable: altered mobility would usually be manifest in "signs and symptoms" of such altered mobility. But bearing in mind that the factor required to exist by the SoP is "acute signs and symptoms of altered mobility" and that, apart from Mr Harris' inability to recall whether he had altered mobility, the only evidence at all that could be invoked as being consistent with the hypothesis advanced was that of Dr Stone, the precise requirement of the SoP was of particular importance in this case.
It was submitted for the Commission that in deciding this matter "on the balance of probabilities" the Tribunal should note the decision of Denning J in Miller v Minister of Pensions (1947) 2 All ER 372 at 374, viz:
In cases falling under art 4(2) and art 4(4) (which are generally cases where the man was fit on his discharge, but incapacitated later by a disease) there is no compelling presumption in his favour, and the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probable than not," the burden is discharged, but, if the probabilities are equal, it is not.
In this regard it was submitted for the Commission that there was no reference to the hatch board incident in the Mariner's claim, or in his letter supporting the claim. The Commission also submitted that it did not form part of the Mariner's instructions to his advocate when she represented him before the VRB. In fact, the first time the incident was noted by the Mariner was more than five months after his application for review had been lodged with the Tribunal. It was submitted, therefore, that the Mariner's evidence about his back injury on service must be taken as an "assertion", in the light of his not having said anything about it previously. However the Commission did not wish to submit that the Veteran was not a witness of truth.
It was submitted for the Mariner that the reason why he had not provided details of the incident prior to his statement of 23 April 1999, was because he was not asked. It was also submitted that his account of the incident in his oral evidence was consistent with that provided to Dr Chapman. The Mariner said that he remembered the incident vividly and could identify the period when he received spinal injections subsequently. Therefore, the Tribunal should accept his evidence of the hatch board incident. It was submitted that a failure to avert to something cannot be the basis for a finding that it is not a reliable account. Given the length of time since these events occurred and the consistency between the Mariner's evidence and other evidence, it was submitted that at least something happened in 1948 or 1949 that required medical attention. For this reason the Tribunal should prefer the Mariner's version of events. It was not put to the Mariner that the incident was a recent invention of his for the purposes of the proceedings.
Having considered the evidence and the parties' submissions, the Tribunal notes that relevant Statement of Principles is Instrument No.359 of 1995, in which factor 1(f) is –
suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;

and that "trauma to the lumbar spine" in that Statement of Principles means –

an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range or movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteriod injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;

The previous definition of "trauma to the relevant joint" in Instrument No.335 of 1995, which was amended by the abovementioned definition, meant –
Injury caused by the force of an extraneous physical or mechanical agent that causes pain, swelling or tenderness of a joint affected by lumbar spondylosis within the 24 hours after the force has been applied.

When considered in juxtaposition, it is apparent that the amendment in Instrument No.359 of 1995 is a significantly stricter test reflecting a more serious outcome resulting from the trauma. The later definition does not specifically refer to internal damage of the disc rather than merely sustaining damage to the soft tissue overlying the lumbar spine, although the Explanatory Notes indicate that the new definition "reflects" this. The Tribunal accepts the submissions for the Mariner that the new definition is clear on its face, and therefore the Tribunal does not need to go to the Explanatory Notes for any assistance in interpretation.

The new definition requires there to be "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred". Assuming at this stage that the incident occurred as described, but making no findings in that regard, the Tribunal notes that the "medical intervention" allegedly received by the Mariner was not of the order reflected in the definition. Leaving aside for a moment that it was not provided by a doctor, applying liniment and providing asprin is clearly of a different magnitude of severity from "splinting, corticosteroid injection and surgery", and compared with these examples the Mariner's "medical intervention" in the Tribunal's view does not meet this classification.
The most significant symptom described by the Mariner in his statement (exhibit C) was that of pain for which he took asprin "constantly". The Tribunal finds that this probably equated with "acute" pain for the purpose of the definition. However there was no reference to acute symptoms or indeed any symptoms of tenderness and altered range of movement of the lumbar spine. In particular, and of significance, there is no evidence that such acute symptoms lasted for "at least ten days immediately after the injury". Indeed the Mariner was able to return to light duties after a week, which, on its face, is not consistent with having "acute" pain, tenderness and altered range of movement of the lumbar spine. In coming to this conclusion the Tribunal has followed the Federal Court decision in Harris (supra) that makes it clear that the term "acute" refers to each of the concepts of pain, tenderness and altered mobility, and that the definition contemplates a "significant injury".
The Tribunal notes the reference by Counsel for the Commission to the balance of probabilities test set by Lord Denning in Miller (supra), but finds that this is not such a matter where the weight given to either side is "evenly balanced". Overall, the Tribunal is not reasonably satisfied on the evidence before it that the injury allegedly suffered by the Mariner during his service on the SS River Burdekin met the definition of "trauma to the lumbar spine" in Instrument No.359 of 1995.
Issues in this matter that are peripheral but not irrelevant include the contemporary X-ray appearances and specialist opinions that indicate that the lumbar spondylosis now suffered by the Mariner is consistent with his age. The possibility of a "crack" in the vertebrae diagnosed about 1949, has been adequately explained by Professor Sambrook in his evidence, namely, that on the X-rays taken in 1996, it is likely to arise from a non-specific transverse spinous process of T11 of uncertain cause. Professor Sambrook considered that the X-ray appearances in 1996 do not correspond to any definite demonstrable lesion associated with trauma that can be linked to the Mariner's service in 1944-45.
The Tribunal also notes the Mariner's evidence that his back condition was of such severity in 1948 or 1949 that he required "a spinal injection". It is difficult to reconcile that evidence with the opinion of Professor Sambrook that there is now no definite demonstrable lesion associated with trauma. On its own the Tribunal is unable to interpret from the Mariner evidence about the spinal injection that it became necessary as a result of any incident that he experienced on service. Despite the failure of the Mariner to reveal the fact or circumstances of his back injury until very recently, the Tribunal finds that he was a credible witness who presented his evidence in a simple and straightforward manner.
The Tribunal accepts that the Mariner experienced an incident while serving on the SS River Burdekin when he hurt his back. However, despite the occurrence of this incident, factor 1(f) of Instrument No.359 of 1995 has not been met, and as such the Mariner does not meet the relevant Statement of Principles. Therefore, his claim in respect of lumbar spondylosis must fail.
Anxiety condition
In support of the Mariner's claim for anxiety condition, he prepared a letter dated 7 December 1995 (T7, p23). In that letter he noted he was aged 16 years when he left school and joined the SS River Burdekin: He said –
This ship was fairly well armed for her class, having a 4" naval gun and a 40 mm bufor on the stern and four 20 mm derlikons and two sets of twin brownings around the superstructure.
To man these guns there were six British Army D.E.M.S. Soldiers and four Royal Australian Navy ratings. The crew, including myself filled in as loaders and ammunition handlers.
As our accommodation was close to the gunners we became very friendly and it was the usual thing to go on lookout with the gunner on the AFT gunner for at least part of the 8-12 watch at night.
The stories they told, especially the British soldiers, were pretty hair raising and probably garnished for my benefit though basically true.
Anyway they had the desired effect on me, by making me very aware of the dangers of carelessness and the vulnerability of a ship at sea especially at night. It brought into my life a nervousness and intensity that stayed with me all my life, and caused men to often say to me that I took life too seriously, but it was something I couldn't help.
In a report dated 1 May 1996 (T8), Dr Murray, consultant psychiatrist, provided an opinion in respect of the Mariner's claim. The Mariner complained that "if I get something on my mind I can't let go of it". Dr Murray obtained the following history and assessment –
He explained that he worried excessively and took things "too serious". Although in the years immediately following the war he had occasionally dreamt about stories he had been told about wartime experiences, this has not been a problem for many years. He denied any frequent or distressing recollection of wartime experiences.
The only exception to this was that the evening following the first consultation Mr Kelly had a dream, which was not distressing, where he was speaking to a British gunner. He was interested to have remembered the gunner's name for the first time in a long period.
…These gunners told stories of war experiences and Mr Kelly said "it had a big effect on me". He said "everybody said it effected me greatly. People on the boat told me that I was too serious. I know it really changed me". He said "I was always serous after that – I worried about things…".
Mr Kelly has never felt that he has had a psychiatric problem worthy of treatment and said "I didn't expect that they'd send me to a psychiatrist to take it into consideration with the claim". He said "Me heart condition and me back are the major things that I think should be considered for the claim".
There is no history of treatment for this condition. Mr Kelly describes having a "short fuse" for many years and being prone to "blow up easy".
Mr Kelly told me that his heart is permanently in fibrillation.
Mr Kelly takes Warfarin, Cardisin and Isordil…
Mr Kelly consumes 50 gm of alcohol and two cups of coffee a day…
There is no significant family psychiatric nor medical history.
Mr Kelly dismissed his early life as free of significant adversity…
At interview Mr Kelly was a mildly anxious man who seemed a little agitated. His speech was circumstantial, particularly on medical matters relating to his own health.
It is difficult to confidently attribute Mr Kelly's life-long tendency to worry, anxiety and, what he terms, being "over-serious" to wartime experiences rather than underlying characterological traits. It seems to me likely that Mr Kelly joined the navy as an impressionable youngster and was indeed frightened by the stories told to him by older sailors. That this experience was the sole or predominant cause for a life-long tendency to worry and be anxious seems unlikely, particularly given the fact that the events are so rarely in consciousness in recent years.

At the hearing the Mariner agreed that the history recorded by Dr Murray in his report was true.

The Mariner completed a questionnaire in 1986 (T3, p11) in respect of his maritime service in the South West Pacific region, in which he stated that his ship had been part of a "special convoy around Freemantle because a ship had been sunk in the area" and he understood that there had been bombing at Freemantle and Bunbury. He also said that there were "rumours of submarines and enemy ships in all waters". He considered that his ship served in a "theatre of war" because it "had to take all precaution". His ship carried 14 guns on board, including a 4inch gun, a 40mm Bofor, four sets of twin Derlikons – 20m, and 2 twin Brownings. There were also ten British Army and Australian Navy gunners aboard. He was aware that there were submarines in Sydney harbour, there were enemy ships around Western Australia, and there was the possibility of mines "all around the coast". These factors and the rumours and orders given, caused him to consider that he was in danger.
In a report dated 30 March 1998 (T12), Dr Dinnen, consultant psychiatrist reported that the Mariner was of "serious mien", he seemed anxious throughout the interview and had a slight hand tremor.
Dr Dinnen recorded the following history –
Service History: The patient told me he was only 16 when he went to sea and did so because he was extremely patriotic. He served in the Merchant Navy from 1944 to 1945. He said he served on the "River Burdekin" for a year, and they were in Australian waters throughout. There were six British Army gunners and four Australian Naval ratings on the vessel. He said the British servicemen talked at great length about their experiences during the War. They talked of the ships that sank in the Arctic convoys and so forth. He said he would talk to them for hours. He said he feels this had an effect on him.
After the War his mother would tell him to settle down, and it stayed on his mind for a long time. He said there was one special convoy around Western Australia because there were submarines in the area. He understood that there had been a lot of submarines in the area around Fremantle. When he came home from service "everyone was careful of me".
The patient said that for a couple of years after the War he played up and drank too much. He said his service had a big effect. He had been a happy fellow before service, but afterwards "just wasn't. It stayed on me mind. The stories they told. You'd see a dolphin coming towards you and get a fright." He started to smoke during service.
Subsequent History: The patient said he has never had treatment for nervous trouble although people have suggested it to him. He thought it was part of his makeup. He said he didn't settle down for a few years after the War. His mates would tell him not to be so serious about things. On specific inquiry as to whether he was anxious or frightened or scared during the War he said he was. He said afterwards "problems come to me – I know I shouldn't worry about things. Even now, the dog's sick and that worries me".
The patient said he was always "pretty highly strung". He said he feels churned up in the tummy. He feels sick. He has episodes like this which can last for 2 hours or so. He usually deals with them by having a lie down.
The patient said he was not aware of any impairment of memory or concentration. He said his hands and arms shake. He feels anxiety in his heart. He has always been a bit shaky. He has sweating associated with his episodes of anxiety. He said "if I get upset it triggers it off". He said he feels tired and fatigued, but he has attributed this to his heart condition which has been present for many years.
On direct inquiry the patient told me he sleeps usually for 6 hours but only gets 3 hours of sleep and the rest of the night he sleeps fitfully. He has awful dreams but never remembers them. He has been restless during his sleep.
On direct inquiry the patient admitted to feeling "down in the dumps" at times. He said he can't cope with stress at all. "I get sick".
The patient told me he retired before he was 60 because of his heart condition. "I was blowing up getting frightened and scared". He was working in Newcastle Harbour, and he found he could handle small boats but found it very difficult. I used to worry for fear that I'd hurt someone".

Dr Dinnen diagnosed generalised anxiety disorder that, on the history provided by the Mariner and his sister, Eileen Kelly, appears to have commenced very soon after service. He also opined that that there was a relationship between this disorder and the Mariner's service.
In a letter provided by Eileen Kelly (T13) in relation to the Mariner's claim she said –
Of course I know nothing about his actual time on the ship, but I certainly remember what he was like when he went away and what he was like when I saw him again a year or so later.
The change in him was very obvious to his family and friends and caused a great deal of worry to our mother. He had started to smoke and drink too, but he tried to hide that from her. He was moody and very easily upset. So different from the open and happy boy who went to sea a year before.
We all learned to understand our brother and accept him for what he was. The war made differences to us all, but life had to go on and make allowances so as to keep a happy family.
I remember there was some physical things that affected him too, but he appeared to get over them and things got much better for everyone.
Dr Murray provided a further report dated 3 May 1999 (exhibit 1) and at that time he was aware of the report from Dr Dinnen. He concluded –
A tendency to worry, and the characteristic of 'seriousness', are often familial. Mr Kelly seemed reluctant to admit these tendencies in his parents. I am left wondering whether this was because he was wary of a psychiatric hatchet job, or whether it was because he realised that his parents had pronounced tendencies in those regards and he was unwilling to admit what he realised were family traits. On the evidence available, I have to conclude that constitutional factors remain probable contributors to the complaints of worrying and 'seriousness', and probably to anxiety generally.
I make a diagnosis of generalised Anxiety Disorder. Although Mr Kelly does describe a single clear panic attack, and eludes to the experience of others beyond this, he does provide a history that meets the criteria for a diagnosis of Panic Disorder…
I remain of the view that the most important cause of Mr Kelly's Generalised Anxiety Disorder, and his "seriousness", are inherited factors, life experiences being a secondary factor. Although Mr Kelly asserts that he was free of symptoms of anxiety in his early (pre-military) life, this is not unusual in older persons with lifelong histories of anxiety and no clear traumatic causation. As Mr Kelly says: "when I went to sea I was a kid … an immature kid".
However, Mr Kelly does assert that his symptoms of anxiety had their onset after his military service. On that basis, it seems to me that he does fulfill (sic) the Statement of Principles…

In a further letter dated 3 June 1999 (exhibit 1) Dr Murray said –
On the basis of the history provided, Mr Kelly suffered either the onset, or a worsening, of symptoms of Generalised Anxiety Disorder within a year of hearing frightening stories from Gunners stationed upon the vessels in which he served.
In the statement of principles, I find no definition of "a stressful event", and given this, I have to conclude that hearing these stories in those circumstances, which experience Mr Kelly has always affirmed to me was frightening, was for him, a stressful event.
In a subsequent report dated 29 July 1999 (exhibit B), Dr Dinnen reviewed his earlier report (T12) and stated –
As he described to me and as has been reported elsewhere within these AAT documents he was made most anxious and unsettled by tales of war related to him by more experienced sailors, whom one could refer to as "old salts". In a young, impressionable and vulnerable youth these tales, according to his account, caused considerable feelings of anxiety and tension. His account to me, and there is no indication from any other source that it is not credible, was that these stories caused him to develop a nervous condition which has persisted through the years until the present time.
It has been my opinion throughout, although not necessarily clearly stated, that these experiences satisfy the test of causality, either on the balance of probabilities or on the reasonable hypothesis test…
I believe there is therefore a clear relationship between the patient's operational service in the second war in the Merchant Navy and the development of anxiety disorder, which clearly began less than two years after these stressful experiences. The patient told me specifically that the impact of these stories and exposure to the threat of attack in Australian waters by enemy submarines in the 1944/45 period had an immediate effect upon him. He became anxious, stressed and started drinking and smoking.

Dr Dinnen also considered that the Mariner's sister's comments about his change in character on his return from war and the fact that his mother was concerned about his condition were consistent with the onset of generalised anxiety disorder during his service years.

In his statement dated 21 October 1997 (T14, p54), the Mariner states –
I know that smoking was the main cause of this condition, but the more I think about it, the more I think that my mental condition also played a major part in my deteriorating health; and I truly believe that my time … on that ship during the war was a direct cause of that anxiety. I was so young, and the men who were there, especially the British Army men had been through so much and passed on their attitude of alertness and care at sea to me, and this had a profound effect on my life. It made me into an extremely serious young lad, who had lost his boyhood because of it.
…People now are advised how to handle traumatic times of their lives, but then no such thing existed. They just had to get on with their lives as best they could.
In his statement dated 18 November 1997 (T14, p58), the Mariner stated –
…drinking became a release from the tensions caused by the war… As a matter of fact in 1950 while my wife was pregnant with our second child, I nearly lost everything that meant anything to me through drink…
These worries stayed with me all through my life, and even though the years dim the memories of those days, they have an effect on my life.
In his statement dated 13 June 2000, (exhibit D) the Mariner recalled being told stories by the British gunners –
5. …Most of the British gunners had been on convoys where the ships had been sunk, in some cases their own ship had gone down. Right from my first trip I was told stories by these gunners in graphic detail. They would tell war stories during mess times, and I would listen. When I was on lookout with them they would also tell me stories in great detail.
6. These stories had a big effect on me. They made me uptight, when I was on lookout I was constantly worried about what might happen at sea. I knew that there was always a chance that subs were around. I lay awake at night thinking. One of my duties before turning in for the night was to blackout our area of the ship. I would lie awake worrying if I had done everything right.
7. I was easily startled. Occasionally when I was on lookout you would see a dolphin. Except when you saw it initially it just had a haze and you could not make out what it was. So when I saw this movement in the water I would get really frightened.
8. One time when we were berthed at Fremantle, another ship had been attacked down around Cape Lewin. We were told that the ship had been sunk so when we left Fremantle we had two Navy patrol ships escorting us to Bunbury. This incident further heightened my anxiety of being at sea.
9. Prior to the war I considered myself a happy go lucky sort of bloke. I did not have a care in the world and nothing bothered me. The war changed me. By the end of the war I was really nervous. My mates on the ship would say to me that I took life too seriously. I was restless, I worried and I was easily bloody upset. If things did not go right I would get frustrated and angry. People would often say to me what is the matter. I started to drink when the war finished which developed into a drinking problem for a few years around the late 1940's/early 1950's.

Dr Lightfoot, the Mariner's local medical officer, provided an assessment dated 12 April 1996 (T6) in which he noted that the Mariner "gets shakey (sic) with stress" and "tends to get anxious in surgery". He noted that this condition interfered with the Mariner's ability to cope in a stressful situation, but not ordinarily. He also noted that if the Mariner became upset he could not sleep, he was "jumpy and edgy" with people in his occupational activities, and he "can't bottle up problems" in his domestic situation. Dr Lightfoot also noted that the Veteran does not receive any treatment for his anxiety condition.
Dr Martha Baz, Occupational Physician, in a report dated 9 December 1997 (T11) records that the Mariner describes "intrusive thoughts of service". She noted that –
He frequently recalls the stories the British Army gunners told him while he was on board ship. He feels he was very "impressionable" and became very nervous with their stories. After a year away at sea others noted "a big change".
It was submitted for the Mariner that factor 1(a) "experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder", in Instrument No 49 of 1994, as amended by Instrument No.276 of 1995, had been satisfied. It was also submitted that the basis of the claim for generalised anxiety disorder, is the Mariner's service on the River Burdekin. It was submitted that the Mariner commenced work as a seaman at the age of 16 years and immediately went to sea. It was also submitted that, when read as a whole, the history provided by the Mariner to Dr Dinnen is consistent with his own account. From the outset the Mariner has referred to the frightening stories to which he was subjected during his service. It was acknowledged that Dr Murray's evidence was less favourable for the Mariner than that of Dr Dinnen and there is some divergence of view between the psychiatrists.
The main issue for the Commission is that in the Statement of Principles reference is made to the word "event" in the factor "experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder". It was submitted for the Commission, that an "event" has to be marked out. In this regard the Commission relied on the decision of the Full Federal Court in Repatriation Commission v Law (1980) 47 FLR 57. It was submitted for the Commission that in respect of a Veteran's smoking, having a boring time on service which caused him to commence smoking was not sufficient to say that his smoking was caused by an "occurrence" or an "event" which occurred on service. It was submitted that there has to be something about it that sets it apart from the general run of things. The Commission referred to the following part in their Honours' judgment (at 66):
In our opinion, the word "occurrence", in the context of par. (a), refers to the event, incident or mishap causing incapacity or death: see Distillers Co. Biochemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd per Stephen J.(1). It is an event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life.
It was submitted for the Commission that hearing the stories was not an occurrence, susceptible to differentiation from the course of events which constitute the ordinary course of life, and therefore the Mariner's generalised anxiety disorder was not war-caused. Therefore the decision of the VRB should be set aside and the decision of the Commission dated 25 May 1996 in respect of anxiety condition should be affirmed.
It was submitted for the Mariner that there is a difference between the "smoking cases" such as Law (supra) and the present case. Indeed, Dr Murray recognised that the hearing of different stories and the events the Mariner experienced when at sea on a ship that was heavily armed and performing duties around the shores of Australia during a war time period were far from the ordinary run of events. Counsel for the Mariner submitted that a distinction should be made between matters involving the mind (as in this case) and the body (such as inactivity in the Law case (supra)) It was also submitted for the Mariner that whereas at times one can rely on an identifiable date, battle, attack supported by documented history, this case is different. The Mariner relied on ongoing events that occurred over a period of time that occurred on a regular basis. It was the repetition, or the repetition of themes, even if the content varied, that produced the occurrence that led to the stressful event.
It was submitted for the Mariner that the difference between the ordinary run of events and what happened to him was that he was on a particular ship at a particular time, with a particular identified group of British gunners who provided him with particular stories that caused him to suffer a level of stress and anxiety when he then had to go about his work on the ship. The Mariner had given evidence of being concerned at seeing dolphins. It was submitted that these occurrences were different to the ordinary course of life. Indeed, it demonstrates the quintessential component of being war-caused, that is, that in the absence of the war service there would not have been such an outcome. That is the proposition accepted by both Dr Murray and Dr Dinnen.
It was submitted for the Mariner that Dr Murray's opinion that the condition was constitutional was merely speculative and therefore the Tribunal does not need to visit the egg shell skull theory. Ultimately Dr Murray conceded that the events on the Mariner's service were stressful for him. It was submitted for the Commission that Dr Murray does not discard his conclusion in relation to constitutional factors.
Counsel for the Commission declined an invitation by the Tribunal to address the issue of whether, even if the Mariner's condition was constitutional, his war service contributed to an extent that, although minimal, was more than de minimus: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
The Tribunal finds that the Mariner was young and immature when he went to sea, and to some extent what his family saw when he returned from his service on the SS River Burdekin was the product of his maturation. He has always been a serious person and was told by his peers on service that he was very serious. While the Mariner probably had the constitutional predisposition to develop an anxiety disorder, there is no evidence that he suffered from any psychopathological condition prior to the commencement of his service on SS River Burdekin.
In Instrument No.49 of 1994 a "stressful event" means "an occurrence which evokes feelings of anxiety or stress". The Mariner's case is that hearing the war stories from the Gunners on board evoked feelings of anxiety and stress. They caused him to be hypervigilant, to a point where when he saw dolphins in the distance he became anxious, thinking it was a sign of imminent danger. The knowledge the Mariner had of enemy activity, including submarines and mines, in the seas around Australia in which he was travelling, which on at least one occasion was sufficiently serious to cause his ship to have an escort, constitutes an "occurrence" or a series of "occurrences" that evoked for him feelings of anxiety and stress.

The Tribunal notes the submissions made by the Commission about the term "event" and the fact that, in effect, it must be circumscribed, identifiable and specific rather than "an ordinary course of life". While hearing stories in some instances might be "an ordinary course of life", in the Mariner's case the Tribunal finds that his hearing the stories were specific events, after which he became anxious, aroused, "nervous" and intense. The Tribunal finds that hearing those stories were for him "stressful events".
Dr Murray, in his first report, acknowledged that the Mariner "was indeed frightened by the stories told to him by other sailors". He then said –
That this experience was the sole or predominant cause for a life-long tendency to worry and be anxious seems unlikely, particularly given the fact that the events are so rarely in consciousness in recent years.

The Tribunal notes, however, that the Mariner's war service does not need to be the "sole" or "predominant" cause of his condition. It merely needs to contribute to it:: Repatriation Commission v Law (1980) 47 FLR 57. Indeed, the contribution can be quite small, and merely one of a number of causes, but it is contribution nonetheless if it is more than de minimus: Treloar (supra). Section 9(1)(b) of the Act provides –

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran:

In Dr Murray's final report dated 3 June 1999 (exhibit 1) he concluded that hearing the stories for the Mariner was frightening and "was for him a stressful event".
Taking into account all the evidence and the submissions of the parties, the Tribunal finds that factor 1(a) of Instrument No.49 of 1994 in respect of Generalised Anxiety Disorder has been met. The Tribunal is reasonably satisfied that the Mariner suffers from an anxiety condition and that this condition is war-caused. Therefore, the decision of the VRB dated 3 August 1998 is affirmed. The Tribunal notes that the VRB remitted the matter for assessment of the rate of pension payable to the Mariner, and considers that there is no need to disturb that part of the decision.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 June 2000
Date of Decision  29 March 2001
Counsel for the Applicant        Ms Chris Ronalds
Solicitor for the Applicant         Legal Aid Commission
Counsel for the Respondent    Mr Nicholas Green
Solicitor for the Respondent    Australian Government Solicitor