Ross and Repatriation Commission
[2008] AATA 611
•15 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 611
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600776
VETERANS' AFFAIRS DIVISION ) Re ALEXANDER ROSS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss EA Shanahan Date15 July 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. .....................[Sgd]....................
Miss E A Shanahan
Member
VETERANS’ AFFAIRS – disability pension – operational service – generalised anxiety disorder – alcohol abuse or dependence – hypertension – psychosocial stressor – scare charge detonations – decision affirmed
Veterans’ Entitlement Act 1986
Statement of Principles Instrument No 1 of 2000 concerning anxiety disorder
Statement of Principles No 101 of 2007 concerning anxiety disorder
Statement of Principles No 76 of 2000 concerning alcohol abuse and dependence
Statement of Principles No 17 of 2008 concerning alcohol abuse and dependence
Statement of Principles No 31 of 2001 concerning hypertension
Statement of Principles No 35 of 2003 concerning hypertension
Delahunty v Repatriation Commission (2004) FCA 309
Meane v Repatriation Commission (2003) FCA 1371
Re Binding and Repatriation Commission (2006) AATA 516
Re Gibson and Repatriation Commission (2001) AATA 861
Re Holt and Repatriation Commission (2007) AATA 1546
Re Howlett and Repatriation Commission (2007) AATA 1736
Re Madden and Repatriation Commission (2005) AATA 1218
Re Moran and Repatriation Commission (2004) AATA 294
Re Pa and Repatriation Commission (2003) AATA 93
Re Preece and Repatriation Commission (2004) AATA 442
Re Salkeld and Repatriation Commission (2007) AATA 1482
Re Sunderland and Repatriation Commission (2006) AATA 1104
Re Tosa and Repatriation Commission (2006) AATA 1101
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart (2003) FCAFC 300
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission (2004) FCA 633
Woodward v Repatriation Commission (2003) FCAFC 160
REASONS FOR DECISION
15 July 2008 Miss E A Shanahan 1. Mr Ross has been receiving a service disability pension at 40 percent of the general rate since 24 July 2002 on the basis that the bilateral sensorineural hearing loss and solar keratosis from which he suffers are war-caused conditions. On 24 October 2002 Mr Ross made a claim to extend his war-caused conditions to include an anxiety disorder with alcohol dependence and hypertension. The Repatriation Commission (the Commission) refused this claim on the grounds that these diseases were not war-caused. The Veterans’ Review Board (VRB) affirmed the decision of the Commission on 1 June 1996. Mr Ross applied to the Administrative Appeals Tribunal for a review of the VRB decision on 22 August 2006.
2. Mr Ross was represented by Ms J Bornstein of counsel, instructed by KCI Lawyers and the Commission was represented by Mr G Purcell of counsel. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).
3. The parties tendered the following documents:
For the Applicant:
·the report of Dr E Cole dated 21 June 2007 – Exhibit A1
For the Respondent:
·the T-Documents – Exhibit R1
·Writeway Report by Captain Hewett (Ret’d) dated 18 September 2007 – Exhibit R2
·Clinical Notes of Dr R MacIver – Exhibit R3
·The Report of Dr W Glaser dated 11 October 2007 – Exhibit R4
·The transcript of the VRB hearing dated 1 June 2006 – Exhibit R5
·Mr Ross’ Service Documents – Exhibit R6
·Mr Ross’ Service Medical Records – Exhibit R7
·Diagram of the shaft tunnels of HMAS Sydney – Exhibit R8 and R9
·The email to and reply from Mr PH Gardner dated 17 September 2007 – Exhibit R10
Mr Ross and Mr Hewett gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
4. Mr Ross jointed the Royal Australian Navy (the Navy) at the age of 17 in order to get away from Canberra and to see the world. He enlisted for 12 years but served for three, from 24 September 1966 to 13 June 1969, on which date he was dismissed from the Navy.
5. He was posted to HMAS Sydney (the Sydney) from 2 September 1968 to 21 May 1969. During this period the Sydney visited Vung Tau Harbour in the Republic of South Vietnam (as it then was) on two occasions. On 20 November 1968 the Sydney was at anchor in the harbour for five hours and on 15 February 1969 for five hours and twenty five minutes. On both occasions Mr Ross worked in the engine room and inspected the propeller shafts. On 20 November 1968, while inspecting the shafts, he heard a series of large explosions, equivalent he said to the firing of a 4.5 inch gun. He thought the Sydney was under attack, was scared witless and in fear for his life. He was told the noise was due to the dropping of a scare charge. He then resumed his inspection. On the second occasion he again experienced the effect of exploding scare charges while in the propeller shaft and responded in the same manner.
6. Following his first experience Mr Ross’ alcohol intake increased markedly and he has continued to misuse alcohol since. While apprehensive before the Sydney’s arrival in Vung Tau Harbour, he became very anxious after the first event. He experienced poor sleep, aggressive behaviour, social withdrawal and suffered from nightmares. He was twice disciplined for being absent without leave prior to going to Vietnam; and following the third episode on 23 July 1968, he was discharged from the Navy.
7. Mr Ross claims that his misuse of alcohol has impacted on his work performance and interpersonal relationships, although he continues to work as a painter for 20 to 30 hours per week.
8. Mr Ross claims that the scare charge explosion experienced in Vung Tau Harbour have resulted in the development of a generalised anxiety disorder with alcohol abuse or dependence. The alcohol abuse or dependence has in turn caused or contributed to the development of hypertension.
9. The issues before the Tribunal are:
1.Do the traumatic events Mr Ross says he experienced in Vietnam meet the Statement of Principles (SoP) requirements of a category 1(a) or 1(b) stressor (SoP 101 of 2007) or those of a severe psychosocial stressor (SoP 1 of 2000)?
2.Does Mr Ross suffer from alcohol abuse or dependence and is such misuse service-related, secondary to a generalised anxiety disorder or did the misuse pre-exist the events relied upon?
EVIDENCE BEFORE THE TRIBUNAL
mr ross
10. Mr Ross left school at the age of 15 to work as an apprentice painter and joined the Navy at 17 to get away from Canberra and see the world. During his three years in the Navy he travelled widely in Asia and on two occasions, while serving on the Sydney, visited Vung Tau Harbour when the Sydney was transporting troops to and from Australia. These visits occurred on 20 November 1968, when the Sydney anchored in Vung Tau Harbour for five hours and on 15 February 1969, when it lay at anchorage for five hours and twenty-five minutes. Prior to the Vietnam deployment the ship’s crew was briefed on the dangers that might confront them and told to be alert and careful. Mr Ross said they were told scare charges would be dropped to frighten away enemy divers. At that time Mr Ross was classified as a mechanical engineer, working in the engine room. His duties also involved inspecting the propeller shaft on the lowest deck of the Sydney, which was below the waterline. He read the temperature and oil gauges and, when necessary, topped up the oil levels. The 10 feet by 10 feet tunnels alongside the shafts were reached via a hatch and a 40 to 50 foot high ladder. Each propeller shaft and tunnel was approximately 60 to 70 feet long. Mr Ross inspected two propeller shafts, each reached by a separate hatch and ladder. Mr Ross worked a four hour shift and said he inspected the propeller shafts hourly; the inspection of each shaft taking approximately 10 to 15 minutes. Normal routine was to inspect the propeller shafts every four hours when at anchorage. Mr Ross claimed that while in Vung Tau Harbour the propellers were turning slowly and one hourly inspections were conducted. The propeller shaft was noisy, making any announcements from the ship’s bridge impossible to hear. He worked alone and was fearful that if something untoward happened he would not be able to get out of the shaft tunnel.
11. While performing a propeller shaft inspection on 20 November 1968, Mr Ross suddenly heard a series of explosions, a big bang of similar intensity to the firing of a 4.5 inch gun and thought the Sydney was under attack. He felt very, very scared and feared for his life. He climbed up the ladder to a higher deck and was told the noise was due to a scare charge exploding. He had never heard a scare charge explosion before. Having been re-assured, he returned to his work in the propeller shaft but remained very frightened.
12. On the visit of 15 February 1969, an identical event occurred. While he hoped this was a scare charge explosion he could not be certain. He was really scared.
13. After the second visit Mr Ross said he became more tense, couldn’t sleep, had nightmares and increased his alcohol intake further. He became aggressive and abusive and as a result alienated his friends aboard ship. The lack of sleep resulted in constant tiredness.
14. Mr Ross said he commenced drinking alcohol when he turned 18 years old, approximately six months after he enlisted. He drank mainly at weekends. In an alcohol questionnaire that he completed at the commission’s request he had stated that he commenced drinking in 1965, that is prior to his enlistment. At the hearing he corrected this date to 1966. After the first tour to Vietnam Mr Ross increased his alcohol intake. While at sea he drank three, twenty‑six ounce cans of beer per night when rations were available. A ration was one, twenty‑six ounce can per person but he obtained extra beer from friends and by trading. He drank to the point of intoxication when in port.
15. Mr Ross agreed that he had been disciplined on several occasions (Exhibit R6) and was finally discharged from the Navy in 1969 for jumping ship.
16. In 1971 Mr Ross married and this marriage lasted 20 years. Alcohol played a major role in the eventual failure of the marriage. In the first five years after his discharge from the Navy he was charged with four or five drink-driving offences.
17. Mr Purcell endeavoured to cross-examine Mr Ross on the content of the Writeway Report (Exhibit R2) but Mr Ross said he had not read it previously, as requested by Ms Bornstein. He had spent the evening drinking at the Young and Jacksons hotel near the Tribunal. The hearing was adjourned for a short period to allow him to read the document.
18. Under cross-examination, Mr Ross maintained his evidence that he drank alcohol only at weekends and in port prior to Vietnam and increased his consumption to three, twenty-six ounces of beer per day when rations allowed after Vietnam. He agreed with Mr Purcell that after drinking such a quantity of beer he would be drunk and unable to work. He said he had never been required to perform first watch (2000-2400 hours). He was aware that had he been detected he would have been charged as would those sailors who had given him their beer rations.
19. Mr Purcell went through Mr Ross’ duties in the engine room and propeller shaft tunnel in detail. Mr Ross confirmed his evidence-in-chief; although he appeared to be unaware that there were four propeller shaft tunnels on the Sydney. He thought there were only two. Mr Ross denied taking part in Operation Awkward, an exercise conducted in Sydney Harbour by the Sydney, in preparation for the 1968 Vietnam visit. He did acknowledge that he had participated in briefings by officers on procedure and dangers in Vietnam waters. He admitted that he had seen anti-submarine mortars fired in daylight hours while servicing on the HMAS Duchess (Duchess) and described these as causing a big splash, upwelling of water and a big thump. He had also seen scare charges dropped and explode.
20. In his evidence before the VRB (given by telephone) Mr Ross had said that on the first scare charge explosion occasion he had shit himself (Exhibit R5). This he told Mr Purcell meant he was very scared, the phrase being a colloquialism.
21. Mr Ross disagreed with the Writeway Report (Exhibit R2) that no scare charges were dropped from the ship on the relevant date. He confirmed the disciplinary charges for drinking and desertion while serving on HMAS Supply (Supply) and the Duchess prior to Vietnam and later, on the Sydney.
22. Mr Purcell challenged Mr Ross’ memory of events. Mr Ross had told Dr Keshava that he had been to Vietnam on six or seven occasions. He also gave a history that the Sydney had been bombarded while in harbour. Mr Ross’ explanation for his inconsistencies was that he had been on a bender the night before his consultation with Dr Keshava.
23. During re-examination by Ms Bornstein, Mr Ross expanded on his alcohol intake history. He said that prior to Vietnam he drank in port at a rate of six to ten stubbies per day as well as his onboard ration. He currently drank up to 15 schooners per day, shared three to four bottles of white wine per week with his partner and drank half a bottle (700ml bottle) of scotch per week.
24. He explained that the evidence given to the VRB was conducted on a mobile telephone while he was parked at the side of the road. A co-worker was present in the vehicle and he was anxious to get his evidence over quickly as he needed to get to work.
captain hewett
25. Captain Hewett served in the Navy for 40 years. He had provided a report for Writeway Research regarding Mr Ross’ duties, the Sydney’s manoeuvres in Vietnam, the availability of alcohol to naval personnel at the relevant time and details of the use of scare charges and the warnings given regarding scare charges. He also provided two diagrams of the six and eight decks of the HMAS Melbourne (Melbourne) which was the sister ship of the Sydney and therefore almost identical to the Sydney. These showed the layout of the propeller shafts and adjoining areas including boilers, air compressors and fuel tanks. .
26. Captain Hewett could not categorically deny that the propeller shafts of the Sydney were not inspected every hour while in Vung Tau Harbour. He also acknowledged that given the short time the ship lay at anchorage, the propellers may have remained turning at a low speed.
27. Captain Hewett described the visual effect of the firing of an anti-submarine mortar as varying according to the depth of explosion set, but if set at 100 feet (similar to a scare charge range) it would result in a 40 to 50 foot plume of spray and a loud thud would be heard. The explosive load of a scare charge was similar to that of the anti-submarine mortar. A scare charge thrown from a ship and landing 10 to 15 feet way from the ship, would result in a loud bang and roiling of the surface. At Awkward Stage Two (second alert level) scare charges would be dropped from patrolling boats and thrown overboard from escort vessels. Captain Hewett’s enquiries had yielded no evidence that charges were dropped from the Sydney. This evidence was anecdotal, there being no specific written record (Exhibit R10 - advice of H.P. Gardner).
28. Under cross-examination, Captain Hewett agreed with Ms Bornstein that there would be an apprehension of risk while in Vung Tau Harbour; that it was possible that a scare charge had been thrown from the deck of the Sydney and that despite naval regulations regarding the drinking of alcohol on board ship (one, twenty-six ounce can per man per day) it was impossible to know what any individual drank.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
report of dr e cole psychiatrist, (ex a1)
29. Mr Ross told Dr Cole that he had made three trips to Vietnam over a period of 18 months but could not recall the exact dates. He said that on each occasion the Sydney was in Vung Tau Harbour for less than 24 hours and during this time up to 20 scare charges were thrown into the water from the ship. A cutter also patrolled around the Sydney looking for divers. Mr Ross described his duties as working in the engine room and being responsible for the propeller shaft housing. He described hearing a scare charge explode while inspecting the propeller shaft was described. Mr Ross said the loud noise gave him a fright. This was the only traumatic event described. Mr Ross said that he had been generally nervous and apprehensive as they were at action stations and on full alert while in Vung Tau Harbour.
30. Mr Ross did not tell Dr Cole that he had been discharged from the Navy following several disciplinary offences. Dr Cole recorded that when he took his discharge from the Navy it was about twelve months after he left Vietnam for the last time.
31. To Dr Cole Mr Ross described himself immediately after his discharge from the Navy as being restless and irritable, suffering from poor sleep and nightmares with no particular theme. He told Dr Cole that he avoided crowds and socialising in general and did not attend service-related events. Mr Ross reported that he did not drink alcohol prior to his naval service but during his service his drinking increased. He told Dr Cole that he was drinking 96 stubbies of beer per week with an additional 12 beers at a pub once per week. In the four years following discharge he was charged with drink‑driving on three occasions and lost his licence for a period of 12 months. His marriage ended after 19 years, primarily because of his drinking. Mr Ross has been in a relationship for the past 12 years. Mr Ross told Dr Cole that he preferred to live in relatively small country towns and currently lived and worked as a painter in Tallangatta. Mr Ross had never seen a psychiatrist or psychologist except for medico legal reasons nor he said had he received any treatment for a nervous disorder.
32. Dr Cole diagnosed a generalised anxiety disorder accompanied by alcohol abuse or dependence with the nervous disorder being, on the history given, apparent in 1970. Dr Cole expressed some uncertainty as to whether Mr Ross had suffered a severe psychosocial stressor as required by the SoP but felt that Mr Ross had certainly perceived his working conditions to be hazardous and life threatening (Exhibit A1 p4). He assessed Mr Ross’ conditions as having a GARP (Guide to the Assessment of Repatriation Pensions) rating of 30.
clinical notes of dr maciver, general practitioner (Ex R3)
33. Mr Ross consulted Dr MacIver between 1993 and 21 August 2003. In 1995 he was in a motor vehicle accident which is not relevant to his claim or disability pension. He was diagnosed with hypertension on 6 November 2002 and treatment was commenced on 7 May 2003 when, after serial blood pressure recordings, the diagnosis of hypertension was confirmed. On 6 November 2002 Dr MacIver recorded that Mr Ross was a Vietnam veteran and also that his alcohol intake was excessive at 10 schooners per day. He referred him to a psychiatrist, Dr Keshava. It is not clear from these notes if Mr Ross asked for this referral. There is no entry in Dr MacIver’s records regarding a nervous disorder until 18 June 2003, when Arapax was prescribed for depression. The other entries, letters and test results contained in the clinical notes are not relevant to the issues before the Tribunal, except that Mr Ross’ liver function tests on 11 March 2003 were abnormal and suggestive of alcohol liver damage.
34. Dr Keshava saw Mr Ross in December 2002 and obtained a history that Mr Ross was short tempered, physically aggressive, friendless, suffered from road rage, poor sleep and nightmares about his traumatic naval experiences.
35. Mr Ross told Dr Keshava he had been an engineer mechanic, working in the engine room and in charge of the propeller shaft; that he visited Vietnam on six or seven occasions; had been scared when the Sydney was bombarded and panicked when the ship was shot at in Vung Tau Harbour.
36. Mr Ross told Dr Keshava he had started drinking at the age of 17 after joining the Navy and drank heavily in Vietnam. Mr Ross admitted to several charges for driving under the influence of alcohol and violent behaviour and that he had lost his licence on five occasions. He also admitted to poor memory and having alcoholic blackouts.
37. Dr Keshava obtained the same history regarding Mr Ross’ symptoms and work as reported by Dr Cole; except that Mr Ross told Dr Keshava that after his divorce in 1990 he had lived in Vietnam for 12 months.
38. Dr Keshava diagnosed a generalised anxiety disorder with alcohol dependence and attributed these conditions to Mr Ross’ operational service in Vietnam. Dr Keshava’s letter is addressed to Dr MacIver and is contained in Dr MacIver’s records.
dr w glaser, psychiatrist (Exhibit R4)
39. Dr Glaser provided a detailed and lengthy report dated 11 October 2007. The Tribunal has summarised those parts of the history given by Mr Ross that differ from his evidence before the Tribunal and the histories given to Doctors Keshava and Cole. Dr Glaser diagnosed a generalised anxiety disorder with alcohol abuse; both of which were attributable to a severe psychosocial stressor, namely the scare charge explosions. He estimated the date of onset to be within two years of the traumatic events.
40. Mr Ross described his watch in the propeller shaft as being for four hours with the requirement that he report at the end of each hour to the engine room. While in the shaft he said crew members on higher decks regularly dropped stun grenades into the water and with each explosion you just crapped yourself. Mr Ross had spoken with troops returning to Australia on the Sydney about their Vietnam experiences and prior to his operational service a friend had been injured in Vietnam. Mr Ross admitted to several disciplinary infractions for fighting while in the Navy and said he had been discharged on compassionate grounds as his father was very ill. The history of his alcohol intake was as previously reported. Mr Ross admitted that in the early years after his discharge there had been three to four drink-driving offences with fines and loss of licence and one charge of assault on a police officer resulting in seven days in custody.
41. Mr Ross told Dr Glaser that while he had been prescribed anti-depressants by Dr MacIver, he had never taken them. Dr Glaser had been provided with the opinions of Doctors Cole and Keshava and the Writeway Report and noted:
… with very considerable interest that Mr Ross was actually dismissed from the Navy for disciplinary reasons
Dr Glaser found the reasons for Mr Ross’ dismissal consistent with Mr Ross’ account that he was fearful while on the Sydney, had his requests of transfer denied and hated Navy life.
the VRB transcript
42. Mr Ross did not attend the hearing but was available by mobile telephone. His evidence was short. He said that while he believed he went to Vietnam more than twice, he accepted the evidence of the service records. He denied that the Sydney was shot at or bombarded as recorded in the history taken by Dr Keshava. He corrected the allegation of multiple scare charge explosions to a couple of explosions. He said I just got a fright (Exhibit R5 p9) and I was scared (Ex R5 p8). He also corrected the information in his alcohol questionnaire where he had stated that he commenced drinking alcohol in 1965. This he said was incorrect. He had started in 1966 after his enlistment. (Exhibit R5 p9).
SERVICE MEDICAL RECORDS (Exhibit R6) AND SERVICE DOCUMENTS (Exhibit R7)
43. These medical records relate to minor illnesses and injuries and pre-existing visual defects. The service documents confirm Mr Ross’ postings and the disciplinary offences.
LEGISLATION
44. Section 9(1)(b) of the Act provides compensation of a Veteran for an injury or disease arising out of or attributable to eligible war service and states:
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
The onus of proof that the injury or disease arose out of eligible war service is delineated in s 120(1) and s 120(3) which provide:
120 Standard 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
…
(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.
45. As Mr Ross’ claim was lodged after 1 June 1994 s 120A of the Act is attracted. Section 120A states:
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)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(2) 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)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.
(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(2), 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.
46. Section 196(b) of the Act empowers the Repatriation Medical Authority to make and modify Statements of Principles based on sound medical - scientific evidence to establish factors that as a minimum must be present before it can be said that a reasonable hypothesis has been raised connecting the injury or disease with the circumstances of a persons relevant service.
47. The SoP relied upon by Mr Ross are; Statement of Principle No 1 of 2000 concerning generalised anxiety disorder Factor 5(a)(ii) which states:
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
This SoP also defines generalised anxiety disorder and a severe psycho social stressor in Clause 7.
48. With respect to Mr Ross’ alcohol abuse, he relies on Statement of Principle Instrument No 17 of 2008 Factor 6(a):
having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse:
Reliant and in relation to the hypertension, Statement of Principles Instrument No 35 of 2003 concerning hypertension, Factor 5(b):
consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension.
49. Where an SoP is in force for the diseases or injuries claimed to be service related, the Tribunal is obliged to follow the steps delineated by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. These steps are:
1. the Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
SUBMISSIONS
THE APPLICANT
50. Mr Ross relied on his own evidence and the opinion of Dr Glaser to establish the diagnoses of all three disease processes and the date of their clinical onset.
51. Ms Bornstein outlined the hypothesis and sub-hypotheses on which Mr Ross’ claim was based. Mr Ross had suffered a severe psychosocial stressor: namely the hearing of exploding scare charges while working alone in the propeller shaft tunnel below the waterline on both occasions when the Sydney was anchored in Vung Tau Harbour in Vietnam. He had experienced fright and intense distress leading to a generalized anxiety disorder. As a result of this disorder he increased his alcohol intake to a level of alcohol abuse. This in turn contributed to the development of hypertension.
52. Ms Bornstein addressed each step of Deledio and submitted that the material before the Tribunal raised a complex hypothesis requiring the Tribunal to address the sub-hypotheses and determine the reasonableness of each. Statements of Principles exist for all three diseases diagnosed. While both generalised anxiety disorder and alcohol/abuse dependence SoP have been updated, Mr Ross exercised his right to have his claim determined in accordance with the SoP concerning general anxiety disorder most favourable to his claim. This was said to be SoP Instrument No 1 of 2000. Ms Bornstein contended that step one and two of Deledio were satisfied.
53. Step three required the Tribunal to determine the reasonableness of the hypotheses by matching the material before it to the template of the relevant SoP.
54. The necessary features of a severe psychosocial stressor are that there is an identifiable occurrence and that this evokes feeling of substantial distress in the individual. Ms Bornstein submitted that the hearing of explosions while working alone, below the waterline in the propeller shaft, out of contact with the public address system, without knowing that the explosion was due to a scare charge was a severe psychosocial stressor. Mr Ross had reacted with fear and intense distress. On the first occasion Mr Ross had no previous experience of a scare charge explosion and on the second, he could not be certain the explosion he heard was a scare charge, as opposed to an attack on the Sydney. On these occasions Mr Ross was aged 19 and 20 respectively and was generally apprehensive as a result of being in a war‑zone.
55. Ms Bornstein relied on earlier decisions of the Tribunal where the psychosocial stressor identified by the Tribunal had been the explosion of a scare charge (Re Madden and Repatriation Commission (2005) AATA 1218 and Re Moran and Repatriation Commission (2004) AATA 294) and on White v Repatriation Commission (2004) FCA 633 where Spender J said at paragraph 30:
[30] In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
56. Ms Bornstein also relied on the decision in Delahunty v Repatriation Commission [2004] FCA 309 where at paragraph 27, Tamberlin J said:
[27] The term “stressor” denotes something which leads to stress. It is inherent in the notion of “stress” that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers.
57. Ms Bornstein also referred the Tribunal to the Full Federal Court decisions in Repatriation Commission v Stoddart (2003) FCAFC 300 and Woodward v Repatriation Commission (2003) FCAFC 160 where the objective and subjective tests were discussed.
58. Based on the material before it and the authorities quoted, Ms Bornstein contended that step three of the Deledio process was satisfied.
59. Mr Ross’ claim in relation to his alcohol abuse or dependence was dependent upon the finding of a service-related generalised anxiety disorder. He relied upon SoP No 17 of 2008 concerning alcohol dependence and alcohol abuse; the relevant factor being Factor 6(a);
having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse.
60. The evidence before the Tribunal indicated that Mr Ross did not drink before his enlistment in the Navy but started at the age of 18, before his operational service. At that time he drank only beer. His alcohol intake increased markedly after the first visit to Vietnam and his drinking pattern changed in that he commenced drinking spirits while continuing to drink beer. His alcohol use had resulted in the breakdown of interpersonal relationships, several driving under the influence charges and aggressive behaviour.
61. As a result of his alcohol abuse and dependence Mr Ross had developed hypertension. He relied upon Factor 5(b) of Instrument No 35 of 2003 concerning hypertension. Factor 5(b) states:
Consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or …
62. Ms Bornstein submitted that the template was met in the case of all three diseases and that the Tribunal could not be satisfied beyond reasonable doubt that these conditions or diseases where not service related.
63. Ms Bornstein contended that should the Respondent challenge the reliability of Mr Ross’ evidence and the history he had given to various psychiatrists, the existing inconsistencies were explained by Mr Ross’ poor memory, the passage of time and his acute intoxication the night before his consultation with Dr Keshava.
64. While the Writeway historian, Mr Hewett, had provided material questioning the use of scare charges during the short stays of the Sydney in Vung Tau Harbour and the availability of large volumes of alcohol aboard the Sydney, he had not been able to absolutely exclude either of these two occurences.
THE RESPONDENT
65. Mr Purcell, on behalf of the Respondent, accepted the diagnoses of generalised anxiety disorder, alcohol abuse or dependence and hypertension, but denied that they were service related. Mr Purcell submitted that the sole issue before the Tribunal was whether Mr Ross experienced a severe psychosocial stressor. He argued that, at the highest, Mr Ross’ case was that while he was performing his routine rounds, including those in the propeller shaft tunnel, he heard a loud noise, suffered a fright, checked what caused the noise and then went back to his duties. Mr Purcell contended that this scenario did not meet the test posed by Spender J in White; there being no definite evidence of a scare charge being dropped on the Sydney on 20 November 1968. He emphasised that Mr Ross’ response had been minor and temporary.
66. Mr Purcell submitted that the hypothesis raised did not meet the template of the SoP concerning generalised anxiety disorder and in particular Factor 5(a)(ii); and, as a corollary, the sub-hypotheses relating to alcohol abuse and hypertension also failed. Mr Purcell argued that should the Tribunal find otherwise it could not be satisfied beyond reasonable doubt that Mr Ross’ diseases were war-caused, given the unreliability of his evidence over the past five to six years, commencing with the history he gave to Dr Keshava in December 2002 and including his evidence before this Tribunal. Mr Purcell listed the inconsistencies in Mr Ross’ evidence and relied on the authority of Meehan v Repatriation Commission (2003) FCA 1371 and Re Sunderland and Repatriation Commission (2006) AATA 1104.
THE TRIBUNAL’S DELIBERATIONS
67. The Tribunal accepts that Mr Ross suffers from generalised anxiety disorder, alcohol abuse or dependence and hypertension.
68. It was not clear from the psychiatric opinions, whether the correct diagnosis was alcohol abuse or dependence. The parties agreed to leave that determination to the Tribunal.
69. Clause 3(b) of Instrument No 17 of 2008 states that the criteria for a diagnosis of alcohol dependence are:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)Tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2)Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The alcohol is often taken in larger amounts or over a longer period than was intended.
(4)There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5)A great deal of time is spent in activities necessary to obtain the alcohol (e.g., visiting multiple doctors or driving long distances), use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7) The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
And thecriteria for a diagnosis of alcohol abuse are:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2)Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3)Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4)Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B.The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
70. While Mr Ross may have bordered on a diagnosis of dependence in the early 1970’s, he now, on his evidence, met the criteria for alcohol abuse.
71. The time of clinical onset is not defined in the SoP but has been the subject of judicial consideration. In Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission [2002] FCAFC 398 Branson J and the Full Court respectively quoted with apparent approval, the definition of clinical onset made by the Tribunal in Re Robinson and Repatriation Commission (AAT 12666, 2 March 1998):
"... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...."
72. Dr Glaser has placed the date of onset of Mr Ross’ generalised anxiety disorder at 1968, immediately after the first scare charge event. Dr Cole placed it at 1969. Dr Keshava made no comment with regard to the time of onset.
73. Mr Ross first sought the opinion and treatment of a psychiatrist in December 2002 when he requested his general practitioner refer him for psychiatric opinion to Dr Keshava, prior to lodging a claim for an increase in his pension rate. Mr Ross’ evidence to the Tribunal and to all three psychiatrists was that he was not receiving any treatment for a nervous disorder nor had he received treatment from a psychiatrist or a psychologist. All consultations with psychiatrists had been for medico-legal purposes. Based on the history given to them by Mr Ross, all the psychiatrists made a diagnosis of generalised anxiety disorder and placed the clinical onset, where they gave such opinion, as being within two years of the claimed psychosocial stressor of 20 November 1968.
74. Mr Ross commenced drinking alcohol six months after he enlisted in the Navy but says that his intake was exacerbated by the events of 20 November 1968. The alcohol intake history varies between the histories given to each psychiatrist and in order to clarify the exact alcohol intake Ms Bornstein questioned Mr Ross regarding his alcohol intake in each of his postings prior to Vietnam. He served on the Supply for nine months, from 17 December 1966 until 21 September 1967, and while at sea he drank only his rations of one 26 ounce can of beer per day. When in port in Japan, Hong Kong, Manila, the Philippines and in Fremantle he drank up to 20 beers (10 schooners) per day but on most occasions he drank 6 to 10 stubbies and drank to become merry not ratshit. However, he acknowledged that on 2 occasions prior to his first trip to Vietnam he had been reprimanded and disciplined for excess drinking on shore and returning to the ship in a drunken state. Mr Ross had told Dr Keshava that prior to Vietnam he would drink up to 10 schooners and half a bottle of wine per day. He verified this amount of alcohol consumption in his evidence before the VRB.
75. This alcohol history points to the misuse of alcohol proceeding the scare charge event, but was then limited to drinking in these volumes when ashore. Mr Ross’ current alcohol intake, as stated to this Tribunal, is of the order of 10 schooners per day in addition to some wine and spirits. Although, not argued before the Tribunal, the Tribunal must give consideration to whether the claimed psychosocial stressor aggravated the alcohol misuse or abuse. The clinical onset of alcohol misuse appears to be during 1966 and 1967 with any aggravation if found on examination of the facts is necessary occurring after the trip to Vietnam in November 1968.
76. The onset of Mr Ross´ hypertension is well documented as 7 May 2003.
77. Having examined all the material before it, the Tribunal is satisfied that a hypothesis as detailed by the Applicant at paragraph 50 has been raised. SoPs for each of the sub-hypotheses exist. Steps one and two of Deledio have therefore been satisfied.
STEP THREE OF DELEDIO
78. The hypothesis is only reasonable if it and the sub-hypotheses meet the template provided by the SoP. There is no question of fact finding at this stage. The sub-hypotheses relating to alcohol abuse and the development of hypertension as argued are dependent on Mr Ross’ generalised anxiety disorder being causally related to the experiencing of a severe psychosocial stressor as outlined in Clause 5(a)(ii) of SoP No 1 of 2000, this states:
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
Clause 7 of the SoP defined a severe psychosocial stressor in the following terms:
… means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
79. The essential features are an identifiable occurrence and the evoking of feelings of substantial distress in the individual concerned. In Mr Ross’ case the claimed psychosocial stressor was the hearing of a scare charge explode on two occasions, while working in the propeller shaft tunnel below the waterline of the ship and out of hearing of the public address system.
80. Based on all of the material before it, the Tribunal does not accept that these events, if they occurred, meet the requirements of the definition. Nor does the Tribunal accept that Mr Ross’ reaction was one of substantial distress. The material before the Tribunal indicates that the Sydney’s two short (five hours and five hours and twenty-five minutes) periods in Vung Tau Harbour were uneventful. Mr Ross had taken part in an exercise entitled Operation AWKWARD in Sydney Harbour prior to setting sail for Vietnam (although he said he has no recall of this exercise). He had been instructed about and warned of the possibility of scare charge explosions on two occasions prior to the Sydney anchoring in Vung Tau Harbour and these he did recall. He had seen scare charges dropped and explode while on the Supply. After the hearing of an explosion on the first trip to Vietnam he climbed a ladder from Number Eight Deck to Number Four Deck, ascertained the cause of the loud noise and returned to his work in the tunnel. There is nothing in the material to indicate that any life-threatening event occurred onboard the Sydney during this visit or the second visit. The Reports of Proceedings of the Sydney indicate the ship was never at full alert or action stations while in Vung Tau Harbour. Mr Hewett in his report wrote:
… I have found nothing to suggest that charges were ever thrown from the SYDNEY while the veteran was serving in the ship. …
Scare charges were thrown from patrol vessels at ranges varying between 150 and 200 yards from the Sydney, ahead of the ship, and would have been heard … below or near the waterline as a thud.
81. In the material before the Tribunal Mr Ross has described his subjective response to the event as you just crapped yourself (to Dr Glaser), gave him a fright (history given to Dr Cole), ran in fright (evidence to VRB), scary and claustrophobic (history given to Dr Keshava) and really scared and got a big scare (evidence to this Tribunal). The only references to Mr Ross perceiving events as life-threatening are contained in the history given to Dr Cole that the Sydney was a big target and the risk of attack was real; in the history given to Dr Glaser of thinking what if when patrolling the propeller shafts and the history given to Dr Keshava that he thought he would sink with the leaking ship when it was bombarded in Vung Tau Harbour. Mr Ross’ fears of a threat to life were, as he agreed in his evidence, imagined.
82. Ms Bornstein referred to earlier AAT decisions (Re Madden and Re Moran) in which scare charge explosions had been accepted as severe psychosocial stressors. In these cases the Tribunal, following the decision of the Full Federal Court in Repatriation Commission v Stoddart (2003) FCAFC 300 and Woodward, found the Applicant’s anxiety disorder to be war-caused.
83. In Stoddart v Repatriation Commission (2003) 197 ALR 283, Mansfield J said at paragraph 41:
… a “threat” to be one which, judged objectively and remote from the circumstances and state of knowledge of the person experiencing or witnessing or being confronted with the threat, has a real or actual prospect of actually resulting in death or injury or harm to physical integrity.
84. Mansfield J had relied on the definition on the word threat in the Macquarie Concise Dictionary, 2nd Edition as:
… an indication of probable evil to come; something that gives indication of causing evil or harm.
85. The Full Court in Stoddart adopted and affirmed the reasoning of Mansfield J at first instance. In Woodward the Full Federal Court again followed the reasoning of Mansfield J in Stoddart at first instance. In both Stoddart and Woodward the veteran’s claimed war-caused disease was post traumatic stress disorder (PTSD), a psychiatric disorder which as required by DSM-IV, can only be made when the diagnosing psychiatrist identifies the existence of a precipitating traumatic event, which in DSM-IV terms equates to a severe psychosocial stressor.
86. In White v Repatriation Commission (2004) FCA 633, which involved a claim for generalised anxiety disorder being war‑caused and the psychosocial stressors argued were the effects of a scare charge explosion causing excessive vibration, Spender J said at paragraph 30:
[30] In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
and at paragraph 32:
[32] In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of “severe psychosocial stressor” has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a “serious psychosocial stressor”, means that the examples given in the definition of “severe psychosocial stressor” would be not only irrelevant and devoid of utility, but positively misleading.
87. The Tribunal finds, based on the material before it, that the hypothesis does not fit the template for generalised anxiety disorder in that the claimed psychosocial stressor, hearing a scare charge thrown from the Sydney explode, does not meet the objective requirement of the SoP; nor was Mr Ross’ response one of substantial distress. Mr Ross had been briefed on scare charge explosions and warned that they might be used in Vung Tau Harbour on two occasions before each trip to Vietnam. He likened the explosion of a scare charge as being of the same noise intensity as firing a 4.5 inch gun, something that he was familiar with. He stated the noise levels in the propeller shaft tunnel were high; as was the noise level from the loading and unloading of the Sydney. The Writeway report described the sound of a scare charge explosion as being a thud. It also said that had any scare charges been dropped from the Sydney, for which there was no naval record, they would have been dropped from a forward deck and the noise resulting where Mr Ross was would be a thud. Mr Ross described his response as fright, fear and being scared. He denied claustrophobia. Once he was informed of the source of the noise he returned to his duties in the propeller shaft tunnel.
88. In view of the findings, based on the material before the Tribunal, that the scare charge explosion does not equate to a severe psycho-social stressor as required by the template, the sub-hypotheses relating to alcohol abuse and hypertension also fail.
89. The Tribunal has been particularly concerned by the conflicting evidence and histories given by Mr Ross, to the medical experts who made the diagnosis of generalised anxiety disorder, to the VRB and to this Tribunal. For this reason the Tribunal will proceed to further consideration, under step four of Deledio.
90. Ms Bornstein rightly bought to the Tribunal’s attention the fact that Mr Ross’ period of operational service occurred nearly 40 years ago and his memory was impaired, most probably as a result of his generalised anxiety disorder and alcohol abuse. However, the conflicting evidence he has given, has occurred between December 2002 and March 2008, that is in the more recent past. Mr Ross told Dr Keshava in November 2002 that he had had six to seven trips to Vietnam and that while in Vung Tau Harbour the Sydney had been bombarded and shot at. Prior to his operational service, he gave the history of drinking up to 10 schooners a day and half a bottle of wine per day and when queried about this volume of alcohol by the VRB, agreed that that is what he told Dr Keshava. Mr Ross told Dr Glaser of three trips to Vietnam and the psychosocial stressor was described as hearing multiple grenades dropped from the Sydney. He did however, tell Dr Glaser of his disciplinary breaches for fighting.
91. Dr Cole obtained a history of three trips to Vietnam with anchorage in the harbour for less than 24 hours on each occasion. The stressor described was hearing up to 20 scare charges per day dropped from the Sydney and being at action stations and on full alert throughout the period in harbour. Mr Ross admitted to drinking prior to his operational service but said that his alcohol intake escalated after his visit to Vietnam. He confirmed his current daily alcohol intake as 96 stubbies per week and a dozen beers at a hotel once a week. He admitted to three charges of driving under the influence of alcohol following his discharge from the Navy and having lost his licence for 12 months. Dr Cole obtained a more detailed history of Mr Ross’ actual duties on the Sydney while in Vietnam. He said he was spending a total of four hours a day in the propeller shaft tunnels, checking oil and taking readings of pressure gauges. When questioned on this by the Tribunal it became apparent that he spent 20 to 30 minutes, at the most, checking in the propeller shaft tunnels and then returned to the engine room for the remainder of the hour. This routine was repeated on an hourly basis for the four hours of his duty.
92. At the VRB hearing Mr Ross maintained that he had been involved in three trips to Vietnam but accepted on the evidence of the service records that this was not the case and that he had had two very short stays of five hours and five hours and twenty-five minutes in Vung Tau Harbour. None of the psychiatrists nor the VRB appear to have been told about Mr Ross’ two episodes of disciplinary action which occurred before any trip to Vietnam and were due to him being absent without leave and on one occasion returning to the ship drunk. The pre-Vietnam history regarding alcohol intake has also varied but the Tribunal has relied predominantly on the evidence that was given during the hearing.
93. Mr Ross told Dr Cole in 2007 that he had taken his discharge from the Navy in 1970, at the end of his term. In contrast he told Dr Glaser that he obtained his discharge on compassionate grounds as his father was dying. In his evidence before this Tribunal he agreed he had not been discharged voluntarily, stating that he had had a drinking problem and this resulted in his discharge. The Tribunal Member asked him directly as to why he was discharged, to which he answered because he had jumped ship.
94. The one area in which Mr Ross’ evidence was quite consistent was that he had never had any treatment of a psychiatric nature, had not seen a psychologist and had not taken any psychiatric medication. The Tribunal does note that in 2003 his general practitioner had prescribed Arapax for depression but Mr Ross states that he had not taken this medication.
95. There is a great deal of variation in the description of the psychosocial stressor or traumatic event experienced in Vietnam. As stated above, this has varied from the bombardment of the Sydney and the shooting at the Sydney in Vung Tau harbour; hearing 20 scare charges a day exploding after they had been thrown from the Sydney; the hearing of multiple scare charges exploding and his evidence before this Tribunal, that he heard one scare charge explode on 20 November 1968.
96. In most instances, Mr Ross has admitted to several driving under the influence charges; although the number has varied and is probably of the order of five. He informed the Tribunal that he had been disciplined during his naval service for fighting and following his discharge had assaulted a policeman and been incarcerated for a period of seven days.
97. Mr Ross is an unreliable witness.
98. The evidence indicates that he was drinking to excess prior to his first visit to Vietnam; and while his alcohol consumption may have increased after this visit; the Tribunal has already determined that his subjective response to the hearing of a scare charge explode, if this event occurred, was not one of substantial distress.
99. As a result of the above, the Tribunal is satisfied beyond reasonable doubt that Mr Ross’ diseases are not war-caused. The Tribunal affirms the decision under review.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan
Signed: [Sanjiv Shah].................
AssociateDates of Hearing 27 and 28 March 2008
Date of Decision 15 July 2008Counsel for the Applicant Ms J Bornstein
Solicitor for the Applicant Rhiannon Wheeler, KCI LawyersCounsel for the Respondent Mr G Purcell
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