Sandaver and Repatriation Commission
[2012] AATA 881
•14 December 2012
[2012] AATA 881
Division Veterans' Appeals Division File Number
2011/3708
Re
JOHN SANDAVER
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD and
Dr G J Maynard, Brigadier (Rtd), MemberDate 14 December 2012 Place Brisbane The decision under review is affirmed.
......................[Sgd]..................................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and entitlements – Compensation – War-caused injury or disease – Posttraumatic stress disorder – Statement of Principles – Hypothesis connecting injury to circumstance of service – Beyond reasonable doubt that the veteran’s condition was not war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A
CASES
Border v Repatriation Commission (2010) FCA 1430
Deledio v Repatriation Commission (1998) 83 FCR 82
Mines v Repatriation Commission (2004) 86 ALD 62
O’Neill v Repatriation Commission (2001) FCA 1492
Trigge and Repatriation Commission [2012] AATA 176
Woodward v Repatriation Commission (2003) 131 FCR 473SECONDARY MATERIALS
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 5 of 2008
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD and
Dr G J Maynard, Brigadier (Rtd), MemberINTRODUCTION
John Sandaver served with the Royal Australian Navy from 29 May 1964 until 2 February 1966. He has some medical disabilities which have been recognised but certain psychiatric disabilities which have been rejected. He has made a number of claims for recognition of alcohol dependence/abuse, anxiety disorder, depressive disorder and posttraumatic stress disorder. These applications have all been unsuccessful, including a previous appeal to this Tribunal on 26 March 2003. A further application was made to the Repatriation Commission which was refused on 8 August 2008. An appeal against that decision was subsequently heard by the Veterans’ Review Board but the decision was affirmed on 22 July 2011. Mr Sandaver has now applied to this Tribunal for a review of the Repatriation Commission decision of 8 August 2008 (see application dated 31 August 2011). Since lodgement, the application has been narrowed to appeal only in respect of posttraumatic stress disorder.
ISSUES
The question for the Tribunal is whether the applicant suffers from posttraumatic stress disorder; and if so, whether that condition is “war caused” in terms of Statement of Principle No. 5 of 2008 (“the SOP”).
EVIDENCE
The applicant was born on 21 March 1947 and is now 65 years of age. His service with the Royal Australian Navy (RAN) was a period of less than two years when he was aged 17 to 19 years. Relevant to this application is the period which he served on HMAS Yarra in 1965. It is not in dispute that he had three periods which are recognised as “operational service” when HMAS Yarra served within the waters of Malaysia, Singapore and Brunei. Mr Sandaver was discharged on 2 February 1966 on the grounds, according to his evidence, that his services were no longer required. He described excessive alcohol and behavioural problems being the reasons for his departure from the RAN.
By way of additional background, the applicant left school at age 15 and after working for a period as an apprentice panel beater he joined the RAN. After completing recruit training on HMAS Cerebrus, he visited Brunei on HMAS Anzac (where he served for four months) and then on HMAS Yarra (where he served for seven months).
Mr Sandaver is currently in receipt of a service disability pension at the 100 per cent rate. He has had recognised various claims for medical conditions but none are recognised for psychiatric disorders, including posttraumatic stress disorder (PTSD), the basis of this claim. Relevant to that application is service on 4th and 5th of June 1965, which the applicant contends is the origin of his PTSD and which occurred while he was on HMAS Yarra in the Singapore naval base. HMAS Yarra was put into Operation Awkward State 3 on the evening of 4 June 1965 as there was suspicion of underwater divers near the ship. He said grenades and scare charges were dropped and two divers from HMAS Yarra were sent to investigate near the ship. He states that he believed the ship was under attack and that he was going to die. He was 18 years of age at that time. It is submitted that he has subsequently suffered from alcohol dependence (which is now in remission) and that he has been affected by PTSD as a result of that incident in Singapore. The applicant’s claim is that the incident in question satisfies the definition of a “category 1A” stressor or, alternatively, a “category 1B” stressor, as defined in the SOP.
After leaving the Navy, Mr Sandaver said he has had difficulty in some employment roles and, for a period, drank excessively. He ceased drinking in 1979. However, he has had some difficulties at work as well as in his marriages over a substantial part of the period since leaving the RAN.
Medical Evidence
After leaving the Navy in 1966, Mr Sandaver first sought assistance of a psychiatrist in 1991. Since that time, a number of psychiatrists have tendered reports about the applicant’s psychiatric state and these show diverse findings, based to some degree, on the applicant’s different accounts of the origin of his present condition. He initially claimed that “chasing gun boats” was the main cause of his condition although he has subsequently admitted that this incident did not occur. Secondly, he has relied upon being a member of a boarding party on small fishing craft and having to man a machine gun as being the main traumatic event; and subsequently he relies upon the “Singapore incident”, where there was a suspicion of enemy divers and, as a result, the ship’s senior officers ordering grenades and scare charges be thrown overboard to deter any underwater divers.
In 1991, Mr Sandaver first saw Dr Malcolm Foxcroft, psychiatrist, when he had marital problems and his “life was in a mess”. The report of Dr Foxcroft shows Mr Sandaver made no reference to his service experiences at that time.[1]
[1] Exhibit 13.
The applicant subsequently made a claim for recognition of Anxiety Disorder, Depressive Disorder and Posttraumatic Stress Disorder. He consulted with Dr John Brown, psychiatrist, who saw and treated Mr Sandaver from 2000 until 2005 or 2006. Dr Brown produced three reports[2] on 12 June 2000, 23 August 2000 and 15 December 2000 and it is apparent that the applicant was concerned about the intercepting of small fishing craft and having to man a machine gun as being part of his duties. Mr Sandaver was also worried that he may have had to fire in defence and that he and other Australian seaman could have been injured or killed. In an earlier hearing, Dr Brown provided evidence that he had not noted the Singapore incident in his clinical notes and said that the applicant may have raised the matter although he did not recall it and he did not have it recorded in his notes. However, he gave a subsequent report stating that if the Singapore incident did occur it certainly could have been significant in the development of PTSD for the applicant. Shortly after, at a hearing dated 23 January 2001, the applicant was relying upon the boarding party incidents as being responsible for the development of his condition of PTSD.[3]
[2] Exhibit 12.
[3] Exhibit 9.
Next in sequence was a report provided by Dr Peter Mulholland, dated 4 October 2001.[4] Again, at that time, Mr Sandaver maintained that he had undertaken boarding party duties where he stopped sampans and fishing boats and was required to man a machine gun. During that consultation, he did make reference to Singapore divers but he qualified the significance of the Singapore incident to Dr Mulholland as being that it “did not impact upon him very much”.[5]
[4] Exhibit 14.
[5] Exhibit 14, para 15.9.
As his claims based on these reports were not accepted by the Repatriation Commission or the Veterans Review Board, an application was made to the Administrative Appeals Tribunal. That application was rejected on 26 March 2003.[6] Just over six months later, in October 2003, the applicant lodged a new claim for anxiety disorder. He later saw Dr Anderson in 2006, whose report, dated 22 June 2008,[7] shows the applicant referred to divers where the boat was being attacked and that he feared HMAS Yarra could possibly explode or sink. Also in relation to the boarding party incident, Mr Sandaver reported he had heard of people being killed or explosives being used; that he could not fire a .303 rifle as he had a weak “right eye”; and that he feared that he may be required to shoot people with the machine gun. Dr Anderson attributed the accounts provided by the applicant to PTSD (60%), depression (20%), anxiety disorder (20%) and alcohol abuse (0%). He thought Mr Sandaver was “very impaired”.[8]
[6] Exhibit 18.
[7] Exhibit 1, T-document 20, pp. 111-125.
[8] Exhibit 1, T-document 20, p. 113.
Mr Sandaver was then referred for independent assessment to Dr Wasim Shaikh, consultant psychiatrist. His report, dated 22 May 2012,[9] reveals the applicant described to him symptoms similar to PTSD although he told Dr Shaikh there was no history of any recreational drugs (other than alcohol). Dr Shaikh described the applicant’s mental state at the time of examination and formed the view that the incident described to him was not such that he experienced a threat of death or trauma, or that the applicant felt threatened. He concluded that he did not satisfy criterion A(i) or criterion F of the PTSD requirements as set out in clause 3(b) the SOP.
[9] Exhibit 16.
There was a final report by Dr Christopher Danesi, consultant psychiatrist, dated 12 July 2012.[10] The applicant told Dr Danesi that he had previously seen psychiatrists, in particular Dr Brown and Dr Anderson. He did not mention the other psychiatrists who reported adversely of him – Dr Foxcroft, Dr Mulholland and Dr Shaikh. He told Dr Danesi that in the 1960s he used cannabis, LSD and speed. He described experiencing panic attacks as a head technician (projectionist) and that he had been married for 46 years (although he had left his wife when he was 62 years of age to live with another woman for six weeks). The focus of the consultation with Dr Danesi referred to the Singapore incident where he said 10 to 12 scare charges were dropped. He also referred to spending time in Borneo where there was four days of bombardment when he was on a quarter-deck. He has later admitted this claim was untrue. Mr Sandaver told Dr Danesi that he started drinking in Singapore before the scare charges episode but quickly became a heavy drinker having poor control, craving for alcohol and memory blackouts. By his early twenties, he stated, he had an exaggerated startle reaction and was volatile and abusive, both verbally and physically. He says that he experienced nightmares since the age of 53 (about the year 2000) and that it was “like being on HMAS Yarra” again.
[10] Exhibit 3.
Oral Evidence of Mr Sandaver
Of particular relevance is the cross examination of Mr Sandaver by Mr Kelly. The applicant described the incidents upon which he relies, particularly the Singapore incident. After describing his brief naval service, which involved heavy drinking and often being locked up over weekends, he stated that he started using LSD and marijuana while he served in Singapore. He said this period of RAN service affected his later working life and his family life. He noted that in 1979 he got promoted at work, but told the Tribunal in his evidence that he could not handle the responsibility and this affected him psychologically as well as unsettling his marriage even more.
Mr Kelly referred Mr Sandaver to his application to determine qualifying service, dated 22 September 1998.[11] In that application he claimed he was affected by “chasing gun boats” (Question 15). He admitted that claim was untrue. He was also referred to his statement, dated 25 July 2001, where he referred to two incidents at the beginning of page 8 of that statement.[12] He was asked whether both of those paragraphs relating to Indonesian frigates were true; he said that at least one of them was true. He was then referred to the transcript of the hearing in the Administrative Appeals Tribunal dated 27 February 2003[13] where he pointed to another incident; but, under cross examination, admitted he did not see the incident claimed and that he was relying upon something he had heard about on the ship.
[11] Exhibit 8.
[12] Exhibit 10.
[13] Exhibit 15.
Mr Kelly then referred Mr Sandaver to his supplementary statement, dated 12 February 2003,[14] where he referred to his previous naval service which ‘haunted’ him. In that statement he referred to being a member of a boarding party as the incident which frightened him most. He then agreed with Mr Kelly that he is now saying that it is the grenades which were the most frightening incident. He was also referred to the report by Dr Mulholland which indicates he said the Singapore incidents did not impact upon him very much. He stated the incident in Singapore was frightening as the ship was locked down for about 15 to 20 minutes. He was in the mess at the time with about six other people and none of those sailors knew what was going on outside the ship.
[14] Exhibit 7.
A question from the bench was put by Dr Maynard about the applicant’s exposure to alcohol at his father’s hotel. He denied ever drinking there. Dr Maynard also asked him whether he was drinking alcohol before the scare charges incident, to which Mr Sandaver replied he only commenced drinking after the incident in Singapore.
CONSIDERATION
If the applicant’s PTSD is a “war caused” disease (see s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)) and he has incapacity as a result, he would be entitled to a pension as compensation (see s 13 of the Act and definition of “incapacity” in s5D of the Act).
In assessing whether a condition is “war caused” for the purposes of s 9, the Tribunal must, in considering a claim based on operational service, determine that the disease is war caused “unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). In making a determination under s 120(1), the Tribunal will be satisfied beyond reasonable doubt there are no sufficient grounds for determining the injury or disease is related to service if, after considering the whole of the material, it is of the opinion that the material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of a person’s defence service (s 120(3)).
For all claims made after 1 June 1994, the assessment above requires a hypothesis to be regarded as reasonable only if an SOP has been issued by the Repatriation Medical Authority for the particular condition or disease (s 120A(3)). The relevant SOP here is Instrument No. 5 of 2008 – Posttraumatic Stress Disorder. Mr Sandaver also has a retained right under Instrument No. 3 of 1999 as amended by No. 54 of 1999 to have his claim considered under those former SOPs if he is unsuccessful under SOP No. 5 of 2008.
The Incident
The Tribunal must be reasonably satisfied that the incident which is the basis of the claim actually occurred (Mines v Repatriation Commission (2004) 86 ALD 62 at [48] per Gray J). In that respect, there is a report of HMAS Yarra for June 1965 (dated 4 July 1965). The Tribunal accepts the report of HMAS Yarra, documented shortly after the incident, that there was some activity corroborates the basis of the claim upon which Mr Sandaver relies.
The Diagnosis
In considering the SOP, there is a matter of diagnosis to be determined. The SOP sets out the minimum factors which must exist and, further, the factors must be related to service which will form part of the assessment as required by s 196B(2)(d) and (e) of the Act. The factors which point to a diagnosis of PTSD are set out in para 3(b) of the SOP. There are the reports of Dr Anderson in 2006 and Dr Danesi in 2012 which support a diagnosis of PTSD. The reports of Dr Foxcroft, Dr Mulholland and Dr Shaikh state that the applicant does not satisfy all the criteria required to justify a diagnosis of PTSD.
There are two psychiatrists who accept that on the basis of the applicant’s accounts he has PTSD. The accounts by the applicant to each psychiatrist differ in some important respects and three psychiatrists deny that he has PTSD. We are equivocal as to whether he does have PTSD based on the accounts of symptoms he has presented at various times and after considering the differing opinions of all the psychiatrists. While in our final analysis of experts we have preferred the opinion of Dr Mulholland, in the interests of giving Mr Sandaver the benefit of the doubt (in the light of the fact that the psychiatrists did not have a consistent view), we are prepared to find that Mr Sandaver does have PTSD.
The Hypothesis
The SOP sets out factors which must be related to service to be able to satisfy the SOP. Paragraph 5 states at least one of the factors mentioned in para 6 must be satisfied. Paragraph 6 refers to a minimum of one of the factors set out in order to establish a reasonable hypothesis pointing to PTSD. Relevantly, the factors are:
(a)Category 1A stressor; or
(b)Category 1B stressor.
These stressors are further defined in para 9 of the SOP.
The application of the statutory provisions and the SOP to the scenario submitted by the applicant is to be determined by the four tasks set out by the Full Federal Court in Deledio v Repatriation Commission (1998) 83 FCR 82 (Deledio). These are:
(1)Determine whether the material as a whole points to a hypothesis connecting the applicant’s claim with the circumstances of his service;
(2)If so, determine whether there is a relevant SOP currently in force;
(3)If yes to steps 1 and 2, is the hypothesis “reasonable”; that is, does it conform with the relevant SOP; and
(4)If yes to steps 1 to 3, can the Tribunal be satisfied beyond reasonable doubt that the veteran’s injury or disease did not arise as a result of a war caused injury.
In relation to task 1 for the Tribunal, the material (particularly the ship’s log for the period) does point to a hypothesis which can be raised connecting the applicant's claimed PTSD condition with the circumstances of his service in Singapore. Therefore, task 1 is satisfied. There is clearly an SOP in force; that is Instrument No. 5 of 2008. Therefore, task 2 is satisfied. Task 3 is concerned with whether the hypothesis is “reasonable”; i.e., does the hypothesis match the factors set out in the SOP? At this step, there is no consideration of proving any facts, only assessing the efficacy of the hypothesis against the SOP criteria. But the hypothesis will not be reasonable if:
(i)It is “contrary to proved or known scientific facts”;
(ii)It is clearly “fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous”; or
(iii)It is inconsistent with a relevant SOP.
(per Heerey J in the first instance decision of Deledio and approved by the Full Court).[15]
[15] Deledio v Repatriation Commission (1997) 47 ALD 261.
For the SOP, the applicant’s story must fit within the definition of a “category 1A” stressor or, alternatively, a “category 1B” stressor. It seems to us that a category 1B stressor, as defined, does not reveal a compatible match with the scenario proffered by the applicant. But the criteria under a category 1A stressor are not so easily dismissed. The question here is whether the applicant experienced “a life threatening event”; was subject to a “serious physical attack or assault”; or was “being threatened by a weapon” (see para 9 of the SOP).
The applicant’s story, for present purposes, has now been narrowed somewhat from the decision under review by abandoning claims to conditions other than PTSD. Although the criteria for PTSD could be regarded as being easier to satisfy than for the other conditions, factually, the applicant has conceded some previous aspects included in his claims did not occur. He has also, in recent years, submitted that the Singapore incident, where there was a suspected diver under the ship on the evening of 4 June 1965 which was followed by the ship’s response of dropping scare charges and grenades, resulted in him being scared and fearing for his life.
Under the current SOP definition of “category 1A stressor”, the assessment moves from determining whether the incident was a “severe stressor” (under the earlier SOP, Instrument No 3 of 1999) to that which is “a life threatening event”. This is said to involve dealing with “the occurrence” or the incident as described, rather than “the person” who is the subject of the claim (Woodward v Repatriation Commission (2003) 131 FCR 473). But in Border v Repatriation Commission (No 2) (2010) FCA 1430 (Border), it was held that a “category 1A stressor” should be assessed from an objective perspective of a reasonable person and with the perspective of the knowledge and experience of the veteran at the time of the event (a subjective test). There is, therefore, a “mixed objective and subjective” test. The Court said this stage should be more receptive to a wider “spectrum of possible reactions” (see Border, paras 63 and 67). That assessment is to be made at the time of the event and not with some knowledge which might only be acquired after the event.
The hypothesis here has a number of different shades in its complexion as the scenario has changed over more than a decade as put to psychiatrists and in the applicant’s evidence to the Repatriation Commission, the Veterans’ Review Board and Administrative Appeals Tribunal hearings. But with the mixed objective and subjective test set out in Border, a category 1A stressor, as defined in cl 9 of the SOP (i.e. experiencing a “life threatening event”) might, in some people, be evoked based on the events described. The hypothesis is given some particular credibility when considering the applicant at the time was 18 years old, it was at night and he had started taking illicit drugs and drinking in Singapore a little before the incident. Such a person in this hypothesis might be seen to possibly have been a little more vulnerable than some other people of the same age and might perceive the event as more frightening; or even “life threatening”.
Using those aspects of the hypothesis and the reasoning set out in Border, it is possible that a person in the applicant’s circumstances could reasonably regard his life as perhaps being under threat. Therefore we find that task 3 is satisfied by Mr Sandaver.
An assessment of task 4 then follows; i.e. the Tribunal must consider whether it is satisfied, beyond reasonable doubt, that the veterans’ incapacity did not arise from a “war caused” disease or injury. This is the critical step under s 120(1) of the Act which is a reverse onus of proof to assess whether the reasonable hypothesis of the applicant is not justified. It is at this stage that an assessment of the actual evidence or facts is involved.
The facts here have a long history of over a decade of expert medical reports, some of which are based on contradictory facts. Not surprisingly, some for the medical experts arrive at different conclusions. Mr Harding, for the applicant, referred us to Trigge and Repatriation Commission [2012] AATA 176 (Trigge) in considering whether Mr Sandaver has PTSD which can be related to a service event. He urged upon the Tribunal the conclusion that the applicant perceived he was going to die despite the test being partly objective. Mr Kelly, for the respondent, submitted that, factually, the history of events portrayed by Mr Sandaver’s evidence has changed over time and that he has admitted that some of his evidence, at least, has not been truthful. He submits that the applicant’s credit is therefore in issue.
We have considered all of the evidence including all of the various psychiatric reports in making a determination of task 4 required of the Tribunal. In 1991, when the applicant saw Dr Foxcroft (over 25 years after the incident in question), Mr Sandaver made no mention of his naval service. He was diagnosed with a major depressive disorder with panic attacks and with some symptoms of morbid jealousy. His treating psychiatrist Dr Brown, from 2000 to 2006, did not have a record of Mr Sandaver ever raising the issue of the Singapore incident (although, in a supplementary report, he could not be sure that the applicant might not have raised the issue even though it was not in his clinical notes).
We then examined and considered Dr Mulholland’s comprehensive report. The applicant told Dr Mulholland that he used cannabis regularly from 1966 to 1982, which is longer than he has declared on accounts given to other psychiatrists or before this Tribunal. Indeed, in Dr Shaikh’s report of 22 May 2012, he said he had no history of recreational drugs other than alcohol. In addition, he emphasised to Dr Mulholland that the most traumatic event was being a member of boarding parties and his weak “left eye” in case he had to use a .303 rifle. These facts are inconsistent with accounts given to other doctors by the applicant. For example, he told Dr Anderson he had a weak “right eye”. Mr Sandaver also told Dr Mulholland that his father had alcoholism, although he told Dr Anderson his father was not a heavy drinker even though he was a publican. Dr Mulholland concluded that Dr Sandaver had chronic anxiety and a chronic substance abuse disorder but that he did not have PTSD, partly because he did not satisfy criterion A in the SOP. He thought Mr Sandaver had a “high level of attributional entitlement and firmly believes that he has PTSD and seems to fashion his symptomatology accordingly. The reason he is not working is because of his shoulder problems and as far as I am aware is nothing to do with psychiatry”.
Dr Shaikh, in May 2012, similarly to Dr Mulholland, was not satisfied Mr Sandaver had PTSD because criterion A(i) and criterion F were not satisfied. We note, however, Dr Shaikh did place particular reliance on reports of other psychiatrists and therefore we place less reliance on his opinion.
Dr Danesi, in July 2012, prepared a report and diagnosed PTSD in Mr Sandaver. The clinical history provided by the applicant to Dr Danesi did rely on the Singapore incident and said there were 10 to 12 scare charges dropped. We note that the Writeway Report provided by Commodore Mulcare (Rtd) on 3 April 2002, notes the ship’s log recorded “4 charges dropped” at 21:13 to 21:18 and one officer, Commander Keay (then a Lieutenant and the officer of the day), recalled “a couple of hand grenades were thrown first while the scare charges were being retrieved from the magazine”.[16] The ship’s log of four scare charges is quite different from the 10 to 12 charges which the applicant recalled and was the basis of Mr Sandaver’s account to Dr Danesi and others.
[16] Exhibit 11, p. 6.
It is to be noted that the applicant told Dr Danesi and also Dr Shaikh that his drinking commenced before the scare charges incident. However, this was contrary to what he told Dr Maynard during the hearing.
Some of the applicant’s claims about observing Indonesian ships opening fire on HMAS Yarra are heavily discounted in the Writeway Research report. This, together with acknowledgment that some of the interaction with Indonesian vessels did not occur, have diminished considerably the weight we have placed on his version of events.
We note also Dr Danesi, the applicant’s most recent psychiatrist, was made aware of the previous psychiatric reports of Dr Brown and Dr Anderson (which were supportive of Mr Sandaver’s diagnosis of PTSD) but it is significant Dr Danesi does not refer to the reports of Dr Foxcroft, Dr Mulholland and Dr Shaikh, all of which were adverse to Mr Sandaver.
We noted that as parts of the applicant’s claims over the past decade or so have been unsuccessful, he has re-written the scenario to give it a new dimension for submitting a fresh claim. As a result, the psychiatrists’ opinions have not always been assessing the same stressor or the same claim to a psychiatric disorder. We also formed the view that Mr Sandaver’s testimony before the Tribunal, his presentation and consideration of his previous inconsistent statements over a lengthy period when providing evidence in relation to these matters, cannot be attributable to some lapses of memory or other reasons consistent with credibility. They therefore lead us to a firm conclusion that he was not a reliable witness and not a witness of truth. This is to be distinguished from the position in Trigge where the applicant’s account there was variable but consistent. Therefore, we are satisfied there are issues of credit which diminish the applicant’s account to a significant degree.
We found the opinions of Dr Brown and Dr Anderson to be less objective, and that of Dr Shaikh to lack robustness, given his placing some reliance on other psychiatrists’ opinions. We accept Dr Foxcroft’s reports (although they are now quite old) as being objective and informative about the applicant when he first sought psychiatric assistance 25 years after leaving the RAN. We also regard Dr Danesi’s report as being objective and relatively comprehensive, although we note the applicant only told him of the two previous psychiatrists’ reports who reached conclusions which were supportive of him. Dr Danesi was not told of the reports of Dr Foxcroft and Dr Mulholland. But we found the report of Dr Mulholland to be the most comprehensive as his clinical history taking, and also his use of additional tests, seemed to be more objective than that of the other doctors. Consequently, we give greater weight to Dr Mulholland’s report.
The differing conclusions reached by the doctors can be accounted for, in part, by the different scenarios described by the applicant to them. He also gave other inconsistent evidence, for example the fact that he told the tribunal that he only started drinking after the Singapore incident but told Dr Danesi and Dr Shaikh that he commenced drinking before the Singapore incident. In addition, Mr Sandaver gave the impression to a number of doctors that he had not used illicit drugs since the 1960’s but this conflicts with the positive result obtained from the tests conducted by Dr Mulholland. We are satisfied beyond reasonable doubt, despite Mr Sandaver’s account establishing a reasonable hypothesis, that there is no sufficient ground for making a determination upholding that hypothesis. Shortly put, we are satisfied that the unreliability of the evidence points to the applicant’s conditions not being attributable to his service life. For similar reasons, we are also satisfied that we would not find differently under the former SOP.
DECISION
The decision under review is affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of ......................[Sgd]..................................................
Associate
Dated 14 December 2012
Date of hearing 25 October 2012 Counsel for the Applicant Mr Anthony Harding Solicitors for the Applicant Haney Lawyers Advocate for the Respondent Mr Jeff Kelly
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