Rees and Repatriation Commission
[2003] AATA 1061
•17 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1061
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/352
VETERANS’ APPEALS DIVISION ) Re JOHN FREDERICK REES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Dr ET Eriksen (Member)Date17 October 2003
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements – Disability Pension – post traumatic stress disorder – whether applicant’s condition is war-caused – whether applicant experienced severe stressors during his operational or defence service – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120, 120A, 120B
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 4 of 1999
Statement of Principles Instrument No 55 of 1999REASONS FOR DECISION
17 October 2003 Senior Member WJF Purcell
Dr ET Eriksen (Member)1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 21 February 2001, which refused the applicant’s claim for payment of Disability Pension in relation to his condition of post-traumatic stress disorder (PTSD). The Veterans’ Review Board (VRB) affirmed the decision on 5 June 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Ms Maharaj of counsel represented the applicant, who gave oral evidence, and called Dr C Hilton, Psychiatrist, Dr M Ewer, Psychiatrist, and Mr K Hudson, a fellow seaman, as witnesses. Mr Doube represented the Commission, which called Dr J Burvill, Psychiatrist, and Captain H Stevenson, Historian, as witnesses. Both gave their evidence by way of telephone link-up.
3. The applicant, who is 53 years of age, served for 20 years with the Royal Australian Navy (the Navy) from 5 July 1966 when he was 16, to 4 July 1986, when he was 36 years of age. He has 4 periods of operational service in Vietnam, aboard HMAS Sydney (the Sydney). These were from 16 February 1970 to 5 March 1970; 21 October 1970 to 12 November 1970; 15 February 1971 to 4 March 1971, and 26 March 1971 to 8 April 1971. The Sydney was in Vung Tau Harbour on each of the 4 occasions:
Trip 1 on 27 February 1970 from 0638 – 1125 (4 hrs 47 mins)
Trip 2 on 31 October 1970 from 0742 – 1600 (8 hrs 18 mins)
and 1 November 1970 from 0745 – 1130 (3 hrs 45 mins)
Trip 3 on 25 February 1971 from 0700 – 1500 (8 hours)
Trip 4 on 5 April 1971 from 0654 – 1547 (8 hrs 53 mins)
He also has eligible defence service from 7 December 1972 to 4 July 1986.
4. In this matter, the applicant asserts that his condition relates to his operational service or to his defence service. In relation to his operational service in Vietnam, the appropriate standard of proof is that of reasonable hypothesis, in accordance with sections 120(1) and (3) of the Veterans’ Entitlements Act 1986 (the Act), which provide:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
In relation to his eligible defence service section 120(4) of the Act applies:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV,: This decide the matter to its reasonable satisfaction.
Note subsection is affected by section 120B.
…
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
5. The hypothesis propounded by the applicant is that his condition of PTSD relates to his operational service, in that on the whole of the material, the traumatic events which he experienced during his relevant service, connect his condition with his relevant service. In our view, the material before the Tribunal would, if correct, point to a hypothesis that the condition was war-caused. There is a Statement of Principles in force, and in accordance with that Statement of Principles, at least one of the Factors set out in clause 5 must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the applicant’s relevant service.
6. The current Statement of Principles, which was in force also at the time of the primary Commission decision, is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that Factor 5(a) of the PTSD SoP is satisfied:
“experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”
“Experiencing a severe stressor” is defined as meaning:
“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
7. In relation to the applicant’s eligible defence service, the current Statement of Principles is Instrument No 4 of 1999, as amended by Instrument No 55 of 1999 (the Defence Service SoP). The applicant contends that Factor 5(a) of the Defence Service SoP is satisfied:
“experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”
“Experiencing a severe stressor” as defined, has the same meaning as in the PTSD SoP.
8. The applicant submits that during his operational service aboard the Sydney, he experienced severe stressors which can be summarised as follows:
(a) Scare Charge Incident
9. An occasion whilst the Sydney was anchored at night in Vung Tau Harbour the applicant was below deck (on the midnight to 4.00am watch) when he heard an “almighty bang” which terrified him and another sailor. This was not the first time he had heard a scare charge, but usually he was above the water line, and was always scared; but on this occasion it sounded closer, and he was scared for his life.
(b)Fire Fight Incident
10. An incident in Vung Tau Harbour at night, when he saw gun fire, explosions and rocket fire; and described the event in evidence as being “in the middle of fire fights”.
(c)Limpet Mines and Enemy Swimmers Incident
11. Being informed that Navy divers had located limpet mines attached to the hull or other external areas of the Sydney whilst it was anchored in Vung Tau Harbour. The applicant stated that he did not specifically see Navy swimmers removing mines from the hull of the Sydney, but he did see the divers loading objects into the diving boat, and he interpreted this as objects being removed, either mines or explosives. He says that he was told by the divers during discussions in the mess, that mines had been detached from the hull and anchor cable of the Sydney; and he was told also that the divers apprehended Viet Cong swimmers attempting to attach bombs or mines to the hull, whilst the Sydney was anchored in Vung Tau Harbour.
(d) Crash of American Helicopter - Taipan Incident
12. An incident whilst anchored in Vung Tau Harbour when he saw a Taipan helicopter hit the ground. This US helicopter had landed previously on the deck of the Sydney on some 4 or more occasions. He knew the crew quite well, and had spoken to them about 15 minutes or so before the Taipan crashed on the mainland.
13. The applicant maintains that during his eligible defence service he suffered the following severe stressors:
(a) Detonation of Atomic Bomb Incident
14. The applicant was on board HMAS Supply (the Supply) when they were called to observe the French detonate an atomic bomb in July 1973, at Mururoa Atoll. He recalls being given a photo that one of the other seamen took of the explosion. He recalls looking out of one of the portholes and seeing the after-effect of the explosion. The seas were extremely rough and there was some dust or haze in the air. It appeared to be gusty or windy, but the weather in the area was normally quite calm. At the time the ship was in airtight integrity. He recalls that they were generally not to attend on the upper deck unless on certain duties. At the time they had no precise knowledge as to when or if the French would detonate such a bomb. They had been in the area for a few weeks prior to this occurring. The incident concerned him greatly, particularly knowing the force of the bomb that had been detonated.
(b) Fire in Missile Bay Room Incident
15. The applicant was Chief Petty Officer in 1981 responsible for ensuring, as a chief shipwright, the watertight integrity of HMAS Parramatta (the Parramatta), when the rocket efflux from an IKARA anti-submarine missile rocket entered into the missile bay room at high force, starting a fire. This was an extreme emergency. The applicant was the first one on the scene; the fire party attended, and took 30 minutes or more to extinguish the fire. This was a very frightening incident, because if further missiles had exploded it would have created huge problems for the ship and its crew.
16. These incidents, the applicant submits, satisfy the definition of “experiencing a severe stressor”, and thus Factor 5(a) of the PTSD SoP, and 5(a) of the Defence Service SoP are satisfied.
17. The Commission maintains that none of these events satisfies the definition of “experiencing a severe stressor” in accordance with the PTSD SoP, or the Defence Service SoP.
18. The applicant gave lengthy oral evidence. He was an unimpressive witness. We consider that he tailored his evidence in an attempt to satisfy the relevant Statements of Principles, that he prevaricated, and that much of his evidence was recent invention. This does not mean that we disregard the whole of his testimony, but that we prefer to rely upon the more acceptable evidence in areas of dispute in the evidence.
19. Three medical witnesses gave evidence; and all relied, of necessity, upon the veracity of the applicant’s version of events. Drs Ewer and Burvill were appropriately objective in their views and evidence. Dr Hilton, the applicant’s treating psychiatrist, on the other hand, did her best to assist the applicant’s cause, but we found her evidence so partisan, as to be of little assistance to us in our deliberations. We consider Captain Stevenson to be a witness of truth; and prefer his evidence to that of the applicant in any area of dispute in the evidence. The applicant’s former colleague, Mr Hudson, provided helpful evidence in relation to the fire in the missile bay room incident aboard the Parramatta. We accept him as a witness of truth.
20. The applicant was 16½ years of age when he joined the Navy, in July 1966, as an able seaman. He undertook an apprenticeship as a naval shipwright, whereupon he became a leading seaman. He was a shipwright apprentice in the boiler maker shop on his first trip on the Sydney to Vietnam in February 1970, when he was 20 years of age. By May 1971 he was attached to HMAS Yarra, and on 7 May 1971 he was admitted to Sydney’s St Vincent’s Hospital with serious injuries as a result of a motor vehicle accident, when his motorcycle collided with a lamppost. The Report of the Medical Board of Survey of 20 July 1971 reads, in part, as follows:
“Admitted St. Vincents Hospital following fall from Motor Cycle, unconscious for a short time, remained drowsy for next 5 days. Skull X Rays were NOLD but a clinical diagnosis of fractured base of skull was made.
14 5 71. Carotid arteriography showed the appearance of an extra dural haematoma adjacent to the frontal pole of the (L) hemisphere.
15 5 71. Large clotted extra dural haematoma evacuated incompletely from the (L) frontal pole.
20 5 71. Re-exploration as consciousness still not normal and considerable extradural haematoma removed. Persistent dural ooze required gauze – roll pack removed under anaesthesia on 24 5 71.
Transferred RANH (P) 31 5 71, only complaint was blurred vision (L) eye and diplopia. Seen by Consultant Opthalmologist who considered he had weakness of both superior oblique muscles (L) greater than (R).
At present discharged from hospital, undergoing orthoptics at Royal North Shore Hospital.
…
Continue orthoptics, review by opthalmologist.” [T25/119]
21. A perusal of the applicant’s medical records discloses that he continued to receive outpatient treatment for a considerable period of time, and that in subsequent yeas he suffered episodes of dizziness, vertigo, and some visual problems as a consequence of the motor cycle accident; but these problems appear not to have affected his naval career adversely.
22. In July 1973 the applicant was Petty Officer second-in-charge of the water tight integrity of HMAS Supply (the Supply) when it sailed to Mururoa Atoll (the detonation of the atomic bomb incident). In 1981 he was a Chief Petty Officer/Chief Shipwright on the Parramatta (the fire in the missile bay room incident). He became the Chief Petty Officer at HMAS Coonawarra in Darwin. On 7 July 1985 he was referred to Mr R Burns, Senior Director of Neurology at Flinders Medical Centre in relation to his symptoms of vertigo. Mr Burns reported [T25/161] that he considered it likely that the applicant would have occasional bouts of vertigo and nausea in the future, and that in relation to the vertigo one could do nothing much more than avoid the triggering positioning of the head. When the applicant completed the statement on his medical discharge form, on 12 March 1986, he said that the only disability he suffered was double vision – a permanent result of the accident in 1971 [T25/166]. On 27 June 1986 Dr Alderman certified him as fit for discharge. His discharge took effect on 4 July 1986.
23. The applicant obtained a position as a storeman at Penfolds Wines in Nuriootpa in late 1986. Penfolds became, subsequently, Southcorp Wines. He became the Company’s safety inspector, and subsequently in 1995/96 safety officer. On 26 November 1999, after some 13 years with the Company, he was dismissed from his employment, after he was found to have made inappropriate use of the Company’s internet. The circumstances are outlined succinctly in Dr Burvill’s report of 23 February 2000, which reads, in part, as follows:
“… this involved the downloading of pornography and other material. He also told me that the local police investigated the matter and found computer disks on which he had downloaded pornography from the Internet and additionally found photographs of his seventeen year old step-daughter. Mr Rees explained the situation with the statement “I think I took them when she was asleep, photos showing her genitals and things”.. He said the police came to his home and took all the disks involved from his work and from his and there were approximately twenty disks in number. Subsequently his wife had put him out of the house and they were separated throughout the month of December and then she allowed him to return to the home on the proviso that he lived in the cellar until his [sic] could find alternative accommodation.
Mr Rees said that when the local police investigated the matter they phoned the Vietnam Veteran’s Association and after that Mr Rees started seeing a counsellor and the counsellor advised him to see the local general practitioner who obtained the forms of applications for a Service pension. The general practitioner started him on antidepressants and an anti-nausea medication and a sleeping tablet. He had also been seeing a psychologist, Simon Canney of the Vietnam Veteran’s Counselling Services.
…” [T8/40-41]
In mid 2000 he faced several criminal charges in relation to these events.
24. On 21 December 1999 the applicant completed an application for Disability Pension for the conditions of PTSD, skin cancer and a lung condition. He stated that he had ceased work on 26 November 1999, because of his PTSD; and in answer to question 24, as to whether the disabilities claimed were now affecting his ability to seek employment, he stated “inability to continue work due to symptoms of PTSD” [T5/31].
25. The Department of Veterans’ Affairs (the Department) referred the applicant to Dr Burvill, whose report of 23 February 2000 is referred to in paragraph 17 of these Reasons for Decision. Dr Burvill noted, in part, as follows:
“ …
During his naval service he had some time in the Vietnam theatre of war, transporting troops to Vietnam. He said he couldn’t remember anything that he thought was abnormal at the time, but then said he became friendly with a Gunship Helicopter crew and saw that crew take off and get blown up and all members killed by surface to air missiles. He also spoke of his ship transporting troops to Vietnam and said he knew some troops that they didn’t bring back. He also referred to the way they were treated on return from Vietnam which he said took a long time to come to grips with and said his wife told him he was obsessed with it. However, he had not ever watched films or documentaries about Vietnam or gone to Anzac Day Parades until the last three years and now had become very interested in seeing such documentaries.
… [T8/44-45]
26. Dr Burvill summarised his views in the following terms:
“…
It is my opinion that Mr Rees does not suffer from post-traumatic stress disorder due to his Naval service in Vietnam, but has a history of a quite significant head injury occurring during the time of his Naval service, as recorded in the history given.
More recently he has ceased working because he was dismissed when it was discovered his involvement, and indeed his obsession, with sexual things and pornography and he revealed his obsession about the sexual safety of his seventeen year old step-daughter and his obsession with her, and further revealed that he had taken photographs of unclothed parts of her body while she was asleep, the photographs being of her genital area.
He gives a history of symptoms suggestive of an ill defined psychosis, with themes of his thoughts being controlled by another person and paranoid ideation about persons around him, and states this has been occurring for the last two years. He alludes to psychotic symptoms which may be auditory hallucinations of a person inside him telling him what to do, but this symptom appeared confused by what may have been his super ego telling him that what he was doing was wrong and he should stop it because he’d harm his family and his friends.
Mr Rees’ history of head injury is quite significant and if the comments described by Professor Burns are correct, that he has had a destruction of a large percentage of his brain in the head injury involved, then there is the strong possibility that he is exhibiting psychiatric symptoms which are sequelae of that head injury. Presumably the head injury affected his frontal lobes, and did not interfere with his motor and sensory capacity other than vertigo due to labyrinthine damage, so that he has, against all odds, been able to continue both as a Chief Petty Officer and in post discharge employment.
Having stated that I do not consider that his present symptoms are related to his Vietnam service, I nevertheless recommend that he be referred for neuropsychological assessment. Additionally, the reports of Professor Burns ought to be obtained. Mr Rees tells me he has seen a Psychiatrist, Dr Andrew Czechowicz, on one occasion and I consider that he should continue to see Dr Czechowicz.
…” [T8/47-48]
In the course of his evidence, Dr Burvill reiterated these views, and we accept his evidence and opinions.
27. The history that the applicant provided to Dr Czechowicz in January 2000, varied markedly from the history he gave to Dr Burvill in February 2000. A perusal of Dr Czechowicz’s 4 reports discloses that Dr Czechowicz understood that the applicant had been a Vietnam veteran on active service in the Navy, exposed to battle conditions, with an extensive history under fire. Dr Czechowicz recorded that the applicant described a number of incidents where gunfire was involved; where 40/60 Bofors were used in ship to shore attack, risking return fire; and he gave a graphic description of the Taipan helicopter being shot down in front of his eyes, less than half a kilometre away, the helicopter having used the Sydney as a refuelling base; and that he knew the 4 crew members who were blown up within his sight. Dr Czechowicz considered that the applicant had been through events which had a life threatening character. He noted that apart from the helicopter incident, the applicant described a constant level of tension where the divers checking the hull were frequently taking limpet mines off the hull of the Sydney, and occasionally catching the people who were placing them. Dr Czechowicz considered that “these kinds of experiences are quite distressing to anyone and tend to be the sort of experiences that can give rise to post-traumatic stress disorder” [T13/57]. In his final report of 21 October 2002, Dr Czechowicz stated, in part:
“On shore in Vung Tau and Nui Dat he was used in repairing buildings and accommodation. He was there in the war zone. He saw people wounded and killed. …” [Exhibit R8]
28. Dr Hilton was provided with an even more graphic history. In the course of her evidence, it became clear that she understood that the Sydney was in Vung Tau Harbour for 2-3 days; in the 100km “market zone” for 7-9 days, on each of the applicant’s trips; that he was awake, all night, every night, with scare charges exploding intermittently, all night; that he saw gunfire, explosions, rocket fire, this being worse at night; and that he thought he was surrounded by gunfire, and in the middle of fire fights. In her report of 25 July 2002, she stated, in part:
“… It was well known that spending any time in Vung Tau harbour was viewed as “hostile anchorage”, in particular over night, where the ship was like a sitting target. Mr Rees said his anxiety was far worse at night because, during the day, he had some confidence that the sentries and divers could at least see any enemy approaching and defend the ship from mines. However, at night it would be pitch black and he felt like “a sitting duck in the water”. He said, “the calm times were in the middle of the day, but as soon as it started getting dark, it all started again.” Even though there was fighting 24 hours a day, at night it felt a lot worse, partly as the ground and air fire were much more visible, but also the entrapment and helplessness felt on the ship was heightened. He said, at night, there was always this loud and fiery war scenario surrounding them, but it felt “like being the centre of gun fire”. “There would be ground and air fire over VC Hill, rocket fire from the ground, air combat and constant explosions.” It felt a lot closer at night, as though they were more a part of it and he didn’t know when the next explosion was going to be. Particularly, after his first trip to Vietnam, he described himself in an extreme state of fear at what would happen next. They had been through the exercises as there was an expectation that the ship would be mined and blown up. On many occasions each trip; mines were removed from the ship hull, and anchor cable and the buoy. The divers reported in the mess deck the times that they had also apprehended enemy divers or swimmers in the area of the ship. …” [Exhibit A2]
29. The applicant, in the course of his cross-examination, agreed to the proposition that there had been some exaggeration or embellishment of the history he had provided to medical practitioners, and to the Commission. The contradictions in his evidence are legion, but it is not only a question of exaggeration or embellishment, but of patent fabrication – an example of which, in our view, is his statement to Dr Czechowicz, that he was involved ashore in Vung Tau and Nui Dat in repairing buildings and accommodation. It is clear on the evidence that the applicant was in Vung Tau Harbour aboard the Sydney on 4 occasions, for periods covering a minimum of 3 hours 45 minutes, and a maximum of 8 hours 53 minutes, and never overnight; and that he was never ashore in Vung Tau, nor at Nui Dat.
30. There is much of the applicant's sworn evidence we do not accept. We reiterate, that the medical practitioners have of necessity, relied upon the veracity of the applicant in reaching their diagnoses; and we have taken this into account in our assessment of the weight to be given to their evidence and opinions.
31. We turn to the stressors allegedly suffered by the applicant during his operational service:
(a) Scare Charge Incident
32. The applicant said in evidence that he had heard scare charges before the “almighty bang”, which terrified him, whilst he was below deck on the midnight to 4.00am shift. Captain Stevenson said in evidence that on examination of the Sydney’s log book, and the Report of Proceedings for the relevant periods, shows that the Sydney was never in Vung Tau Harbour over night. On the applicant’s second trip, the Sydney was in Vung Tau Harbour for 8 hours 18 minutes, on 31 October 1970, weighed anchor at 1600 hours, and by midnight was some 93 nautical miles south of Vietnam. She returned to Vung Tau Harbour at 0745 hours the following day, 1 November 1970, and remained for 3 hours 45 minutes, weighing anchor at 11.30am. We accept Captain Stevenson’s evidence. We are satisfied on the evidence that the scare charge incident did not occur in the manner described by the applicant.
(b) Fire Fight Incident
33. Captain Stevenson gave evidence, which we accept, that there is no verification in any records of such activity as the firing of Bofor guns, and anti-aircraft fire at the enemy. The Viet Cong did not have an airforce. In addition, the applicant asserts that the worst of these alleged fire fights was at night; and we are satisfied on the evidence that the Sydney was not in Vung Tau Harbour at night; and by 2000 hours on the night of 31 October 1970, the Sydney was some 45 nautical miles south of Vung Tau Harbour, where the applicant would not be in a position to observe fire fights over the horizon. We are satisfied on the evidence that the fire fight incident did not occur in the manner described by the applicant.
(c)Limpet Mines and Enemy Swimmers Incident
34. The applicant does not maintain that he himself saw the mines, nor the Viet Cong swimmers who were allegedly apprehended by the Sydney’s divers; only that the divers told him of these events. Dr Ewer said in evidence that the applicant related these events to him as being factual; that the divers removed a number of mines from the hull. Dr Ewer considered that as a “severe stressor” it was the second most significant event in the applicant’s Vietnam service, but that this event would be in the “grey zone”.
35. Captain Stevenson gave evidence, which we accept, that limpet mines were never discovered on the hull of the Sydney; and that enemy swimmers were never apprehended, on any of the Sydney’s 26 visits to Vung Tau Harbour. There is no mention of such an event in any of the source material – the Report of Proceedings, the logs or any of the other documentary evidence he had checked. Dr Ewer said in evidence, that now he is aware of the fact that no limpet mines were discovered, he might now have asked further questions about this alleged incident. We are satisfied on the evidence that this incident did not occur in the manner it was described by the applicant.
(d) Crash of American Helicopter - Taipan Incident
36. The applicant gave evidence that on the Sydney’s second or third trip to Vung Tau Harbour, an American Taipan helicopter, was one of a group which landed on the Sydney on frequent occasions, for what the applicant assumed was refuelling or re-arming. The crew of 4 stayed for 1 hour or more. He knew the crew on first name terms, and took some photographs on that last occasion. He believes that the Taipan was the last helicopter to take off, and about 15 minutes later, whilst he was still on the flight deck, a couple of ship mates yelled out that the Taipan had gone down. The applicant says that he saw the last part of the helicopter come down in a ball of flame, and hit a hill, not far in from the shoreline, and about 1 km from the Sydney. The others said they saw it being hit. The applicant says that he went down to get his camera, and returned about 5 minutes later. Smoke was coming out of the hill on the shoreline. He took some photographs, which he produced at the VRB Hearing on 5 June 2001, but which he cannot now locate. He says that he did not stay long on deck after he took these photographs. Dr Ewer said in evidence that this was the most significant stressor the applicant experienced in his Vietnam service; he was shocked and horrified, and that this incident satisfied, in Dr Ewer’s view, the definition of a “severe stressor” in the PTSD SoP.
37. Captain Stevenson gave evidence that the Sydney was never involved in any re-arming or refuelling of allied helicopters. The Department had sought a report from Captain Stevenson in relation to the alleged Taipan helicopter incident. He replied on 9 October 2000 that the Reports of Proceedings of the Sydney for 1970 and 1971 had been examined, and no reference to the reported incident had been found. The Sydney, he said, did not normally operate aircraft; there were helicopter operations on 31 October 1970 and 1 November 1970 with the time on deck being 1 minute on each occasion. Subsequently Captain Stevenson reported that one such helicopter landed on the Sydney on 25 February 1971 (the day the Sydney was in Vung Tau Harbour on the applicant’s third trip). The purpose of the landing was to enable the ship’s company to inspect the helicopter [T12/54]. The Report of Proceedings for Thursday 25 February 1971 reads, in part:
“30. Whilst at anchor in Vung Tau, HFV provided a fully rigged gunship helicopter forward on the flight deck for inspection by the Ships Company. In addition, 11 serving members in the Vung Tau area visited their relatives onboard. The necessary arrangements for these facilities were very much appreciated.” [Exhibit R11]
38. Captain Stevenson said in evidence also, that if, within 15 minutes of taking off from the Sydney the helicopter photographed by the applicant on the flight deck had been down, he would expect that this event would appear in some of the source material. There is no record of the event in the Report of Proceedings, the log book, the Official History of the Royal Australian Navy in Vietnam, nor in any other material. We accept Captain Stevenson’s evidence. Mr Doube submitted that this event was a figment of the applicant’s imagination. We consider it a fabrication. We are satisfied on the evidence that the crash of the American helicopter Taipan did not occur in the manner described by the applicant.
39. We are satisfied on the evidence that Factor 5(a) of the PTSD SoP is not satisfied. The material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. We are satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s condition of post-traumatic stress disorder is war-caused.
40. Turning to the severe stressors that the applicant maintains he suffered during his eligible defence service:
(a) Detonation of Atomic Bomb Incident
41. The applicant said in evidence that although the Supply was in airtight integrity, he did not believe it was safe. He had attended the nuclear and biological testing course at HMAS Penguin before departure; but says that like most people on the ship he did not want to be there. He was fearful of contracting cancer, depressed, and glad when it was all over. Readings were taken, but he says he was never told the results. He was drafted off the ship soon after that voyage.
42. We consider that in all the circumstances the ship was properly prepared for the undertaking. It was made watertight and gastight, and it was the applicant’s role as a shipwright, a role for which he had been trained, to ensure that these conditions were fulfilled. Nothing untoward occurred on the voyage. It proceeded uneventfully. Dr Ewer said in evidence that this incident was not referred to by the applicant during any of their interviews. Dr Ewer said that although the applicant might have said in evidence that he had experienced concern, worry, apprehension and foreboding, this was not such an incident which would invoke a response of intense fear, helplessness or horror. It was an incident that would not, in Dr Ewer’s view, satisfy the definition of a “severe stressor” in the Defence Service SoP. We accept Dr Ewer’s view. We are not reasonably satisfied that Factor 5(a) of the Defence Service SoP is satisfied.
(b)Fire in Missile Bay Room Incident
43. In 1981 the applicant was the Chief Officer responsible for watertight integrity on the Parramatta. He said in evidence that he was the first senior officer on the site of the alleged fire, until the fire party arrived. He said however, that he did not enter the missile assembly room on that day, and did not enter until the next day. He did not see the fire. The following day when he entered, he saw evidence of smoke and smoke damage. Mr Hudson gave evidence that he heard the fire alarm, that he heard that it was a fire, but he did not see the fire itself.
44. Captain Stevenson reported in relation to this incident on 21 August 2002 in the following terms:
“…
8. With regards to the fire reported to have occurred aboard HMAS PARRAMATTA; this probably relates to an incident which occurred during the early part of 1982 while the ship was carrying out trials following its modernisation. The ship had been in dockyard hands for some four years, re-commissioning in AUGUST 1981. Part of the modernisation was the fitting of an Ikara weapons system. The RoP’s for the period record that trials were being carried out. The Weapons Electrical Engineer Officer serving in the ship at that time has advised that the fire reported by the claimant may have been related to an incident involving the firing of an Ikara missile. The missile had been launched directly astern of the ship, instead of the usual abeam launch. The exhaust gases from the propellant, were trapped in the cross passage forward of the Ikara magazine; which was located in the after superstructure. A watertight flap, on ventilation opening into the magazine, had inadvertently been left open. It is believed that the exhaust gases from the discharged missile generated a pressure build up in the magazine. This activated warning devices similar to those that would have indicated a fire.. There was no fire and the situation was quickly rectified.
…” [Exhibit R3]
45. Mr Hudson said in evidence that he regarded it as a pretty hazardous incident if there was a fire. When Captain Stevenson’s report was put to him, Mr Hudson said that it was surprising that the fire was not recorded in the Report of Proceedings; and in that event he accepted that Captain Stevenson’s report was a possible explanation, and that although the fire alarms were sounded, and a fire party attended, there was no in the missile assembly room.
46. We prefer to rely upon the Parramatta’s Report of Proceedings, and we are not reasonably satisfied that this incident satisfies the definition of a “severe stressor” in the Defence Service SoP. We are not reasonably satisfied that Factor 5(a) of the Defence Service SoP is satisfied. We are not reasonably satisfied on the evidence that the material raises a connection between the applicant’s condition of PTSD and some particular service rendered by him. We are not reasonably satisfied that the applicant’s post-traumatic stress disorder is war-caused. The applicant cannot succeed in these proceedings.
47. For these reasons, the Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr E Eriksen (Member)
Signed: .......................................................................................
AssociateDates of Hearing 9, 10, 11 December 2002
Date of Decision 17 October 2003
Counsel for the Applicant Ms S Maharaj
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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