Shields and Repatriation Commission
[2005] AATA 591
•21 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 591
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1260
VETERANS' APPEALS DIVISION
Re: BRIAN WILLIAM SHIELDS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 21 June 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS' AFFAIRS – claim for disability pension – whether ischemic heart disease, hypertension, alcohol dependence in remission, nicotine dependence and post traumatic stress disorder (PTSD) were war-caused – need to succeed in PTSD claim - whether evidence discloses a connection between applicant’s symptoms and a severe stressor experienced in the course of his operational service
Veterans' Entitlements Act 1986 (Cth)
Repatriation Commission v Deledio (1998) 83 FCR 82
Mines v Repatriation Commission [2004] FCA 1331
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 90 FCR 307
Preston v Repatriation Commission (1993) 45 FCR 214
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Budsworth (2001) 116 FCR 200
Benjamin v Repatriation Commission (2001) 70 ALD 622
REASONS FOR DECISION
21 June 2005 Mr E. Fice, Member
1. On 24 September 2002 Mr Shields lodged a claim with the Repatriation Commission ("the Commission") for a disability pension under the Veterans’ Entitlements Act 1986 (“the Act”). On 17 March 2003, the Commission made a decision accepting that Mr Shields’ bilateral sensor neural hearing loss and bilateral tinnitus were war-caused diseases. However, the Commission refused his claim that ischemic heart disease, hypertension, alcohol dependence in remission, nicotine dependence and post traumatic stress disorder("PTSD") were war-caused.
2. On 29 October 2003 the Veterans' Review Board (“VRB”) affirmed the decision made by the Commission on 17 March 2003. Mr Shields now seeks a review of the decision of the Commission to refuse his claims for ischaemic heart disease, hypertension, alcohol dependence in remission, nicotine dependence and post traumatic stress disorder.
3. Mr De Marchi of De Marchi and Associates, Solicitors, appeared on behalf of Mr Shields. Mr G. Purcell of counsel appeared on behalf of the Commission. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeal Tribunal Act 1975, as well as exhibits A1 to A10 tendered on behalf of Mr Shields, and exhibits R1 to R12 tendered on behalf of the Commission.
BACKGROUND
4. Mr Shields was born on 1 May 1944. He joined the Royal Australian Navy ("the Navy") on 8 May 1961, where he served until 30 August 1976. Mr Shields rendered periods of operational service as follows:
(a) 10 May to19 May 1963 — Far East Strategic Reserve;
(b) 25 July to 18 September 1965 — Malaysia and Singapore;
(c) 20 September to – 3 October 1965 — Vietnam;
(d) 12 October 1965 to 5 January 1966 — Malaysia and Singapore;
(e) 29 November to 29 December 1965 — Malaysia and Singapore; and
(f) 15 January to 2 March 1966 — Malaysia and Singapore.
5. Mr Shields claims that the diseases from which he now suffers resulted from a traumatic event which occurred when he was a member of the crew of HMAS Vendetta (“Vendetta”) in November 1965. At that time, Mr Shields was a Leading Seaman and an Underwater Control Rating (Sonar Operator). Vendetta sailed from Sydney in 1965 for service in the Far East Strategic Reserve, arriving in Singapore on 28 August 1965 during the period of Indonesian Confrontation against the newly‑established state of Malaysia. Apparently, Indonesian forces attempted numerous seaborne incursions into Malaysia, and a number of naval forces conducted constant anti-infiltration patrols in the Malacca and Singapore Straits, to deter and to check incursions. Patrols were also carried out in Borneo (East Malaysia) to prevent incursions into Malaysian territorial waters by Indonesian warships; to prevent infiltration by armed parties of Indonesians in local trading boats; and to prevent piracy and pillage. During the Confrontation period, a destroyer/frigate was based in Tawau, a town which is near the Indonesian border, on the east coast of Sabah. From 21 October 1965 to 16 November 1965, Vendetta was engaged in carrying out patrols off Tawau and was involved in the co-ordination of activities of a number of navy vessels patrolling the area, liaising and co-ordinating with Army and Royal Air Force units based in and near Tawau and the provision of naval gunfire support for ground forces if required.
6. On or about 13 November 1965, after Vendetta had stopped a small fishing vessel to search for arms, Mr Shields claims he was confronted by a boy who pointed a pistol at him. Mr Shields said that he grabbed the gun from the teenage boy and it went over the side of the vessel. He said that if it had not been for a Malaysian policeman who stood between him and the boy, he would have killed the boy. It was this incident which, according to Mr Shields, triggered his depressive disorder, which was described as PTSD by a number of specialists.
7. On or about 31 August 1971, Mr Shields was posted to the United Kingdom on a work study course. He did not volunteer for the course, which lasted approximately four months. He did not pass the course. Nevertheless, on his return to Australia, he continued to work on work study projects. He was promoted to Chief Petty Officer on 6 February 1976 and he was discharged from the Navy on 30 August 1976 after his application for further re-engagement was rejected.
PARTIES CONTENTIONS
8. The Commission accepts that Mr Shields suffers from his claimed conditions except for PTSD. The Commission contends that Mr Shields does not suffer from PTSD. This contention is based on the Commission’s belief that the severe stressor relied on by Mr Shields did not occur. If Mr Shields does not suffer from PTSD, then, because his other claimed conditions are dependent upon PTSD being established, those claims must also fail. The Commission accepts that Mr Shields suffers from personality disorder with paranoid features, although Mr Shields makes no claim in respect of that disease.
9. According to Mr Shields, his combined impairment rating using the combined value charts contained in chapter 18 of the GARP is 75 points, which converts to a pension at 100 per cent of the general rate. He contends that he has not worked since 1993 and that his ischaemic heart disease prevents him from undertaking remunerative work, of any physical nature, for periods aggregating more than 8 hours per week. Therefore, should Mr Shields’ conditions be found to be war‑caused, he contends that his disability pension should be increased to the special rate with effect from 24 June 2002.
CONSIDERATIONS
10. For Mr Shields to succeed in his claim for a disability pension arising from ischaemic heart disease, hypertension, alcohol dependence in remission and nicotine dependence, he must succeed in his PTSD claim as those conditions arise out of Mr Shields’ claim that he suffered a severe stressor during his operational service.
11. Although the Tribunal must, in assessing this claim, follow the four steps set out in Repatriation Commission v. Deledio (1998) 83 FCR 82, the position is not as straight forward as it might be where the presence or absence of the disease claimed is dependent upon a connection with the operational service rendered by a veteran. In this case, Mr Shields can only be found to be suffering from PTSD if the evidence discloses a connection between Mr Shields’ symptoms and a severe stressor which he experienced in the course of his operational service. The procedure to be followed in cases where there are claims for PTSD was clearly and fully explained by Gray J in Mines v Repatriation Commission [2004] FCA 1331 (at para 37), where his Honour said:
At the outset, one point needs to be understood. The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.
12. Because, in this matter, there is dispute as to whether Mr Shields suffers from PTSD, my first task is to determine whether, on the evidence, it can be said that Mr Shields does suffer from PTSD. In making that determination, the question which arises is whether the Tribunal is bound to make such a finding on the balance of probabilities as is set out in s 120(4) of the Act, or, because a finding of PTSD necessarily involves an examination of whether a severe stressor can be established, the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for finding a connection between the injury and the veteran’s operational service in accordance with s 120(1) of the Act. The analysis of his Honour Mr Justice Gray in Mines’ case is instructive. He said (at paras 39-41):
Ordinarily, it will not be difficult to determine whether it is more probable than not that a veteran is suffering, or has suffered, an injury or disease. Even if there should be a conflict of medical evidence, the decision-maker will resolve that conflict in the ordinary way. There may be cases in which the very question whether an injury or disease has been suffered is itself bound up with the question of connection with war service. PTSD provides an example. 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. Of course, there might be more than one possible traumatic event, and there might be a question as to which of such events is responsible for the condition. If one or more of the possible traumatic events is not associated with war service, the decision-maker will have to resolve the question whether the symptoms result from the event or events associated with war service or the other event or events…
More than one process of reasoning is possible. The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD. If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran’s operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt. It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt. The steps required by Deledio would be satisfied without difficulty. On the other hand, if the decision-maker were not satisfied on the balance of probabilities that a traumatic event occurred during war service, resulting in PTSD, then the case would never reach the stage of the application of the steps in Deledio, because no question of a connection between PTSD and operational service could arise. There would be no finding of PTSD.
The other possible process of reasoning is to say that all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered, are to be determined on the reasonable hypothesis basis, required by s 120(1). On this basis, the decision‑maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent to the finding of PTSD. The question of whether there was PTSD would be determined on the “reasonable hypothesis” basis, using the four steps referred to in Deledio. Thus, the first step would be to ask whether the symptoms suffered by the veteran, in conjunction with the other material, raised a reasonable hypothesis of a connection between those symptoms and a postulated traumatic event, and therefore a reasonable hypothesis that the veteran suffered PTSD. On this basis, the question of a connection, and the question whether the relevant traumatic event occurred at all, would be dealt with only once in the process of reasoning, and a finding favourable to the veteran would be required unless the material demonstrated beyond reasonable doubt that the connection did not exist or that the traumatic event did not occur”.
13. His Honour Justice Gray then undertook an examination of a number of cases, including Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission v Cooke (1998) 90FCR 307, Preston v Repatriation Commission (1993) 45 FCR 214, Repatriation Commission v Gosewinckel (1999) 59 ALD 690, Repatriation Commission v Budsworth (2001) 116 FCR 200 and Benjamin v Repatriation Commission (2001) 70 ALD 622. He concluded that although Byrnes’ case suggested that the second process of reasoning set out above is the correct one, subsequent cases, including Cooke, Budsworth, Gosewinckel and Benjamin would suggest the first process of reasoning is correct. From those cases, his Honour concluded (at para 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 the hypothesis do not exist beyond reasonable doubt. If the question is posed as whether the 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.
14. His Honour also suggested that a decision-maker’s task might not end even if the decision-maker is not satisfied on the balance of probabilities that the veteran does not suffer from PTSD. His Honour suggested that the disease from which the veteran suffers might be characterised differently, and, if that were the case, where the decision-maker is satisfied on the balance of probabilities that the veteran suffers from a collection of symptoms which may or may not amount to PTSD, it will be necessary in accordance with the second process of reasoning to consider whether the requisite connection exists. His Honour said (at para 50):
…When the decision-maker is reasonably satisfied that the veteran has a condition, which might or might not amount to PTSD, depending upon whether it resulted from a traumatic event, that condition might itself amount to a disease, for the purpose of the application of the Deledio steps.
15. Therefore, in accordance with the above authority, the first task for me is to characterize the psychiatric problems exhibited by Mr Shields.
MEDICAL EVIDENCE
16. The first outward signs of Mr Shields’ psychiatric problems can be traced back to his aggressive behaviour shortly after entering the Navy. A medical attendance treatment card discloses that Mr Shields presented for medical treatment for an injury to his right shoulder, sustained in a fight. The date of treatment appears to be 6 August 1961.
17. A daily medical record dated 7 June 1963 records that Mr Shields suffered concussion and facial contusions as a result of being kicked in the head during a fight. It is stated that Mr Shields lost consciousness, although at the time of the medical examination, he was fully conscious and alert with no neurological abnormalities.
18. A further daily medical record dated 11 June 1963 records that Mr Shields suffered contusions to the nose and was suffering from frontal headaches as a consequence of being involved in another fight.
19. Shortly after Mr Shields returned from the work study course in the United Kingdom, he was involved in a serious assault on his wife. An outpatient record dated 8 May 1972 records that following his return from the United Kingdom, Mr Shields had been subject to irrational and aggressive behaviour towards his wife and family. It also records that Mr Shields had suffered a dramatic personality change since his return from the UK. He was admitted to hospital at Royal Australian Naval Hospital Penguin on 9 March 1973 and was hospitalised for a total of 82 days. According to an inpatient record dated 15 July 1972, Mr Shields, who was assessed with an IQ of 100, would normally be precluded from most tasks requiring any degree of intellectual performance, and yet he was chosen for a “crash” course on job analysis in the UK, a task which was far beyond his resources. The report stated that it was unsurprising that he failed the course. The report also stated that at the same time he had a liaison with another woman while on the course. The report concluded that, Mr Shields having a poorly integrated personality with a great fear of failure, the combination of those two events resulted in an acute anxiety state and loss of control. After Mr Shields was seen on 23 March 1972, it was reported that:
…"This man presents as an Acute Anxiety State with paranoid features in an inadequate personality.
The stress situation which appears to have precipitated this reaction is in part the result of his own behaviour and in part the result of a lack of understanding on the part of the Service in asking him to do the impossible".
…
20. Mr Shields was admitted to hospital complaining of depression, insomnia and aggressive behaviour, all of sudden onset. His wife told Dr Rowe that Mr Shields suffered a complete personality change on return from the UK. She said that Mr Shields began by accusing her of infidelity and that he suffered occipital headaches for about one to two weeks. He threatened to take an overdose, became increasingly more violent and more sexually demanding. He forced himself on his wife sexually on occasions during January of 1972. He accused his wife of being a harlot and his language became increasingly fouler in front of the children who were petrified of him. At times he would shake and tremble all over before becoming abusive and violent. His wife said that he had drunk much more alcohol in the preceding three months but she had not seen him intoxicated until the week she left him when he “got stuck into it". The report also indicated that Mr Shields was very paranoid and suspicious.
21. Mr Shields was involved in a further serious assault in 1975. By this time, he had separated from his wife and he was cohabiting with another woman, who was described as his de facto. An out-patient report dated 6 February 1975 records that Mr Shields had a long standing history of personality disorder for which no adequate cause had been found. It is also stated that five days prior to the report, Mr Shields was involved in an assault upon his de facto and that he did not remember anything of the incident. He had been drinking to excess during the day and had no memory of the incident other than waking up on the floor at his home with the police present. He was charged with assault. Dr A. Merrifield, who wrote the report, recorded that he had previously seen Mr Shields in 1973. Dr Merrifield said that Mr Shields was aggressive towards his first wife, which required him to be hospitalised five years earlier; but the beatings at that time were not as severe as the beatings that he inflicted on his de facto. Although there was a family history of epilepsy, he could not suggest that epilepsy played a part in this particular episode. Dr Merrifield was of the view that, on Mr Shields’ own admission, he was rather angry, hostile, drunk and that people should keep well away from him in those circumstances. He considered that Mr Shields simply suffered from an alcoholic blackout.
22. Mr Shields lodged a claim for a disability pension on or about 9 March 1999. He claimed for three disabilities: complete breakdown, heart attack and ischaemic heart disease. In his application form, he set out his belief as to what caused or contributed to his breakdown, stating the following:
(a)occupational maladjustment;
(b)stress of failure feelings;
(c)personality change – extremely violent;
(d)anxiety – obsessive, compulsive;
(e)deep depression – anger and abusive;
(f)break-up of first marriage resulting in loss of two daughters for 10 years; and
(g)amount of time spent at sea and overseas early January 1972.
As a result of Mr Shields’ application for a disability pension, he was examined by Dr G. D’Ortenzio, consultant psychiatrist. Dr D’Ortenzio took a detailed family and developmental history from Mr Shields. In a report dated 10 June 1999, Dr D’Ortenzio concluded that Mr Shields’ main current problems, and his problems over recent years, could be subsumed under the diagnosis of alcohol abuse and dependence, although that disorder was under good control at that time. He also suggested a diagnosis of impulse control disorder, although there was no clear personality disorder diagnosis that he could make. When referring to Mr Shields’ psychotic episode in 1972, Dr D’Ortenzio said the exact nature of the breakdown was unclear, but it may well have been a very prolonged and severe depressive disorder although, in his opinion, the amount of aggression associated with that condition was uncommon and he therefore suggested that perhaps there was a psychotic disorder present as well.
23. Dr D’Ortenzio also concluded that there was no clear relationship between Mr Shields’ medical problems and any war service related stressors. He came to this conclusion because Mr Shields told him that everything was going well in his life until about the middle of 1971. Apparently, Mr Shields told Dr D’Ortenzio that prior to going to the work study course in the UK in 1971 he had done very well in the Navy, had been highly respected, highly regarded and had an excellent record. He had risen through the ranks quickly. However, following the course in the United Kingdom, he became a different person altogether and he “completely cracked up and never really recovered”. After he was discharged from hospital in 1972, he said his job changed and instead of being a seaman, he went to work in an office in Sydney and then later in Canberra. Mr Shields said that in the years that followed, he was living on his own and felt very alone, his wife having left with their two daughters on the day that he was discharged from hospital. He said that he got into a lot of fights and was involved in a lot of heavy alcohol abuse. He described feeling very angry and resentful towards the Navy for never getting me any treatment, never having regard for me.
24. Mr Shields told Dr D’Ortenzio that he was troubled by terrible anger and that he was totally unable to control himself. He said he would go from feeling really depressed, to being angry about any minor or trivial matter. He said that in that setting he would get physically violent. He explained to Dr D’Ortenzio that he still suffered from severe and uncontrollable anger at the most trivial event. He said he was really depressed most of the time and that he had very little energy, motivation or interest. He said that he became upset easily and when he did so, he became confused, irrational and did not do the obvious things which would fix the situation. Significantly, Mr Shields denied that he had any problems with anger, alcohol use or relationships with others prior to the events of 1972, when he was hospitalised. He said he was only a moderate drinker until the breakdown in 1972. He told Dr D’Ortenzio that he drank heavily in the years following the separation from his first wife, until he met his second wife.
25. Upon clinical examination Dr D’Ortenzio concluded that there were no persistent depressive or anxious themes. He said there were no preoccupations with any war service experiences and there were no suicidal or homicidal ideas. Dr D’Ortenzio concluded that:
…
Having said all the above, it would seem that whilst one can relate his current problems to his alcohol abuse and dependence problems perhaps or to post psychotic problems with mood and impulse control or alternatively to personality changes as a result of some other event, it is difficult to make any clear relationship between these disorders and his current levels of disability…other than his being posted reluctantly to the United Kingdom for the training course.
As such, I find it very difficult to attribute his current problems to any war or military service other than secondary to the prolonged absence from home that the nature of his service dictated.
26. In cross‑examination Mr Shields was asked why he did not tell Dr D’Ortenzio about the incident upon which he relies in this application, i.e. where a teenager pointed a gun at him when he was a member of the boarding party of Vendetta, which he says was the severe stressor. Mr Shields said he did not like Dr D’Ortenzio and that he did not tell him everything for that reason. He also said that Dr D’Ortenzio never asked him any specific questions about that incident.
27. Dr C. Percival, consultant psychiatrist, examined Mr Shields on 15 and 16 October 2002. He completed a report dated 22 October 2002. Dr Percival refers to documents which were provided to him by Mr Shields but makes no reference to Dr D’Ortenzio’s report. According to Dr Percival’s report, Mr Shields believed that two events were the cause of his psychiatric disorder. The first event which he recounted to Dr Percival was the event where a 12 year old boy pointed a 9mm pistol at him and pulled the trigger. This occurred when Mr Shields was a crew member of Vendetta, which was on patrol duties during the period of Confrontation between Malaysia and Indonesia. According to Mr Shields, the second incident occurred on 3 June 1969. Mr Shields said he was Chief Bosun’s Mate on HMAS Stewart (“Stewart”) at the time. Stewart was on exercise in the South China Sea when HMAS Melbourne (“Melbourne”) collided with an American destroyer, the USS Frank E Evans (Frank E Evans). Mr Shields told Dr Percival that Stewart went to the assistance of survivors and he explained how he had witnessed the drowning of a seaman who was trapped on the floating rear section of the Frank E Evans which, according to Mr Shields, sank shortly thereafter.
28. Dr Percival diagnosed Mr Shields as suffering from PTSD. He said that:
…
Insofar as the issue of causality with respect to the veteran’s psychiatric disorders are concerned that of Post Traumatic Stress Disorder is obvious and axiomatic, whilst the pattern of development of his substance abuse disorders is such as to lead to an unavoidable conclusion that these too are, to a significant extent, a consequence of the veteran’s exposure to two specific traumatizing experiences during his naval service.
I understand the reference to two specific traumatizing experiences to be the events described by Mr Shields while serving on Vendetta and on Stewart. In addition, Dr Percival comments, with respect to Mr Shields’ alcohol dependence and nicotine dependence, that there was no evidence of pre-existing personality disorder. That of course is contrary to Dr Merrifield’s statement, where he said that Mr Shields had a long standing history of personality disorder.
29. Dr M. Rajagopalan, consultant psychiatrist, examined Mr Shields on 12 December 2002 and 9 July 2003, following a referral from Mr Shields’ treating doctor, Dr Michael Pickavance. Mr Shields provided Dr Rajagopalan with Dr Percival’s report because, he said, he found it difficult to talk to about previous traumatic events. On going through Mr Shields’ history, Dr Rajagopalan said that it was quite clear that Mr Shields had developed PTSD with prominent features including a depressed mood, irritability, anxiety, hypoarousal, nightmares and frequent preoccupation with previous traumatic events.
30. Dr E. Cole, consultant psychiatrist, examined Mr Shields on 15 April 2004. He provided a report dated 28 April 2004. In that report Dr Cole set out the documents which were given to him to assist in writing the report; and although those documents included Mr Shields’ outpatient records from the Navy, a letter from Dr Pickavance and a report from Dr Percival, no mention is made of Dr D’Ortenzio’s report.
31. Mr Shields gave Dr Cole accounts of the incidents involving Vendetta and Stewart. Both accounts are in extreme detail and graphic. Mr Shields told Dr Cole that, except for the Vendetta and Stewart incidents, he had experienced no other traumatic events during his service. He said that it was only after the Vendetta incident in 1965 that his nervous symptoms began. He told Dr Cole that in 1972 he went to England to do a six months course but that he had problems long before he went. He said that he was drinking heavily and was not interested in the course and did not want to be there. He told Dr Cole that upon his return to Australia he had a breakdown and was admitted to hospital. He said he had nightmares of both events (Vendetta and Stewart) three or four times a week but they were mainly about the one when he was confronted with the pistol. He said that he called out in his sleep, had night sweats and woke up with his heart pounding. He felt panicky in unfamiliar situations and did not go anywhere without his wife. He was jumpy and easily startled and was irritable and quick tempered. He said he had bouts of depression that used to last a week or more, but, at the time of the consultation, lasted only three or four days. He also said he had been suicidal at times but he had not made any attempts to take his own life. Mr Shields told Dr Cole that he had flashbacks of his experiences three or four times a week and he was unable to watch shows on television involving weapons and violence. He said that if he saw a gun pointed at someone’s head it brought him to tears.
32. Dr Cole observed that Mr Shields appeared anxious and became obviously distressed when he described the incident with the pistol. In his opinion, he did not think that there could be any doubt about the fact that Mr Shields suffered from chronic PTSD accompanied by a reactive depression. He said that Mr Shields’ condition was to be attributed to the incident that occurred on about 13 November 1965 and that his experiences, when Melbourne collided with the Frank E Evans, had the effect of aggravating his condition.
33. Under cross examination, Dr Cole could not recall whether he had read Dr D’Ortenzio’s report. In any event, if he had read it, he said that he perhaps had not read it as carefully as he could have. He also said that Dr D’Ortenzio may not have been aware of the Vendetta incident. Dr Cole agreed that his conclusions about Mr Shields’ condition were dependent upon the truth of the statements made about the Vendetta and the Stewart incidents. He admitted freely that it was not his role to act as a judge of the truth or otherwise of the facts presented by a patient. He agreed that he could not do so. He also agreed that in arriving at his diagnosis, he had to infer that the traumatic events described by Mr Shields were true.
34. The Commission essentially relied on two reports and the oral evidence of Dr K. Byrne, a clinical and forensic psychologist.
35. Dr Byrne examined Mr Shields on 13 July 2004 for one and a half hours, and again on 5 August 2004 for a further two and a half hours. In his report, Dr Byrne summarised the materials which he previewed between the first and second consultation. They include all of the reports referred to above. Dr Byrne also had Mr Shields tell him about the incidents which occurred while Mr Shields was serving on Vendetta and on Stewart. Again, Mr Shields gave a graphic account of those two incidents. He also explained to Dr Byrne the problems he encountered in 1972 after coming back from the United Kingdom from the work study course. He told Dr Byrne about his drinking problem, the fights that he had while in the Navy, and the 1975 incident involving Mr Shields’ de facto. After explaining the effect that the incidents had on him, including the problems he had going out of his house alone, he told Dr Byrne that that pattern had changed only about three months prior to seeing Dr Byrne. When Dr Byrne asked him about this, Mr Shields said that he needed his wife with him to be sure that he did not abuse or accuse anyone and that he needed her to watch what was behind him. When asked to clarify that, Mr Shields referred to somebody coming at him from behind and he said that has always been his problem – that he was afraid that somebody was after him. When asked whether he had ever had the experience of seeing strangers in the street and thinking that they had been talking about him he said that he thought that everybody was talking about him and saying “look at this bloody idiot – he’s not a full bob”. He was then asked whether he had taken any special measures to protect his home and, according to Dr Byrne, Mr Shields was embarrassed when he said that at the slightest sound at his house, either inside or outside, he would grab a pick handle and not come back inside until his was satisfied that he had patrolled his house. He also told Dr Byrne that he would not sit in a room with his back to an open door saying that if somebody came through the door, he wanted to be able to see their hands.
36. After conducting a detailed review of all of the extensive medical data provided to him, and a report prepared by Commodore P.M Mulcare for Writeway Research Services, Dr Byrne noted that the first mention of problems relating to defence service “was on 20 September 2002 when he referred to stress in the Army (sic) and nightmares since then”. Dr Byrne noted that from 20 September 2002, psychiatric problems were mentioned on approximately eight occasions including PTSD, alcoholic dependence, depression and anxiety. Dr Byrne concluded that although Mr Shields described many symptoms which suggest a diagnosis of PTSD, he had significant reservations about that diagnosis for a number of reasons. Putting aside the fact that he had significant reservations about whether or not the Vendetta and Stewart incidents in fact occurred, Dr Byrne said that Mr Shields’ report of the effect of the event that occurred when he was on Stewart was inconsistent. At first Mr Shields suggested that it had little or no impact on him and then he later described the sinking of the Frank E Evans tragedy as intensifying his reactions to the incident that had occurred earlier when he was on board Vendetta. Also, Mr Shields told Dr Byrne that life got progressively worse until he was hospitalised in 1972. However, there was nothing in his medical records to suggest that he had a significant problem prior to 1972. Dr Byrne said that it was difficult for him to reconcile Mr Shields’ description of an ongoing deteriorating psychological state; his report of continued dissatisfactory performance in his work; his decision to re-enlist in the Navy in 1970 and again in 1973; and his desire to again re-enlist in 1976. As far as the incident on board Vendetta is concerned, Dr Byrne concluded (at 36):
…If the Tribunal should ultimately accept that the gun incident did happen, and the Tribunal were persuaded that all of the subsequent psychiatric evaluations were incomplete, then I would be willing to accept a diagnosis of PTSD. Without these two thresholds being met, I would not accept such diagnosis.
37. As far as the Frank E Evans incident is concerned, Dr Byrne said (at 37):
…
I would be willing to accept the diagnosis of PTSD, based on the veteran’s description of symptoms, if the Tribunal were satisfied that the veteran’s report of his activities at the time of the Evans/Melbourne collision was reasonably accurate; that the available medical records are substantially deficient in having failed to ask the veteran about prior symptoms and failed to have recorded any mention of these; and if the Board can reconcile his Naval performance and desire to re-enlist with his description of his symptoms.
Dr Byrne finally concluded that in his opinion, Mr Shields was suffering from a personality disorder with paranoid features.
38. It is abundantly clear from all of the medical reports obtained by both parties that a diagnosis of PTSD is dependent upon whether the incidents regarding Vendetta and Stewart occurred in the way that Mr Shields has described. In fact, although Mr Shields relied on both incidents, given that his claims depend on a severe stressor which occurred during his period of operational service, it is only the incident which occurred when he was serving on Vendetta which can be relied on by Mr Shields to support his claims. Nevertheless, it is important, in my opinion, to examine both incidents in detail to ascertain the veracity of Mr Shields’ account of these events.
HMAS Vendetta Incident
39. Mr Shields gave evidence that on 13 November 1965, when he was a crew member on Vendetta, he was involved in boarding Indonesian vessels during the period of Confrontation between Malaysia and Indonesia. The purpose of stopping small fishing vessels was to detect and deter incursions into Malaysia by Indonesians and to prevent the illicit transport of arms or explosives into Malaysia.
40. Mr Shields claims that he was a member of Vendetta's boarding party which was, in effect, divided into two groups. If a fishing vessel was stopped, one half of the boarding party would use Vendetta’s sea-boat to access the vessel while the destroyer maintained its distance, approximately 300 metres away from the suspect vessel. The remaining half of the boarding party was stationed on board Vendetta with weapons at the ready and positioned at the cut-out area towards the stern of the destroyer. This was in the event that the fishing vessel was brought alongside Vendetta if it was arrested or required a further search.
41. On the day of the incident in question, Mr Shields said that he was second in charge of the boarding party which was led by an officer whose name he could not recall. He was armed with a self loading rifle(“SLR”), as were all members of the boarding party, except for the officer who carried a short range, automatic weapon. According to Mr Shields, the incident took place in daylight, although he seemed to think that it was at dusk. He said Vendetta could be seen from the fishing vessel, although not necessarily clearly as it was about 300 metres away. When the boarding party boarded the fishing vessel, he said that it searched the men and sat them on the deck with their hands on their heads. There were six men, a woman, a teenage boy and two girls on board the vessel. He said it was not normal procedure to search children or women. When the boarding officer and two sailors went below deck into the cockpit area of the fishing vessel, he heard a woman call out something which sounded like “No”. He said the teenage boy, who was about 4 to 5 feet away from him, was holding a 9mm pistol pointed at his chest. He said that he saw the boy pull the trigger because the gun dipped down. However, it did not discharge, either because it was not loaded or the safety catch had not been released. He said he momentarily froze, and then he grabbed the gun which, in the struggle, went over the side of the fishing vessel into the water. He said that at the same time he had his SLR pointed at the boy and was about to pull the trigger but that a Malaysian policeman, who boarded the boat with the boarding party, stepped between them and said “Don’t”. He said that the other sailors on board the fishing vessel would have seen the incident. He said that he had feelings of fear and then rage that he had been caught out. He said that on the way back to the ship the officer who had also boarded the fishing vessel admonished him because the evidence had been lost overboard. He said that the fishing vessel was brought alongside Vendetta in the cutaway area and that its crew was disembarked and brought onto the deck of Vendetta. No other weapons were found on the fishing vessel or its crew. He also said that he could not recall the name of the fishing vessel except to say that it was something like “Murtaro” or “Manaroa”. He agreed that the First Lieutenant, who was in charge of the boarding party and who boarded the fishing vessel, was in radio contact with the Executive Officer of Vendetta, Lieutenant Commander Hudson, at all times. Lieutenant Commander Hudson was also a member of the boarding party but positioned on Vendetta itself.
42. When providing a history to Dr Byrne, Mr Shields had also said that the police questioned the mother of the teenage boy, learning that she had been sitting on the pistol. He also said that he was confident that he had reported the incident to the Officer in Charge and that the Officer had radioed Vendetta and told the Executive Officer what had happened. He also told Dr Byrne that after the incident he continued with his normal duties, which included boarding other ships, until 30 November 1965. He told Dr Byrne that he participated in four or five more boardings after the incident on 13 November 1965.
43. Lieutenant Commander R.K. Ryall (Retired) provided a written statement dated 24 February 2003 and he also gave oral evidence at the hearing. Mr Ryall said that he served on Vendetta during 1965 and that he was Vendetta’s Boarding Officer for most of the time that he was on board, including the period between November and December 1965. An extract from the Navy List for September 1965 showing the dates on which Officers joined particular ships, shows that a Lieutenant R.K. Ryall jointed Vendetta on 22 March 1965. Mr Ryall said that Vendetta conducted patrols and boarding operations off Borneo and in the Singapore and the Malacca Straits during that time. Mr Ryall said that prior to conducting operations, the boarding party was briefed in detail on boarding and search requirements and, when necessary, was given the latest threat intelligence. He said that in general, searches were conducted with the seized vessel alongside Vendetta, although there were some exceptions to this in the Singapore Straits. He said that crew and passengers were mustered together on deck under the supervision of armed members of the boarding party while a search was carried out. Mr Ryall said that in the event that weapons were found, the culprit boat was to be arrested or sunk, depending on the circumstances.
44. Mr Ryall said that he did not specifically remember Mr Shields at all, as there were about 300 men on board Vendetta. He had also served on many other ships during his period of service. When asked if he recalled the incident referred to by Mr Shields, Mr Ryall said he did not. He said there were several boarding "incidents" in which he was involved in the six years he spent in the Far East on various ships during the Confrontation, which he recalled quite vividly. He did not recall the incident recounted by Mr Shields at all. He said that in his opinion, an incident involving arms on a fishing vessel would have been recorded and it would have been reported immediately on the radio to the Executive Officer. In addition, Mr Ryall said that a de-briefing always took place after each boarding and both the Captain and Executive Officer would have been briefed about that incident if it had occurred.
45. Mr Ryall was asked whether he recalled two other persons who were members of that boarding party, Mr T. Coleman and Mr T. Dack. He said he did not. Mr Ryall said that he did not consider the task of searching vessels stressful as it was mostly routine, but it could become stressful as a consequence of sailors working twelve hour shifts. However, he said that the sailors were well trained and experienced and it ought to have posed no problem to them. He also said, in cross‑examination, that the de-briefing was thorough and that notes were taken and logged. He said that an incident involving a pistol would have been significant enough to report to Far East Command; and it most certainly would have been thoroughly written up in the ship’s Report of Proceedings.
46. Vendetta’s Report of Proceedings for November 1965 was put in evidence by Commodore P. Mulcare. The Report of Proceedings discloses that Vendetta conducted night patrols on Saturday 13 and Sunday 14 November 1965, anchoring off Tawau on Monday 15 November to prepare for the guard ship turnover the next day. Guard ship was turned over to HMS Lincoln on Tuesday 16 November 1965 and Vendetta left Tawau at 2.30 p.m. on 16 November 1965 bound for Balembangan Island and Singapore. There is no mention in the Report of Proceedings of the arrest of a fishing vessel or of the incident described by Mr Shields, as one would have expected, particularly if a weapon was found on board. After all, that was the very purpose of conducting the guard ship exercises.
47. Vice Admiral D.W. Leach, who was a Commander and Vendetta’s Commanding Officer in 1965, also gave evidence. He confirmed that Vendetta was involved in stop and search exercises at the relevant time but he did not think that many vessels were stopped. He thought that about 20 vessels in a week would be the most that would have been stopped. When asked if he recalled the incident recited by Mr Shields he said “Not at all”; and he said he did not believe that it had happened. In his opinion, had the incident happened, it would have been radioed immediately to the Executive Officer, who at that time was Lieutenant Commander M.W. Hudson. According to Vice Admiral Leach, the boarding officer, Mr Ryall, would have informed Lieutenant Commander Hudson who would have informed him of this incident at the de-briefing. He said that such an incident would have been a major event and a full report would have been made and a signal sent to Naval Command.
48. Vice Admiral Leach did not remember Mr Shields at all. He conceded that not all boardings of fishing vessels were recorded. He said in particular where small vessels were involved, with say three persons on board, there was no requirement to record the fact that such vessels had been boarded. If Mr Shields was distressed after such an incident, he believed that the ship’s doctor would have reported that to him. No such report was made.
49. Commodore Mulcare also provided a report detailing research which he conducted into both incidents recited by Mr Shields. In addition to speaking with Vice Admiral Leach and Mr Ryall, he obtained a statement from Admiral M.W. Hudson who, sadly, had passed away prior to the hearing of this matter. Admiral Hudson stated that on 30 November 1965 Vendetta did intercept a motor vessel which was called “Mutiaria”. This is similar to the name which Mr Shields recalls being the name of the fishing vessel in question. However, the Mutiaria was a 100 ton vessel with 69 Indonesians on board. Its seizure, in which Vendetta was involved, was reported in the Straits Times newspaper on 2 December 1965. That is clearly not the vessel to which Mr Shields referred. In a letter dated 5 October 2004 to Commodore Mulcare, Admiral Hudson said that he had no recollection of Mr Shields, Mr Coleman or of the pistol incident referred to by Mr Shields. He also said that given the nature of the incident, he is certain that it would have been reported to him as the Executive Officer of Vendetta.
50. Mr T.P. Coleman gave evidence on behalf of Mr Shields. He said he had been an Able Seaman and a crew member of Vendetta in 1965. He said he served on Vendetta between 1965 and 1967. When asked if he recalled the incident recited by Mr Shields he said “to the best of my knowledge I recall it”. I am uncertain as to what Mr Coleman meant by that statement. However, it seems to be something less than a categorical recollection of the event. In a statement provided to the Tribunal, which is undated, Mr Coleman said: “When we boarded their (sic) were several people on board, about 6 men and women, 1 teenager and 2 children”. Given that Mr Coleman seemed not to have a particularly clear recollection of the incident, I asked him if he specifically recalled six men and women, one teenager and two children. He conceded that he did not and that he put that in his statement because Mr Shields told him that that was the case.
51. In his written statement Mr Coleman said that the Malay policeman, who was with the boarding party, began to question the Indonesian captain, checking his paper work and log when all of a sudden the teenager had a pistol in his hand. He said that the teenager looked very frightened and if it was not for Mr Shield’s quick reaction to knock the pistol out of his hand, which fell over the side of the vessel, there would have been a firefight and the result would have been a disaster. He then said the captain and crew were arrested and the party returned to Vendetta, shaken, but soon put it down as part of the job. In his oral evidence Mr Coleman said there was a de-briefing after the event, but that he did not attend as he was merely an Able Seaman. He said that some 30 or 40 vessels per day were boarded. He did remember a Mr Ryall or Riley as being the officer in charge of the boarding party.
52. Under cross‑examination, Mr Coleman said that he recalled that Mr Dack and Mr Shields were members of Vendetta's boarding party. He thought there were four to five persons in the boarding party. When asked whether he had a recollection of the fishing vessel being brought alongside Vendetta, he said that he did not have a clear recollection about that. He did not think that the fishing vessel had been brought alongside Vendetta. He admitted he had discussed the matter with Mr Shields prior to giving evidence. When asked whether he had a good view of the incident he said yes, he was standing there, that he saw it, he was 5-6-8 feet away. Then he repeated that "to his recollection", he did see it. Mr Coleman said he did not actually see the gun pointed at Mr Shields and he did not see the trigger pressed but he did see the gun go over the side. When pressed on this point, he said that he could not remember exactly. He said that the entire fishing vessel crew was taken back to Vendetta and sat on the deck while they were questioned by the Malaysian policeman. He said he did not recall going back to the ship and he thought that the incident would have been conveyed to the ship by radio. He then said that his recollection was not perfect. He had no recollection of what happened on board Vendetta after the incident.
53. Mr Coleman was then asked if, during the period in which he participated as a member of a boarding party, he had ever been attacked. He answered “No”. He was then asked if he had made a claim for a disability pension and he answered that he had. Commodore Mulcare, who also gave oral evidence, was asked whether he had conducted research into the disability pension claim made by Mr Coleman and he answered that he had. He was also asked whether Mr Coleman had made an allegation that he had been attacked while a member of the boarding party and he answered “Yes”. When asked whether there was any evidence of such an attack on any member of a boarding party, Commodore Mulcare answered that he could not find any record of such an attack.
54. Mr T. Dack also gave evidence on behalf of Mr Shields. In a written statement dated 19 June 2003, Mr Dack said that he served on board Vendetta between August 1965 and March 1966. He said he served alongside Mr Shields and knew him well. He also claimed to have been a member of the ship’s boarding party. In his written statement he said that during a boarding in 1965, there was an incident where a weapon was “pulled” and pointed at one of the boarding party. He said he did not witness the incident as he was forward in the vessel. He said that he learned of the incident at the de-briefing carried out by the Boarding Officer and the Malay special constable on completion of the operation.
55. In oral evidence Mr Dack said that Vendetta was heavily involved in boarding Indonesian vessels, up to 150 per night. He also said that the incident referred to by Mr Shields occurred at night and not in the daytime as stated by both Mr Coleman and Mr Shields. He recalled Mr Coleman and said that he was friends with him and he also recalled that the Boarding Officer was Lieutenant Ryall.
56. When it was put to him that Vendetta could not possibly have been engaged in boarding 150 vessels per night, given that it would take about 1 hour per vessel, he suggested that not all the vessels were boarded and that he might be a bit vague about that. Mr Dack also said that he jumped from the Vendetta onto the vessel as it was alongside Vendetta. He said that the vessel was lit up by the ship’s lights and he thought there were nine members of the boarding party. As cross-examination proceeded it was obvious that Mr Dack’s memory of the incident was extremely vague. He said he only vaguely remembered something about a gun mentioned at a de-briefing. He suggested that at the de-briefing the persons present were the Officer in Charge and possibly some others but he could not recall who. Mr Dack thought Able Seamen were involved in de-briefings, but not in the de-briefing to the Vendetta's Captain. He reiterated that he did not see the incident. Also, he did not hear news of the incident travel around the ship although he assumed it would have. He also assumed that the First Lieutenant and Captain would have learned about the incident. When told that they knew nothing of the incident, Mr Dack admitted that “it throws a shadow over it”.
57. In my opinion an incident such as that described by Mr Shields, in circumstances where Vendetta was expressly tasked to search for arms, would almost certainly be recalled by the Commander of the ship and the Executive Officer. Furthermore, I have no doubt that a full report would have been made of such an incident and that the fishing vessel and its crew would have been arrested. All of the written records which were available to me indicate that no such incident occurred. In addition, the oral evidence given by Vice Admiral Leach and Mr Ryall was far more credible than that given by Mr Shields, Mr Coleman and Mr Dack. In fact, Mr Coleman strongly expressed his discomfort under cross-examination when doubts were raised about his credibility. Therefore, not only am I satisfied on the balance of probability that this incident did not occur, I am satisfied beyond reasonable doubt that it did not occur.
Frank E Evans Incident
58. Although this incident cannot support Mr Shields’ claim regarding PTSD, it highlights the difficulties that I have with Mr Shields’ credibility.
59. Mr Shields said that he was serving on board Stewart in 1969 when a collision occurred between Melbourne and Frank E Evans. Mr Shields said in evidence that on 3 June 1969 at about 3.30 a.m., Stewart received a call informing the ship of the collision and asking for assistance. He said that Stewart proceeded at 28 knots to the collision area in the South China Sea, arriving in the area at about 5.00 a.m., approximately one and half hours after the collision occurred. In the history given to Dr Percival, Mr Shields told Dr Percival that at the time of impact Stewart was some 2 kilometres distant from the disaster. However, given that it took Stewart about one and half hours travelling at 28 knots to reach the scene, it would seem that Stewart must have been at least 42 nautical miles or approximately 78 kilometres from the scene of the collision. In the history taken by Dr Cole it is recorded that Stewart was escorting Melbourne at the time of the collision. Mr Shields said he was on the upper deck and did not witness the collision but the rear section of the Frank E Evans remained afloat for some time. In the history recounted to Dr Byrne, Mr Shields said that he was on Stewart which was travelling near the Melbourne. He said he was on the upper deck but did not see or hear the collision because Melbourne was some distance away. Quite clearly, the evidence that he gave to the Tribunal about this is at odds with the histories taken by the medical practitioners.
60. In his evidence to the Tribunal, Mr Shields said that he arranged for the crew of Stewart to search for survivors and that sea-boats were lowered to commence searching. He also said that at about midday Stewart was ordered to stand by to take the stern section of Frank E Evans alongside. He said that the stern section of Frank E Evans was filling with water and that Stewart nevertheless came alongside the Evans and tied up to the stern but was ordered to let go for fear of the rear section of the Evans sinking. He said that he could see a sailor trapped below decks on the Evans and he had an "RSJ rib" of the ship across his pelvis, and his left leg had been amputated. He also had a thick metal piece embedded in his chest. Mr Shields said that he yelled out to him “we’ll get you”. Shortly thereafter, the Stewart was ordered to release the stern section of the Evans and water engulfed the sailor who he presumed drowned.
61. The history he recounted to the various medical practitioners, although similar, described the incident in even more florid terms. He told Dr Percival that he was in charge of the deck party that passed lines over to the Frank E Evans in an attempt to keep it on the surface. He said he was looking over the side of his own vessel directly into the open end of the floating portion of the American destroyer and he became aware of an American seaman who was approximately 1 deck above sea level and some 10-12 feet from the open end of the hull of the American ship. He was lying down, pinned by a steel rib, which had already amputated one of his legs and another large fragment impaled the sailor’s body. Mr Shields is recorded as having said:
…"I looked down, and before I looked at his face, I saw this steel rib lying across his hips, with one leg completely cut off, and one of the partitions from between the bunks driven straight through his body. I called down to him ‘hang in there Yank, we’ll get you out’. Then I saw his face, I have never seen such a look of hopelessness and despair on anybody’s face, he knew we were not going to get him". Two minutes later the line securing the two vessels broke, as HMAS Stewart went astern in a desperate attempt to keep the American destroyer afloat, and the remnants of the American vessel sank within two minutes.
62. The account that Mr Shields gave to Dr Cole was not quite as graphic but he said that after managing to secure the aft end of the Evans to the Stewart, it floated for another 10 minutes or so, in which time some men jumped across (presumably to Stewart). He recounted the story of the man on the exposed mess deck trapped under a girder and that they could not do anything to help him before the ship sank. He said that as the water was covering him, he vomited and then he was gone. In the history given to Dr Byrne he said that he was instructed to take the stern section of the Evans to see if he could get rope on it. He then recited seeing the dismembered American sailor who had a piece of metal through him. He also said that he could see other injured sailors, further inside the ship. Efforts to rescue the sailor were unsuccessful as the Evans sank before rescue equipment arrived. Mr Shields said to Dr Byrne “The last thing I remember – and I’ll never forget it – all that came up was blood – we cut our lines or it would have taken us with it”. He said that the American sailor sank with the ship.
63. However, Commodore Mulcare obtained from an internet website, apparently maintained by the unofficial USS Everett Larson Reunion Association, a report of the salvage and recovery operations of the Frank E Evans conducted by USS Everett F. Larson (Larson) on 3 June 1969. The internet site also contains photographs of the salvage operation and the only Australian ship which appears in those photographs is Melbourne. The website states that a salvage and recovery team from Larson boarded the Frank E Evans shortly after 5:00 a.m. on 3 June 1969. Recovery team orders were to survey the damage and, if possible, prevent the remaining half of the ship from sinking to allow recovery of the valuable equipment and records on board. When it was established that the danger of sinking or capsizing was past, Larson came alongside and tied up to the Frank E Evans. This is clearly disclosed in the photographs on the website. The Larson is identifiable by its vessel number painted on its side. The stern section of the Frank E Evans was stabilised and made water tight, towing hawsers were rigged and Larson was prepared to take Evans in tow if required. However, during the afternoon, USS Tawasa, an ocean going tug, came alongside Larson to take over salvage operations. The stern section of Frank E Evans was then towed to Subic Bay.
64. It is clear from the historical account of the salvage operations conducted after the collision between Melbourne and Frank E Evans that Stewart was not involved in attempting to secure the aft section of the Evans. Furthermore, it is clear that in his accounts to Dr Byrne, Dr Percival and Dr Cole, Mr Shields said that the rear section of Frank E Evans sank and he gave a graphic account of an American sailor drowning in the course of that sinking. During cross-examination Mr Shields attempted to alter his account of the incident by saying that he did not tell anybody that the stern section of the Frank E Evans had sunk, but rather that it was sinking. This of course was after Mr Shields had become aware of Commodore Mulcare’s report. However, the fact that Mr Shields told three different medical practitioners, at different times, that the Frank E Evans’ stern section sank goes completely against him. Furthermore, his entire account of the incident bears no resemblance to reality, despite his graphic and detailed account of the sinking of the stern of Frank E Evans. As a consequence, I have come to the conclusion that Mr Shields’ account of this event is plainly wrong and that his evidence in general cannot be relied upon. It reinforces the conclusions I have reached regarding the Vendetta incident.
CONCLUSIONS ON DIAGNOSIS
65. Given my finding that the incident upon which Mr Shields relies to found his claim, being the severe stressor which he says he experienced when serving on Vendetta, did not occur, a diagnosis of PTSD must be out of the question, unless there was some other traumatic event which caused symptoms which may amount to PTSD. However, Mr Shields has not referred to any such incidents during his period of operational service. For that reason, I accept Dr Byrne’s analysis that Mr Shields does not suffer from PTSD. However, having assessed Mr Shields' medical history and taking into account Dr Byrne’s opinion, I accept that Mr Shields is suffering from a personality disorder with paranoid features. Mr Shields’ medical history certainly points strongly to such a diagnosis.
CONSIDERATIONS OF CLAIM FOR PERSONALITY DISORDER
66. Because I am satisfied that Mr Shields does suffer from a personality disorder, I am required to apply the four steps set out in Deledio’s case in order to examine whether there is a hypothesis connecting Mr Shields’ personality disorder with his operational service.
67. There is a SoP concerning personality disorder which is Instrument No. 143 of 1995. Under that Instrument the minimum factors which must exist before it can be said that a reasonable hypothesis has been raised connecting personality disorder or death from personality disorder with the circumstances of service are:
(a)suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder; or
(b)inability to obtain appropriate clinical management for personality disorder.
The only event which could be described as a catastrophic experience in the course of Mr Shields’ operational service is the incident referred to while he was serving on Vendetta. However, as I have already found, beyond reasonable doubt, that the traumatic event described by Mr Shields did not occur, no further purpose is served in proceeding through the Deledio steps. Even if Mr Shields could satisfy the requirements of steps one, two and three, he does not satisfy the requirements under step four which requires a causal connection to be made between his disease and his operational service.
CONCLUSIONS
68. Because I have found that Mr Shields does not suffer from PTSD, his disability claims for ischemic heart disease, hypertension, alcohol dependence in remission and nicotine dependence must also necessarily fail.
69. Although I am satisfied that Mr Shields suffers from a personality disorder with paranoid features, because it is not possible to make a causal connection between a catastrophic experience suffered by Mr Shields in the course of his operational service immediately prior to an enduring personality change, I cannot find that Mr Shields’ personality disorder was war-caused. It must also necessarily follow that, in my opinion, Mr Shields is not entitled to a disability pension at the special rate.
70. The decision of the Commission made on 17 March 2003 is affirmed.
I certify that the seventy [70] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 17 February 2005
4‑5 May 2005
Date of Decision: 21 June 2005
Solicitor for the applicant: Mr D. De Marchi of De Marchi & AssociatesCounsel for the applicant: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
0
8
0