RONALD DAVIS and REPATRIATION COMMISSION
[2011] AATA 455
•29 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 455
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0753
VETERANS' APPEALS DIVISION ) Re RONALD DAVIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date29 June 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Navy – Application of Statements of Principles – Appropriate diagnosis of psychiatric conditions – No factual basis for diagnosis of posttraumatic stress disorder – Posttraumatic stress disorder not war-caused – Diagnosis and clinical onset of alcohol abuse and drug abuse – Reasonable hypothesis of relevant relationship to service raised for alcohol abuse and drug abuse – Hypothesis disproved beyond reasonable doubt – Alcohol abuse and drug abuse not war-caused – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 37, 120, 120A, 196B
Border v Repatriation Commission (No 2) [2010] FCA 1430
Drew v Repatriation Commission [2008] FCA 537
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363Glasby v Repatriation Commission [2008] AATA 664.
Hunter v Repatriation Commission [2010] FCA 145; (2010) 114 ALD 89
Repatriation Commission v Keeley [2000] FCA 532; (2000) 60 ALD 401
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 65 ALD 609
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 38 AAR 176
White v Repatriation Commission [2004] FCR 633Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 75 ALD 420
REASONS FOR DECISION
29 June 2011 Mr R G Kenny, Senior Member BACKGROUND
1. On 15 May 2008 the applicant, Ronald Davis, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “psychiatric disorder”. He contended that this was related to circumstances of his service with the Royal Australian Navy (“the RAN”) which was from 4 January 1967 until 10 August 1972.
2. On 26 May 2008 the respondent determined that the appropriate medical diagnoses for the claimed conditions were posttraumatic stress disorder, depressive disorder, drug abuse and alcohol abuse. It also determined that those conditions were not related to Mr Davis’ service. On 17 November 2008 the Veterans’ Review Board (“the Board”) affirmed the decision in relation to depressive disorder, drug abuse and alcohol abuse on the basis that these conditions were not related to Mr Davis’ service. The Board also affirmed the decision in relation to posttraumatic stress disorder on the basis that relevant diagnostic criteria for that condition were not met.
ISSUES AND SERVICE
3. Mr T Meehan, on behalf of the applicant, conceded that there was no current diagnosis of depressive disorder and submitted that the scope of Mr Davis’ claim was answered by posttraumatic stress disorder, alcohol abuse and drug abuse. Mr J Stoner, for the respondent, agreed with that concession. He also conceded that, if posttraumatic stress disorder was accepted as being related to Mr Davis’ service, then alcohol abuse and drug abuse would also be service-related. However, both Mr Stoner and Mr Meehan agreed that if posttraumatic stress disorder was not a war-caused condition, consideration should then be given to the issues of whether alcohol abuse and/or drug abuse are independently related to Mr Davis’ service.
4. Mr Davis completed a period of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 5 April 1968 until 17 April 1968. This comprised periods in transit between Singapore and Vung Tau Harbour in South Vietnam, as well as a period in that harbour on 9 April 1968 on board HMAS Parramatta (“the Parramatta”). Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
5. The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:
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.
[1] Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363 at 373.
6. The application of that provision is affected by the terms of s 120(3) and s 120A of the Act, which require that consideration be given to any relevant Statements of Principles (“SoP”) that have been published by the Repatriation Medical Authority (“RMA”). Where a SoP has been repealed and replaced by another, the matter is to be considered, initially, under the later Instrument but in the event that its requirements are not met, it is then to be considered under the repealed Instrument which was in force at the date of the primary decision.[2] In that way, an applicant gains the benefit of the more favourable criteria being applied.
[2] Repatriation Commission v Keeley [2000] FCA 532; (2000) 60 ALD 401 at 415, 422; Repatriation Commission v Gorton [2001] FCA 1194; (2001) 65 ALD 609 at 620, 625.
SUBMISSIONS
7. Mr Meehan submitted that the claimed conditions had their genesis in either or both of two incidents which occurred while the Parramatta was in Vung Tau Harbour. The first of these was the detonation of scare charges while Mr Davis was locked down in the magazine of the ship. The second was a sighting of swimmers in the water in proximity to HMAS Sydney (the Sydney) for which the Parramatta was an escort vessel. Mr Meehan submitted that the circumstances of Mr Davis were similar to those which arose in Repatriation Commission v Stoddart (Stoddart).[3] Mr Stoner accepted that each incident nominated by Mr Meehan had occurred, but submitted that neither was severe enough to have resulted in the claimed conditions.
EVIDENCE
[3] (2003) 38 AAR 176.
Mr Davis
8. Mr Davis was 17 years and 9 months old when the Parramatta was in Vung Tau Harbour. He completed his basic training at HMAS Leeuwin and then spent an interim period at HMAS Watson in Sydney before joining the Parramatta, which was his first sea posting. Training continued en route from Sydney to Singapore which was the last port of call before the Parramatta sailed into Vietnamese waters. On those voyages, training included drills relating to crew members’ duties when the ship went to the state of readiness known as defence stations. Mr Davis undertook drills with two other seamen in the forward magazine, located on the 4th deck, partially below the water line. Above the magazine were, in turn, sleeping quarters, the gun bay, from which ammunition was loaded into the guns, and then the gun turret. Ammunition, including cordite charges, was stored in the magazine. This was sent by hydraulic hoist up to the gun bay if and when requested. Hydraulics also operated the rotational movement of the gun turret. These hydraulic systems were in stand-by operation all of the time during Defence stations in case they were required. However, there was no requirement for ammunition to be passed up to the gun bay whilst the Parramatta was in Vung Tau Harbour but Mr Davis said that the gun was constantly in rotation while the Parramatta was there.
9. Mr Davis claimed that he was given no formal briefing of what to expect when the Parramatta entered Vung Tau Harbour, although he was aware from discussions with experienced sailors both that the ship would anchor in Vung Tau Harbour and that there was a potential for enemy attack from underwater activity. He said that he had no experience of scare charges prior to 9 April 1968 and was unable to recall whether any information had been given to the ship’s crew about their use while the Parramatta was to be in Vung Tau Harbour.
10. Because of the threat posed by the cordite, the magazine was constructed and operated to minimise the discharge of static electricity. It was fitted with special flooring material and crew on duty there were required to wear special footwear. Mr Davis’ evidence was that there was no electronic communication system such as a loudspeaker system, as was used elsewhere throughout the ship. Instead, and communication was with the gun bay via a sound-powered telephone.
11. Entry to and egress from the magazine was through a single 2 feet 3 inch square hatch in the ceiling of the magazine and a ladder to its floor. The hatch was hinged to the deck and secured by six clips which were accessible from both outside and inside the magazine. While Mr Davis accepted that the hatch design enabled it to be opened from within the magazine, he described the process of actually completing the opening from below as impossible because of the weight of the hatch cover and the need to stand on the ladder running from floor to ceiling. He also said that he had never tried to open the hatch from below. During the training drills, Mr Davis felt apprehensive at being closed up in the magazine because he understood that, when the HMAS Voyager was sunk, some of the men on that ship had been trapped below deck and drowned. Nonetheless, he described the activity as giving him ‘a sense of adventure’ even though the three men on duty would spend up to eight hours there at a time. Mr Davis agreed that, despite what he told medical practitioners, he was not required to stay in the magazine for eight hours on a continuous basis but, rather, in separate four-hour shifts.
12. At 4.00am on 9 April 1968, Mr Davis commenced a four-hour watch in the magazine with an able seaman and another sailor who had experienced the same training as himself. In his evidence, he said that he was the second sailor to enter the magazine and that, on doing so, he had what he described as his first ever panic attack. He was aware of the noise of the hydraulic systems and he feared that he would be locked in the magazine and die there.
13. Mr Davis said that panic occurred again at around 7.00am when the Parramatta’s anchor was lowered. He described his panic as lasting for a “fleeting moment” as this was a noise he had heard before and he recognised it within seconds of hearing the sound. He experienced another such attack soon afterwards when he heard an explosion and was fearful that the Parramatta was under enemy attack. Within 15 to 20 seconds, however, the able seaman advised that it was only a scare charge detonation. A second scare charge was then detonated, but this did not concern him because, at that time, he knew what the noise was.
14. At 8.00am, Mr Davis’ shift in the magazine ended. He repaired to the mess where he dined and then rested until 9.00am when he commenced a four-hour watch as a deck sentry, armed with a rifle and keeping lookout for enemy activity in the water. He was equipped with a whistle to sound the alarm if necessary. The HMAS Sydney was moored some distance from the Parramatta. At one stage, he noted swimmers in the water. They were between the two vessels but closer to the Sydney. In his evidence, he said the Sydney was about 500 metres from the Parramatta and he saw four or five swimmers close to a sampan. Initially, he said that his shift was from 10.00am until noon. However, he agreed that he may have seen the swimmers at about 12.50pm, shortly before the Parramatta weighed anchor. He said that on seeing the swimmers he experienced another panic attack, although he did not activate his whistle. He said that years later he learned that the persons in the water were Vietnamese fishermen retrieving their nets.
15. Mr Davis said that he did not advise other sailors of his reactions to the events because the RAN culture required that such disclosures not be made.
16. On leaving Vung Tau Harbour, the Parramatta proceeded to Singapore. Mr Davis said that, in Singapore, his “whole world changed” because he began to consume alcohol heavily and take illicit drugs that he had been introduced to by older sailors on shore leave. These habits increased in intensity during the remainder of his RAN service and caused him to experience major difficulties with the RAN before his discharge in 1972. He agreed that his younger brother died on the day after he returned to Australia.
17. Mr Davis said that he had not consumed alcohol before joining the RAN and had consumed little before he was in Vung Tau Harbour. He said that his heavy consumption commenced in Singapore after leaving Vietnam.
John Campbell
18. Mr Campbell was the gun captain in the same gun complex as Mr Davis in Vung Tau Harbour on 9 April 1968. His position was in the gun bay. He confirmed that the mode of communication used between the magazine and gun bay was by a sound-powered telephone rather than one involving the use of electricity. He said that the hatch to the magazine was able to be opened from above and below. He described the noise from the hydraulic systems, which were standing by to power the turret and ammunition hoist, as a ‘loud humming sound’. He said that this became much louder when the systems were engaged to move the turret or upload ammunition. He also said, however, that neither of those engagements had been necessary while the Parramatta was in Vung Tau Harbour. He said that a briefing of what was to occur in Vung Tau Harbour was provided to senior sailors who were then obliged to communicate the information to the more junior sailors.
Philip Mulcare
19. The respondent utilised Mr Mulcare, from Writeway Research Service Pty Ltd, to obtain background information about practices on the Parramatta. He is a retired RAN Commodore who served on the Parramatta in Vung Tau Harbour for a period in 1971. He provided two reports dated 20 October 2010 and 24 April 2011. Mr Mulcare said that information was provided to the ship’s crew by posting Temporary Memoranda and Daily Orders on noticeboards throughout the ship before entering Vung Tau Harbour. He believed that these documents contained information about the use of scare charges and that the normal practice was to use the loud speaker system to communicate a warning on their imminent use. He said that there was an obligation on all crew to read these documents and to comply with their contents and that failure by a sailor to do so was punishable. He also said that there was usually a briefing to the ship’s crew about what was likely to occur in an operational area such as Vung Tau Harbour. He did not utilise a system of briefing only senior sailors and relying on them to disseminate the information on a top-down basis. Mr Mulcare described the noise of the anchor being deployed as ‘loud’ and one that would be heard throughout the ship on every occasion that it was lowered. He confirmed that the hatch to the magazine was able to be operated from both outside and inside the magazine such that personnel were not locked in the magazine. He understood that there was a broadcast speaker in the magazine and that this was the medium through which crew were advised on matters such as scare charge detonations.
20. In his report, Mr Mulcare included extracts from the Parramatta’s Log Book and Reports of Proceedings. These noted that the Parramatta was at “third degree of readiness” in Vung Tau Harbour. Mr Mulcare described this as “defence stations” which was ranked below “action stations relaxed” and the highest level which was “action stations”. The records also marked the Parramatta, at 4.00am on 9 April 1968, as being outside the Market Time Area, more than 100 nautical miles off the coast of Vietnam; as anchoring in Vung Tau Harbour at 7.00am; and as departing Vung Tau Harbour at 1.00pm. He also included references to reports of sightings of two swimmers and three sampans by the USNS Clarkport Victory (the Clarkport Victory). This was timed at 12.50pm on 9 April 1968 and it was noted that harbour patrol craft rounded the swimmers up and confirmed that they were fishermen retrieving broken nets. Mr Mulcare also referred to the Sydney’s Report of Proceedings and noted that the ship was only notified of the swimmers at 2.00pm after it had sailed. Mr Mulcare said that the Parramatta’s records revealed no imminent threat of enemy attack on either ship whilst in Vung Tau Harbour.
Medical Evidence
21. In evidence were psychiatric reports from Dr Bob Anderson dated 12 March 2003, Dr Alfred Chung dated 30 July 2010 and treating psychiatrist Dr Zoran Radovic dated 19 June 2008 and 9 February 2011.
22. Dr Anderson diagnosed posttraumatic stress disorder in Mr Davis as well as alcohol abuse, drug abuse and depression. Dr Anderson recorded Mr Davis as spending “up to 8 hours at a time in the magazine in a continual state of readiness to engage the enemy” while the ship was at “action stations” being “the highest state of readiness for war and the potential threat of an enemy encounter”. He noted that Mr Davis was “locked in with no means of escape if the ship was damaged” because the magazine hatch was “clogged from the outside”. Dr Anderson did not refer to the detonation of scare charges but did refer to the continuous movement of the ship’s armament and the direction to “up ammunition” as contributing to Mr Davis’ traumatic experience. He recorded Mr Davis as feeling “absolute apprehension” and “extreme anxiety” in the magazine and as having a fear at being left to die because he was locked in the magazine. He wrote that Mr Davis had a “fear of being locked in, including the continuous noises coming from the turret rotation, the communication hoist and the voice commands coming over the speaker”. Dr Anderson noted that Mr Davis performed sentry duty on the deck of the Parramatta during which time he felt a threat of death hanging over him. He referred to Mr Davis as being required to act as a lookout for boats or underwater saboteurs but his report made no reference to the sighting of swimmers in the water.
23. Dr Chung diagnosed Mr Davis as having posttraumatic stress disorder, alcohol abuse and marijuana abuse. He attributed these to his service on the Parramatta. Dr Chung identified the occasion in the magazine as being stressful and traumatic for Mr Davis and he recorded Mr Davis as experiencing feelings of “fear, terror, horror and helplessness”. He noted that he and two others were “locked in the magazine where they had to stay up to eight hours at a time in a state of readiness to engage with the enemy”. He noted that Mr Davis had reflected on sailors in HMAS Voyager being unable to escape from locked hatches and drowning. Dr Chung did not refer to the detonation of scare charges or to Mr Davis’ period of sentry duty. He considered that the clinical onset of Mr Davis’s alcohol and drug abuse was shortly after his return to Australia from Vietnam.
24. Dr Radovic diagnosed posttraumatic stress disorder but denied the presence of depressive disorder. In his first report, he referred to Mr Davis being terrified by “some scare charges” being detonated. Dr Radovic referred to this as the most prominent traumatic situation experienced by Mr Davis. He recorded Mr Davis’ description of the magazine hatch being locked with no way for the hatch to be opened from the inside, which meant that there was no way of escape if the ship were damaged. Dr Radovic wrote that this sense of being locked in the magazine caused him to be in a constant state of “fear, hopelessness, horror and terror for the whole time he spent in that magazine”. Dr Radovic also referred to the sighting by Mr Davis of swimmers which caused Mr Davis to experience fear, hopelessness, horror and terror as an immediate response. In his later report, he noted that Mr Davis had suffered significant psychological trauma during his service with the most significant being exposure to scare charges while he was “dogged down from above” in the magazine. Dr Radovic recorded a history of heavy daily alcohol consumption and drug use in Mr Davis’ post-Vietnam service years.
Other evidence
25. Mr Davis’ service records reveal that he experienced disciplinary problems during his post-Vietnam RAN service. Major punishments included 60 days detention in July 1968, 10 days cells for wilful disobedience in November 1971, a suspended sentence of 28 days detention for drinking on duty and wilful disobedience in June 1972 and a further suspended sentence of 28 days for drinking on duty in July 1972. A Naval Review Board noted in August 1972 that he was drinking heavily, had gradually lost self‑control and had a history of violence both within and outside the RAN. His discharge from the RAN was on the basis that his services were no longer required.
26. Mr Davis completed several statements in relation to his Vung Tau Harbour experience. In an alcohol consumption questionnaire dated 17 January 2003 he described himself as being locked down in “action stations” in the magazine for an eight-hour period and feeling the pressure of going into a war zone and of doing watches on the Parramatta’s deck. He wrote that he commenced to drink beer and spirits in 1968 and from January to April 1968 consumed 10 to 20 glasses of beer per week. He wrote that this increased to 80 to 90 glasses per week after April 1968 when he had returned from Vung Tau Harbour. In his initial claim form, he described himself as feeling “claustrophobic, anxious, scared” and “overwhelmed”. No reference is made in those statements to the scare charge or swimmers incidents. In an undated statement prepared in relation to his initial claim, Mr Davis described his increase in alcohol and drug consumption but made no reference to the scare charge or swimmers incidents.[4]
[4] See page Y in the documents prepared under s 37 of the Act.
27. In his statement dated 5 June 2010 Mr Davis wrote that the able seaman advised them that the ship was going to its anchorage and that he was aware of the engines slowing and then coming to a stop. It was then that he heard the anchor being lowered. Further, he wrote that he was advised within minutes that the swimmers had been spotted by the crew of the Sydney and identified as fishermen retrieving fishing nets.
28. The reasons published by the Board for its decision were also taken into evidence. Mr Davis is recorded as stating that, prior to entering Vung Tau Harbour, he had not been in the magazine with the hatch closed from the outside. He also said his panic attack occurred when the hatch was closed. He said that, to hear instructions from the ship, the senior sailor in the magazine was wearing headphones and would relay instructions to him and the other junior sailor. He said that, over a period of time in the magazine, his panic “went” and that he recalled hearing the ship’s anchor chain going out, although no reference is made to feeling any panic at that time. He is noted to have advised the Board that he didn’t “recall the swimmers causing a great deal of stress”. He also advised the Board that he did not tell Dr Anderson about the detonation of scare charges.
29. In his statement dated 13 April 2010 and in his evidence to the Board, Mr Davis wrote that the Sydney was one kilometre from the Parramatta and that he saw five swimmers and a sampan.
MR DAVIS’ EVIDENCE
30. There are significant inconsistencies in Mr Davis’ evidence and in the histories he has provided to psychiatrists.
31. In relation to the swimmers incident, his evidence was that he heard “years later” of the identity of the swimmers. On 5 June 2010, he wrote he was advised within minutes that the swimmers had been spotted by the crew of the Sydney and identified as fishermen retrieving fishing nets. Despite his evidence of a panic attack upon seeing the swimmers, his evidence to the Board was that he didn’t recall them causing a great deal of stress. He also gave differing accounts of the distance between the Parramatta and the swimmers, varying from 300 to 800 metres. His version of four or five swimmers and one sampan was not the same as the documented record of two swimmers and three sampans taken by the Clarkport Victory. Neither Dr Anderson nor Dr Chung referred to the swimmers in the harbour.
32. Mr Davis’ evidence was that there was only a sound-operated communication system in the magazine because of the dangers of static electricity in close proximity to the cordite. However, he told the Board that the senior sailor was wearing headphones and would relay messages to others in the magazine. Dr Anderson recorded part of the stressful situation for Mr Davis as being the noise coming from voice commands over the speaker.
33. Mr Davis’ evidence was that he was calmed by the advices of the senior sailor as to the source of the first scare charge detonation. Consistent with that evidence, he advised the Board that, over a period, his panic “went”. However, the history taken by Dr Radovic was of a constant state of fear, hopelessness, horror and terror for the whole time Mr Davis spent in the magazine.
34. Mr Davis’ evidence was that the gun turret was in a state of constant rotation with associated noise projected into the magazine. Dr Anderson also described continuous noise from the rotation of the gun turret and the hoisting of ammunition as contributing to Mr Davis’ traumatic experience. He understood that the Parramatta was at Action Stations. Mr Campbell, who was captain of the gun turret, said that there was no loading of ammunition and no rotation of the gun in Vung Tau Harbour. The Parramatta’s records show that the vessel was at Defence Stations and not at the higher levels of readiness for war.
35. Mr Davis’ evidence was that he consumed little alcohol before he was in Vietnam. In his alcohol questionnaire, he wrote that he was consuming 10 to 20 beers per week before April 1968.
36. Mr Davis gave differing versions of the timing of his first panic attack. One version was that it occurred when he entered the magazine. Another was that it occurred when the hatch was closed. However, his evidence was that he was the second man to enter the magazine which therefore meant that there was a delay, while the third man entered, before the hatch was closed.
37. In relation to the noise of the anchor, Mr Davis described a panic attack in his evidence. His evidence to the Board made no reference to such an attack at that time. On 5 June 2010, he wrote that the able seaman advised them that the ship was going to its anchorage and that he was aware of the engines slowing and then coming to a stop. It was then that he heard the anchor being lowered.
38. Dr Anderson was not advised of the scare charges. Mr Davis’ evidence was that it was only the first of the scare charges which alarmed him because of the advice provided thereafter by the senior sailor. Dr Radovic’s report is not limited to the impact of only one scare charge.
39. The reports of Dr Anderson and Dr Chung described Mr Davis spending a period of up to eight hours at a time in the magazine. His evidence was that the shift was for four hours only.
40. Mr Davis’ evidence was that he was locked down in the magazine during the training drills while the Parramatta was en route from Sydney to Singapore and then to Vietnam. He referred to feeling apprehensive at being closed up inside but was still able to recall the activity giving him a sense of adventure. His evidence to the Board suggested that the occasion in Vung Tau Harbour was the first time he was “locked down” in the magazine.
MR DAVIS’ DIAGNOSED CONDITIONS
41. It is not disputed and I am reasonably satisfied that the relevant conditions for consideration in this matter are posttraumatic stress disorder, alcohol abuse and drug abuse.
42. For posttraumatic stress disorder, the relevant RMA SoP is Instrument No 5 of 2008. Section 3 lists six diagnostic criteria, all of which must be met before posttraumatic stress disorder can be found to be present. The reports of all three psychiatrists identify posttraumatic stress disorder. However, the issue is not whether Mr Davis suffers from posttraumatic stress disorder generally but, rather, whether he does so in relation to a service-related event which meets all six diagnostic criteria in the SoP. While the SoP is not, in itself, a diagnostic instrument, it was not in dispute that the six criteria reflect those that are found in the relevant diagnostic instrument DSM-IV-TR for posttraumatic stress disorder. The first of those, criterion 3(b)(A), reads:
(A) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;
43. Although mentioned by Mr Davis in his evidence, none of the psychiatrists referred to the noise of the anchor being lowered and it was not contended that this was a relevant event for posttraumatic stress disorder or the other conditions under consideration. That is not surprising. The anchor noise was an occurrence which would not be unexpected, given that the Parramatta was to moor in Vung Tau Harbour. Indeed, as noted above, Mr Davis was made aware that the Parramatta was to anchor and he was conscious of the slowing and then stopping of the engines. The lowering of the anchor and its associated noise do not constitute an event involving actual or threatened death or serious injury. It was a noise familiar to all of the ship’s crew and one that, after a “fleeting moment”, Mr Davis identified.
44. As a trigger identified by Mr Davis for his psychiatric conditions, it is indeed surprising that the swimmers incident was not referred to by either Dr Chung or Dr Anderson. Dr Radovic referred to it, but considered that it was secondary to the impact of the scare charge incident. The inconsistencies in the various statements by Mr Davis include the time when he was able to identify the swimmers, as well as the number of swimmers and their distance from the Parramatta. He did not sound an alarm and indicated to the Board that it did not impact on him. The closest estimate places the swimmers at 300 metres from Mr Davis and, even using that estimate, I am reasonably satisfied that, objectively, the sighting of the swimmers was not an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of Mr Davis or others. The concept of experiencing a threat, as it has arisen in a range of SoPs for psychiatric conditions, has been interpreted to include a partially subjective component such that it may be sufficient if Mr Davis had a perception of threat.[5] Mr Davis has provided differing accounts of the reaction he had when he observed the swimmers and he did not sound an alarm at the time of the sighting. Those matters, and the inconsistencies in his evidence, leave me reasonably satisfied that, subjectively, the sighting of the swimmers was not an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of Mr Davis or others.
[5] See Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 75 ALD 420 and Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 38 AAR 176.
45. Dr Radovic’s opinion was that the experience relating to the scare charges was more significant than the swimmers incident. However, as I read his report, it was the detonation of the scare charges in the setting of Mr Davis being locked in the magazine which comprised the event. The relevance of the scare charge, in itself, is diminished by the absence of reference to it by Dr Chung and Dr Anderson. Their focus was Mr Davis’ presence in the magazine with no prospect of escape as being the stressor.
46. I have concerns about several aspects of Mr Davis’s evidence regarding the magazine. I do not accept his evidence that the magazine hatch was unable to be opened from below. Mr Campbell and Mr Mulcare, both of whom served on the Parramatta, said the hatch was able to be opened from above and below. I accept their evidence based on their actual experience on board the Parramatta, but also as a matter of practical sense. I also note that Mr Davis’ evidence was that he had never tried to open the hatch from below. I am reasonably satisfied Mr Davis was not in a position where there was no prospect of escape from the magazine. The history taken by Dr Anderson included reference to a direction to “up ammunition” and the noises of the rotating gun, which he opined contributed to Mr Davis’ traumatic experience. I accept the evidence of Mr Campbell, as gun captain, that there was no requirement for ammunition to be sent upwards to the gun bay and that the gun was not in motion on 9 April 1968.
47. Mr Davis said that he had a panic attack at the point of initial entry to the magazine. I do not accept that this was the first occasion of being in the magazine with the hatch closed. He experienced that situation in training drills. His shift in the magazine commenced at 4.00am when the Parramatta was more than 100 nautical miles off the coast of Vietnam. Merely entering the magazine at that time, as Mr Davis had done many times before, could not constitute an event involving actual or threatened death or serious injury. Another version given by Mr Davis of the onset of the first panic attack was on entry to the magazine. Another was that it occurred when the hatch was closed. However, as he was the second man to enter the magazine, a delay in closing after he entered was necessitated by the subsequent entry of the third sailor.
48. Mr Meehan submitted that Mr Davis’ situation was akin to that of the veteran in Stoddart.[6] While Mr Davis was of similar age and training level to Mr Stoddart, their circumstances were different in that Mr Stoddart was deep in the hull of his ship, was working on his own and had only the benefit of torchlight. There is no evidence that the Parramatta’s magazine was in darkness and, importantly, Mr Davis was, at all times, in the company of two other men including a senior sailor. Further, the magazine hatch led directly to a deck above the waterline.
[6] See note 3 above.
49. While there may have been no speaker in the magazine to broadcast messages, such as imminent scare charge detonations, I do not accept that Mr Davis had no knowledge that scare charge detonations would occur. Mr Campbell described a system of top-down dissemination of briefing information imparted, initially, to senior crew members. Mr Mulcare described a general briefing to all crew and to the posting of notices, which all crew members were obliged to read, concerning procedures to be applied in Vung Tau Harbour including the use of scare charges. In his evidence, Mr Davis did not deny reading such notices but said that he could not recall that he had done so. I am reasonably satisfied that Mr Davis was aware that scare charges would be detonated. In any event, the senior sailor advised him, within seconds of the first detonation, what the noise was. I am also reasonably satisfied that the detonation of the first scare charge was not an event that, objectively, involved actual or threatened death or serious injury, or a threat to the physical integrity of Mr Davis or others. Because of his awareness of the nature of the noise and because he was not locked in the magazine, I do not accept his evidence that, subjectively, the scare charge detonation was an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of Mr Davis or others.
50. The medical opinion is that Mr Davis has posttraumatic stress disorder. Criterion 3(b)(A) is an essential threshold element of those criteria and I am reasonably satisfied that the requirements of a traumatic event in criterion 3(b)(A)(i) in the SoP for posttraumatic stress disorder are not met. Despite the medical opinion, I am reasonably satisfied that the factual basis for making a diagnosis of posttraumatic stress disorder, in relation to an incident on operational service, is not present. It follows that consideration need not be given to issues of causation relating to posttraumatic stress disorder in so far as it has a relationship to Mr Davis’ service in Vietnam.[7]
[7] See Drew v Repatriation Commission [2008] FCA 537 at [8] – [9].
51. The diagnoses of alcohol abuse and drug abuse, unlike posttraumatic stress disorder, do not depend upon the existence of a factor such as Criterion A noted above. There is medical support for a diagnosis of each of those conditions and, accordingly, the issue for determination in relation to them is whether they have arisen out of or are attributable to Mr Davis’ service under s 9(1)(b) of the Act.
PRINCIPLES OF CAUSATION
52. In Repatriation Commission v Deledio[8], the Federal Court set out a four-step procedure for considering issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that the scare charge incident with Mr Davis in the magazine and the incident involving the sighting of swimmers both meet that requirement for Mr Davis’ alcohol abuse and drug abuse. No hypotheses were advanced in relation to any other stressors.
[8] (1998) 83 FCR 82 at 92.
53. The second of the four Deledio steps requires identification of the relevant SoP determined by the RMA under s196B(2) or (11) of the Act. For alcohol abuse, this is Instrument No 1 of 2009 which revoked and replaced Instrument No 17 of 2008. For drug abuse, it is Instrument No 3 of 2009 which revoked and replaced Instrument No 15 of 2008.
54. The third Deledio step does not involve fact-finding but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the SoP. The factors and associated definitions in Instruments Nos 1 and 3 of 2009 for alcohol abuse and drug abuse, respectively, are identical. Taken together, they read:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol/drug abuse
(b)experiencing a category 1A stressor within the five years before the clinical onset of ….alcohol/drug abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of … alcohol/drug abuse;
…
“a clinically significant psychiatric condition” means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding drug-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties; …
"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
55. Instruments Nos 17 and 15 of 2008, for alcohol abuse and drug abuse respectively, have been revoked, but were in operation at the time the Repatriation Commission made its initial decision. In so far as their causative factors and associated definitions are material in this matter, they are identical to those set out above.
56. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
REASONABLENESS OF HYPOTHESES
Clinical onset of drug/alcohol abuse
57. The SoPs require material which points to the clinical onset of the drug/alcohol abuse within the five years of experiencing the relevant stressor. The term clinical onset has not been defined by the RMA but the requirement will be pointed to, “either when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor that the disease is present”.[9] Mr Stoner conceded that this requirement was met in Mr Davis’ case and I accept that this concession has been properly made; the material before me points to clinical onset in the five year period after Mr Davis was in Vung Tau Harbour. In that regard, apart from Mr Davis’ service records, I have noted the reports of Dr Radovic and Dr Chung.
[9] See Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 at [13], citing Robertson and Repatriation Commission [1998] AATA 127 at [23].
Presence of a clinically significant psychiatric condition
58. For a psychiatric condition to be relevant under this factor, it must be service‑related[10]. I have determined that any posttraumatic stress disorder from which Mr Davis may suffer is not so related. Accordingly, the factor relating to a clinically significant psychiatric condition is not pointed to by the material before me.
[10] See clause 5 of Instrument No.5 of 2008.
The stressor
59. A category 1A stressor and a category 1B stressor are each defined to mean “a severe traumatic event”. In each case, a series of events which will qualify is particularised and one of those particularised events must be pointed to by the material in order for a reasonable hypothesis for a category 1A or category 1B stressor to be raised.[11] There is no material which points to events (b) or (c) for a category 1A stressor or any of the events for a category 1B stressor. No submissions were made in relation to those components of the definitions. That leaves for consideration event (a) for a category 1A stressor, which is “experiencing a life‑threatening event”.
[11] See Glasby v Repatriation Commission [2008] AATA 664.
60. In Hunter v Repatriation Commission[12], Perram J referred to the terms of a category 1A stressor as requiring a “claimant to have come, in effect, face to face with some species of peril”. His Honour noted that this was different from requirements in earlier SoPs which could be satisfied if a “claimant were ‘confronted’ with a peril” which included “being confronted ‘in the mind’”.[13] Those comments were made obiter dicta as the Court was not dealing specifically with the concept of a category 1A stressor. However, his Honour’s description accords with the clear wording of the definition and requires an objective analysis. Nevertheless, consideration must be given to Border v Repatriation Commission (No 2)[14] (Border), where Reeves J was concerned with the definition of a category 1A stressor in Instrument No 5 of 2008.
[12] [2010] FCA 145; (2010) 114 ALD 89 at 94.
[13] Op cit; referring to Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 at 495.
[14] [2010] FCA 1430.
61. In Border, his Honour concluded that, for a category 1A stressor, the event alleged must have actually occurred; that paragraph (a) incorporates the experience of the veteran, but that the trauma, stress or anxiety were not relevant for paragraphs (b) and (c). Accordingly, for paragraphs (b) and (c), there was no subjective element involved in assessing the reasonableness of a hypothesis. As for paragraph (a), his Honour posed the following question (at [52]) and answer (at [67]):
52.But these observations obviously may not apply to the event described in subpara (a): “experiencing a life-threatening event”. On its face, that event involves subjective factors. The question then is: How, and to what extent, should the Tribunal examine the feelings evoked in the veteran experiencing that event, to determine whether the event was life-threatening within that?
…
67.… the answer to the question posed … in relation to the event described in subpara (a): “experiencing a life-threatening event” is this. The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
62. The circumstances of sighting, some hundreds of metres distant, swimmers who, as it turned out, were Vietnamese fishermen, do not point to any peril confronting Mr Davis which would amount to his experiencing, in an objective sense, a life-threatening event. Mr Davis has given various accounts of his reaction to his sighting of the swimmers. If Mr Davis perceived a threat, the evidence, taken as a whole, does not point to a reasonable perception, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, Mr Davis, of a life-threatening event. The hypothesis in relation to the swimmers event is not a reasonable one.
63. The material before me in relation to the discharge of the first scare charge does not point to Mr Davis being in a magazine from which there was no escape and does not, in an objective sense, point to any peril confronting Mr Davis which would amount to his experiencing a life-threatening event. However, his evidence was that he had no knowledge of scare charges and that he believed he was locked in the magazine points to a perception of such a threat. Looking at that material most beneficially from Mr Davis’ perspective, the raised material fits the template of the SoP and a reasonable hypothesis that Mr Davis experienced a life-threatening event is raised in respect of alcohol abuse and drug abuse.
ARE THE CONDITIONS WAR-CAUSED?
Posttraumatic stress disorder
64. As no diagnosis of posttraumatic stress disorder can be made on the basis of the material before me, this means that posttraumatic stress disorder cannot be a war-caused condition in accordance with s 9(1)(b) of the Act. Alcohol abuse and drug abuse will be war-caused conditions in accordance with that provision unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
65. I am satisfied beyond reasonable doubt that Mr Davis did not come face to face with any species of life-threatening peril when the scare charge detonated. His perception that he faced such a threat was based on his evidence that he had no knowledge of scare charges and his belief that he was locked in to the magazine with no chance of escape. I do not accept his evidence in relation to his knowledge of scare charges. In that regard, I accept the evidence of Mr Mulcare and Mr Campbell about the dissemination of information about scare charges and other matters which would occur in Vung Tau Harbour. Mr Davis described his reaction as involving “fear, terror, horror and helplessness”. The history taken by Dr Radovic was that Mr Davis had those feelings the whole time he was in the magazine. That conflicts with his evidence that the feeling lasted for only a few seconds until he was advised by the senior sailor of the source of the noise. A measure of the real significance of the scare charges is that they are not referred to by Dr Anderson or Dr Chung. I am satisfied beyond reasonable doubt that Mr Davis did not have a perception of having experienced a life-threatening event. In summary, I am satisfied beyond reasonable doubt that there are facts inconsistent with those which pointed to the reasonableness of the hypothesis raised in this matter. It follows that I am satisfied to that same standard that Mr Davis’ alcohol abuse and drug abuse are not war-caused.
DECISION
66. The Tribunal affirms the decision under review in relation to posttraumatic stress disorder, alcohol abuse and drug abuse.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: .......................[Sgd]......................................................
Danielle Armstrong, Research AssociateDate/s of Hearing 13 May 2011
Date of Decision 29 June 2011
The Applicant was represented by Terry Meehan
The Respondent was represented by John Stoner, departmental advocate
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