Sanderson and Repatriation Commission
[2008] AATA 891
•6 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 891
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2300
VETERANS' APPEALS DIVISION ) Re NOEL SANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member
Dr Kerry Breen, MemberDate6 October 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Egon Fice
Member
VETERANS’ ENTITLEMENTS – post traumatic stress disorder (PTSD) – depressive disorder – alcohol dependence/abuse – diagnosis of PTSD – operational service – escort duties to Vietnam – sequential approach to superseded SoPs – category 1A stressor – category 1B stressor – category 2 stressor – severe psychsocial stressor – severe stressor
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 34 AAR 270
McKenna v Repatriation Commission (1999) FCR 323
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
6 October 2008 Mr Egon Fice, Member
Dr Kerry Breen, Member1. Mr Noel Sanderson served in the Royal Australian Navy (the Navy) between August 1966 and April 1972. He had operational service, as that term is defined in the Veterans’ Entitlements Act 1986 (the Act), in Vietnam between 10 and 18 February 1969 on board HMAS Derwent (the Derwent).
2. Mr Sanderson was receiving the disability pension at 50 per cent of the general rate. In June 2004 Mr Sanderson submitted a claim for an increase in the disability pension for what he described as a PTSD/anxiety disorder and tinea. In September 2004 Mr Sanderson lodged a further claim for alcohol dependence. On 23 September 2004 the Repatriation Commission (the Commission) notified Mr Sanderson that it accepted his claim for tinea but rejected his claim for PTSD/anxiety disorder and alcohol dependence. The Commission treated the latter claim as an alcohol abuse claim. Mr Sanderson sought a review of the decision by the Commission pursuant to s 31 of the Act but the Commissioner declined to do so and suggested he proceed to the Veterans’ Review Board (the VRB). On 2 May 2007 the VRB affirmed the Commissioner’s decision. Mr Sanderson now seeks review of the VRB’s decision by this Tribunal.
3. The issues before us are:
(a)whether Mr Sanderson suffers from PTSD or any other psychiatric condition;
(b)whether Mr Sanderson suffers from alcohol dependence/alcohol abuse;
(c)the date of clinical onset of any diagnosed condition;
(d)whether any diagnosed condition is causally related to Mr Sanderson’s operational service in the Navy.
RELEVANT BACKGROUND
4. Mr Sanderson was born on 16 June 1947. He enlisted in the Navy on 27 August 1966 and trained as a Weapons Mechanic at HMAS Cerberus. On completion of this training on 27 October 1967, he was promoted to Able Seaman Weapons Mechanic 2. On 15 January 1968 he first joined the Derwent. He served on the Derwent between 11 August 1968 and 15 April 1969.
5. The Report of Proceedings for the Derwent records that on 10 February 1969 she sailed from Singapore and rendezvoused with HMAS Sydney (the Sydney) on 12 February 1969 for the purpose of escorting that ship on its regular re-supply run to Vietnam. On the morning of 14 February 1969 the Derwent put on a firepower demonstration for the benefit of soldiers embarked on the Sydney. The Derwent and the Sydney entered Vung Tau Harbour at first light on 15 February 1969.
6. The Derwent remained in Vung Tau Harbour until the Sydney was unloaded and then set sail at about midday on 15 February 1969, proceeding ahead of the Sydney out of the Harbour. At about 1.30pm on 15 February 1969 a sailor on-board the Derwent lost his balance and fell overboard. According to the Report of Proceedings, the Derwent reversed course and less then four minutes later stopped so close to the sailor who had fallen overboard that he was able to climb straight onto the scrambling net, which had been lowered on the side of the Derwent, and he reboarded the ship. The passage back to Singapore naval base was uneventful with Derwent berthing on 18 February 1969.
7. Mr Sanderson’s Navy records disclose that he sailed on Derwent between 21 July 1969 and 9 September 1969. On 25 August 1969 the Derwent was involved in a search for survivors from a freighter (the SS Noongah), which sank about five miles out to sea near Smokey Cape. A number of other Navy ships were involved in the search including HMAS Hobart (the Hobart). 20 members of the Noongah’s company were lost and only five were rescued.
8. Mr Sanderson absented himself from the Navy without official leave on 18 January 1971, until he voluntarily surrendered on 27 March 1972. On 30 March 1972 he was convicted on a charge of being absent without leave for 442 days. This resulted in his dismissal from the Navy on 5 April 1972.
LEGISLATIVE SCHEME
9. Section 9 of the Act provides that, subject to s 9A (which does not apply in this case):
…an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
10. Section 13(1) of the Act provides that where:
…
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
11. There is no issue about Mr Sanderson satisfying the definition of a veteran under s 5C of the Act since he rendered eligible war service; which is defined in s 7 to include operational service. Mr Sanderson’s service on board the Derwent while she escorted the Sydney into Vung Tau Harbour in 1969 was clearly operational service.
12. Section 120 of the Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the Act requires a finding, where operational service was rendered by the veteran, that the injury, death or disease of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given Mr Sanderson rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war-service and his PTSD or other psychiatric condition and alcohol dependence/abuse.
13. Section 120(3) of Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of the Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP), determined under s 196B(2) or (11) of the Act, which upholds the hypothesis. Section 120A(3) does not apply in relation to a claim for incapacity resulting from injury or a disease, or death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2) nor declared that it does not propose to make a SoP in respect of the kind of injury, disease or death, as the case may be.
14. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
DIAGNOSIS
Post Traumatic Stress Disorder
15. In approaching the question of diagnosis where the claim involves PTSD, the process needs to be different to other veterans’ cases because the presence or absence of the claimed disease is dependent upon whether the person has experienced a traumatic event of the kind set out at Criterion A in the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). As Gray J pointed out in Mines v Repatriation Commission [2004] FCA 1331 at paragraph 39:
It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
16. After examining the many cases dealing with the process of reasoning when a diagnosis is dependent upon a traumatic event occurring, Gray J concluded, at paragraph 48:
It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.
17. The authorities establish that where there is an issue as to whether a veteran is suffering from a claimed injury or disease, the Tribunal must decide that issue to its reasonable satisfaction, as required, by s 120(4) of the Act (Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) …decide the matter to its reasonable satisfaction, was comprehensively dealt with by the Full Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation…
This means we are required to decide the question of diagnosis on the balance of probability.
18. Mr Sanderson was examined by Dr Norbert Pomorin, a consultant psychiatrist, on 22 July 2004. Dr Pomorin recorded the history Mr Sanderson gave to him and in particular the events Mr Sanderson said he experienced while serving on the Derwent during its escort duties to Vung Tau Harbour. Mr Sanderson also told Dr Pomorin about the recovery of three bodies of sailors from the SS Noongah when it sank off the coast of Australia. He also related his marriage problems in 1970 but Dr Pomorin said it was not clear whether Mr Sanderson’s first wife ended the marriage because of Mr Sanderson’s negative behaviour.
19. Dr Pomorin recorded that Mr Sanderson was agitated and tearful at interview, stating that he felt as though the world had closed in on him about four or five years ago. He suffered from major sleep disturbance, angry outbursts and irritability. Dr Pomorin noted Mr Sanderson was socially withdrawn, had difficulty concentrating and could not cope with social situations or confrontations with others. He said:
I gained the impression that Mr Sanderson suffered from a depressive illness DNI and he abused alcohol in order to overcome the symptoms of the same.
20. Mr Sanderson also told Dr Pomorin that he had met some former shipmates in February 2003 and as a result of talking to them, he said he started to remember what went on and that he could now blame the Navy for his condition. Dr Pomorin reported that he could not exclude the possibility that Mr Sanderson may have suffered from a depressive reaction when he returned to Australia from ship duties in 1970. He said he was certainly depressed after his marriage broke down. Dr Pomorin also recorded that it would be appropriate to check Mr Sanderson’s medical records from 1970 as he had seen a psychiatrist at that time in order to obtain a compassionate discharge from the Navy. Dr Pomorin was of no doubt that Mr Sanderson suffered from a depressive illness and from alcohol abuse disorder which he said was reactive upon his depressive illness.
21. We have been provided with Mr Sanderson’s Navy medical records and in particular the outpatient record of October 1970. In that document it is recorded that Mr Sanderson wished to see a psychiatrist, complaining of memory lapses over the previous 12 month period. He also said that his wife wished to speak with the psychiatrist and that their marriage had broken up due to being away so long – ship’s movements.
22. Mr Sanderson was admitted to the Heidelberg Repatriation Hospital on 23 August 2004 having been diagnosed with post traumatic stress disorder and alcohol dependence. Dr Anca Corbu, a registrar in the Veterans’ Psychiatry Unit, noted on the discharge summary dated 17 January 2005 that Mr Sanderson was referred for admission for alcohol detox and assessment of his symptoms. The initial examination findings report records that Mr Sanderson was agitated, using lots of body gestures while talking. His voice was loud and angry most of the time but he seemed co-operative. His affect was irritable, anxious and reactive. Mr Sanderson was treated with Naltrexone and Mirtazapine and he was offered anxiety, anger and alcohol management programs.
23. The clinical notes from Mr Sanderson’s GP at Prahran Market Clinic make no mention of PTSD prior to 2004.
24. Mr Sanderson was examined by Dr Arthur Velakoulis, a consultant psychiatrist, following a request by the Department of Veteran’s Affairs. In a report dated 31 October 2005, Dr Velakoulis recorded that Mr Sanderson recounted a number of stressful events between 10 and 18 February 1969 while serving on board the Derwent on a trip to Vung Tau Harbour.
25. Mr Sanderson told Dr Velakoulis that he had a life-threatening event associated with intense fear of death when a United States aircraft mistakenly threatened to attack the Derwent (the US aircraft incident). The crew of the Derwent was ordered to action stations and the Captain of the ship made a second announcement indicating the possibility of an imminent attack. Mr Sanderson was aware that three sailors were killed after the Hobart was attacked in a similar incident involving friendly fire. The aircraft did not attack and the crew was ordered to stand down.
26. In a second incident, Mr Sanderson recalled a firepower display given by the Derwent just prior to entering Vung Tau Harbour (the misfire incident). In the course of that firepower display, Mr Sanderson, who was part of a gun crew of six sailors, was required to load the cordite charge on the left hand 4.5-inch gun. He said a misfire occurred in the turret and the live cordite case was ejected into the ship’s magazine. According to Mr Sanderson, this was highly dangerous due to the risk of the unexploded cordite igniting and detonating the ship’s magazine. Mr Sanderson said he volunteered to go down into the magazine, found the unexploded cordite casing and brought it up onto the deck where it was passed to another member of the gunnery crew who threw it overboard. Mr Sanderson regarded that event as life‑threatening.
27. The third incident recounted by Mr Sanderson was that while he was onboard Derwent which was anchored overnight at Vung Tau Harbour, he was closed up in the gun turret when there was heavy gunfire on land. He said there were silhouettes in the hills from gun fire and he was extremely on edge. He said he thought that the ship would be bombed and there was nothing he could do about it. He described extreme hyper-arousal and a sense of constant threat and anticipation.
28. According to Dr Velakoulis, Mr Sanderson also recalled an event which took place in August 1969, while the ship was off Jervis Bay near Sydney. Mr Sanderson reported the Derwent was deployed to search for survivors from a sunken vessel and during the three day search, several bodies were located in the water. According to Mr Sanderson, he was required to recover a corpse with a grappling hook but the arm fell off the corpse during recovery. He described the corpse as a white green puffed up body.
29. Mr Sanderson described the re-experiencing of traumatic events and said that he recalled the 4.5-inch gun misfire incident on a daily basis. He also frequently recalled the incident regarding the threatened attack by the US aircraft. He said those recollections were typically triggered by loud noise, particularly booming bass frequencies that reminded him of gun fire. He said he was distressed and that he feels that everything is on fire and in fast mode. He also told Dr Velakoulis that he had nightmares and dreams which generally related to being attacked or chased and they were associated with high anxiety which would, on occasions, cause him to wake. He denied dreaming of specific service related incidents. He described intense psychological distress when reminded of his traumas.
30. Mr Sanderson also told Dr Velakoulis that he went to lengths to avoid cues which remind him of his Navy service, such as television shows regarding naval matters, conversations, loud noises and TV advertisements. He told Dr Velakoulis that there were some incidents during his service, the details of which he could not recall, and they involved the Derwent running down a fishing boat and an explosion in a gun barrel. He reported a poor level of interest in a number of activities and a great sense of emotional detachment from others. He also reported an exaggerated startle response, hypervigilance, irritability and poor concentration.
31. Dr Velakoulis also recorded that Mr Sanderson had chronic, fluctuant depressive symptoms evident since the 1970s but that those symptoms had deteriorated over the past two years. Mr Sanderson’s mood had often been quite low; he felt depressed and had limited enjoyment in activity. He lacked concentration, motivation and the desire to complete tasks.
32. Dr Velakoulis stated that on clinical examination, Mr Sanderson’s affect was very anxious and moderately depressed. His thought stream and form were normal although his thought content related to his current stressors, his son’s problems, social difficulties, problems with loud noise and high anxiety levels.
33. According to Dr Velakoulis, Mr Sanderson met the criteria for chronic post traumatic stress disorder set out in DSM-IV. He said that Mr Sanderson clearly described traumatic life-threatening events during his naval service in Vietnam and that he suffered chronic re-experiencing of those events during the day and possibly at night. His symptoms clearly had an impact on his work and home environment. He said that Mr Sanderson generally coped, with the use of alcohol, but he had deteriorated over recent years, being unable to manage his anxiety and irritability in the work place. His symptoms had deteriorated since 2001 and only over the course of 2005, with intensive treatment, had they partially stabilised.
34. Dr Velakoulis also provided a second report dated 30 April 2006. In essence, that report simply repeats what is set out in his report of 31 October 2005.
35. Mr Sanderson was also examined by Dr Nigel Strauss, a consultant psychiatrist, on 13 December 2007 and 7 February 2008. Dr Strauss prepared a report for the Commission dated 7 February 2008.
36. In the history he gave Dr Strauss, Mr Sanderson discussed the problems he had with his first marriage due to the time spent away from his wife. According to Dr Strauss, Mr Sanderson said that his wife gave him an ultimatum to leave the Navy or leave her and, in response to his wife’s ultimatum, he applied for a discharge. However, the Navy did not grant him a discharge and he became more and more distressed about his marital situation. As a consequence, he absented himself from Navy service for a period of 14 months. According to Dr Strauss, Mr Sanderson said his marriage had never been successful and that alcohol was not an issue in the breakdown of the marriage. However this statement is to be contrasted with a statement made by his former wife, Ms Janet Hough, on 17 September 2006. Ms Hough said:
My memories of this time are of me waiting for hours for him to come home. When he did he was drunk. When I confronted him all hell would break loose, which would result in physical and verbal violence.
37. Mr Sanderson also gave Dr Strauss an account of the incidents he said occurred on his tour of operational duty in Vietnam. However, he made no mention of being in Vung Tau Harbour overnight, being confined to the number one gun turret at action stations and seeing gunfire onshore. Instead, he recounted the incident of a sailor falling overboard when the Derwent was escorting the Sydney on its departure from Vung Tau Harbour (the man overboard incident). According to Dr Strauss, Mr Sanderson said he did not find out about this incident until later. He said he was concerned that the person who fell overboard, who was his good friend, would die, but he was apparently found. He did not give any further details of that incident. However, he did tell Dr Strauss that he found this experience upsetting. Also, in recounting the experience of searching for bodies following the sinking of a merchant ship, Mr Sanderson told Dr Strauss that he found that task upsetting.
38. Dr Strauss recorded that Mr Sanderson told him about the persistent re‑experiencing of the events which took place on his operational service while on the Derwent.
39. Dr Strauss reported that if what Mr Sanderson told him was the truth, and he could not decide whether that was the case, then it his opinion, Mr Sanderson had developed psychiatric problems as a consequence of his service. He was of the view that Mr Sanderson did suffer from PTSD.
40. In order to be satisfied with the diagnosis of PTSD, there are two matters which we need to address. The first is whether the events described by Mr Sanderson as having occurred on his operational service satisfy Criterion A in DSM‑IV. The second is whether we are satisfied, on the balance of probability, that the events described by Mr Sanderson which lead to him being diagnosed with PTSD in fact occurred.
41. Criterion A of DSM-IV provides:
The person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror.
42. The first event described by Mr Sanderson was the US aircraft incident. We are satisfied that this event does satisfy the requirements of Criterion A(i) of DSM‑IV. As described by Mr Sanderson, the event involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. The second part of Criterion A is also met because he described his reaction to Dr Velakoulis as intense fear. He told Dr Strauss that it was a frightening situation.
43. The misfire incident also satisfies Criterion A(i) and (ii). On that occasion, Mr Sanderson either experienced or was confronted with an event which involved actual or threatened death or serious injury, or a threat to the physical integrity of him or others. His response to that was reported as being one of intense fear. Dr Strauss also recorded that Mr Sanderson said that it was a frightening experience.
44. Mr Sanderson did not seek to rely on the incident regarding the gunfire on land when the Derwent was anchored overnight in Vung Tau harbour. In fact, given that the Ship’s Log records Derwent anchored in Vung Tau harbour at 0644 hours, and weighed anchor at 1202 hours on the same day, this incident could not have occurred.
45. The incident regarding the recovery of bodies following the sinking of the SS Noongah cannot form the basis for Mr Sanderson’s claim in this case because it occurred outside his period of operational service. Even if that were not the case, despite Mr Sanderson’s graphic account of attempting to recover a body from the ocean, there is no record in Derwent’s Report of Proceedings that any bodies were recovered by the Derwent. The Report of Proceedings for 25 August 1969 records, in some detail, the search for survivors from the SS Noongah. The search continued for almost three days and although wreckage was sighted, no survivors were located by Derwent and there is no mention of either sighting or retrieving bodies from the ocean. A Navy newspaper report of the sinking stated that twenty crew members were lost and five rescued. Only the Hobart was reported as having recovered one body. It follows that we cannot accept Mr Sanderson’s account of this incident even if it was relevant to his claim.
46. The remaining incident recounted to Dr Strauss, but not Dr Velakoulis, involved Mr Sanderson’s good friend, Mr Parker, falling overboard the Derwent when the ship was departing Vung Tau Harbour. We accept that this event would satisfy Criterion A(i) of DSM-IV. However, there is some difficulty with Criterion A(ii). Mr Sanderson told Dr Strauss that he found the experience upsetting. That response does not, in our opinion, satisfy the need to have experienced intense fear, helplessness or horror. In his evidence-in-chief, Mr Sanderson said that although at the time he wasn’t aware that it was his friend Mr Parker who had fallen overboard, he was very concerned. In his written statement of evidence, Mr Sanderson described his reaction as being sick with worry.
47. There is a further problem with Mr Sanderson’s claimed response to the man overboard incident. In a written statement made on 7 July 2004, Mr Sanderson said that the search for Mr Parker lasted three to four hours. He said he was concerned that, as dusk was beginning to fall, if Mr Parker was not found soon, he never would be found. The problem is that the Ship’s Log records that Mr Parker fell overboard at 1332 hours on 15 February 1969 and that he was recovered at 1336 hours, some four minutes later. The lifebuoy, which was thrown to Mr Parker when he was seen to fall overboard, was recovered at 1341 hours. The Derwent’s Report of Proceedings records that Mr Parker was sighted immediately after he fell overboard and that he was thrown a lifebuoy. The Report then states:
The ship reversed course and less than 4 minutes later stopped so close to PARKER that he was able to climb straight onto the scrambling net without the assistance of a swimmer.
48. A number of witnesses who gave evidence on behalf of Mr Sanderson strongly disputed the length of time it took to recover Mr Parker. Essentially, they said that it was simply not possible to reverse course in the time stated in the Report. According to one witness, the ship’s boat was lowered to assist in recovery although that is not mentioned in the Report or by any other witness. The Commanding Officer of Derwent at that time, Commander IK Wilson, said in his written statement which was in evidence, that this was a copybook rescue. He also said that if Mr Sanderson was a lookout on the bridge at the time of the incident as he claimed, he could not have been under the misapprehension that the Derwent searched for Mr Parker for about four hours.
49. A statement was also provided by Captain J Macdonald, who served on HMAS Torrens (the Torrens) as Executive Officer and the Yarra as Commanding Officer. He explained that those ships were also Destroyer Escorts, similar to the Derwent. All of these ships were propelled by two shafts driving two four-bladed propellers. They had twin rudders and were highly manoeuvrable vessels, able to turn rapidly, particularly at higher speeds, and could accelerate quickly and decelerate to a stop in a short distance. It was his opinion that if Derwent was proceeding at 18 knots at the time Mr Parker fell overboard, the ship could have reversed course (turned through 180 degrees) in about 2 minutes. In such a hard turn, its speed would have reduced to about 15 knots. From that speed, the ship could have been brought to a stop in about 75 metres or 30-40 seconds. He was of the view that recovery of Mr Parker could well have been completed in the time stated. Under cross‑examination Mr Macdonald agreed that the Ship’s Log was signed off by the officer of the watch and that this officer generally made notes in a notebook, later recording his notes in the Ship’s Log. This was normal procedure. Mr Macdonald also noted that the Ship’s Log recorded a nil swell with waves of only 1 ft. He said that the man overboard procedure was frequently practised.
50. We accept the evidence indicating that Mr Parker was recovered from the ocean in about 4 minutes after falling overboard. This accords with the contemporaneous documentary evidence which we have no reason to doubt is accurate. It also accords with the Commanding Officer’s recollection of that event and the technical capability of the ship as described by Mr Macdonald. We reject the evidence of Mr Sanderson because he demonstrated extremely poor recall of all of the events he said occurred while on operational service and the search for survivors from the SS Noongah. The other witnesses who gave evidence about the recovery time based their opinions on that fact that when the Ship’s Log stated that the ship reversed course, that indicated that the ship was brought to a halt by reversing the engines and then slowly reversing the ship to return to where the man fell overboard. Clearly, that is not the most efficient way of returning to the man in the water quickly. The procedure described by Captain Macdonald is more likely to be correct.
51. Therefore, given that this incident was over in about 4 minutes during which time Mr Parker was kept in sight, we are of the opinion that it is not likely that Mr Sanderson experienced any grave concern for his safety even if he witnessed the event, which is doubtful according to what he told Dr Strauss. This is borne out by Mr Sanderson’s stated reactions to the event. Not one of the descriptions given by Mr Sanderson in the course of his evidence, or in his recounting of the incident to the psychiatrists who examined him, fits the description of the response required to satisfy Criterion A(ii). It follows that we are not satisfied that the man overboard incident is an event which supports Mr Sanderson’s diagnosis of PTSD.
52. Except for the man overboard incident, which is recorded in detail in the Ship’s Log for the month of February 1969 and in its Report of Proceedings, there is no contemporaneous documentary evidence to support Mr Sanderson’s account of the other events in the course of his operational service upon which he relies. That necessarily casts some doubt on whether those events occurred.
53. The first time the US aircraft incident appears to have been documented is in the account given to Dr Velakoulis. Dr Velakoulis recorded Mr Sanderson telling him that the Captain made an announcement over the intercom stating:
…we are having problems communicating with a US bomber…stand to…action stations. The alarm for action stations sounded, the emergency red lights were activated and sailors were running about everyone to take their positions.
He then said that the Captain made a second announcement repeating the perceived threat, thereby heightening the sense of imminent attack. Mr Sanderson told Dr Velakoulis of his intense fear at the time particularly given that three sailors had been killed in a similar situation on the Hobart.
54. Mr Sanderson told Dr Pomorin in July 2004 that when the Derwent was in Vung Tau Harbour, the ship was called to action stations because there was fear of an impending attack by friendly aircraft. Dr Pomorin recorded that Mr Sanderson told him that another ship had experienced an attack earlier.
55. In a statement made by Mr Sanderson on 7 July 2004 when referring to the US aircraft incident, he said it was night time and the Derwent was sailing off the coast of Vietnam. The Captain of the ship made an announcement over the intercom that the ship was on full alert which meant that all crew had to go to action stations when ordered to do so. He said that at this point in time the Captain gave no reason for his order. However, after a period of approximately 30 to 45 seconds, the Captain made a second announcement which required the crew to go to full action stations. He said that the alarm for action stations sounded and that emergency red lights were activated. He said that the Captain then gave a brief account of why he made the order. He said, to the best of his recollection, the Captain said: An American bomber has asked the ship for confirmation of friend or foe. We are having difficulties communicating with the aircraft. Mr Sanderson then said that after the second announcement, the Captain made a third announcement to inform the ship that it was still having problems communicating with the aircraft and that the crew were to maintain their stations. After a further short period, the Captain told the crew that communications had been established and that they could stand down. In his oral evidence, Mr Sanderson essentially repeated what he had said previously and when asked what time the event took place, he simply said night time. He recalled the red lights being on the ship and he was certain it was night time.
56. Mr Sanderson’s account of the US aircraft incident was corroborated by Mr Malcolm Kirkland who was a Chief Petty Officer on the Derwent in 1969. He was the Fire Control Officer. Accordingly to Mr Kirkland, the Derwent was on escort duties to Vung Tau and it was returning to Singapore. At the time the ship was operating at defence stations. He said that suddenly the operations room gave an alarm that an unidentified aircraft was approaching and the ship’s company was immediately placed on action stations. He said it was reported that the aircraft did not identify itself and that its weapons systems were locking onto the Derwent. He said that for nearly an hour, as best he could remember, the aircraft played cat and mouse with us, but always staying just out of range of our guns. He said that the aircraft was finally identified on radar as a friendly aircraft and it came so close that everyone could see it was an American aircraft.
57. Mr Kirkland also gave oral evidence repeating essentially what was in his written statement. He added that electronic systems (IFF or Identification Friend or Foe) were in place which could identify friendly aircraft. He said that the signal from the IFF showed on the radar screen allowing the aircraft to be identified as friend or foe. Mr Kirkland said that the aircraft was required to activate its IFF, although at times pilots did not do so. As the Fire Control Officer, Mr Kirkland said he was stationed inside the ship at a console with a group of eight people. He had access to a radar screen. However, under cross examination, Mr Kirkland agreed that the IFF signal from the aircraft did not show up on his screen. He said that information about the IFF was relayed from the Operations Room. Mr Kirkland was also of the view that, at the time of this incident, the ship was on its way to Vung Tau rather than to Singapore as he said in his earlier statement.
58. Mr David Smith, who was a member of the 4.5-inch gun crew on Derwent at the time of Mr Sanderson’s operational service on that ship, also said that at some stage during the Derwent’s operations in Vietnamese waters, the crew was placed on full action stations with alarms and bells going off. He also recalled the Captain saying that there were difficulties communicating with an American aircraft which was requesting confirmation of our status. We are not certain what Mr Smith meant by that statement. He seemed to be saying that the ship and the aircraft were in radio communication, although it was also said that there were radio communication problems.
59. Mr Kevin Barry made a written statement by way of a Statutory Declaration on 13 July 2004. Mr Barry was also part of the 4.5-inch gun crew during the Derwent’s time in Vietnam in February 1969. In his statement Mr Barry said that at the time the Derwent was in Vietnamese waters, although he was not certain whether it was on the way to Vung Tau or leaving Vung Tau or simply patrolling, an American aircraft was preparing to bomb the Derwent because the Derwent could not get into radio contact with the aircraft. He did not give a detailed account of that incident.
60. We pause at this point merely to point out that there are some significant differences in the accounts given by the various persons who claim to have witnessed the US aircraft incident. Due to the passage of time since the incident is said to have occurred, one would ordinarily expect there to be differences in the recollection of the details of the event. However, there is one aspect of the several accounts which does cause us considerable concern. All of those persons who gave evidence about this incident referred to the aircraft as being American. This was despite the fact that it was not able to be identified because there were said to be problems with radio communications and with the fact that the aircraft was not squawking IFF. The IFF code could not itself have identified the aircraft as being American. There was no suggestion that radio communication was established with the aircraft at the outset. However, Mr Kirkland said that the aircraft came so close that the persons on board the ship could see that it was an American aircraft. The problem is that Mr Sanderson said the event took place at night and he vividly recalled the ship’s white lighting being turned off and the red lights being switched on as the ship went into full action stations. When the episode was over, Mr Sanderson said the ship reverted to its white lights. Quite obviously, if this event took place at night, it would simply be impossible to have identified the aircraft visually as Mr Kirkland stated.
61. There are further problems in verifying that the US aircraft incident took place as recounted by Mr Sanderson. A copy of the Derwent’s Ship’s Log for February 1969 was in evidence. We have had the opportunity to examine all of the entries made in the Ship’s Log between 10 February 1969 and 18 February 1969 and there is no record of any such incident. Logically, and particularly after the incident with the Hobart in 1968 when three sailors were killed, one would expect that if the incident took place during this period of time, it is highly probable that a record would have been made in the Ship’s Log. Such an incident would cause serious concern for the safety of the ship and all of its crew. It is hardly an answer, as Mr Sanderson suggested, that the incident was not recorded because it would cause embarrassment. If the incident did occur, because of the very serious possible consequences of such an event, we are certain a report would have been made.
62. The Ship’s Log does record that the Derwent went to action stations closed up at 1540 hours on Friday 14 February 1969. The ship reverted to defence stations closed up at 1602 hours. There is no other evidence of the ship’s crew being called to action stations during the period of the log. The Report of Proceedings for February in 1969 also makes no mention of the aircraft incident. The Report of Proceedings records that defence stations were assumed at 1600 hours on 14 February 1969 and that both the Derwent and the Sydney entered Vung Tau Harbour at first light the following morning. The Ship’s Log shows an uneventful evening on 14 February 1969 and that the Derwent anchored in Vung Tau Harbour at 0644 hours when it assumed awkward state two. Commander Wilson, the Derwent’s Commanding Officer at that time, in a written statement dated 21 December 2006, said:
I can state categorically that the incident of this nature did not occur in HMAS Derwent in February 1969. Derwent was not menaced by an ‘American bomber’, nor did I order action stations as a result of a bomber threat, or make the announcements claimed by Mr Sanderson. If an incident such as this had occurred, action stations would have been recorded in the ship’s log and I would have mentioned the incident in my Report of Proceedings.
Commander Wilson also said that at 1540 hours on 14 February 1969, the day before arrival in Vung Tau, the ship closed up at action stations to prove all systems before reverting to defence stations at 1602 hours. He said this was the normal cruising state at sea in time of war. He said the fact that the ship would go to defence stations at 1600 was known and would have been included in published daily orders. It is difficult to refute the logic of Commander Wilson’s statement. The ship was about to enter into an operational area and it seems logical that all of its offensive and defensive systems would be proved before doing so and the ship then closed up at defence stations. Commander Wilson was not called for cross‑examination.
63. Because of the inconsistencies in the statements given by the various persons who said the US aircraft incident occurred, coupled with the fact that very important and contemporaneously made documents at that time do not record such an incident; and the fact that the Commander of the ship at that time is adamant that such an incident did not occur, we are satisfied, on the balance of probability that the US aircraft incident did not occur. In fact, we are satisfied beyond reasonable doubt that it did not occur. It follows that this alleged incident cannot therefore be used to satisfy Criterion A of DSM-IV.
64. The remaining incident in the course of his operational service upon which Mr Sanderson relies, was the incident which he said occurred during the firepower display carried out on the morning of 14 February 1969 before the Derwent berthed at Vung Tau Harbour the following day. Mr Sanderson said that he was the left hand side cordite loader for the 4.5-inch gun. The cordite is the propellant which is loaded behind the shell containing the explosive head on a tray which is then levered into the gun and the breach closed. The shell is loaded into the loading tray by another weapons mechanic. According to Commodore PM Mulcare, a Writeway researcher who has had substantial Navy experience and sea-going experience on the Yarra and HMAS Parramatta (the Parramatta), the gun was fired by a timed electrical pulse generated in the fire control unit situated in the transmitting station. During gun run out (which is after the gun has recoiled) the spent cordite cartridge is ejected and deflected through a chute either onto the rear deck of the turret onto mats placed on the decking or, if the gun happens to be at a high elevation, into the spent case bin which is situated below the deck.
65. The Ship’s Log records that the firepower demonstration took place at 1115 hours on 14 February 1969. There is nothing recorded in the Ship’s Log which would suggest that the 4.5-inch gun suffered a misfire in the course of that demonstration. Similarly, the Derwent’s Report of Proceedings records that the fire‑power demonstration was carried out on the morning of 14 February 1969. There is no comment in the Report of Proceedings which might suggest a misfire occurred.
66. According to Mr Sanderson, following the misfire, the live shell remained in the barrel as expected. The shell loader then opened the breach to eject the live cordite which, Mr Sanderson said, was the explosive part of the shell. However, that clearly is not correct as the live cordite provides the propellant to eject the shell from the barrel. The shell contains the high explosive. Mr Sanderson said that when the breach was opened, it was his job to catch the cordite as it was ejected. He said that the cordite weighed about 32 pounds. Mr Sanderson said that immediately following the misfire, the breach was opened and the cordite flipped out of the gun, he missed catching it, and it was deflected down into the used cordite bin. In his earlier statements, he said that the cordite was deflected into the magazine and he accepted that was simply incorrect. However, there was a bin for spent cordite cartridges below the deck and that was where he said the live cordite round landed. In the meantime, the shell containing the high explosive remained in the barrel of the gun.
67. Mr Sanderson said he then climbed down into the bin to search for the cordite. He said there were many spent hot cordite cartridges down there and he was concerned that the misfired cartridge could explode at any time and kill many people as it was in the area of the magazine. He said after locating the live cordite cartridge, he carried it out of the bin and handed it to another cordite loader who then threw it overboard. He said he was terrified throughout this ordeal because of the danger of an explosion. In his oral evidence, Mr Sanderson said that it caused him considerable distress and he was in fear of his life throughout that ordeal.
68. Under cross examination, Mr Sanderson agreed that there were established misfire procedures for the 4.5-inch gun. He agreed that he was well drilled in all procedures involved in firing that gun. He was asked whether he agreed that the normal procedure for a misfire was to wait 30 minutes before removing the misfired cordite cartridge and he agreed but said that was in peace time. He said that at the time of the misfire, the Derwent was in a war zone. However, that is obviously not correct. The Ship’s Log records the Derwent’s position at 1200 hours on 14 February 1969 as 5 degrees 58 minutes north and 107 degrees 08 minutes east. That places the ship approximately 259 nautical miles south of Vung Tau and about 200 nautical miles from the nearest point of the South Vietnamese coastline. The Log also records that the ship was not closed up at defence stations until 1600 hours that afternoon and therefore was not on any form of alert. It is therefore not possible to accept Mr Sanderson’s evidence that the situation demanded the immediate extraction of the misfired cordite cartridge to place the gun in a position to be immediately available for firing should the need arise.
69. There are a number of witnesses who supported Mr Sanderson’s account of the misfire incident. Mr Raymond Welsh, who was also a weapons mechanic and a member of the 4.5-inch gun crew during the Derwent’s visit to Vung Tau in February 1969, provided a statement dated 9 September 2005. Mr Welsh said that a misfire was a common mishap in the course of firing the gun. He said that when this occurred, the live cordite would have to be manually extracted from the breach and thrown over the side of the ship without delay. He said he recalled this happening several times during his career and he recalled the incident recited by Mr Sanderson. Mr Welsh said that the gun was firing at full pace when the misfire occurred. He said the cordite bin was full of spent cartridges and that they would have been hot. He said that he levered the misfired cartridge from the breach but before Mr Sanderson could grab the cartridge, it fell into the cartridge bin. He then said that the Gun Captain told Mr Sanderson to go down into the cartridge bin to retrieve it. He said that Mr Sanderson did so, and was down there for some time looking for it amongst the spent cartridges. He said that Mr Sanderson finally located the cartridge and passed it up to Mr Smith who then dispatched it over the side. He recalled Mr Sanderson being quite distressed as he climbed out of the cartridge bin.
70. Mr David Smith, a weapons mechanic, was also on-board the Derwent on its escort trip to Vung Tau in February 1969. He supported Mr Sanderson’s account of that event. He also said that after Mr Sanderson retrieved the misfired cartridge from the spent cordite bin he handed it to him and he disposed of it over the side.
71. It is of some interest to note that Mr Barry, who gave evidence in support of Mr Sanderson in his statutory declaration of 13 July 2004, also said that he was part of the gun crew with Mr Sanderson which carried out a firepower display demonstration in the vicinity of Vung Tau. He referred to that exercise in the Derwent’s Report of Proceedings of February 1969. However, Mr Barry did not mention the misfire incident at all. If it was as significant an event as Mr Sanderson said it was, one might have expected Mr Barry to make some mention of it.
72. Mr Smith, in his oral evidence, said that he remembered the incident quite vividly. He also said that he had experienced a misfire on a number of occasions. Under cross-examination, Mr Smith said Mr Sanderson was a very good mate. He agreed that Mr Sanderson stayed with him in 2003 and that he had been down to Mr Sanderson’s house in Melbourne. Mr Smith was asked about an explosion which occurred in the barrel of the 4.5-inch gun on the Derwent in 1968. This occurred when a shell prematurely exploded in the course of firing. The ship’s Report of Proceedings records that in the course of a firing exercise on 11 September 1968, the crew of the turret reported that the left gun had not run out correctly. Upon investigation, it was disclosed that a high explosive shell had exploded prematurely after moving only about 20 inches down the barrel, although the explosion was contained within the barrel. That was considered to be extremely lucky and there were no casualties. That event delayed the Derwent’s departure for service with the Far East Strategic Reserve as there was substantial damage to the left gun. When asked about this incident, Mr Smith said that he only vaguely remembered it. He agreed that he was on board the ship and was a member of the gun crew when that happened. He also agreed that it was a dangerous event and that the barrel needed to be changed. When asked why he remembered the misfire event more clearly than the dangerous explosion of a high explosive shell in the barrel, he suggested that was because it threw light back onto, presumably, the misfire incident. The answer makes no sense. Mr Smith was asked if he recalled that the standard procedure on a misfire was to wait for 30 minutes before removing the cordite cartridge from the barrel. He said that was probably the case but he could not recall. Nevertheless, he said he recalled that it did not happen on this occasion.
73. Lieutenant Commander Derek Marrable, who was the Gunnery Officer on board the Derwent between January 1968 and October 1969, provided a statement dated 18 December 2006. Lieutenant Commander Marrable confirmed that he was on board the Derwent in February 1969 on its trip to Vietnam. He explained that a misfire in the 4.5-inch gun would occur if the cordite cartridge failed to ignite, either because the electrical firing pulse had not reached the cartridge or the cartridge itself had failed. He said that the procedure for dealing with a misfire was that the gun was first trained onto a safe bearing and the gun safety switch was set to fire. The Captain of the gun would then attempt to fire the gun from the turret. If this failed, the switch was set to safe and the gun rested for 30 minutes. He said that if the ship was in action against an enemy, the waiting time would be reduced to a few minutes. Depending on the circumstances, the crew could be permitted to leave the turret. At the end of the waiting period, the Captain of the gun turret would open the breach and remove the cartridge from the gun, passing it out of the turret door to another member of the gun crew. As the Gunnery Officer, he would have been present at the turret when the cartridge was removed from the gun and he said that he made a personal habit of this because as the Gunnery Officer on board, he was the only member of the ship’s company empowered to condemn ordinance at sea. He said the cartridge would be examined to see if the firing pin had struck the base of the cartridge and then the cordite lot number would be recorded before the cartridge was thrown over the side. Because there was still a projectile (the shell) in the barrel, electrical circuits would be checked, a new cordite cartridge loaded and the gun cleared by firing under local control. Subsequently, details of the misfire and the cordite lot number would be reported to the Fleet Commander and the Director of Naval Ordinance by signal. He also said that the misfire would have been recorded in the Ship’s Log.
74. Lieutenant Commander Marrable recalled the firepower demonstration on 14 February 1969 and he said it included the firing of 2-inch rocket flares from the bridge wings followed by a number of 4.5-inch high explosive projectiles, probably about 12 to 16, set to explode near the parachute flares. According to Lieutenant Commander Marrable, the demonstration went well and there was no record of a misfire and nor did he recall one. He said that if there had been a misfire, he would have expected it to have been treated in a routine manner without endangering the gun or the ship’s crew. Lieutenant Commander Marrable was not called for cross- examination.
75. Commander Wilson also said in his statement that if a misfire had occurred, it would have been reported to him immediately and would have been dealt with by following standard procedures. He was also of the view that a misfire, if it had occurred, would have been recorded in the Ship’s Log although not necessarily in the Report of Proceedings. He also agreed that if a misfire occurred, it would have been reported separately by signal to the Fleet Commander and Navy Office.
76. Mr AV Watson, who was the Chief Petty Officer Weapons Mechanic on-board the Derwent in 1969, was Captain of the gun turret at the time of the alleged incident. In a written statement made on 13 December 2006, Mr Watson said that he was the Senior Sailor responsible to the Gunnery Officer for the efficient operation of the 4.5‑inch turret. He was stationed in the turret for all major firing exercises. The first point made by Mr Watson was that the claim that a misfire occurred in the turret and a live cordite cartridge was ejected into the ship’s magazine was simply incorrect. He said it was not possible to eject cordite cases into the ship’s magazine and in his view, the sailor who made the claim probably meant to say the spent cartridge bin. He did agree that when the gun was at high elevation, spent cartridges would not be deflected onto the deck but they would be directed down into the spent cartridge bin.
77. He recalled the Derwent conducting a firepower demonstration for the Sydney on the trip to Vietnam. He said he was the Captain of the gun turret during the demonstration. He also recalled that the ship launched 2-inch rockets which opened into flares at a range of about 5,200 yards and that the ship fired high explosive shells with fuses set to explode in the vicinity of the flares. He said the rate of fire in this, the anti- aircraft mode, was about 16 rounds per minute and not the 20 rounds per minute that could be achieved when firing in the surface mode. He said he recalled that the ship fired between 15 and 20 rounds and that the firing went well. He is certain that the ship did not experience a misfire on that day.
78. He also reported that the standard procedure in the event of a misfire involved clearing the turret for 30 minutes and then removing the cordite. He said that after a 30 minute delay, a misfired cartridge was deemed safe and it would not have been particularly hot at that time. He said that after the 30 minute period, as Captain of the gun turret, he would have returned to the turret, normally with the number two loader, to remove the cartridge. He said the breach block would be opened using a hand operated lever, the cartridge removed and handed out of the rear of the turret. He also said that the Gunnery Officer would have been present at the turret to inspect the cartridge to see if it showed signs of having been struck by the firing pin and to record details of the cartridge for a report to the Naval Ordinance Authorities. He said that the Systems Artificer responsible for turret maintenance would also have been present. After the firing circuits were checked, another cordite cartridge would be loaded into the gun and fired to clear the shell from the gun. He was certain that such an event did not happen during the firepower demonstration for the Sydney. Mr Watson was not called for cross-examination.
79. Mr Nigel Skene also gave evidence in a letter dated 14 January 2008. He said he was a member of the Derwent’s crew between April 1967 and April 1969. He said he was not involved in the misfire incident but he recalled that incident in the forward turret which he described as a live round being stuck. He said he had no involvement in this but that it was general knowledge throughout the ship’s company. With respect to Mr Skene, this evidence is of no weight at all. It is inaccurate, and at best simply based on rumour.
80. In our view the weight of evidence clearly points to the misfire incident not having occurred. Those witnesses who supported Mr Sanderson’s evidence did not put forward any reasons why standard procedures for dealing with a misfire would not have been followed in the circumstances. The Derwent was not in a war zone and there was no urgency to remove a misfired cartridge. Mr Barry, who was a member of the gun crew, although providing a report in support of Mr Sanderson, made no mention of the incident. The Ship’s Log and the Report of Proceedings do not record such an event taking place. There is considerable logic in the evidence given by Commodore Wilson, Lieutenant Commander Marrable and Mr Watson. There is good reason to record the details of the misfired cartridge as this could have a significant effect on other firings of the gun when it was needed in operational service. The safety of all concerned on the ship might depend on faulty ordinance being identified immediately. There was no sense of urgency in the circumstances and no reason not to proceed according to standard misfire procedures. Therefore, we must find that, on the balance of probability, the misfire incident did not occur. We are in fact satisfied beyond reasonable doubt that it did not occur. That means this incident cannot form the basis for Mr Sanderson’s claim that he suffers from PTSD.
81. It follows we cannot be satisfied that Mr Sanderson meets the requirements of Criterion A in DSM-IV dealing with PTSD. Although the man overboard incident satisfies Criterion A(i), it does not satisfy Criterion A(ii). The remaining two events, the misfire incident and the American aircraft incident, in our opinion, did not occur. Therefore, Mr Sanderson cannot rely on those incidents to satisfy Criterion A(i) of DSM-IV for PTSD. While that necessarily results in us finding that, for the purposes of this application, we cannot accept a diagnosis of PTSD, that is not to say that Mr Sanderson does not suffer from PTSD. It is just that the evidence does not permit us to accept a diagnosis of PTSD based on the events relied upon by Mr Sanderson. There may of course be other events, outside the period of Mr Sanderson’s operational service, which have caused him to suffer PTSD. However, that does not assist Mr Sanderson in this application.
Depressive Disorder
82. Dr Pomorin had no doubt that Mr Sanderson suffers from a depressive illness. For the purposes of the SoPs dealing with depressive disorder, that term means a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. The definition is limited to a major depressive episode, recurrent major depressive disorder, dysthymic disorder, or depressive disorder not otherwise specified.
83. Dr Velakoulis stated in his report that Mr Sanderson suffered depressive symptoms, particularly in the two years prior to his report of October 2005. He referred to Mr Sanderson’s increasing stress in relation to his poor work and relationship capacity, difficulties with his son and the loss of his role and function in the work and home environment. Accordingly to Dr Velakoulis, Mr Sanderson clearly meets the criteria for major depressive disorder of a mild severity. He also noted that Mr Sanderson was being treated with anti-depressant medication.
84. Dr Strauss said in his report that Mr Sanderson told him he was taking anti‑depressant medication. He also believed that Mr Sanderson has genuine psychiatric ill health including depressive disorder.
85. There was no dispute about the diagnosis of depressive disorder and we are satisfied that is the correct diagnosis. However, establishing the date of clinical onset is difficult. Dr Strauss accepted that Mr Sanderson’s experiences on the Derwent (if true) were primarily responsible for his depression. However, he did not suggest the date of clinical onset. Perhaps it can be inferred that the onset was immediately after his Navy service. Dr Velakoulis said in his report that depressive symptoms were evident since the 1970s. Dr Pomorin also said that he could not exclude that Mr Sanderson may have suffered from a depressive reaction when he returned to Australia from ship duties in 1970. He said Mr Sanderson was certainly depressed after his marriage broke down. That evidence was not contradicted and accordingly we are satisfied that the clinical onset of Mr Sanderson’s depressive illness was in about 1970.
Alcohol Abuse / Dependence
86. There is some evidence in Mr Sanderson’s Navy medical records that he was drinking to excess. In fact, a report of 23 March 1970 records him being under the influence of alcohol on attendance at sick bay on board the Derwent. The report records his breath smelt heavily of alcohol, he was unsteady on his feet, and he was unruly and violent.
87. Mr Sanderson’s first wife also said, in her statement of 2 September 2006, that when Mr Sanderson returned from overseas on his first trip, he was frequently drunk and it resulted in physical and verbal violence. She also recounted an event where, when Mr Sanderson was very drunk, he chased her in his car when she was with two girlfriends in a taxi. When he swerved to ram the taxi he missed, causing his car to roll over.
88. Dr Pomorin reported that Mr Sanderson suffered from an alcohol abuse disorder which was reactive upon his depressive illness. He said that the alcohol abuse caused Mr Sanderson to have aggressive outbursts which have been noted by his co-workers and that it also affected his capacity for work. Dr Velakoulis was also of the opinion that Mr Sanderson met the criteria for alcohol dependence-partial remission. He said that Mr Sanderson had no significant genetic predisposition and that there was no evidence of any significant alcohol use prior to his Navy service. He said there was a clear history of excessive alcohol use during and subsequent to his service. Dr Strauss was of the view that Mr Sanderson suffered from alcohol dependence. He noted that Mr Sanderson had been treated for alcohol dependence and had undergone detoxification at the Heidelberg Repatriation Hospital.
89. Although no medical practitioner ventured a date of clinical onset for alcohol dependence/abuse, Dr Strauss and Dr Pomorin commented that the alcohol abuse disorder was related to his depressive illness. Further, the statement by Mrs Hough indicates that he was probably abusing alcohol by 1970. We are therefore satisfied that the clinical onset of alcohol dependence/abuse corresponds with the clinical onset of his depressive disorder.
Alcohol Abuse / Dependence ‑ Hypothesis
90. In accordance with what the Full Court said in Deledio, the first step we must take is to consider all of the material before us and determine whether it points to a hypothesis connecting Mr Sanderson’s depressive disorder with the circumstances of his operational service in Vietnam.
91. The events in the course of his operational service relied on by Mr Sanderson which he claims connect his operational service with depressive disorder are:
(a)the Derwent being threatened by the American aircraft;
(b) the misfire in the course of the firepower display; and
(c)the man overboard incident upon leaving Vung Tau Harbour.
92. Although it is entirely possible that the material dealing with the American aircraft incident and the misfire incident could establish a reasonable hypothesis connecting Mr Sanderson’s medical problems with his operational service, there is no purpose in us making that finding. That is because, in analysing whether Mr Sanderson suffers from PTSD, we have found, beyond reasonable doubt, that those events did not occur. Therefore, even if we were to find a reasonable hypothesis on all of the material before us, it would not assist Mr Sanderson at all when we embark upon the fourth Deledio step which involves fact finding. It therefore seems to us that in determining whether there is reasonable hypothesis, we should confine our analysis to the material before us dealing with the man overboard incident.
93. Although we have made findings of fact in the course of considering the diagnosis of PTSD in respect of the man overboard incident, because at this stage we are not interested in finding facts but merely in establishing a hypothesis, we must say that the first step is satisfied in that the material does point to a hypothesis connecting Mr Sanderson’s depressive disorder with the circumstances of his operational service.
Alcohol Abuse / Dependence– Statement of Principles
94. The second step according to Deledio is to ascertain whether there is in force a SoP dealing with alcohol dependence/abuse. There is and at the time of Mr Sanderson’s claim, it was Instrument Nº 76 of 1998. However, that SoP was superseded by Instrument Nº 17 of 2008, which came into effect on 5 March 2008. In these circumstances, we are required to follow what the Full Court of the Federal Court said in Repatriation Commission v Gorton (2001) 110 FCR 321. The Full Court said the course mandated by a combination of the Act and the Full Court’s decision in Repatriation Commission v Keeley (2000) 98 FCR 108 required a sequential approach to be taken by the Tribunal. We must first apply the current SoP to determine if Mr Sanderson’s hypothesis is upheld. If it is, we need not examine the superseded SoP. However, if his hypothesis is not upheld by Instrument Nº 17 of 2008, we must then examine Instrument Nº 76 of 1998 in order to determine whether his hypothesis is upheld.
Alcohol Abuse / Dependence– Reasonable Hypothesis
95. In accordance with the third step in Deledio, we are required to form an opinion as to whether the hypothesis raised is a reasonable one. It will be reasonable if it is consistent with the template found in the relevant SoP. The hypothesis must contain one or more of the factors which the RMA has determined to be the minimum which must exist and must be related to the veteran’s service (as required by s 196B(2)(d) and (e) and s 196B(14) of the Act). Only if the hypothesis fits within the template will it deemed to be reasonable.
96. The relevant factors in clause 6 of Instrument Nº 17 of 2008 appear to be these:
(a)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
(b)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; and
(c)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse.
97. For the purposes of Instrument Nº 17 of 2008, a category 1A stressor is defined as follows:
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.
98. A category 1B stressor is defined as follows:
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.
99. The material before us dealing with the man overboard incident does not fit within the definition of a category 1A stressor or a category 1B stressor. The evidence regarding that incident indicates that the man who fell overboard, Mr Parker, was not killed or injured by the event. He was picked up by the Derwent either very shortly after he fell overboard or within a period of three or four hours, depending on whose account of that event is to be believed. Irrespective of the time Mr Parker spent in the water, there was no material before us at all to show that he was injured or killed and in fact the opposite seems to have been the case. We do not consider that Mr Sanderson experienced a life-threatening event as a consequence of Mr Parker falling overboard. We understand that the life-threatening event must be experienced by the claimant and not some other person.
100. The third factor relied upon by Mr Sanderson was that he had a clinically significant psychiatric condition (depressive disorder) within the two years before the clinical onset of alcohol dependence/abuse. Therefore, in this case, Mr Sanderson’s hypothesis regarding alcohol dependence/abuse is underpinned by a sub‑hypothesis, that being depressive disorder. The Full Court of the Federal Court in McKenna v Repatriation Commission (1999) FCR 323 (Branson, Sundberg and Kenny JJ) made it clear that in order for an applicant to succeed where the hypothesis was dependent upon a sub‑hypothesis, the sub-hypothesis had to be linked to the applicant’s relevant service by way of the relevant SoP. The court said that neither of the hypotheses could be said to be upheld unless the sub-hypothesis was also upheld. Therefore, in order to demonstrate a reasonable hypothesis, there must be material before us which will also support the sub-hypothesis.
101. The relevant SoPs concerning depressive disorder are: Instrument Nº 27 of 2008 which superseded Instrument Nº 17 of 2007; and Instrument Nº 58 of 1998 which was in effect at the time of Mr Sanderson’s claim. Again, the SoPs are to be considered in sequence, in accordance with the Full Court decision in Gordon.
102. The possibly relevant factors in clause 6 of Instrument Nº 27 of 2008 concerning depressive disorder are:
(a)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder;
(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
(e)experiencing a category 2 stressor within one year before the clinical onset of depressive disorder.
103. The factors referred to above must be related to the relevant service rendered by the person (clause 5 of the SoP). A category 1A stressor and a category 1B stressor are defined in precisely the same terms as in Instrument Nº 17 of 2008 concerning alcohol dependence/abuse. A category 2 stressor is defined in the following way:
A category 2 stressor means one or more of the following negative life events, the effects which are chronic in nature and cause a person to feel on-going distress, concern or worry:
…
(b) experiencing a problem with a long-term relationship including: the breakup of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce …
104. Although Mr Larkin submitted that Mr Sanderson satisfied factor (a) above, we cannot agree. The material before us discloses that Mr Sanderson’s alcohol dependence/abuse was reactive upon his depressive illness. In other words, the depressive illness occurred first and therefore it cannot be said that Mr Sanderson suffered alcohol dependence/abuse within two years before the clinical onset of depressive disorder.
105. We have already found that the man overboard incident does not satisfy the descriptors set out for a category 1A or 1B stressor.
106. Although the material before us does disclose that Mr Sanderson experienced problems with his marital relationship in about 1970 and that might satisfy the description of a category 2 stressor, there is a problem. As Mr Purcell of counsel, who appeared on behalf of the Commission submitted, there was no material before us which connects or relates Mr Sanderson’s marital problems with his operational service. The only relevant incident is that of Mr Parker falling overboard. Mr Sanderson’s reaction to that event was that he was sick with worry. There is nothing to connect the incident with his marital problems. It follows that we are of the view that the material before us does not satisfy the template set out in InstrumentNº27 of 2008.
107. In accordance with the reasons of the Full Court in Gorton, we should now examine the relevant factors in Instrument Nº 17 of 2007. However, the problem is that the relevant factors in this SoP are identical to those in Instrument Nº 27 of 2008. They do not assist Mr Sanderson at all. Therefore, we should go to Instrument Nº 58 of 1998. The relevant factors in clause 5 are:
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; and
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; …
108. The expression severe psychosocial stressor is defined in clause 8 of the SoP as follows:
“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.
109. The man overboard incident does not, in our opinion, satisfy the above definition because it did not involve the death or serious injury of a close friend nor was it an event of that nature and significance. Although Mr Sanderson did suffer a divorce in 1971, the material before us does relate that event to his operational service as is required by clause 4 of the SoP. As for the second factor, we simply refer to what we have said above for Instrument Nº 27 of 2008 which uses the same expression.
110. Finally, we must examine the relevant factors in Instrument Nº 76 of 1998 concerning alcohol dependence/abuse. The only factor in clause 5 which may assist Mr Sanderson is (b) which states:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse…
111. The expression experiencing a severe stressor is defined in clause 8 of the SoP in the following way:
“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;
112. The problem for Mr Sanderson is that this expression is defined in essentially the same terms as is Criterion A in DSM‑IV concerning PTSD, although use of the word might, appears, at first glance, to modify the need to experience intense fear, helplessness or horror. However, we are of the view that the word might is used in the sense that the events referred to must have the quality of being able to evoke the reactions described. This accords with the Shorter Oxford English Dictionary meaning (1. The quality of being able (to do, etc.)). It does not alter the need for the person experiencing or being confronted with a described event from having the required reaction to the event relied on. Therefore, as we have already found in respect of the PTSD claim, the man overboard incident was not, on all of the material before us, an event which had the requisite quality to satisfy the definition of experiencing a severe stressor.
113. It follows that the material before us does not satisfy the relevant SoPs for alcohol dependence/abuse or depressive disorder. Accordingly, as is set out in s 120(3) of the Act, we must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Sanderson’s depressive disorder or alcohol dependence/abuse is war-caused because the material before us does not raise a reasonable hypothesis connecting those diseases with the circumstances of Mr Sanderson’s operational service.
114. Having analysed in detail whether depressive disorder, as a sub-hypothesis to alcohol dependence/abuse, satisfies the relevant SoPs, and concluding that it does not, there is no purpose in repeating the analysis by assuming depressive disorder as the hypothesis and alcohol dependence/abuse as the sub-hypothesis. It leads to the same conclusion.
CONCLUSION
115. We are satisfied that Mr Sanderson does not suffer from PTSD as a result of his operational service on board the Derwent in Vietnam. We are also satisfied beyond reasonable doubt that his depressive disorder and alcohol dependence/abuse are not war-caused as that term is defined in the Act. It follows that we are of the opinion that the decision of the VRB made on 2 May 2007 was correct and it is affirmed.
I certify that the one-hundred and fifteen [115] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
Dr Kerry Breen, MemberSigned: Olympia Sarrinikolaou
Clerk
Dates of Hearing 25 and 28 July 2008
Date of Decision 6 October 2008
Counsel for the Applicant Mr A. Larkin
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr G. Purcell, Department of Veterans’ Affairs
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