Rushworth and Repatriation Commission

[2007] AATA 1466

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1466

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V 200500166

VETERANS' APPEALS DIVISION		)
Re		KIM MIKAEL RUSHWORTH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton, Member

Date25 June 2007

PlaceMelbourne

Decision

The Tribunal:

1.       sets aside the decision concerning alcohol dependence and decides that Mr Rushworth’s condition is war-caused under the Veterans' Entitlements Act 1986;

2.       affirms the decision under review that Mr Rushworth does not suffer from post traumatic stress disorder;

3.       affirms the decision that Mr Rushworth’s depressive disorder is not war-caused; and

4.       remits the matter to the respondent for a reassessment of the rate of Mr Rushworth’s disability pension on the basis of this decision.

Regina Perton

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ naval service – appropriate diagnosis of psychiatric condition ‑ post traumatic stress disorder – depressive disorder ‑ alcohol dependence ‑ whether war‑caused.

Veterans’ Entitlements Act 1986 ss 6, 9(1), 9(2), 119, 120, 120(4),120A, 196B

Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 32
Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

25 June 2007 Regina Perton, Member     

1.          Kim Mikael Rushworth is 59 years old.  He served in the Royal Australian Navy (the navy) for 9 years, from 31 July 1965 to 30 July 1974.  Mr Rushworth saw operational service in Vietnam on board HMAS Sydney from 27 March 1968 to 26 April 1968; 21 May 1968 to 13 June 1968; 8 February 1969 to 25 February 1969; 8 May 1969 to 30 May 1969, and 17 November 1969 to 5 December 1969.  Mr Rushworth also had a period of eligible defence service from 7 December 1972 to 30 July 1974.  

2.          Mr Rushworth was a musician in the navy.  After his discharge, he was employed as a music teacher, a profession in which he continued until 2001.  He also had his own band for around 20 years.  Mr Rushworth suffers from emphysema, which the Repatriation Commission accepted as a war-caused disability.  He receives a disability pension of 70 per cent of the General Rate.  The Commission decided that Mr Rushworth is eligible for treatment for depressive disorder but has not accepted that the condition is service-related.  

3.          On 22 January 2003, the Commission refused claims which it classified as depressive disorder, alcohol dependence or alcohol abuse, folliculitis, asthma with chronic obstructive airways disease and bilateral tinnitus.  On 27 January 2005, the Veterans’ Review Board (VRB) affirmed the Commission’s decision. 

4.          The issues  before the Tribunal are whether Mr Rushworth suffers from post traumatic stress disorder (PTSD), depressive disorder or any related psychiatric condition, and if so, whether that condition is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the Act).  There is no dispute that Mr Rushworth suffers from alcohol abuse.  However, the parties do not agree about whether the condition is war-caused.  The claim relating to Mr Rushworth’s skin disorder is no longer in dispute.    

Claim form

5.          In his claim for disability pension lodged with the Department of Veterans’ Affairs (DVA) on 18 February 2002, Mr Rushworth indicted that he suffered from PTSD/anxiety caused by his service as a seaman in Vietnam.  He stated that the signs and symptoms were that he was anxious nervous irritable etc.  The medical diagnosis filled out by his medical practitioner, which sat alongside Mr Rushworth’s description of his disability on the form, was Major Depression.  Mr Rushworth also stated that he suffered from substance abuse. His medical practitioner agreed that he suffered from alcohol abuse.  Mr Rushworth stated that he can no longer work because of his disabilities.

Mr Rushworth’s Evidence before the Tribunal

6.          In a written statement dated 23 February 2005 Mr Rushworth stated:

…

I was generally frightened whilst in Vietnamese waters.  It was well known amongst the ship’s company that there was the possibility of Viet Cong (VC) divers attaching limpet mines to the hulls of ships whilst anchored at Vung Tau Harbour.  I was a musician and my predominant duties were associated with the band.  I was also given other duties during the voyages to Vietnam (such as Gunnery Direction Platform lookout duties and forming part of the first aid party).  I performed the additional duties during the voyages to and from Vietnam and whilst anchored at Vung Tau Harbour.

I believe that my emotional state was contributed to by the following stressors during my operational war service:

(1) I witnessed a US gun boat fire upon a sampan.  At the time I was on the flight deck undertaking cargo checking duties.  I heard the US boat issue or warning through loudspeakers to the sampan. The noise caused me to look in that direction and to witness the incident.  The US vessel and the sampan were approximately 300 yards from the Sydney at the time.  The sampan continued on its course after the loud speaker warning and a gunboat by fire on it.  The sampan was destroyed. I do not recall observing any person on board the sampan but I believed that it must have been manned and I was shocked when it was destroyed.  I therefore believe that there was loss of life as a consequence of the incident.  I felt horrified, frightened and revolted.  I also felt ill at the time.  I was working with a group of about 3 or 4 men at the time that the incident occurred.  Strangely, we did not speak about the incident and carried on as if it had not happened.  Later that night I did attempt to talk about the incident with one of the other men.  He fobbed off the incident and indicated that he did not want to talk about it. 

I am still haunted by the gun boat incident.  I bottled my feelings up for many years about the incident.

I believed that the gunboat incident occurred on either the second or third trip to Vietnam. 

(2) On either the first or second tour following the sampan incident I was shown to photographs of bodies of VCs…  I recall feeling sick when I saw the photographs.

I currently suffer nightmares about both the sampan incident and both the photographs.

I regarded myself as a social drinker only before my first tour to Vietnam.  At that stage, I was consuming alcohol on a Friday and Saturday evening and on those occasions that the rate of not more than about 4 to 5 pots of beer at a time.  I was a beer drinker only at that stage.  My alcohol intake increased after my first tour to Vietnam.  I believe it did so out of relief from surviving the tour but also fear that I would be undertaking more tours to Vietnam.  There was a period of about 3 weeks between my first and second tour and to the best of my recollection during that period I consumed alcohol every day and on most of those days to excess… 

My alcohol intake increased even more following the subsequent tours and I relate the further increase to the stress of the sampan incident and to observing the photographs referred to previously…

7.          In his oral evidence Mr Rushworth stated that he had boarded HMAS Sydney only two days before it left for the first tour of Vietnam.  He said that he had little training and no briefing on what to expect when it reached Vietnamese waters.  He said he was petrified when the ship first went into Vung Tau Harbour to start disembarking troops and unloading equipment.  Mr Rushworth said that on his second trip to Vietnam he was undertaking duties as a cargo checker, standing on the flight deck about 60 feet above the water.  He said that he heard voices coming from what appeared to be loud hailer on a small American patrol vessel.  Mr Rushworth said that there was a sampan heading towards HMAS Sydney.  He believed the American vessel was ordering the sampan to move away.  The American vessel then opened fire on the sampan.  The sampan was destroyed.  Mr Rushworth said he didn't actually see anyone on the sampan.  He said he was in total shock.  He was standing with 2 or 3 other crew members and no one said anything.  They just went on with their work.  The incident was not even discussed that evening. 

8.          Mr Rushworth said that the first time he had spoken to any former navy colleagues about the sampan incident was when he was speaking on the telephone to another former recruit, Mr Michael Gillen, concerning a pending 40-year reunion of his recruit intake.  They discussed Mr Rushworth’s health problems and how he had been disturbed by the sampan incident when serving on HMAS Sydney.  Mr Gillen said that he, too, was on the HMAS Sydney and also saw the incident.

9.          Mr Rushworth described the impact on him of photographs he saw on another trip to Vietnam.  He said he felt total revulsion when he saw photographs being circulated around the ship by soldiers returning to Australia after their tour of duty.  The photographs showed young Vietnamese men in army fatigues who had been grotesquely mutilated.  He said that he coped by drinking heavily. 

10.        Mr Rushworth said that he had been posted to the ship as a musician.  The band played concerts for the ship's company.  They also played as part of the ceremonial routine when entering and leaving a harbour.  At certain ports of call the band went ashore and performed.  The musicians generally stayed together as a group.  They would go out drinking and often get very drunk on shore.  Between musical engagements the musicians would rehearse and undertake other duties.  Mr Rushworth was required to learn first aid and to undertake cargo checking duties.

11.        After he left the navy, Mr Rushworth was employed by the Victorian Education Department for more than 25 years.  He was a part-time instrumental music teacher at various schools teaching students how to play instruments and preparing them for music examinations.  He also organised and conducted ensembles for the school functions.  He worked for 3 days a week teaching music and also worked as a performer.  Mr Rushworth said that he was drinking heavily during his time as a teacher.  He said that he did not tell any of his teaching colleagues about his experiences in Vietnam, merely saying that he had been a musician in the navy.

12.        Mr Rushworth said that his general practitioner had first diagnosed him with major depression in about 1993.  Mr Rushworth said that he felt like he was losing the plot.  His drinking was also causing him severe problems.  He said that he believes his drinking and behaviour were the cause of his four failed marriages.  He was left to raise four young children when his fourth wife left in 1991.  The children, all from that marriage, were then aged 3, 5, 8 and 11 years old respectively.

13.        Mr Rushworth confirmed that he had been arrested by naval police as a result of drinking too much before his first trip to Vietnam.  Mr Rushworth said that in 1966, he and a friend travelled to Melbourne from HMAS Cerberus where they were based.  He said that they were both arrested. He was then aged about 18 years.  Mr Rushworth said it was a one-off situation.  Mr Rushworth confirmed that he was in trouble over his drinking on at least two other occasions in the navy after he came back from Vietnam in 1972.  He said he had not been referred to counselling or treatment but had been spoken to by the bandmaster.  He recalled being disciplined within his unit for other incidents involving alcohol.  The punishment consisted of additional duties, loss of privileges and the like.

14.        Under cross-examination by Mr G Purcell, counsel representing the Commission, Mr Rushworth said that he had had some 18 months of training after he first joined the navy, most of which was musical training.  He had been in the navy for just under three years when he joined HMAS Sydney.  Mr Rushworth confirmed that he had drunk alcohol and had access to a wet canteen once he was 18 years old.  He said he did not drink to excess at the wet canteen.  He confirmed that he and others in the band drank to excess when they travelled together.  Mr Rushworth denied, however, that he had done so before his early trips to Vietnam.  He did not agree with Mr Purcell that it was navy culture to drink heavily saying that he had some friends who didn't drink at all while in the navy or after they had left. 

15.        Mr Rushworth said they were not briefed on security arrangements aboard HMAS Sydney on the trips to Vietnam.  He said that the only document the musicians saw were rosters of their additional duties.  Mr Rushworth said that the musicians mostly only socialised with each other. The musicians were all accommodated in the one area on the ship, where they also rehearsed.  They did not mingle much with other sailors. 

16.        Mr Rushworth said that he first saw the sampan when it was a few hundred yards away from HMAS Sydney.  He said that both the gunboat and the sampan were close enough for him to see them and hear what was being said through the loud hailer on the gun boat.  He said that he did not find the engine or other surrounding noise prevented him from hearing what was going on. 

17.        Mr Purcell drew Mr Rushworth's attention to the contents of a report by Writeway Research Services.  The report confirmed that there had been an incident involving a sampan but the descriptions of witnesses cited in the report varied somewhat from that presented by Mr Rushworth, particularly as far as the distance from the HMAS Sydney was concerned.  Mr Rushworth did not agree with Mr Purcell's contention that he could not have heard the amplified voice coming from the small American craft given all the other noise on and around the ship while they were unloading cargo.  He said he distinctly remembers hearing and seeing the incident.  Mr Rushworth could not recall whether there was another ship anchored near HMAS Sydney on that day.  Mr Rushworth agreed that there may well have been a strong tide that pushed debris towards the ship but said that they had been too busy unloading cargo to look over the side.

18.        Mr Purcell highlighted inconsistencies between Mr Rushworth’s descriptions of his experiences early in his dealings with the Commission and medical practitioners and those he had given later in the process.  Mr Rushworth justified the inconsistencies and errors in his responses on the basis that he had been trying to remember what happened long ago, memories that he had unsuccessfully tried to avoid over the years. 

19.        Mr Rushworth conceded that he had not told all the psychiatrists and doctors the same details concerning the sampan incident.  He acknowledged that he gave Dr Pomorin, the first psychiatrist he saw after he lodged the claim, different information to that which he gave to Dr Walton in 2005.  He said that he had not told Dr Pomorin all relevant details because it was the first time he had been required to describe these incidents and he found it difficult.  He stated that he had not told his general practitioner, Dr McKernan, who had been treating him for depression for about 10 years from the early 1990s, about the incidents in Vietnam.  He said that he had not told Dr Gelb in 2004 the details of the incidents because of the way Dr Gelb conducted the psychiatric assessment.  He concurred that the only psychiatrist he had told about seeing body parts was Dr Walton.  He said that he now cannot recall seeing people or body parts but it must have been his recollection when he saw Dr Walton. 

20.        Mr Rushworth said that he should have told his medical practitioners about his Vietnam experiences but he had bottled it up until recent years.  He said that he only started marching on Anzac Day in recent years and did not apply for his decorations until recently.  He said that he did not talk to anyone about these issues.  He said that in 2001, there was a reunion which one of his old shipmates persuaded him to attend.  He said that when he walked into the RSL and saw some of the faces, he remembered a lot of things that he had put out of his mind.

21.        In a Lifestyle Questionnaire completed on 11 September 2004, Mr Rushworth stated that the disabilities that had stopped him from working were breathing problems, hearing problems and depression.  He indicated that he left his employment in 2001 and that he had no social life, had stopped being involved in any recreation or community activities and that he was affected by the medication he had been prescribed.  Asked why there was no mention of problems with alcohol or PTSD in that form, Mr Rushworth said that he had been assisted in completing the form by a pensions officer at the local RSL and that he …didn’t know better at the time.  He said that he was concentrating on gaining acceptance by the Commission of his physical disabilities when filling out that form.

22.        In a hearing before the VRB on 27 January 2005, Mr Rushworth said that the sampan had been close enough for him to see the sampan blown up but not close enough to actually see any actual destruction of human life.  He said that he could not recall if there were people in it.  He also expressed the view that there was more than one sampan.  He said that the debris fell back into the water and the people who saw it just looked at one another and got back to work.  He told the Tribunal his memories of the incident are somewhat confused.

23.        Mr Rushworth was shown material that had been obtained from GE Insurance Services (GE) concerning a claim for disability benefits that he had made under a credit insurance policy taken out in conjunction with a loan.  Mr Rushworth had signed a statement on 21 May 2001 that in the previous five years, he had not suffered from or received any medical advice… treatment or medication for a long list of conditions which included emphysema or chronic respiratory disease including chronic asthma or bronchitis, alcohol or drug addiction or abuse or anxiety, depression and a range of other psychiatric conditions.  A year later, on 29 May 2002, Mr Rushworth lodged a claim for disability benefits under the insurance policy.  He stated that he had stopped work in August 2001 because he was suffering from post traumatic stress disorder / depression.  A person lodging a claim was required to provide a report from their usual medical practitioner.  Dr McKernan stated that his patient suffered from depression and asthma with symptoms first noted in 1993.  GE pursued Dr McKernan for further details and eventually in October 2002, he indicated that Mr Rushworth had been treated at the clinic since 1990 and has had steadily worsening asthma, exacerbated by his smoking.  Dr McKernan indicated that Mr Rushworth first complained of depression in 1995 and had been on medication intermittently since then.  He stated that it was reasonable to regard him as totally unfit for work in the immediate future. 

24.        Hence, given Mr Rushworth had not disclosed his prior history to GE, the company informed him on 28 October 2002 that it was declining liability in relation to his claim and was cancelling his policy given he had not declared his prior history. Mr Rushworth was invited to utilise GE’s complaint system which he did.  A note dated 4 November 2002 records a conversation in which Mr Rushworth agreed that he had suffered from mild depression and asthma from the dates specified but that things got worse in August 2001.  Mr Rushworth is noted as stating that he spoke to a named person at the GE branch and on explaining the situation to him, was told not to worry about it and to tick the relevant clause which stated that he had not been treated from the medical conditions for which he was now claiming in the previous five years. In oral evidence, Mr Rushworth confirmed that he had acted on the advice of an employee when taking out the cash loan from GE to consolidate debts.  At the time of taking out the loan, Mr Rushworth was still working.  Notwithstanding a dispute between the GE officer and Mr Rushworth as to what had happened at the time of filling out the form, GE decided on 26 November 2002 to uphold its decision on the basis of Mr Rushworth’s non-disclosure.  Mr Rushworth pursued further review through GE and eventually the Insurance Ombudsman.  He maintained that he had not revealed his previous treatment for his medical condition on the advice of the GE staff member.  In April 2005, the Insurance Ombudsman asked Mr Rushworth to provide medical evidence that he suffered from PTSD.  In September 2005, the review on behalf of the Insurance Ombudsman found that GE was entitled to cancel the policy despite criticism of poor practice on its part.  The Insurance Ombudsman commented that Mr Rushworth was given a considerable period to provide medical evidence to substantiate the claim of PTSD but had been unable to do so.

25.        Mr Rushworth confirmed that he had worked for the Education Department for almost 30 years, teaching students how to play instruments usually for about 20 hours per week over three days.  He also was involved in varying numbers of band performances, averaging about three to four per week and sometimes up to nine times a week, usually on the weekends.  Most performances ran for three to four hours.  There was not a lot of preparation involved as Mr Rushworth played jazz or swing much of the time.  He also played background music for commercials.  Mr Purcell suggested that such a busy lifestyle would not be possible for someone with a serious alcohol problem.  Mr Rushworth said that he would often go to school with a severe hangover and his performances were often in a state of intoxication.  He said that he regretted teaching children while he was in such a condition but that the children nevertheless had good outcomes.  He said that there had been no complaints about his state of sobriety in the 29 years although towards the end of his time in teaching, there were complaints about his general attitude.  He said that he turned up late or took days off due to his alcoholism.

26.        Mr Rushworth confirmed that he had brought up and supported four children then aged 3 to 11 years as a sole parent since 1991.  He also confirmed he had worked for many years as a volunteer community corrections officer.  Mr Rushworth said that he managed to do so despite being affected by alcohol.  He said that he no longer drives since his second drink-driving offence in 2001, the first having been a decade earlier.  Mr Rushworth said that he had officially retired from the Education Department in 2003, having gone on long service and unpaid leave after stopping teaching in 2001. 

Mr Mansell

27.        In a statement dated 29 March 2005, Darryl Craig Mansell stated that he had served in the navy for 20 years.  He stated that he had been on seven trips to Vietnam between December 1967 and January 1970.  He recalled serving with Mr Rushworth on the HMAS Sydney.  Mr Mansell stated that he was a keen photographer and had spent a lot of his off-duty time alongside the navy photographers on the ship, developing photographs for returning soldiers for a nominal fee Mr Mansell stated that he saw many photographs that were gruesome, gory and horrific including some of mutilated bodies.  He stated that such photographs were often circulated by the sailors on the ship.  He stated that it was his understanding that Mr Rushworth had complained that he suffered distress as a consequence of viewing such photographs. 

28.        In oral evidence, Mr Mansell confirmed that he had sent a letter to Dr Gelb, the contents of which were described in Dr Gelb’s report.  He said that he had done so at Mr Rushworth’s request, as Dr Gelb had asked Mr Rushworth if any of his ex‑navy friends could give him a statement about his background in the services and his problems.

29.        Mr Mansell confirmed that he and Mr Rushworth had been at the HMAS Cerberus School of Music at the same time.  He said that both he and Mr Rushworth were very frightened on entering Vung Tau Harbour, given the need to move the ship whenever the divers were in the waters.  He said that Mr Rushworth’s smoking and drinking increased each time they returned to Australia as it did for most of the rest of them.  He said that Mr Rushworth seemed to be affected more than the others.  Mr Mansell said that Mr Rushworth left the navy well before he did.  He used to see Mr Rushworth every few years and was shocked by how much he had changed. 

30.        Mr Mansell said that he had been on all five of the trips to Vietnam that Mr Rushworth had undertaken.  He confirmed that they knew each other very well.  There were about 20 to 24 musicians on board the ship.  He said that the musicians mixed with other personnel from time to time on board but not when they went on shore.  He said that was usually when they played for functions like ship’s balls and receptions.  Mr Mansell said that although they had other duties, he regarded himself as a musician first and then a sailor.  He said that they had not been trained for war. 

31.        Mr Mansell said that he experienced many of the same problems as Mr Rushworth.  He said that a psychiatrist arranged by DVA diagnosed him as suffering from alcohol abuse and PTSD.  He said that he is now a TPI pensioner. The stressful incidents leading to the PTSD were his fear every time the ship entered Vung Tau Harbour.  He said that he had nightmares about the scare charges going off and other related matters both during and after service.  He had also been injected in the neck and face with cortisol which triggered diabetes.

32.        Mr Mansell said that he had not been on the upper deck at the time of the sampan incident so did not see it.  He said he did not know anyone else who had witnessed the sampan incident.

Mr Gillen

33.        In a statement dated 19 September 2005, Michael James Gillen stated that he and Mr Rushworth undertook recruit training together and then went in different directions.  Mr Gillen stated that he is now aware that he and Mr Rushworth served on HMAS Sydney during two of Mr Rushworth’s postings.  Mr Gillen stated that he was involved in organising a 40 year reunion since recruit school and had unsuccessfully tried to encourage Mr Rushworth to attend.  He stated that he and Mr Rushworth had a telephone conversation about old times.  Mr Rushworth mentioned his claim to the Commission arising out of the sampan incident.  Mr Gillen stated that he, too, had witnessed a US gun boat firing upon a sampan.  He stated that he told Mr Rushworth that he was also lodging a claim with the Commission with respect to emotional problems he believed arose from seeing that incident.

34.        In his statement Mr Gillen described his memories of the incident, which he said that he had witnessed when on the flight deck seeking fresh air.  He stated that he heard an amplified voice and then saw a US patrol boat approaching a sampan some 400 to 500 yards away.  He stated that he saw an adult standing in the stern of the sampan as well as another adult and two children come out of the cabin area.  He stated that the patrol boat shoot at the sampan with a machine gun.  The two adults toppled overboard and the children disappeared back into the cabin.  Mr Gillen stated that he started yelling at the boat to stop firing and that he felt physically ill.  He stated that he could not recall speaking to anyone else about the incident at the time and was surprised to learn that Mr Rushworth had witnessed the same incident.  

35.        In oral evidence Mr Gillen said that he believed that he and Mr Rushworth observed the same incident on 1 June 1968.  He stated that he believed the sampan was 400 to 500 yards from HMAS Sydney and that the sampan was about 80 to 100 metres closer to the ship.  Mr Gillen maintained that he had seen two adults and two children aboard the sampan and that the rest of his written statement remained his recollection.  Upon being informed that others had seen an incident involving a sampan and an American gun boat but that their estimates were that it occurred about 1000 to 1200 yards away, Mr Gillen’s comment was …you are joking.  Mr Gillen said that they must have seen a different incident.  He said that it is difficult to judge distance from the flight deck of a ship but he still maintained that it was no more than 450 metres from HMAS Sydney. 

36.        Under cross-examination Mr Gillen gave the same account as Mr Rushworth as to when he and Mr Rushworth had met at recruit school and that they then had a telephone conversation prior to the 40-year reunion after Mr Gillen had been passed Mr Rushworth’s telephone number.  He said that he had not known Mr Rushworth was on the ship on those occasions when they were both aboard HMAS Sydney.  He said that he was usually in the ward room as a steward and the musicians were in a different part of the ship.  Mr Gillen stated that he had never worked as a cargo checker.  Mr Gillen said that he had become ill after witnessing the sampan incident, went downstairs to tidy up and by the time he went up on the flight deck again, the only thing visible was the gunboat. 

37.        Mr Gillen confirmed that he had seen Mr Rushworth’s statement, in which Mr Rushworth had said that he had not seen anyone on board the sampan.  Mr Gillen said that he maintained there were people on board, commenting that different people see different things and have differing recollections.  He confirmed that they had discussed the difference in their versions of the events and that each maintained their own memory of it.  Mr Gillen said that he could not recall the date of the sampan incident but there had been only one.  He also disagreed with Captain Hunt’s version (see below) of what he saw, saying it must have been a different event. 

38.        The Tribunal notes that Mr Rushworth’s claim was lodged some two years earlier than that of Mr Gillen.

Commodore Brecht

39.        Commodore A.H.R Brecht (Ret’d) prepared four reports for Writeway Research Services in relation to Mr Rushworth’s claim dated 3 August 2005, 16 November 2005, 26 November 2005 and 20 January 2006.  He also gave oral evidence.  Initially, he could find no reports of the sampan incident in HMAS Sydney’s log or other Australian or United States’ naval records.  However, Commodore Brecht sought out persons who had been serving on HMAS Sydney at the time who said that they had witnessed the sampan incident.  The witnesses’ evidence was included in the reports and three of them also gave oral evidence.  The witnesses located by Commodore Brecht described the sampan as being more than twice the distance from the ship as that estimated by Mr Rushworth.

40.        In his oral evidence Commodore Brecht confirmed that none of the witnesses he contacted could recall hearing a loud hailer-amplified voice coming from the gun boat.  He said that he had based his comments in the report on the difficulty of hearing a loud hailer at a distance on his own experiences on an aircraft carrier, which is inherently noisy at the best of times.  He said that with cargo unloading, there would have been people shifting crates, small tractors moving pallets and lots of other noise.  The Tribunal was provided with an Executive Officer’s Temporary Memorandum concerning the discharge and backload of cargo at Vung Tau.  In paragraph 10 entitled Safety, the preamble stated:

Standing Orders for cargo operations are to be followed at all times.  The Flight Deck will be a noisy place and warning shouts will not, in all probability, be heard, so be particularly alert against possible dangers…

41.        Commodore Brecht confirmed that he had located some naval punishment returns for Mr Rushworth.  He said that there were 113 monthly reports pertinent to Mr Rushworth’s service but he was only able to locate 89 of them.  On 5 December 1966, Mr Rushworth was charged with creating a disturbance and being drunk at Flinders Street Station.  On 4 September 1972, Mr Rushworth was charged with improperly leaving HMAS Cerberus and being absent without leave.  On 5 October 1972, Mr Rushworth was charged with being drunk at HMAS Cerberus.    

Mr Besemo

42.        Mr Besemo served in the navy during the 1960s and was on board the HMAS Sydney in June 1968.  Mr Besemo had provided comments in October 2004, used in the Writeway report, concerning the sampan incident on 1 June 1968.  He confirmed his earlier comments as correct in his oral evidence:

I was one of two Midshipmen on HMAS Sydney driving a landing craft for the landing and embarkation of army personnel during the ship’s call at Vung Tau.  I observed an American patrol boar at a distance of approximately 300 to 500 meters arrive at the scene (from seemingly nowhere) and which proceeded to strafe with some sort of machine gun an apparently unmanned very small fishing boat which I can best describe as like a long canoe with a canopy.  I seem to recall that my fellow Midshipman and myself concluded that since the apparently unmanned fishing boat was in such close proximity to anchored freighters the American patrol boat was taking no chances.  At the time the landing craft was in the vicinity of a freighter at anchor but a considerable distance and certainly out of sight from the Sydney.  I did not see any bodies.  I have no recollection of observing any open boat undertaking anti diver patrols around HMAS Sydney.

43.        Mr Besemo recalled the incident but not the date it happened.  He estimated that he was at least a couple of thousand yards or more from the HMAS Sydney when he saw the incident. 

44.        Under cross-examination by Mr Larkin, Mr Besemo said that he was first contacted in April 2004 when a researcher was contacting people who had been on the ship at the relevant time.  He said that while it was difficult to remember what happened so long ago, the image of the sampan being strafed by machine gun fire has remained.  Mr Besemo said that he thought that the sampan was drifting rather than being motorised.  Mr Besemo confirmed that he was at sea level when he observed the incident.  He believed that the Sydney was not in sight when he saw the sampan being hit by gunfire.  Mr Besemo said that his attention was drawn to the incident as it was the first time he had ever seen a gun fired in anger.  He described the incident as violent.  Mr Besemo said that he did not know what happened to the sampan as he did not see it sink.  He estimated that the patrol boat was about 30 to 50 metres from the sampan when it fired. 

Captain Hunt

45.        Captain Doyne Tremayne Hunt, a retired naval officer, joined the navy in 1948.  He served on a number of ships including HMAS Sydney in the late 1960s.  He qualified as a Bridge Watch Keeping Officer in the mid-1950s and spent about 20 years on and off in such a role.  He provided a statement to Writeway Research about the events of 1 June 1968, when he was on morning watch on the bridge of HMAS Sydney entering Vung Tau Harbour.  The second paragraph of the statement is as follows:

I recall very clearly the occasion when a Swift class patrol boat approached a local fishing craft which was within about three to six cables, 600 to 1200 yards off Sydney, which was at anchor and sank the fishing craft.  At the time I was on the bridge of HMAS Sydney and while I have no direct recollection of the precise time and date perusal of the ship’s log suggest the date as 1 June 1968 at a time between 0700 and 1200 when the ship was at anchor and when it appears I was on watch.

46.        Captain Hunt said that he had viewed the incident through binoculars and that he saw the fishing craft being blown up.  He said that there were at least two people aboard the vessel but he was not sure if they jumped over the side.  He could not recall seeing any bodies when the sampan was blown up.  He said that he first sighted the boat as it came around a headland and was getting closer to HMAS Sydney.  Captain Hunt said that while there is no entry in the log about the fishing boar or patrol boat, it was likely that there would have been an entry in the incident book in the Operations Room.  He said that something that happened nearby in which the Australian ship was not directly involved was usually put in the operations log. 

47.        Captain Hunt said that he was initially asked about whether he recalled the incident by Commodore Mulcare of Writeway Research, when Commodore Mulcare  was doing research on another case of a similar nature.  Captain Hunt said that he did not need prompting to recall the incident as it was the first time he had seen a craft being blown up while at anchor. 

Commander Eddes

48.        Commander Eddes was a midshipman when he served on HMAS Sydney between 29 April 1968 and 16 June 1968.  He still has the journal he was required to keep as a midshipman under training.  He provided a statement dated 19 July 2005.  He  believes he was assisting in management of onboard activities.  He recalled that he was on the upper deck when he observed a small fishing vessel at about 5 to 6 cables.  He recalled seeing four persons that appeared to be two adults and two children.  He reported seeing two occupants enter the water.  Shortly afterwards, he saw what appeared to be an US patrol boat approach the fishing boat.  He then heard gunfire and afterwards saw the crew appear to recover two apparently inert persons from the water.  The patrol boat then sped off.  Commander Eddes said that it was a long time since the incident and this many have had an adverse effect on his memory.  He did not give oral evidence.

MEDICAL EVIDENCE

Navy Medical Records

49.        An in-patient record at HMAS Cerberus indicated that Mr Rushworth was admitted to Prince Henry’s Hospital after a fall at Flinders Street on 6 December 1966.  He was transferred the same day to the hospital at HMAS Cerberus where he was treated for two days for concussion.

50.        A Daily Medical Record dated 5 October 1972 at HMAS Cerberus indicates that Mr Rushworth was intoxicated as he had been drinking with mates.  He was found unfit for duty.  An Out-Patient Record dated 24 November 1972 concerns a referral to a psychiatrist due to his divisional officer’s concerns about Mr Rushworth’s consumption of alcohol.  The psychiatrist, Dr Reynolds, gave the following opinion:

This man is not an alcoholic – he spends about $3 a week on alcohol.  His offence was an isolated instance for which he has complete amnesia and no explanation.  It is unlikely it will recur. 

Dr McKernan

51.        Mr Rushworth attended the Belgrave Medical Clinic for many years, until relatively recently.  Dr McKernan was Mr Rushworth’s general practitioner for some years, although he saw other doctors at the clinic as well.  The clinical notes provided to the Tribunal commence in September 1988 and end in 1994; and primarily concern Mr Rushworth’s various respiratory conditions.  Notes in November 1995 and March 1996 state that Mr Rushworth had suddenly become very depressed.  Dr McKernan queried if this was due to a post-viral effect or a reaction to the medication he was taking.  

52.        In a medical certificate dated 8 August 2001, provided to the school at which Mr Rushworth last taught, Dr McKernan indicates that his patient is suffering from depression and anxiety and is unlikely to be able to work again as a teacher. 

53.        In his claim form lodged in February 2002, Mr Rushworth described his disability as PTSD / Anxiety.  Dr McKernan’s adjacent medical diagnosis was major depression.  He agreed with Mr Rushworth on the diagnosis of alcohol abuse.  On 29 April 2002, DVA wrote to Dr McKernan asking him to complete attachments sent to him concerning Mr Rushworth’s psychiatric condition as well as medical reports on his development of PTSD and Alcohol dependence or Alcohol Abuse.

54.        Dr McKernan noted lodgement of the claim to the Repatriation Commission and letters of referral to a psychiatrist, Dr Pomorin, in February 2002.  He also noted his patient’s difficulties with sleep over several years.  A note dated 8 August 2001 under the heading Depression: endogenous states:

is better

want’s to stop teaching

can’t cope with even going to school

concerned that may have PTSD but no flashbacks

…

55.        On 21 May 2002, Dr Pomorin wrote to Dr McKernan to inform him that he had diagnosed Mr Rushworth as suffering from an Alcohol Abuse Problem. 

56.        On 28 May 2002, GE wrote to Dr McKernan concerning the claim for disability benefits lodged by Mr Rushworth.  GE asked Dr McKernan about Mr Rushworth’s general medical history and particularly when his current conditions of depression and asthma first became evident and the nature of his treatment for those conditions.  Dr McKernan eventually responded, informing GE that depression had been diagnosed and treated some years earlier.

57.        On 24 October 2002, Dr McKernan completed the medical report for DVA.  In response to a question asking when the symptoms of PTSD were first noted, Dr McKernan stated:

Patient’s description.  Actually has depression.  No features of PTSD.

58.        As for the symptoms of alcohol dependence or alcohol abuse, Dr McKernan stated that Mr Rushworth mentioned that he was drinking too much in 2001 and had been drinking too much for many years.  Dr McKernan expressed the opinion that Mr Rushworth had not experienced a severe stressor in the two years prior to clinical onset.  He indicated that Mr Rushworth had been suffering from depression and that he had been diagnosed with depression on 14 August 1995.

59.        In February 2003, Dr McKernan referred Mr Rushworth to another psychiatrist for a second opinion.  On 17 March 2003, in a hand-written note, Dr Colin Seabridge stated:

Thank you for providing a referral for Kim Rushworth.  He served 9 years in the navy, enlisted at 17 as a trainee musician, & had 9 trips to Vietnam on the Sydney.  He certainly seems to have some emotional issues to do with his service, but it is not possible to establish a formal psychiatric diagnosis which could be attributed to his particular response to operational service…

60.        Dr McKernan wrote a referral for Mr Rushworth to see Dr Jerome Gelb on 28 April 2003 in relation to Mr Rushworth’s application for a DVA pension on the grounds of PTSD.  Dr McKernan stated:

…To me he had no features of PTSD but rather of reactive depression and alcoholism.  I thought that the experiences of his service could have played a role in this.  I would appreciate your opinion on this. 

61.        On 25 August 2004, in a further response to a DVA questionnaire, Dr McKernan stated that Mr Rushworth’s emphysema and asthma affected his ability to work, as did his depression due to poor stress tolerance. 

Dr Pomorin

62.        In a report dated 21 May 2002, Dr Norbert W Pomorin indicated that Dr McKernan had referred Mr Rushworth to him that month for an assessment of his emotional health.  Dr Pomorin stated that Mr Rushworth had told him:

…

During his period of service he experienced some unpleasant events.

He said that he witnessed the destruction of a sampan skiff by a United States patrol boat in Vung Tau Harbour. 

Upon another occasion he saw air/sea anti submarine torpedoes being dropped from an aircraft during an exercise.  He said It was frightening.

He provided the history that he was shown photographs depicting aspects of the war by returning army members whilst serving on the Sydney.  Mr Rushworth listed this as an emotionally traumatic event.

In my view none of the above-mentioned events satisfy the Level A criteria for Posttraumatic Stress Disorder.

Mr. Rushworth has no history of re-experiencing these events in such a way that the Level B criteria for Posttraumatic Stress Disorder are met.

Whenever he thinks about his service aboard ship he thinks about the general conditions of the ship and experiencing hot weather.

Recently Mr. Rushworth has been prescribed an antidepressant by his local doctor.

He said that he became depressed about twelve months ago when he met up with some old navy mates and they swapped stories about the fate of some of their other colleagues.  Some of them had died and others had committed suicide.

Mr. Rushworth provided the history that he is inclined to worry over trivial matters, that he suffers from irritability and has a poor sleep pattern…

Mr. Rushworth described himself as a heavy drinker..

He said that he and others in the Navy drank more heavily when they got back to Land Base.  He said “We just drank…booze was cheap…you could get rotten for ten dollars”.

…

In my view Mr. Rushworth suffers from Depression and an Alcohol Abuse Disorder, however these conditions are not attributable to his military service.

Dr Gelb

63.        Dr Jerome L Gelb, then a practising consultant psychiatrist, prepared a report dated 30 November 2004.  He reported that:

…It was whilst cargo checking that he witnessed the destruction of a sampan by an American gunboat.  The incident happened very quickly and Mr Rushworth described hearing a few rounds being fired from the gunboat followed by a bang and then the total destruction of the sampan.  Mr Rushworth stated that at the time he felt the incident didn’t register in his mind and it wasn’t until that evening that he realised what he had witnessed.  Over the years since leaving the Navy in 1974, Mr Rushworth has found himself frequently thinking about the destruction of the sampan and its inhabitants...

64.        Dr Gelb reported that the incident that appeared to have most affected Mr Rushworth was seeing the photographs (described earlier) that returning soldiers had shown him. 

65.        Dr Gelb noted that Mr Rushworth had been attending counselling with a Vietnam Veterans’ Counselling Service for the previous 18 months.  He also indicated that he had received information from Mr Mansell.  Dr Gelb stated that he administered tests that assist in determining alcohol dependence and that Mr Rushworth’s score indicated a severe alcohol use disorder and a medium/high level of alcohol dependence.

66.        Dr Gelb noted that Mr Rushworth indicated that a number of his symptoms had intensified since he stopped working three years earlier.  He had also attended his first ever reunion on Anzac Day in 2001 and after that felt he had lost the plot. 

67.        Dr Gelb’s concludes as follows:

Mr Rushworth described two main events that he believed were traumatic during his operational service.  In the sampan incident, he was not close enough to see any casualties and any trauma involved was related to his thoughts regarding the incident rather than the incident itself.  Certainly, if he had been close to the sampan and had witnessed death and destruction up close, this incident would qualify as a severe stressor.  In the current situation, it does not.  The witnessing of horrific photos of dead enemy personnel may well have been both horrific and traumatic but I have never heard of such an experience producing Chronic Post Traumatic Stress Disorder or Depression and I cannot therefore attribute his Depression and Alcohol Dependence/Abuse to his military service.  He certainly became alcohol dependent during his Navy service and it appears that this condition was partially responsible for the failure of his marriages and de facto relationship but he does not fulfil the RMA Statement of Principles for these conditions, a requirement if these condition are to be deemed service-related… 

Dr Walton

68.        In a report dated 24 August 2005, Dr Lester Walton, consultant psychiatrist, noted that Mr Rushworth had told him that he was stressed on each trip to Vietnam by the general ambiance of the ship and had an absolute fear of something happening to them, but nothing untoward did.  In regard to the sampan incident, Dr Walton stated:

In terms of specific incidents, Mr. Rushworth stated that he believed that it was during his second trip to Vietnam that he observed a sampan blown out of the water by an American gunboat.  He describes observing various bodies and body parts in the air like rain.  He was one of three or four who observed this and they seem to have stunned into silence.  Mr. Rushworth stated No-one spoke about it.  He stated he himself was feeling terrible, initially complete shock.  Then within seconds, there was the idea in my head that there were going to be immediate repercussions against this, that is, that they would be subjected to an attack, but this did not eventuate.  

69.        Dr Walton gave the following opinion about Mr Rushworth’s alcohol problems in his report:  

…Mr Rushworth has persisted in using alcohol, despite knowledge of the problems it has caused him.

A diagnosis of alcohol dependence can be sustained.

This man would also meet the definition of alcohol abuse as defined in DSM-IV, but because he meets the criteria for alcohol dependence, alcohol abuse as a diagnosis is automatically precluded. 

…

70.        Dr Walton also reported that Mr Rushworth had told him that he commenced drinking at the age of seventeen, initially with his family.  His parents and his stepfather were reported as being heavy drinkers.  Dr Walton also stated that once Mr Rushworth joined the navy, he adopted a pattern of regular weekend intoxication with friends when granted leave.

71.        In relation to PTSD, some of the comments made by Dr Walton were:

For diagnostic purposes at this stage, I accept the account of Mr. Rushworth in relation to the sampan incident, which does amount to an event which he witnessed and which involved actual deaths of others.  He describes feeling initially stunned and then irrationally fearful that they may be attacked.  On what I would describe as a fairly fine balance of probabilities, it does seem that Mr. Rushworth’s subjective response may have reached a point of intense fear and helplessness.

The brief exposure to photographs of badly mutilated bodies, in my experience, has not been responsible for the triggering of a post-traumatic stress disorder but I accept that it could occur.  In this particular case, Mr. Rushworth describes feelings of revulsion, a normal enough response, rather than intense fear, helplessness or horror.

Regarding the clinical profile of post-traumatic stress disorder, Mr. Rushworth does not confirm that he experiences daytime recurrent and intrusive distressing recollections of the events but there are persisting nightmares in that regard.  He does not describe reliving experiences or intense psychological distress in response to exposure to internal or external cues.

Mr. Rushworth describes quite minor avoidance behaviour, for example, in relation to television news items but, in recent years, he has actually embraced attending activities and meeting with people who were involved in his military experience, as he has found talking with them to be helpful.  There seems to be no obvious inability to recall an important aspect of the trauma, although perhaps Mr.  Rushworth is having difficulty with accurate memory, for example, if the sampan incident did not occur.  There is not markedly diminished interest of participation in significant activities.  The veteran does not highlight feelings of detachment or estrangement from others, affect appears not to be especially restricted, although it is distorted by ongoing anxiety, irritability and lowered mood.

The veteran certainly does confirm in insomnia, irritability, some difficulty concentrating, an exaggerated startle response but no hyper-vigilance….

If the sampan incident is corroborated, from a clinical perspective, I would make a diagnosis of post-traumatic stress disorder.

72.        In oral evidence, Dr Walton indicated that his diagnosis of PTSD was based on the history given to him by Mr Rushworth in relation to the sampan incident, namely that he saw bodies and body parts flying through the air.  On being informed of the contents of Mr Rushworth’s statement dated 23 February 2005 (see paragraph 7) in which Mr Rushworth stated that he did not recall observing anyone on board the sampan, Dr Walton said that this presented a very significant difference in terms of the threshold criteria for PTSD.  Dr Walton said that if he were relying on the description in the February 2005 statement rather than that given to him by Mr Rushworth six months later:

…you would expect to be much, much, much less traumatic than the way he described it to me.  So that I would be surprised indeed if he – even thought he describes being horrified, frightened and revolted, watching a vessel being destroyed with no obvious observable injuries of death I would be surprised if that resulted in a PTSD as a general proposition.

73.        In relation to the observation of the photographs, Dr Walton said that it was possible, technically speaking, that observing horrific photographs could trigger PTSD but that he had never come across such a case  to date and he has seen many, many cases so far.

74.        Dr Walton indicated that there can be a number of explanations as to why a person’s story changes over time and that the only way to really corroborate it was if there were other witnesses with consistent memories and observations.   

CONSIDERATION OF THE ISSUES

75. Mr Rushworth had five periods of service in Vietnam between March 1968 and December 1969 which were operational service under s 6 of the Act. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Mr Rushworth was not pursuing recognition of his disabilities as a result of his naval service outside the periods of operational service.

76. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:

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 [Statement of Principles] 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.  

77. Section 120(4) of the Act requires the Tribunal to first determine to its reasonable satisfaction (i.e. on the balance of probabilities) whether Mr Rushworth suffers from any particular injury or disease. There is no dispute between the parties or among medical practitioners that Mr Rushworth suffers from alcohol abuse.  However, there is disagreement about whether he suffers from PTSD.  There is ample evidence that he suffers from depression.

Does Mr Rushworth suffer from PTSD?

78.        Only one of the medical practitioners who have assessed or treated Mr Rushworth diagnosed him as suffering from PTSD.  Dr Walton did so in 2005 on the basis that Mr Rushworth had seen bodies and body parts fly through the air like rain.  Dr Walton told the Tribunal that his conditional diagnosis of PTSD was dependent on the Tribunal’s findings concerning the sampan incident being as that described to him by Mr Rushworth.  However, if the Tribunal found that Mr Rushworth’s experience was not of that ilk, he may well not have made such a diagnosis.  He also said that the diagnosis was borderline, even if the event had been as that given to him by Mr Rushworth.

79.        The evidence before the Tribunal indicates that Mr Rushworth self‑diagnosed himself as suffering from PTSD around late 2001 or early 2002.  Dr McKernan did not agree that his patient, whom he had treated for many years, suffered from that condition.  On Mr Rushworth’s claim form for his DVA pension, he wrote that Mr Rushworth was suffering from major depression.  Mr Rushworth said that he had not told Dr McKernan about his time in Vietnam; but the clinical notes indicate otherwise.  Despite his view that his patient did not appear to be suffering from PTSD, Dr McKernan nonetheless referred him to at least three psychiatrists, Dr Pomorin, Dr Seabridge and Dr Gelb.  All three were of the view that a diagnosis of PTSD was not applicable.  Mr Rushworth criticised the methodology used by Dr Gelb; but there is no evidence to suggest that Dr Gelb’s methodology or diagnosis were inappropriate. 

80.        Mr Rushworth’s initial recollections of the sampan incident did not include seeing persons on board.  The only time that he mentioned seeing bodies and body parts was when he saw Dr Walton.  The Tribunal notes that his interview with Dr Walton was after he had spoken to Mr Gillen, whose description of what he saw was far more graphic than that of Mr Rushworth.  The Tribunal is not suggesting that Mr Rushworth has deliberately changed his story.  During his oral evidence Mr Rushworth said on a number of occasions that he was not quite sure any more what he saw.  It may be that his discussions with Mr Gillen and/or thinking about the incident or reading other people’s descriptions  led to a changing perception (a point made by Dr Walton in his oral evidence). 

81.        Hence, the Tribunal needs to consider what it was likely that Mr Rushworth saw when undertaking cargo duties on board HMAS Sydney on 1 June 1968. Initially, the Commission was of the view that there was no such thing as the sampan incident because there was nothing in Australian or US naval records referring to it.  However, due to the diligence and persistence of Commodore Brecht in tracking down persons who were on duty on HMAS Sydney, details of the blowing up of a sampan by a gunboat, possibly manned by Vietnamese forces rather than US seamen, came to light.  The Tribunal is satisfied that a sampan was blown up while HMAS Sydney was in Vung Tau Harbour on 1 June 1968 and that Mr Rushworth was on the ship on that date.

82.        The Tribunal is of the view that the recollections put forward by Mr Rushworth when he spoke to medical practitioners, the VRB and others is more likely to reflect what he actually saw.  The Tribunal is not reasonably satisfied that Mr Rushworth saw people on the boat or that he saw bodies and body parts.  The majority of the naval personnel who saw the incident and told Commodore Brecht of their memories placed the incident much further from HMAS Sydney than Mr Rushworth.  That may well be because they were more experienced at estimating distances, given their roles on the ship.  They also did not hear the loud hailer.  It is possible that Mr Rushworth was hearing other amplified noises on the ship, as others more experienced than he gave evidence that it was unlikely he would be able to hear at that distance.  

83.        The Tribunal is reasonably satisfied that Mr Rushworth may have viewed a sampan being blown up or its aftermath.  However, it is not reasonable satisfied that he observed persons on that boat nor that he could hear what was being broadcast on the loud hailer.  The Tribunal prefers the distances cited by Captain Hunt and others who have been used to estimating distances in their daily work, over that described by Mr Rushworth, a musician undertaking cargo checking who did not have experience of such things.  The Tribunal concurs with the scepticism expressed about how much he could actually have seen at that distance without binoculars.

84.        Mr Rushworth also suggested that he was traumatised by looking at the photographs passed around the ship by returning soldiers.  Dr Walton said that while it was technically possible that observing horrific photographs could trigger PTSD, he had never  seen such a case.  Dr Gelb also stated that he had never heard of photographs leading to chronic PTSD.  Dr Pomorin also made similar comments, as did Dr Seabridge. 

85.        Mr Rushworth saw a number of psychiatrists who have treated many veterans.  Only one diagnosed possible PTSD and then only on the basis of Mr Rushworth’s changed recollection of the sampan incident.  Dr Walton stated that he would not diagnosed PTSD if Mr Rushworth had not seen the bodies and body parts in the air.  All the psychiatrists have indicated that they are not satisfied that viewing the photographs was a sufficient trigger for PTSD.  None of the other experiences cited by Mr Rushworth have been deemed sufficient by the psychiatrists for a diagnosis of PTSD.

86.        The Tribunal accepts the medical opinions of all the medical professionals that Mr Rushworth is not suffering from PTSD given the nature of the stressors he experienced and the resultant symptoms.  The Tribunal is not reasonably satisfied that Mr Rushworth suffers from PTSD. 

Depressive Disorder

87.        It has been accepted by the parties and almost all the medical practitioners that Mr Rushworth now suffers from depressive disorder.  The Tribunal is satisfied that he suffers from that condition. 

88.        Mr Rushworth pointed to links of his diagnosed depression with his operational service, namely the experiences he had during operational service.  In respect of the first step from Deledio, the Tribunal finds that the material before it points to a hypothesis connecting depression to the circumstances of the particular service rendered by Mr Rushworth.

89.        In respect of the second step from Deledio, there is a Statement of Principles (SoP) in force under s 196B(2) of the Act.  The current SoP is Instrument Nº17 of 2007 concerning depressive disorder.  The Tribunal also needs to consider Instrument N° 58 of 1998, which has now been revoked but was in force at the time of claim, if Mr Rushworth does not meet the requirements of the current SoP (Repatriation Commission v Gorton (2001) 110 FCR 32). The Tribunal is satisfied that Mr Rushworth meets the criteria for depressive disorder in both pertinent SoPs.

90.        Risk factors set out in paragraph 6 in Instrument Nº 17 of 2007 that are possibly applicable to Mr Rushworth are:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service is:

...

(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or

(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or

…

(f)experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or

(g)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or

…

91.        Relevant definitions in paragraph 9 of Instrument Nº 17 of 2007 are:

"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;

"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;

(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;

(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;

(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;

(f)having a family member or significant other experience a major deterioration in their health; or

(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability…

92.        Possible relevant risk factors in paragraph 5 of Instrument Nº 58 of 1998 are:

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:

…

(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;

…

93.        Pertinent definitions in paragraph 8 of Instrument Nº 58 of 1998 are:

“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;

“severe psychosocial stressor” 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…

94.        There is no definition of the term clinical onset in the SoPs or in the Act.  In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or the condition is actually found on diagnostic testing, regardless of the extent of symptoms. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal said, at paragraph 23:

…

[that clinical onset occurs], 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 at that time.

95.        Mr Rushworth gave evidence that he had first been diagnosed with depression in the early 1990s.  Dr McKernan’s clinical notes suggest the diagnosis was in 1995.  Various psychiatrists have also found he was suffering from the condition later than the diagnosis by Dr McKernan.  There was no medical evidence tendered to suggest an earlier diagnosis of depressive disorder.  The Tribunal finds that the date of clinical onset of Mr Rushworth’s depressive disorder was in the early 1990s.

96.        There is no evidence before the Tribunal to suggest onset of the condition within five years of Mr Rushworth’s operational service, namely by December 1974, as required by Instrument Nº 17 of 2007.  Hence, the requirement for clinical onset within five years of a category 1A or 1B stressor (Nº 17 of 2007) or two years of a psychosocial stressor (Nº 58 of 1998) is not met.  There is also no evidence to suggest that Mr Rushworth was suffering from a clinically significant psychiatric condition before the clinical onset of depressive disorder.  There is evidence that Mr Rushworth may have suffered from more than one category 2 stressor given his four unsuccessful marriages.  However, there is no evidence linking those stressors to his operational service.

97.     Much of the evidence before the Tribunal concerned whether Mr Rushworth’s experiences constituted severe psychosocial stressors as defined in Instrument Nº 58 or 1998.  That evidence was also pertinent to the definitions of category 1A or 1B stressors.  In light of the Tribunal’s findings concerning the nature of Mr Rushworth’s condition and the date of clinical onset, there is probably no need to consider whether the incidents cited by Mr Rushworth in his written statement and oral evidence meet the definition of stressors in the two SoPs.

98.     In view of the Tribunal’s conclusions in relation to the date of clinical onset, there is no material or evidence pointing to Mr Rushworth meeting any of the relevant factors in either of the SoPs concerning depressive disorder.  Therefore, the hypothesis connecting this condition with Mr Rushworth’s service is deemed not to be a reasonable hypothesis.  Therefore, Mr Rushworth does not satisfy Step 3 from Deledio.  There is therefore no requirement to look again at the details of the events pointed to by Mr Rushworth.

99.        Even if the Tribunal had decided otherwise in relation to Step 3 and had proceeded to Step 4 of Deledio, the Tribunal would not have found in Mr Rushworth’s favour.  The Tribunal is not satisfied that the incidents described by Mr Rushworth meet the definitions of stressors in either SoP.  The Tribunal is satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of depressive disorder was war‑caused. 

100.       The Tribunal finds that Mr Rushworth’s depressive disorder is not war‑caused.

Alcohol dependence / alcohol abuse

101.       Both parties accept, as does the Tribunal, that Mr Rushworth suffers from alcohol dependence.  In respect of the first step of Deledio, the Tribunal finds that the evidence points to a hypothesis connecting alcohol dependence with the circumstances of the particular service rendered by Mr Rushworth.

102.       In relation to the second step from Deledio, the relevant SoP is Instrument Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.  Factor 5 provides:

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

…

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

…

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

…

Factors that apply only to material contribution or aggravation

6.  Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

103.       The definition in the SoP of ‘experiencing a severe stressor’ is:

“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:

(i)threat of serious injury or death; or

(ii)engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…

104.       In relation to the third step from Deledio, there is conflicting evidence about Mr Rushworth’s drinking habits, particularly when he commenced his dependence on alcohol and its relationship with his service.  There is evidence of alcohol issues during his service after Vietnam from medical officers as well as from Mr Rushworth himself.  The material points to the hypothesis linking alcohol dependence with operational service.  Therefore, Mr Rushworth satisfies the third step in Deledio.

105.       In relation to the fourth step from Deledio, the Tribunal accepts that Mr Rushworth’s alcohol problems had already manifested themselves when he was still in the navy.  Mr Rushworth went on a drinking binge when he was 18 years old which resulted in concussion when he fell at Flinders Street Station.  Mr Rushworth gave evidence that he went out drinking with the other musicians when they travelled and that they often drank heavily.  Notwithstanding the tendency of the musicians to drink together as a group, there is evidence before the Tribunal that Mr Rushworth’s problems may have been in evidence by November 1972.  At that time, his commanding officer was quite concerned about Mr Rushworth’s drinking and referred him to the medical officer at HMAS Cerberus, who in turn sent him to a psychiatrist.  In hindsight, as commented upon by Dr Walton, the psychiatrist’s opinion in November 1972, that Mr Rushworth was not an alcoholic and that his problems with alcohol would not recur, was wrong.

106.       The Tribunal is of the view that the medical officer would not have referred Mr Rushworth to a psychiatrist had he not been of the opinion that he may have been suffering from problems with alcohol.  The Writeway report notes that on 5 October 1972, a few weeks before the medical referral, Mr Rushworth was charged with being drunk on HMAS Cerberus.  Commodore Brecht pointed out that he only had access to some of the reports that dealt with Mr Rushworth’s period of service and any charges or disciplinary measures taken against him.  Mr Rushworth gave evidence that he had also faced disciplinary action in relation to his drinking that had not been recorded in official records.  He said that his immediate superior would discipline him by loss of leave, loss of privileges or doing extra duties within the band itself, such as cleaning the building or the like. 

107.       Mr Purcell contended that Mr Rushworth may well have had a drinking problem before he commenced operational service.  He cited the incident at Flinders Street station, the evidence given to Dr Walton and the hereditary risk, given his parents’ drinking patterns.

108.       The Tribunal is satisfied that Mr Rushworth’s problems with alcohol were sufficiently serious by late 1972 for a referral by a medical officer to a psychiatrist.  The Tribunal is satisfied that clinical onset of alcohol dependence could be dated to late 1972 or possibly earlier.  It is certainly also possible, as suggested by Mr Purcell, that Mr Rushworth’s drinking problems preceded his operational service.

109.       The possible factors relevant to Mr Rushworth in the SoP are 5(b) if the clinical onset occurred after he undertook operational service; or 5(d) if he was already alcohol dependent, as suggested by Mr Purcell.  Both of these factors require Mr Rushworth to have experienced a severe stressor.  The definition of severe stressor provides a less stringent test than that required for a condition such as PTSD. 

110.       Mr Rushworth gave evidence of how fearful he was when on HMAS Sydney.  He saw himself as a musician first and foremost; and then as someone undertaking other duties.  He has provided consistent evidence about how fearful he was on much of the first and subsequent journeys, particularly when he was undertaking lookout duties or the like.  He told the Tribunal that the musicians had little information on what was happening or likely to happen on the ship apart from their own duties.  He had only arrived on his first posting on a ship about two days before they set sail.  He described himself as petrified on the first occasion he was on board HMAS Sydney when it entered Vung Tau Harbour.  He had also described how frightened he was seeing anti-submarine torpedoes being dropped from an aircraft during an exercise on the way. 

111.       Mr Rushworth’s extreme fear of threat of serious injury or death during his voyages on HMAS Sydney meets the definition of serious stressor in the SoP.  He gave evidence that his drinking problems worsened after operational service.  Notwithstanding that some of his later dealings such as those with GE might well be considered questionable, the Tribunal has no evidence to contradict Mr Rushworth’s recollections about his intense fear and the increased level of his drinking after his operational service.  The Tribunal finds that the clinical onset of alcohol dependence was either in 1972, which was within two years of his operational service and hence he meets factor 5(b); or that if he was already alcohol-dependent, there was a clinical worsening within two years and he therefore meets factor 5(d).   

112. None of the facts necessary to support the hypothesis connecting Mr Rushworth’s alcohol dependence with the circumstances of his operational service in Vietnam is disproved beyond reasonable doubt. Taking into account the requirements of s 120(1) of the Act, the Tribunal is not satisfied, beyond reasonable doubt, that there is a sufficient ground for determining that Mr Rushworth’s alcohol dependence is not a war-caused disease. The Tribunal finds that Mr Rushworth’s alcohol dependence is a war-caused disease.

DECISION

113.       The Tribunal:

(a)sets aside the decision concerning alcohol dependence and decides that Mr Rushworth’s condition is war-caused under the Veterans' Entitlements Act 1986;

(b)affirms the decision under review that Mr Rushworth does not suffer from post-traumatic stress disorder

(c)affirms the decision that Mr Rushworth’s depressive disorder is not war‑caused; and

(d)remits the matter to the respondent for a reassessment of the rate of Mr Rushworth’s disability pension on the basis of this decision. 

I certify that the one hundred and thirteen [113] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Dates of hearing:  1 May 2006, 2 May 2006, 23 June 2006

Date of final submission:               14 February 2007

Date of decision:  25 June 2007
Counsel for applicant:                   Mr A Larkin
Solicitor for applicant:                   Williams Winter Solicitors
Counsel for respondent:              Mr G Purcell
Solicitor for respondent:               Advocacy Section, Department of Veterans’ Affairs