Siegrist and Repatriation Commission
[2004] AATA 1332
•15 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/108
VETERANS' APPEALS DIVISION ) Re ULRICH SIEGRIST Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date15 December 2004
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED
1. The condition of “nervous problems” should be substituted with the diagnoses of Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse.
2. Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse are war-caused.
3. The application is remitted to the respondent to assess entitlement, if any, to pension at the rate of extreme disablement adjustment.
(Sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – applicant engaged in FESR service – allegation of observation or exposure to a number of events in service precipitating PTSD and alcohol abuse – finding that some events did not occur – finding that events did occur and constituted experiencing a severe stressor – decision set aside
Privacy Act 1988
Veterans’ Entitlements Act 1986 (Cth) s175
Administrative Appeals Tribunal Act 1975 (Cth) s29Fitzmaurice v Repatriation Commission (1998) 19 ALD 297
Repatriation Commission v Stafford (1995) 38 ALD 193
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; 391 FCA (22 April 1998)
Benjamin v Repatriation Commission [2001] FCA 1879
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Hancock [2003] FCA 711
Budworth v Repatriation Commission [2001] FCA 317
Gerzina v Repatriation Commission [2004] FCAFC 96
State of New South Wales v Seedsman [2000] NSWCA 119
Byrnes v Repatriation Commission (1993) 177 CLR 564
Delahunty v Repatriation Commission [2004] FCA 309
Statement of Principles No. Instrument No. 76 of 1998
Statement of Principles No. Instrument No. 3 of 1999
REASONS FOR DECISION
15 December 2004 Mr J Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 3 December 2002 which affirmed a decision previously made by the Repatriation Commission refusing acceptance of the condition of “nervous problems”. In the review conducted by the VRB, consideration was also given to whether the applicant suffered alcohol abuse.
2. The hearing of the application commenced in Bendigo on 22 April 2004 and resumed in Melbourne on 25 August 2004. Mr De Marchi appeared on behalf of the applicant. Mr Douglass appeared on behalf of the respondent in Bendigo and Mr Purcell in Melbourne. The applicant gave evidence in Bendigo and Doctors Cole and Walton, consultant psychiatrists gave evidence in Melbourne, together with Commodore Mulcare, from Writeway Research
3. The VRB found that the applicant did not suffer “nervous problems”. In reaching these conclusions the VRB had regard to an opinion expressed by Dr Rose in a medical report of 12 July 2000. He concluded that whilst the applicant did suffer from “severe alcohol abuse”, he was not satisfied that there was any evidence of “associated psychiatric disorder but there is evidence of Mr Siegrist undergoing major stresses within one year of the onset of his alcohol abuse” (T5 p12). In its review, the VRB considered the Statement of Principles (“SOP”) with respect to alcohol abuse (Instrument No. 76 of 1998) and, having regard to the factors at paragraph 5, was not satisfied that the applicant “was suffering from a psychiatric disorder”, or was “experiencing a severe stressor” as defined. The VRB ultimately found that a reasonable hypothesis connecting alcohol abuse with service did not exist because there was a failure to satisfy the template of the SOP.
4. Mr De Marchi submitted at the commencement of the hearing that the applicant suffers from the condition of post-traumatic stress disorder (“PTSD”). It followed on his submission that there should be a finding that PTSD is the diagnosis of the injury suffered by the applicant and enquiries should be made of an applicable SOP. Additionally, it was submitted that the condition of alcohol abuse or dependence should also be found as war-caused and ultimately the applicant be assessed as having an entitlement to extreme disablement adjustment pension (“EDA”) with effect from 6 November 2003 when he achieved 65 years.
5. The applicant presently receives pension at 100% of the general rate by reason of the accepted conditions of chronic simple bronchitis, ischaemic heart disease, impotence, gastro oesophageal reflux disease, atherosclerotic peripheral vascular disease affecting both legs, bilateral sensorineural hearing loss with tinnitus and bilateral pterygium. The conditions of secondary cardiomyopathy, hypertension, alcohol dependence or alcohol abuse and nervous problems are rejected disabilities.
6. The applicant was a member of the Royal Australian Navy (“RAN”) between 23 January 1956 and 5 November 1962. He was born on 6 November 1938 and was 17 years of age at enlistment. The applicant was engaged in the Far Eastern Strategic Reserve (“FESR”) during his period of service and for the purposes of this review the periods of his operational service in the FESR and the vessels upon which he served are summarised as follows (T4 p1):
Commencing Date
Ending Date
HMAS Sydney
21 September 1956
13 October 1956
HMAS Warrumunga
5 April 1957
21 January 1958
23 April 1958
15 May 1958
22 July 1958
2 May 1957
3 April 1958
12 May 1958
1 July 1958
19 August 1958
HMAS Parramatta
21 June 1962
10 September 1962
23 August 1962
2 October 1962
7. The above summary indicates that the applicant was engaged for a period of 329 days upon operational service.
8. When the hearing commenced in Bendigo, Mr Douglass sought to tender a letter written by the applicant in support of a claim for pension by another veteran, “Grassy” McGrath, (who is the author of a letter found at pages 61 to 62 of the T-documents in these proceedings).
9. Objection was taken to this document because it had not been exchanged prior to the hearing, an opportunity had not been given to investigate its contents and the provisions of the Privacy Act 1988 (“the Privacy Act”), if applicable, may be breached.
10. It was decided to defer a ruling on this issue and resume the argument, in Melbourne, when access to the Privacy Act would be available. The respondent did not pursue this at the resumed hearing. Mr McGrath does however have relevance to these proceedings and his association with the applicant will be referred to later in these Reasons.
ULRICH SIEGRIST
11. Mr Siegrist, the applicant in these proceedings, gave evidence. He said that he was exposed to a number of stressful events during his service but described the “worst” as him observing the burial at sea of another sailor who had been killed. He said that Able Seaman Spooner was onboard HMAS Tobruk when it was struck (accidentally) by an allied vessel during military exercises. He said he observed Mr Spooner being lowered in a canvas bag draped with an Australian flag into the sea. Mr Siegrist was then onboard HMAS Warramunga which was located approximately 500 metres away. When observing the burial Mr Siegrist said that he felt “tearful”. He had known Mr Spooner for many years and used to drink with him and other sailors in Singapore.
12. Mr Siegrist said that he “blacked out” his memory of the burial for many years but since 1995 has suffered flashbacks and frequently recalls that event and other events in service. He said he has dreams of stressful events from service, including recurring dreams of ships (where he is onboard) turning over.
13. When asked to speak of other stressful events in service Mr Siegrist recalled an event when he was guarding a naval prisoner (Mr McGrath) onboard a train near Kuala Lumpur. He said the train was at risk of being fired upon by local terrorists and there was an occasion when the train was held up for an hour whilst other military forces assessed the risk of the train proceeding.
14. On another occasion he said that he went onboard some fishing boats to locate “bandits” and he regarded that experience as being frightening.
15. On another occasion he said that his vessel was called back from Japan and was travelling quickly. He was in a gun turret at “action stations”. An aeroplane approached his vessel and when about one mile away and at or about the time that the gun in his turret was about to be fired, it was learnt that the aeroplane was of United States origin. Nonetheless he said that his vessel sailed through a number of civilian fishing boats which caused extreme turbulence and he observed “bodies tossed up”. He said the event was “horrific” and he “imagined” that some people had been killed. At that time he was 19 or 20 years of age and thought little of it but subsequently he said that he recalls the episode frequently.
16. On another occasion his vessel was anchored some distance off shore because of a typhoon. On return to harbour in an area that he described as “The Basin” (at or near Hong Kong) there were a number of bodies floating in the harbour. He said that he was directed to assist in the collection of some of the bodies and on one occasion a limb was removed when he was attempting to pull the body out of the water. He said that he performed this work in company with Hong Kong police who were also present taking photographs. He said “hundreds” were killed and this event is the subject of frequent dreams.
17. Mr Siegrist said that he copes with these events by drinking alcohol to excess.
18. With respect to his drinking history Mr Siegrist said that he commenced drinking alcohol after enlistment and initially would drink with others and would frequently become drunk. He said that drinking alcohol during recruit training was “the in thing” and it was not uncommon for him to consume one dozen glasses of beer when on shore. He said that his consumption of alcohol gradually increased and when he returned to HMAS Cerbrus in the 1960’s he was drunk every night. Later when he joined Victorian Railways his drinking decreased because of shift work but he said that he “made up for it” later when he was not working on shift.
19. Prior to 1995 Mr Siegrist said that he had an extensive social life including involvement with the Returned Services League (“RSL”), playing lawn bowls and golf and also playing hookey, quoits and pool at local Bendigo hotels. All of this activity ceased in 1995 when he was then diagnosed with cardiomyopathy. Mr Siegrist said that he was then attending a Scottish ball in Bendigo as a member of the Bendigo Pipe Band. Thereafter he did not drink alcohol for three or four months but when he was given the “all clear” by his doctors he resumed alcohol consumption initially at six stubbies per day.
20. At the present time Mr Siegrist said that he drinks alcohol to excess and is unable to sleep without consuming alcohol. He said that he is unable to concentrate, he frequently forgets persons names and is upset and startled easily. He said he had attended meetings of Alcoholics’ Anonymous (“AA”) but thought that it was a waste of time because he learnt other persons who attended AA visited hotels after the meetings. He said that he presently drinks approximately 12 stubbies a beer per day starting at 4 o’clock each afternoon. He does not mix with other people however his daughter and son-in-law visit him frequently to clean and tidy his house. He presently suffers from hypertension, “bronchial problems” and suffers leg cramps after walking 100 metres.
21. In cross-examination Mr Siegrist confirmed that AB Spooner was onboard HMAS Tobruk when he was killed. He said that Tobruk was approximately four miles away from Warramunga when it (Tobruk) was “hit”. Mr Siegrist said that he was then on “action stations lookout” onboard Warramunga and heard by a message received over the ship’s bridge that Tobruk had been hit. He said that he knew Spooner because he had previously consumed alcohol with him in Singapore and with others and had mixed with him socially each fortnight. He recalled that he and Spooner trained at gunnery school together and recalled that his first name was “Bob” but on recollection acknowledged that may have been AB Spooner’s nickname.
22. With respect to his service generally Mr Siegrist said that he and other sailors onboard Warramunga and some other vessels were frequently “locked up” at night in darkness in a small room occupied by approximately 20 persons. Additionally, he said that there was an occasion where his vessel was exposed to a typhoon. He said that this experience is the frequent subject of his dreams including occasions where he dreams that he is onboard a ship which has rolled over.
23. With respect to the recognition of FESR sailors Mr Siegrist acknowledged that he had been upset that the service of naval personnel had not been “recognised” and said that he and 1200 other sailors “had to go to court to be recognised as serving in an operational area”. He said that the Department of Defence recognised operational service of Army and Air Force personnel “if they only served in Malaya for one day”.
24. With respect to the occasion where he escorted Mr McGrath to Kuala Lumpur, Mr Siegrist thought that it occurred in approximately 1958 and said that it was an overnight trip. He recalled being at risk of terrorist attack. He said that he was armed and had been instructed to lie on the floor of the train and whilst he heard firing from guns outside the train, as far as he was aware the train itself was not fired upon. Additionally he said that so far as he was aware no one on board the train returned fire.
25. With respect to the occasion where he was in a gun turret and a United States aeroplane approached, Mr Siegrist said that he could not see that aeroplane but was receiving communications over a speaker. He understood that the plane was within one mile of his vessel at the time the firing upon it was aborted. Nonetheless he said that he was able to see fishing vessels disturbed by his vessel because at that time he had come out of the turret by a rear door and did see fishing vessels “tossed about”. Despite his fear of persons being killed he acknowledged that he did not observe any occupiers of the fishing vessels drowned or injured.
26. On another occasion when he was a member of the crew of HMAS Sydney he said that he was called upon with approximately 20 other sailors to assist civil police with riots in Hong Kong. He said that he was then 17 years of age and went on shore and was armed. He said that he and other soldiers from the British Army who were based in Hong Kong assisted the Hong Kong police. He was adamant that he did undertake that activity and when he was advised that a person engaged by the respondent to conduct research (of this and other incidents) had reported there was no documented record of this event, Mr Siegrist said that he “was not surprised”.
27. With respect to the occasion when he was assisting the removal of bodies from Hong Kong harbour, Mr Siegrist said that he was instructed to do so by Leading Seaman Beadman who was taking orders from Lt Giffard. He said this event occurred in a part of Hong Kong harbour known as “The Basin” and occurred after a typhoon which involved 38 knot winds and which was an experience Mr Siegrist described as “horrific”. He said that he and other sailors were inside his vessel off shore and was strapped down. He thought that his ship would roll over such was the turbulence. Mr Siegrist said that he did refer to this event in consultation with Dr Rose, a psychiatrist engaged by the respondent, but when he was told that Dr Rose had not referred to it, Mr Siegrist said that he (Dr Rose) was “not interested”. Mr Siegrist said that he did not tell Dr Walton, another psychiatrist engaged by the respondent, of this event because Dr Walton was only interested in “operational service” and that he only answered the questions that were asked of him. Mr Siegrist was adamant that he did assist in the location and removal of bodies from “The Basin” and said that some bodies were bloated and when attempts were made to remove them from the water, limbs were pulled off.
28. As to his alcohol consumption, Mr Siegrist said that he did not consume alcohol prior to enlistment but upon enlistment one bottle of beer was issued onboard daily. After he completed recruit training he would attend a local wet canteen nightly and consume three or four glasses of beer. When on shore he said he would consume one dozen glasses of beer. He said it did not affect his work or service nor did alcohol interfere with his employment when he worked for the Victorian Railways.
29. In respect to parts of the transcript in proceedings before the VRB and clinical notes of Bendigo Hospital, Mr Siegrist said that he does consume greater quantities of alcohol now than previously because there is nothing that he does on a daily basis to occupy his time. He denied decreasing his alcohol consumption after retirement from employment in 1991 and denied decreasing his alcohol consumption prior to the diagnosis of cardiomyopathy. After he separated from his wife Mr Siegrist said that he increased his alcohol consumption and believed that he drank to help him relax. He said that despite his “nervous problems” he had never consumed prescribed medication from a doctor nor had he ever sought treatment from a doctor. He said he did attend a counsellor with his wife approximately 20 years ago but that was only to attempt to preserve his marriage.
30. Mr Siegrist acknowledged that in 1979 he was involved in an accident with Victorian Railways where he suffered fractures of his lower vertebrae and was hospitalised for 17 weeks. He also acknowledged that in his application for Disability Support Pension (“DSP”) upon Centrelink, no reference was made to any nervous or emotional injuries. He agreed that he was a member of the Naval Reserve after discharge for approximately 12 years until 1974. He also agreed that he was the President of the Bendigo Ex-Naval Club for two years between 1992 and 1993 and was an active member of the Bendigo Highland Band until the mid 1990’s.
31. In answer to some questions from me Mr Siegrist said that he retired from employment in 1991 when he was then a passenger guard. He said that job had become obsolete and was offered employment as a conductor which he refused. He was offered early retirement and accepted a redundancy package when he was then aged 53 years. He qualified for a Centrelink pension shortly thereafter and from the age of 55 he has received a superannuation pension.
32. Mr Siegrist said that he has had dreams for many years subsequent to discharge from service but has become distressed by the dreams since 1995. He said he has attempted to play golf after 1995 but was unsuccessful. He agreed that he did play bagpipes in April 2001 (refer p28 of clinical notes) but said that was a social occasion only. With respect to his alcohol history he said that when he was given the “all clear” by his doctors in late 1995 and was told that he could consume alcohol he said it was “like a red rag to a bull”. Thereafter he drinks alcohol daily and to excess. Except for three or four months in 1995, after he was diagnosed with cardiomyopathy, he said he has consumed alcohol on a regular basis since enlistment but did agree that there were variations from time to time in the quantities of alcohol consumed.
dr edward cole
33. Dr Cole is a consultant psychiatrist who gave evidence when the hearing resumed in Melbourne. He provided a report to the applicant’s solicitors on 13 August 2003 following a consultation with Mr Siegrist on 29 July 2003.
34. Dr Cole concluded his report in the following terms (page 5):
OBSERVATIONS: He was responsive in conversation and gave what appeared to be a straightforward account of himself and his experiences. He appeared anxious but there was no other evidence of nervous disorder.
OPINION: Mr Siegrist is suffering from a chronic post traumatic stress disorder of moderate degree accompanied by alcohol dependence and abuse. I would regard his nervous disorder as a direct result of his experiences during his Naval service. His condition is such as to call for psychiatric treatment, although he might not show a great deal of response and I would regard his condition as stabilised.
35. In evidence Dr Cole said that the applicant satisfied both of factors 5(a) and (b) of Instrument 76 of 1998 entitled “Psychoactive Substance Abuse or Dependence”. Those factors are reproduced as follows:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; . . .
36. In cross-examination Dr Cole said that the alcohol abuse or dependence suffered by the applicant is related to his PTSD. Additionally he said that PTSD is a “psychiatric disorder” as defined in Instrument No. 76 of 1998 (as defined) because PTSD is an Axis 1 or 2 of disorder of mental health attracting a diagnosis under DSM IV.
37. Dr Cole said that the applicant suffered PTSD by reason of the experiences endured by him during his operational service, particularly the episode in 1958 when he was travelling on a train between Singapore and Kuala Lumpur when escorting a prisoner. He also suffered PTSD as a result of the events to which he was exposed when returning from Kuala Lumpur to Singapore by train. Dr Cole said that these events were referred to in his report but were not “stressed”. In his report those two journeys are referred to in the following terms (page 3):
In 1958 he was detailed to take Naval defaulters from Singapore to Kula Lumpur. It was an overnight trip and the train was stopped several times because of terrorist activities in the jungle. They heard firing but were not hit as the Army had cleared the tracks before they were allowed through. The following night he had to return on the train and felt very fearful. They were armed and told not to sit by the window and to get down on the floor if there were any firing.
38. Dr Cole said that in relation to those two journeys he was not aware of whether any person was killed or threatened but said that the applicant then was exposed to a “realistic risk”. These comments were made in response to a suggestion put to him by Mr Purcell that the applicant did not “experience”, “witness” or “confront” any event involving actual or threat of death or serious injury within the definition of “experiencing a severe stressor” in SOP Instrument No. 3 of 1999.
39. When Dr Cole was pressed to identify any signs or symptoms which would be suggestive of the applicant suffering from PTSD, he relied on part of his report which is reproduced in the following terms (page 5):
He was anxious all the time and easily upset. He found it hard to take his mind off his problems. He was very irritable, so much so that his former girlfriend had not been game to talk to him. His friends asked him what was wrong with him. He had never lost time from work as a result of his nervous condition, but had frequently come into conflict with his former girlfriend. He did not go out any more and had become a recluse. He disliked mixing and did not go to the hotel. He enjoyed his own company. He no longer went to the football as he could not stand being in crowds. He no longer played golf and tennis or went ten pin bowling. He used to love his sport and going to the races. He used to go dancing.
40. Dr Cole said that he was aware that the applicant did suffer from cardio myopathy which was diagnosed in 1995 and which adversely affected his lifestyle. He said that he was also aware that Dr Walton, who had provided a report at the request of the respondent, had made a diagnosis of generalised anxiety disorder only, commencing from the occasion of the diagnosis of cardio myopathy in 1995.
41. When pressed on whether he could point to any other events in service that he could associate with PTSD, Dr Cole pointed to an occasion in 1962 when the applicant was onboard HMAS Parramatta and when it was exposed to a typhoon. He said that Mr Siegrist had given him a history of the ship rolling and subsequently he had suffered nightmares of being onboard a ship which was submerged. Dr Cole associated the nightmares with that event. He thought that experience would have been terrifying.
42. Dr Cole was then questioned on the basis for arriving at the diagnosis of PTSD. He agreed that the criteria for PTSD, as found within DSM IV, includes a reference to a person being exposed to a traumatic event and which in turn causes a response of “intense fear, helplessness or horror”. When it was suggested to him that the typhoon whilst onboard Parramatta was the only event which might satisfy that part of the DSM IV criteria for PTSD, Dr Cole said that the applicant was also exposed to riots in Hong Kong in 1956 and to learning of the death of another sailor and witnessing the burial of that person at sea. It was again put to Dr Cole with respect to those events – if it were found that they actually did occur – that it could not be said that the applicant had experienced, witnessed or was confronted with events involving actual threat and death. Additionally it was suggested to Dr Cole that the history obtained by him from the applicant did not suggest that the response to such events involved “intense fear, helplessness or horror”. Dr Cole said that the applicant and other patients do not speak in those terms, nor do they use that language. He said that it was obvious to him and it was implied by the responses of the applicant to his questions that he was fearful and he was frightened. Nonetheless he confirmed the opinion recorded in his report that the only sign or symptom of his “nervous disorder” (which he regarded as a chronic PTSD) was anxiety (refer report at page 5).
43. Dr Cole was then asked to consider the report completed by Dr Walton dated 12 February 2004. When he had completed reading it, Dr Cole said that upon the history obtained by Dr Walton – who he regarded as a competent and experienced psychiatrist – the conclusion was reasonable because of an absence of a history of the applicant being involved in a typhoon and also in the absence of a history of the applicant suffering from flashbacks and nightmares. He thought that Dr Walton might have reached a different conclusion if he had a more comprehensive history.
44. A further issue of difference between the report of Dr Cole and the report of Dr Walton was the opinion expressed by Dr Cole that the applicant had suffered chronic PTSD from the time he was discharged from the Navy in 1962. Dr Cole said that upon the history that he had obtained, Mr Siegrist had suffered symptoms of anxiety from that date.
45. Dr Cole said that he could not recall if he had the SOP (with respect to PTSD) or whether he had DSM IV with him at the time of consultation or at the time he prepared his report and expressed his opinion as to diagnosis. He agreed that the criteria within DSM IV as to PTSD could operate as a checklist and that from time to time he might refer to it to refresh his memory, nonetheless it was his practice to make a diagnosis based on his experience and by reference to the criteria within DSM IV as was broadly understood by him. He said that he would prefer “a more flexible approach to diagnosis than relying on DSM IV only”.
46. In re-examination Dr Cole reaffirmed that he relied on his experience in practice when forming a diagnosis and it was his belief that the applicant did meet “significant parts of DSM IV”. He agreed that he may not have satisfied three of the criteria in part (C) of paragraph 2(b) of the PTSD criteria nonetheless he maintained his opinion as to diagnosis.
47. Whilst acknowledging that the diagnosis and subsequent treatment of cardio myopathy in 1995 was a significant event, Dr Cole said that Mr Siegrist may have suffered “delayed onset of PTSD” and said that there was “no time limit” for when the symptoms of PTSD might become manifest.
48. When asked to consider the reaction of the applicant to learning of the death of his friend at sea and witnessing a burial, Dr Cole said that the applicant may well have then felt “fear”, and he may have experienced “horror”.
dr lester walton
49. Dr Walton is a consultant psychiatrist who examined the applicant at the request of the respondent on 24 November 2003 and provided a report dated 12 February 2004.
50. In his report he found that the applicant “would attract a diagnosis of alcohol-dependency” which he thought was long standing.
51. At paragraph 4 (page 5) of his report he concluded:
On clinical grounds I cannot confirm diagnoses of post-traumatic stress disorder or depressive disorder, similarly, I remain to be convinced that this man has suffered from sufficiently frequent and severe anxiety to warrant a diagnosis of generalised anxiety disorder but, in any event, according to the history provided by the veteran, anxiety of potentially clinically recognisable proportions seems not to have emerged until 1995, understandably enough in the then context of life-threatening cardiac disease.
52. Dr Walton said that he maintained the opinion expressed above and said that there was a decisive change in the applicant’s lifestyle and symptoms in 1995 when cardiomyopathy was diagnosed. Dr Walton said that he was aware of the contents of the report of Dr Cole and it was his opinion that a diagnosis of PTSD could not be sustained. When he was asked to interpret the last paragraphs of the report of Dr Cole – and noting the reported diagnosis of chronic PTSD “accompanied by alcohol dependence and abuse” - Dr Walton said that he was unsure whether Dr Cole was intending to refer to two separate and distinct conditions or whether both conditions were “parallel”. He said that it was his experience that substance abuse – including alcohol – is often a consequence of PTSD.
53. When forming an opinion as to diagnosis, Dr Walton said that he was aware of the criteria under DSM IV with respect to PTSD but he did not use or adopt it as if it were a checklist. He acknowledged that the applicant did not give him a history of being exposed to a typhoon during service whilst onboard HMAS Parramatta and thought that the applicant may have either forgotten about that episode or it had little effect upon him. Upon the history that he obtained from Mr Siegrist, Dr Walton said that any intrusive memories or thoughts – as were referred to in the report of Dr Cole – did not exist prior to 1995 and on the history that he obtained from Mr Siegrist, Dr Walton said that he remained to be convinced that they had occurred subsequently.
54. In cross-examination Dr Walton said that he did not exclude that the alcohol abuse suffered by the applicant was service related, but maintained his opinion that there was no “diagnosable psychiatric disorder” related to service other than alcohol abuse.
55. When he was asked to consider some of the events of service, Dr Walton said that the applicant’s experience in Hong Kong when he alleged that he was engaged to assist to quell riots, would not have exposed the applicant to any threat nor would he have experienced any “intense fear or helplessness or horror” because the applicant had arrived in Hong Kong after the riots had ended. He acknowledged that Mr Siegrist had told him that he was then in fear, however it would appear the level of fear was not at the equivalent level as found within the DSM IV criteria. With respect to his examination generally and in consideration of the other events in service upon which the applicant relied, Dr Walton said that he focussed on the applicant’s subjective responses and it was his opinion, with respect to the remaining events in service, that those responses did not attract or warrant a diagnosis of PTSD. He did acknowledge that the applicant was engaged in many social activities and sporting pursuits which had recently ceased, however it was his opinion that the applicant had ended those activities and had become reclusive only because of, and subsequent to, the diagnosis of cardiomyopathy. He said that the applicant’s alcohol consumption had also affected his lifestyle.
commodore mulcare
56. Commodore Mulcare was engaged by Writeway Research Services to prepare reports which were sought by the respondent. He was a member of the Australian Navy between 1954 and 1991 and achieved the rank of Commodore. He was also engaged as the Chief-of-Staff of the Chief of Navy in Canberra. He prepared five reports which were received into evidence and were dated 29 September 2000, 13, 20 and 30 April 2004 and 14 July 2004. In the course of preparing those reports, Commodore Mulcare had access to a number of documents from Naval Archives which were annexed to his reports and were relied upon by him when giving evidence.
57. With respect to the incident where the applicant alleged that he was engaged to help quell riots in Hong Kong, Commodore Mulcare referred to the Record of Proceedings completed by the Captain of HMAS Sydney, which he attached to his first report (T-documents p16a). The relevant part recited by him is in the following terms:
41. On arrival at HONG KONG it was learned that there had been some rioting with consequent damage to life and property on the KOWLOON side. However, although the leave of R.N. Ships was restricted, the usual leave was given (to HONG KONG only) to all Commonwealth Ships, in order that the Ships Companies could enjoy the visit as much as possible. This gesture on the part of the Naval Authorities in HONG KONG was realised and much appreciated by my Ships Company.
48. Many other sporting and social functions scheduled for the visit were cancelled due to the civil unrest. Never the less the short visit to HONG KONG provided relaxation and was much enjoyed by all my people.
Their behaviour ashore was good, no doubt this was due in some measure to the unique shopping attractions of the port and also perhaps to the fact that in the earlier days of the visit, the large number of armed police and possibility of further civil unrest were to some degree a sobering influence. The major sobering influence was however the fact that almost all available money was being spent in the buying of all the many attractive items which are to be found so cheaply and in such profusion in HONG KONG.
58. Commodore Mulcare said that he found no evidence that the applicant was put on shore to help maintain law and order and to help quell the riots. He said that any service persons who had been called upon to assist the British police in Hong Kong would have been from British Army Units based in Hong Kong. He said that Australian soldiers were not trained to cope with large scale riots and the Government of Hong Kong would not have called on Australian personnel for assistance.
59. Additionally Commodore Mulcare said that it was unlikely (and he could find no documented evidence) that the applicant was engaged as a member of a shore patrol party which were usually despatched
. . .to wander around the flesh pots and bars in town and make sure that the sailors who look as though they are going to get into trouble are removed from the place and taken back to their ship without any fuss or bother. They are unarmed, they operate from the officer in charge of the shore patrol who is not necessarily with them all the time, but their job is just looking after liberty men, it is not quelling riots or any other - taking any action in regard to the civil population. (Transcript pp69-70)
Commodore Mulcare noted that the applicant was aged 18 years of age when onboard HMAS Sydney and his age alone would have counted against him being engaged in shore patrol because of the absence of seniority and experience.
60. With respect to this episode, and in cross-examination, Commodore Mulcare said that the civil riots in Hong Kong were on the “Kowloon side” and had been “cleaned up” before HMAS Sydney arrived in port. He said that there was no evidence located by him that “local naval authorities might have asked some assistance from the Australian ships”. Commodore Mulcare said that the Record of Proceedings, being a contemporary account of the proceedings of HMAS Sydney whilst in port, contain no reference whatsoever to its personnel being despatched for this purpose. Although he was aware that the applicant gave evidence that he was detailed to an armed patrol onshore between 4.00pm and 8.00am, Commodore Mulcare said that service persons being sent to aid a civil power would be regarded as a very serious matter where local authorities would have to make a dispensation to Australian sailors to permit them to act with local authorities which would have, with some certainty, been recorded in a Record of Proceedings. Additionally – and to repeat his earlier evidence – the riots were in Kowloon, the members of Sydney went onshore in Hong Kong only and the rioting had concluded by the time Sydney arrived in port. Again he reaffirmed that it would have been a responsibility of the Hong Kong Police to subdue and deal with the riots.
61. In relation to the episode where an Australian naval member was killed onboard HMAS Tobruk, Commodore Mulcare said that an empty starshell had been ejected by HMAS Cockade. He said that a starshell comprises a cylindrical steel shell containing an incendiary device which is ejected at height and where the casing becomes detached. He said that one such shell landed onboard HMAS Tobruk, it fell through the upper gun deck near a turret and injured persons who were in the gun bay below. He said this episode occurred at night time, in darkness and was not observed. The shell struck and killed another sailor (Mr Spooner) and it was his burial at sea that the applicant referred to as one of the events which has given rise to PTSD. Commodore Mulcare said that the burial ceremony involved a number of vessels circling Tobruk from a distance between 200 and 400 yards. The witness had spoken to Commodore Halley who was onboard HMAS Tobruk and Commodore Baird who was the navigating officer on HMAS Warramunga. He said that neither of them could recall the location of the ships which were circulating HMAS Tobruk, nor the distances that they held from it.
62. In his report of 13 April 2004 Commodore Mulcare attached an extract from the Record of Proceedings of HMAS Anzac dated April 1957 which recorded the vessels which would have circled HMAS Tobruk. The list records a total of 21 vessels having an origin in Australia, United States, Britain, France, New Zealand and Thailand who were all apparently taking part in a SEATO exercise “Astra”.
63. In cross-examination upon this issue Commodore Mulcare said that the circling of HMAS Tobruk by allied vessels was practiced to “honour the dead” because AB Spooner had been killed in an exercise and he was buried in the midst of those vessels. He said the intention was not necessarily to allow sailors on other vessels to view the burial but whilst persons would have been placed ceremonially on deck, some persons would have been able to witness it. Commodore Mulcare said that the “actual burial, dropping him into the sea, is over in a matter of milliseconds”. It was his understanding that personnel onboard other ships would have been standing at attention, with their caps removed during the ceremony.
64. In relation to the episode where the applicant alleged whilst on onboard HMAS Warramunga in the Formosa Straits that his vessel passed through and capsized fishing vessels, Commodore Mulcare said that the Record of Proceedings of HMAS Warramunga made no such reference to such an event. He extracted part of the Record of Proceedings at paragraph 6 of his report of 29 September 2000. The Record of Proceedings records that the passage through the Formosa Straits at 20 knots “and with the exception of three merchantmen, an American Neptune aircraft and two transport aircraft and numerous fishing vessels nothing of interest was sighted”. The Record of Proceedings records that there were reports of “high flying aircraft which generally came no closer than ten to twelve miles” but the Neptune aircraft was an exception because it “tempted fate by closing to within one mile”.
65. Commodore Mulcare said that there were no record of any interference to local fishing vessels and therefore nothing to support the proposition that persons onboard those vessels were injured or thrown into the water or that the vessels capsized. He said that there was a convention which requires Commanding Officers of ships to render assistance and it was his belief, in any event, that if any vessels in the Formosa Straits needed assistance from HMAS Warramunga it would have turned around and provided assistance as necessary. He said the incident involving the United States aircraft “would have been over very quickly and there would have been no reason to not go back” although the witness did concede that this was “supposition” by him (refer Transcript p73).
66. In cross-examination Commodore Mulcare said that he could not imagine how the applicant could have seen local vessels upset or capsized by HMAS Warramunga because he understood Mr Siegrist was positioned in a gun turret during most of this voyage because of the perceived threat from the United States aeroplane.
67. In relation to the event where the applicant said that he escorted another person on a train to a military detention unit, Commodore Mulcare relied upon the service records of Mr Walter McGrath. Mr McGrath was the person sentenced to 42 days detention and who prepared a letter found at pages 61 and 62 of the T-documents. Mr McGrath refers to his transfer by train to a military detention unit some miles out of Kuala Lumpur. He refers to travel to that place by train under escort. The service records of Mr McGrath annexed to Commodore Mulcare’s report of 14 July 2004 confirm that he was sentenced on 3 February 1958 to 42 days detention at the Kintara Military Corrective Establishment in Kuala Lumpur. In the letter to the applicant of 22 August 2002 (T-documents, p62), Mr McGrath wrote “to the best of my knowledge it was you (Mr Siegrist) who made up part of the escort on the forward journey to Kuala Lumpur”. Commodore Mulcare said that he could not locate any records as to whether Mr Siegrist did, or did not, escort Mr McGrath on the journey to Kintara.
68. With respect to the incident where the applicant alleged that he was despatched to collect bodies floating in Hong Kong Harbour in the aftermath of typhoon Wanda, Commodore Mulcare obtained the Record of Proceedings of HMAS Parramatta and also contacted Commander Kerry Stephen. The Record of Proceedings make no reference to naval personnel being despatched for the purpose of retrieving bodies and Commander Stephen specifically reported (refer Annexure to report of Commodore Mulcare of 30 April 2004) that he had been advised by Hong Kong authorities not to collect any bodies sighted upon entry to Hong Kong Harbour because Australian authorities would “become liable for the disposal and funeral arrangements for the families of the deceased”. Commander Stephen reported that he recalled sighting one body only and notification of it was passed on to the Hong Kong water police. He said that at no time was he ever advised that HMAS Parramatta despatched any boat to recover bodies and that would have been contrary to instructions given to him by local authorities. He reported that had that occurred, it would have been discussed onboard.
69. In cross-examination Commodore Mulcare said that had there been any bodies in the Harbour as a result of the typhoon, they would have been collected prior to HMAS Parramatta berthing. He said the records observed by him indicated that the typhoon passed through Hong Kong on 1 September 1962 however HMAS Parramatta berthed on 3 September 1962. Commodore Mulcare said that he was aware that on other occasions where bodies had been sighted in the water, local authorities had been notified and those authorities collected the bodies. Commodore Mulcare said that in addition to the information that he had obtained from Commander Stephen, he also spoke with Rear Admiral Griffiths who advised that personnel were not despatched to collect bodies.
submissions
70. On the second day of hearing in Melbourne I expressed concern to both representatives whether the condition of alcohol dependence was capable of review. I expressed this concern because that condition had not been claimed and therefore had not been reviewed by the respondent or the VRB. I expressed my regret to the parties that this issue had not arisen on the first day of hearing. There was then some debate between Mr De Marchi and Mr Purcell. It was decided that at the conclusion of the evidence on that day I would invite the parties to research this issue and lodge written submissions.
71. Mr Purcell subsequently lodged submissions and researched the history of the application by reference to the documents filed. He noted that there are references throughout the material to the applicant consuming alcohol often to excess. Indeed in one of the previous VRB appeals where the applicant sought to challenge a decision denying cardiomyopathy as war-caused, one of the doctors provided an opinion that alcohol was then a risk factor. Mr Purcell noted that the present application did not plead or claim alcohol dependence or abuse as war-caused and noted that this issue was also of a concern to the Members of the VRB. It was noted that the claim to this Tribunal sought a review of the decision of the VRB which refused a claim for “nervous problems” and Dr Cole reported the applicant suffered from chronic PTSD accompanied by alcohol dependence and abuse.
72. Mr Purcell referred to s175 of the Veterans’ Entitlements Act 1985 (“the Act”) and s29 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). He also referred to the Full Federal Court decision of Repatriation Commission v Stafford (1995) 38 ALD 193 and Fitzmaurice v Repatriation Commission (1998) 19 ALD 297.
73. Having regard to the Federal Court decisions, Mr Purcell was of the view that the applicant had not “deliberately withheld” from the Commission or the VRB the condition of alcohol dependence or abuse.
74. Additionally, reliance was made upon a decision of the Full Federal Court of Moore, Emmett and Allsop JJ in Benjamin v Repatriation Commission [2001] FCA 1879 where the Court decided that this Tribunal was under a duty, acting inquisitorially, to reach the correct or preferable decision upon the material before it. The Court decided – in that case being a claim for acceptance of the condition of PTSD – that there was a failure to decide whether the veteran suffered from a different disability. Ultimately it was decided that the application should be remitted to the Tribunal for determination as to whether the veteran suffered from a war-caused disease other than PTSD.
75. On balance therefore it was contended on behalf of the respondent that the Tribunal was not precluded from considering whether the applicant also suffered from alcohol dependence or abuse and if he did, whether it was war-caused.
76. With respect to the merits of the application, Mr Purcell submitted that the applicable standard of proof with respect to diagnosis is balance of probabilities and upon the material lodged, and the evidence heard, the respondent contended that the applicant did not suffer from PTSD or any psychiatric disease other than alcohol dependence. In the alternative if there was a finding of PTSD, it was submitted that there could be no finding connecting that condition with service because the risk factors within the applicable SOPs did not exist as a minimum. That is to say it was submitted that the applicant could not establish that he experienced a “severe stressor” prior to the clinical onset of PTSD. Again in the alternative, if there were to be a finding that the applicant did experience a “severe stressor”, it was submitted that such a stressor did not occur during any operational service. Additionally if the fourth stage of Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; 391 FCA (22 April 1998), is considered, it was submitted that the facts necessary to support the hypothesis were disproved beyond reasonable doubt or the truth of those facts in the material had been disproved beyond reasonable doubt.
77. It was noted that Dr Cole in support of his finding of the applicant suffering from chronic PTSD of a moderate degree with alcohol dependence, relied on a history given to him by the applicant of being exposed to alleged stressful events being riots in Hong Kong in 1956, the accidental death of a sailor onboard HMAS Tobruk, a train trip from Singapore to Kuala Lumpur in 1958, HMAS Warramunga being strafed by aircraft in the Formosa Straits in 1958 and boats being sunk in the wake of Warramunga, being at sea in a typhoon when onboard HMAS Parramatta in 1962 and retrieving bodies from Hong Kong harbour after the typhoon.
78. Mr Purcell recited the symptoms as found by Dr Cole (refer report at page 4) and noted that in evidence Dr Cole said that he did not apply the diagnostic criteria of DSM IV with respect to PTSD but relied on his clinical experience when making that diagnosis. Mr Purcell also pointed to the evidence of Dr Cole that whilst acknowledging that the applicant enjoyed an active social life prior to 1995, it was his evidence that the applicant would not have been suffering from “clinically significant distress or impairment in social, occupational or other important areas of functioning” from 1962 when he was discharged from the Navy thereby failing to satisfy part of the diagnostic criteria for PTSD.
79. It was noted that Dr Cole had obtained a history of the applicant suffering nightmares of a ship turning over which he related to his experiences onboard Parramatta during the typhoon which would have been a significant and frightening event. It was noted that Dr Cole was of the opinion that the applicant’s response of being “very frightened” met the diagnostic criteria within DSM IV.
80. It was submitted that when Dr Cole read the report completed by Dr Walton it was noted that Dr Walton had not obtained a history of the applicant being involved in a typhoon whilst onboard Parramatta or recovering bodies from Hong Kong harbour. It was submitted that Dr Cole said in evidence that the opinion of Dr Walton (that the applicant suffered from generalised anxiety disorder) was reasonable in the circumstances yet at the same time noting that there was an incomplete history of relevant events in service. It was further submitted that Dr Cole resiled from his earlier opinion and later contended that the symptoms giving rise to the diagnosis of PTSD – consistent with an opinion expressed by Dr Walton – emerged in or about 1995 when the applicant was then diagnosed with cardiomyopathy.
81. It was submitted that the evidence of Dr Walton should be preferred, namely that the applicant suffered from alcohol dependence with its clinical onset being in approximately 1958. Additionally the evidence of Dr Walton should be preferred that the applicant did not suffer from PTSD or depressive disorder but may suffer from sufficiently frequent and severe anxiety to permit a diagnosis of generalised anxiety disorder but it being related to cardiac disease only. It was acknowledged that Dr Walton also did not refer to the diagnostic criteria of DSM IV when forming his opinions but relied on his clinical experience.
82. On balance it was submitted that the only stressful event in service which could amount to a sufficient level of fear to meet the diagnostic criteria of “intense fear, helplessness and horror” was the typhoon incident in 1962. However, the typhoon occurred whilst Parramatta, in 1962, was deployed outside a period of operational service. It therefore followed that the subsequent alleged recovery of bodies in Hong Kong harbour also occurred outside a period of operational service. Additionally it was submitted that by reference to relevant dates the passage of Warramunga through the Formosa Straits in 1958 occurred outside a period of operational service. It followed on this analysis that those three episodes cannot be considered in the present application as giving rise to a reasonable hypothesis connecting illness or injury or disease with service.
83. It was acknowledged that if a diagnosis of PTSD was found as a fact and was causally related to operational service, the Tribunal would be obliged to find that factor 5(a) of the applicable SOP was satisfied because that factor was consistent with some of the diagnostic criteria of DSM IV with respect to PTSD.
84. However it was submitted that there was a sufficiency of material to disprove the facts relied upon by the applicant in support of his hypothesis. Alternatively it was put that the material was inconsistent with other material upon which the hypothesis was based.
85. Mr Purcell pointed to the evidence of Commodore Mulcare and submitted that his evidence should be preferred to disprove the applicant’s contention that he was involved in quelling riots in Hong Kong and that he was sent ashore to assist others to keep the peace following riots. Additionally parts of the report of Dr Rose, the applicant’s claim forms, the history taken by Dr Walton, the statement prepared by the applicant’s solicitors and a letter by Mr McGrath all indicate considerable inconsistencies in the applicant’s history with respect to the event being the train trip from Singapore to Kuala Lumpur. In parts of the histories variously taken and documents completed by Mr Siegrist, it was noted that there were references made to the train upon which he was a passenger being attacked or the train coming under fire from enemy bandits whereas in other material it was submitted that the applicant acknowledged that the train was not attacked but rather the applicant was asked to lie on the floor of it as a precaution against the risk of being attacked. Additionally the applicant’s earlier documentation and his letter referring to Warramunga being strafed were inconsistent with his concession during the hearing that in fact that vessel had not been strafed.
86. With respect to the disease of alcohol abuse or dependence, the respondent conceded upon the evidence of Dr Cole that the applicant does suffer from it but its clinical onset was in about 1958 and occurred only in the context of the availability of alcohol and peer pressure. It was submitted that upon that history the applicant could not meet an applicable SOP where he would be obliged to establish that he experienced “intense fear, helplessness or horror” giving rise to alcohol abuse or dependence. It was submitted that Dr Cole did not suggest by his report or in evidence that the alcohol abuse or dependence alone was associated with stressful events in service, indeed parts of the evidence of Dr Cole were relied upon where it was submitted that he (Dr Cole) agreed with opinions expressed by Dr Walton that the applicant was not suffering from any psychiatric illness or disease at the time of the clinical onset of alcohol dependence and that the dependence occurred in the context of exposure to alcohol during enlistment (as opposed to being referrable to any particular event).
87. It therefore followed that that condition either alone or as a consequence or a symptom of PTSD could not raise any reasonable hypothesis nor satisfy any sub-hypothesis.
88. It was submitted that the only events upon which the applicant could point to in service were the alleged riots in Hong Kong, the death of a sailor onboard Tobruk and the train trip from Singapore to Kuala Lumpur. It was submitted that none of those events involved “intense fear, helplessness or horror” thereby constituting the applicant “experiencing a severe stressor” and in any event those facts should be found to have been disproved by other facts or were consistent with other proved facts. It was submitted that the applicant never raised “stressful events” in his claim for PTSD as being the causes of alcohol dependence but rather attributed his alcohol dependence to the availability of alcohol in service, a culture of drinking in the Navy, relief from stress whilst onboard ships in tropical areas, separation from his wife and learning of her pregnancy whilst at sea.
89. On the basis of these submissions it was contended that the decision under review should be affirmed.
90. The applicant’s solicitor in submissions dated 24 September 2004 – without specific reference to the submissions of Mr Purcell dated 20 September 2004 – noted that the respondent had concluded that the Tribunal was not precluded from deciding whether alcohol abuse or dependence was related to service. It was submitted that the conditions of PTSD and alcohol abuse or dependence were war-caused, consistent with the opinion expressed by Dr Cole in a report of 13 August 2003. It was also submitted that Dr Cole gave evidence that PTSD and anxiety disorder as defined by the SOPs were met. It was noted that Dr Walton in cross-examination agreed that Dr Cole had obtained a more detailed history. It was submitted that Dr Cole concluded that the applicant did suffer from alcohol abuse and dependence and submitted also that it was his evidence that alcohol dependence and abuse “often followed post traumatic stress disorder of a moderate degree and chronicity”.
91. It was submitted that the applicant attempted to give “a good account of the various stressful events” and the “multitude and variants of the stressful events . . . combined to overwhelm the applicant”. It was submitted that the evidence of Commodore Mulcare could not be regarded as being independent and “Dr Walton had not tested the applicant”. On balance it should be found that PTSD was related to service and the opinion expressed by Dr Cole, being “more detailed”, should be adopted.
92. In conclusion it was submitted that the applicant “had operational service” a reasonable hypothesis of connection was required, that the applicant satisfied the SOPs for PTSD and alcohol abuse and the matter should be remitted to the respondent to assess entitlement to extreme disablement adjustment.
93. It is noted from these submissions that the applicant’s solicitor does not rely or allude to any particular event in service nor – specifically – is there any contention in reply to the submission of Mr Purcell that some of the events relied upon by the applicant occurred outside a period of operational service.
94. In reply Mr Purcell submitted that Dr Cole had given evidence that the applicant suffered from PTSD to a moderate degree accompanied by alcohol dependence and did not give evidence that he suffered from an anxiety disorder. Indeed it was submitted that Dr Cole said in evidence that he did not agree with the conclusions of Dr Walton that the applicant had a generalised anxiety disorder associated with cardiomyopathy.
95. Additionally it was submitted that Dr Walton did not say in evidence that Dr Cole had a more detailed history but rather Dr Walton had said in evidence that he had not been told by the applicant of some of the events in service over which Dr Cole had obtained a history. Additionally it was contended that Dr Walton did not conclude that alcohol dependence followed PTSD but rather his report concluded that whilst the applicant did suffer alcohol dependency he was unable to confirm a diagnosis of PTSD or depressive disorder.
96. It was submitted that the contention of the applicant’s solicitor that “the multitude and variants of the stressful events . . . combined to overwhelm the applicant” failed to offer any submission that some of the alleged events occurred outside a period of operational service or did not occur as described or did not provoke or cause a response of “intense fear, helplessness or horror” of sufficient intensity to satisfy the DSM IV criteria.
97. It was submitted that the attack upon the independence of Commodore Mulcare was unwarranted and no challenge was made of him as to his research methodology or the reliability of the documents which he obtained and which he relied upon when expressing his opinions.
98. Additionally the submission that “Dr Walton had not tested the applicant . . .” was not warranted because Dr Walton did interview the applicant and took a history from him. Indeed it was noted that Dr Cole in evidence said that the opinion expressed by Dr Walton was “perfectly reasonable” yet at the same time acknowledged that the history appeared to be incomplete having regard to the events in service over which he (Dr Cole) had obtained a history. It was also noted that Dr Walton did not record having obtained a history of the applicant suffering flashbacks and nightmares. Indeed it was submitted that Dr Walton was aware of the typhoon episode and recovering bodies from Hong Kong harbour because he (Dr Walton) said in evidence that he had read the report of Dr Cole which contained a reference to these episodes and concluded in his report that the applicant did not “mention this incident to me”.
99. On balance it was submitted that the report and opinion of Dr Cole should be discounted because the history of flashbacks and nightmares were referrable to the 1962 typhoon which it was submitted occurred outside a period of operational service.
100. In a response by the applicant’s solicitor to the reply of Mr Purcell it was submitted – by reference to the transcript – that Dr Cole did concede that the opinion of Dr Walton was consistent with the history that he had obtained. However, Dr Cole obtained a different history and he continued to adopt the opinion that he expressed by his report, which was of a different diagnosis. Additionally Dr Cole confirmed that he did take account of DSM IV when asked to consider the relevance of the applicant’s dreams of being onboard a ship that was capsizing. Therefore on balance it was submitted that there is no issue before the Tribunal about whether one opinion should be accepted or preferred over another but whether the applicant can point to having suffered a traumatic event within the meaning of the SOPs thereby permitting a finding of PTSD by way of diagnosis. It was submitted that all four stages of the Deledio analysis had been satisfied and it would be a rare or exceptional review where there were no discrepancies in relation to the evidence heard and historical records.
101. It was submitted that the respondent had “accepted alcohol abuse as being service related and that alcohol abuse is often associated, and in this instance, on the basis of psychiatric opinion, related to the applicant’s post traumatic stress disorder”.
102. On review of the last document lodged by the applicant’s solicitor by way of reply to the contentions of the respondent, it is again noted that there has been a failure to offer any contentions with respect to the submissions that some of the events in service occurred outside a period of operational service. Additionally it is noted that the respondent has not contended alcohol abuse as being service related. The respondent has accepted that alcohol dependence exists, that it is a long standing condition, its clinical onset was in 1958 and it was caused by availability of alcohol, peer pressure and a culture of alcohol consumption within the Navy. It follows that there is no concession by the respondent that alcohol abuse is service related to the extent that it satisfies an applicable factor within a SOP.
conclusion and reasons for decision
operational service
103. In the written submissions lodged by the respondent subsequent to the conclusion of the hearing, it was submitted that some of the events alleged by the applicant did not occur during the period of operational service. This issue was first raised in submissions after the hearing concluded. It was not a contention of the respondent before or during the hearing.
104. It was the applicant’s case that all of the events relied upon by him occurred during his engagement in the FESR.
105. In the Statement of Facts and Contentions lodged by the respondent prior to the hearing, it adopted the dates of FESR service found with the letter of the Department of Defence and contended that service within those dates constituted operational service.
106. The Department of Defence supplied the respondent with a summary of the periods of service of the applicant onboard naval vessels during his FESR service (T4, p1). The Department of Defence regarded the FESR service as being “operational service”. In my view this is consistent with s6D(2)(b) of the Act. Perhaps regard was had to earlier provisions within s6D which recorded period of times constituting operational service in or around Singapore and the Federation of Malaya. Those provisions are not applicable. I am satisfied that the entirety of the applicant’s service within the FESR was “operational service” which attracts the beneficial standard of proof. I am satisfied also that some of the events relied upon and alleged by the applicant as giving rise to his psychiatric illness arose out of those events within FESR service.
diagnosis
107. In the written submissions lodged by the respondent at the conclusion of the hearing it was conceded that the applicant does suffer from alcohol abuse or dependence. I am satisfied that that concession is properly made. It is consistent with the evidence of the applicant and the contents of the reports of Doctors Rose, Cole, Walton and Mr Davies. It is consistent also with the evidence heard in these proceedings from Dr Cole and Dr Walton. Consideration will therefore be given later in these Reasons to Instrument No. 76 of 1998 entitled “Psychoactive Substance Abuse or Dependence” being the only Instrument “in force” during the assessment period.
108. The applicant’s representative submitted at the commencement of the hearing that he suffers from PTSD which should be found as being related to service. Dr Cole found that the applicant suffered from PTSD. Dr Walton reported, and said in evidence, that the applicant suffered from generalised anxiety disorder. Dr Hofland was not called to give evidence but in a report of 21 September 2003 she found that Mr Siegrist has “symptoms of depression and would benefit from a trial of antidepressants”. Dr Rose examined the applicant in July 2002 (approximately two years before the commencement of these proceedings) and was not called to give evidence but in a report of 12 July 2000 he found that “there is no evidence of associated psychiatric disorder but there is evidence of Mr Siegrist undergoing major stressors within one year of the onset of his alcohol abuse”.
109. In a recent decision of Gray J in Mines v Repatriation Commission [2004] FCA 1331, His Honour discussed the interrelationship of ss120 and 120A of the Act, the process of reasoning summarised in Deledio and the process of finding of injury or illness or disease upon the balance of probabilities. It must be a finding which is made prior to consideration of the stages of analysis found within Deledio. Necessarily a hypothesis cannot be identified nor can there be identification of an applicable SOP unless there is a finding of injury, illness or disease. (Also refer Repatriation Commission v Hancock [2003] FCA 711 at paragraph 9). His Honour specifically referred, by way of example, to the consideration given to whether a veteran suffered from PTSD. His Honour concluded that (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. 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.
At this stage I intend only to make findings as to diagnosis and discuss later whether the injury, illness or disease as diagnosed, is related to service.
110. Clearly diagnosis of PTSD has been the subject of some controversy in the Department as to the manner in which DSM IV is to be applied. Often witnesses are asked to refer specifically to parts of the diagnostic criteria, whereas in practice, competent and experienced clinicians rely on their professional expertise and judgment. In Budworth v Repatriation Commission [2001] FCA 317 the Court acknowledged that the Tribunal did not (and should not) apply DSM IV in a “mechanical or cookbook fashion”. In Gerzina v Repatriation Commission [2004] FCAFC 96 a Full Federal Court of Black CJ, Heerey and Bennett JJ, adopted part of a decision of State of New South Wales v Seedsman [2000] NSWCA 119 where at paragraph 114 the Court decided that:
DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a "diagnostic manual" for clinical use. . . . the criteria are only guidelines for professional judgment.
111. In approaching this issue of diagnosis I therefore do not accept the tenor of the respondent’s assertions during cross-examination that particular parts of the DSM IV criteria may not have been met thereby invalidating any diagnosis of PTSD.
112. Dr Cole diagnosed the applicant as suffering from PTSD but also found that at consultation the applicant “appeared anxious but there was no other evidence of nervous disorder”. Dr Cole resisted the criticism of him in cross-examination that the applicant’s presentation and language during consultation did not suggest that he suffered “intense fear, helplessness or horror” but rather he preferred to rely on his observations and his clinical experience. Nonetheless he did concede that in his report he found the applicant to suffer from a “chronic post-traumatic stress disorder of moderate degree” which he later described as a “nervous disorder”. In his report, and in evidence, he acknowledged that the applicant had not ever had psychiatric or psychological treatment. He had not ever consumed medication for any psychiatric illness that he had and had never suffered incapacity from employment and had been “quite active until July 1995 when he was found to be suffering from cardio myopathy” (report page 2).
113. Dr Walton who provided a report, and gave evidence, dismissed PTSD as a diagnosis. He thought the applicant suffered from generalised anxiety disorder but from 1995 only, “understandably enough in the then context of life threatening cardiac disease”.
114. Dr Rose reported that the applicant did not suffer any psychiatric disorder “associated” with his alcohol abuse despite having found that he had suffered “major stressors”, being some of the events relied upon by Mr Siegrist, in these proceedings, as giving rise to PTSD.
115. Dr Hofland found that the applicant “has symptoms of depression and would benefit from a trial of antidepressants”.
116. I note, and find as a fact, that the applicant worked in full time employment until 1992 when he accepted voluntary redundancy. I note that the applicant has not ever had psychiatric or psychological treatment nor has he ever been prescribed psychiatric type medication from his doctors. In a claim for Disability Support Pension (“DSP”) there was no disclosure by the applicant, or finding by his practitioner, of any psychological or psychiatric illness or injury and I note specifically that the examples recited in the applicable questionnaire for such a condition specifically include “post traumatic stress” (refer Exhibit 9, page 13). The Commonwealth Medical Officer (“CMO”) who found that the applicant did have an entitlement to DSP recorded the causes of incapacity as heart disease with shortness of breath. I can find nothing from the file of the applicant’s LMO, Dr Friesen (Exhibit 8) where any psychiatric, psychological or emotional type illness has ever been diagnosed. Certainly there is nothing which would indicate the prescription of any medication for illnesses of that type. The medical reports and other data upon Dr Friesen’s file from other practitioners and hospitals contain no reference at all to any psychiatric, psychological or emotional illness. Prior to 1995 the applicant did lead an active social life and was engaged in broad community activity. He was a member of a number of different hotel based social clubs, was a keen golfer and a member of the Bendigo Pipe Band. Most of those activities apparently ceased or were severely diminished after 1995.
117. I also note that in claims made by Mr Siegrist for an increase in general rate pension made in 1999 and in 2000, a number of illnesses were recited as being related to service. However there was never a claim made for acceptance of any psychiatric or psychological type injury.
118. The absence of attendance upon a doctor for any psychiatric illness may point to the absence of such an illness. It may equally point to either a failure to be aware of it and therefore not seek treatment, or it may point to a denial of such an illness and a denial of treatment. The absence of disclosure to Centrelink may equally be for the same reasons. The absence of a recording by examining doctors of a psychiatric illness may have occurred because of a failure to detect it. On this issue, I also note that the CMO, who examined for eligibility for DSP, recorded the only illness in 1995 as “circulatory system” despite a specific reference in the questionnaire (Centrelink file page 13) to record, alcohol dependence, if applicable. It therefore follows that if an illness or disease, if known is not disclosed, or not detected, there will be no clinical recording of it. It would therefore be unsafe to find that PTSD or another psychiatric illness has not existed, in the absence of a reference to it in medical records. To do so would be a finding based on speculation and innuendo, which, in the application of beneficial legislation would be inappropriate.
119. On balance, I am satisfied, on the probabilities that the applicant does suffer PTSD.
120. Throughout these proceedings, references were made to the PTSD suffered as either being “chronic” or “mild”. In other cases, PTSD is sometimes described as “severe”. But these descriptions are referable only to the severity and manifestations of symptoms. They are not relevant to diagnosis. Accordingly, some persons diagnosed with PTSD but may be in full time employment and have social interests. Others may be incapacitated or reclusive. DSM IV makes no distinction. If a medical practitioner acting within the ambit of his expertise makes a diagnosis of PTSD and such a diagnosis exists on the balance” of probabilities, it is to be found as the “kind of injury” (refer Hancock).
121. Despite the opinion expressed by Dr Walton, who, in fairness was given an incomplete history, the applicant has suffered dreams and nightmares well before 1995. This was the evidence of the applicant and the history obtained by Dr Cole. Additionally, the applicant said that he has “coped” with his recollection of distressing events by consuming alcohol, often to excess.
122. The opinion expressed by Dr Walton of a generalised anxiety disorder existing from 1995 only, might be thought as being sound, but it does not explain the pre-existence of dreams which have subsequently become distressing. It also fails to explain the dream which has been recurring for many years and well before 1995 – of being in a ship which has turned over and sinking, an event thought by Dr Cole as referable to being exposed to the typhoon in service. These dreams are consistent with the DSM IV criteria for PTSD. As a fact, I am satisfied they have occurred and did occur well before 1995.
123. Additionally, the applicant’s reaction to learning of the diagnosis of cardio myopathy caused an emotional reaction. This is to be expected when confronted with the potential of a life threatening illness. The applicant’s reaction then was apparently so profound that he abstained from alcohol – but only until the illness was treated and stabilized.
124. I also note from the report of Dr Walton that he did not conduct “a detailed analysis of the relevant statement of principles” and whilst acknowledging that the subjective response inherent by having experienced a severe stressor might have evoked intense fear, helplessness or horror, he concluded that such a response was not experienced but he “could not exclude the possibility that the incidents may have caused such an emotional response” (refer report at page 6).
125. On balance I am therefore satisfied that the “kind of injury” suffered by the applicant is PTSD and alcohol dependence. The applicable SOPs are Instrument No. 3 of 1999 (as amended by Instrument No. 54 of 1999) and Instrument No. 76 of 1998, being the only SOPs existing within the assessment period which commenced 6 August 2002. Instrument No. 54 of 1999 amends the definition of “experiencing a severe stressor” by the singular “Entitlement” becoming the plural “Entitlements” and the events at (i), (ii) and (iii) being described as “severe” stressors.
is there a reasonable hypothesis?
126. The first and second stages of the Deledio analysis are satisfied to the extent that there are hypotheses raised and there is material which points to each hypothesis, namely, a connection existing between service and alcohol dependence and PTSD. SOPs are in force with respect to each of these diagnosed injuries.
127. The third stage of Deledio is satisfied because for reasons which will follow later, I am satisfied that the hypothesis, with respect to both alcohol dependence and PTSD, is reasonable.
128. Each Instrument contains an identical factor namely “experiencing a severe stressor” save that the alcohol Instrument is qualified by “experiencing a severe stressor within two years of the clinical onset of alcohol dependence”. On this latter issue, the evidence of Dr Walton alone points to alcohol dependence within two years of 1958. That part of that factor has been raised by the material and is consistent with the template. Each Instrument also contains an identical definition of “experiencing a severe stressor”.
129. Later in these reasons, in discussing paragraph 4 of the Deledio methodology, I have found that some of the events in service did, in fact, occur and the reaction to them is consistent with the template of the SOPs. It follows that the above factor, in the SOP for each illness, exists as a minimum and is related to the applicant’s service. Each hypothesis as raised, is reasonable.
130. The fourth stage of Deledio compels findings on the balance of probabilities as required by s120(1). In Byrnes v Repatriation Commission (1993) 177 CLR 564Mason CJ, Gaudron and McHugh JJ, at 571, discussed the application of s120(1) and decided:
The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
131. One of the events relied upon by the applicant was the occasion where the vessel upon which he was onboard sailed through a number of civilian fishing boats causing turbulence and his observation of “bodies tossed up”. He said the event was “horrific” and he “imagined” that some people had been killed (refer paragraph 16 earlier). In cross-examination Mr Siegrist acknowledged that immediately before this alleged episode he had been positioned inside a sealed gun turret where his vessel was on action stations because of the approaching presence of an unidentified aircraft. Nonetheless he said that he observed the civilian vessels because he had left the turret by a rear door and saw vessels “tossed about”. In cross-examination he acknowledged that he had a “fear” of persons being killed but acknowledged that he did not observe any persons drowned or injured.
132. The applicant’s claim with respect to this episode is not helped by his initial explanation that his vessel was, on this occasion, strafed by aircraft. This was first recorded in a letter completed by Mr Siegrist and received into evidence as Exhibit 10. Additionally in his application for qualifying service dated 29 July 1999, Mr Siegrist recorded that his vessel was “attacked by aircraft unknown”. During the hearing it was conceded by him, and by his representative, that his vessel was not attacked nor was it strafed. Why that would have been pleaded in earlier claims remains a mystery but I am satisfied as a fact that the vessel was not attacked as alleged.
133. Additionally, in evidence during the hearing and in the letter being Exhibit 10, Mr Siegrist said that he had been inside a gun turret but when pressed in evidence as to how he observed the civilian vessels being interfered with by his vessel he said that he had – immediately prior to that alleged observation – exited from the gun turret. Whilst specifically denying in cross-examination – as opposed to his earlier evidence – that he observed persons injured, killed or drowned and – there is a consistency between the various explanations given that his vessel did pass through a number of civilian vessels at high speed which would have in the circumstances caused turbulence and would have caused those vessels to be “tossed about”. He also acknowledged that the record of proceedings of Warramunga noted the presence of “numerous fishing vessels”.
134. Commodore Mulcare said that he could find no records of civilian fishing vessels being “tossed about”. He said there was a convention for ships to render assistance to other vessels and the applicant’s vessel would have turned around and provided assistance if necessary.
135. The absence of a report of such vessels being tossed about in my view does not translate into a fact of non-existence. Despite my misgivings as to the applicant’s evidence I am prepared to give him the benefit of the doubt and find as a fact that such an event did occur. Whilst I am satisfied that he did not observe any persons injured, killed or drowned, I am satisfied that it may reasonably be inferred – and I so find as a fact – that those vessels would have been occupied by persons. I am satisfied also – consistent with the letter found at Exhibit 10 - that there was then anxiety amongst the crew of his vessel and I am satisfied also that the applicant suffered anxiety. I am satisfied that episode caused the applicant to experience a severe stressor as defined in each Instrument. Consistent with the analysis of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 (coincidentally also involving an incident where a sampan or junk suffered interference) His Honour decided that experiencing a severe stressor involves both an objective and subjective element. In Delahunty apparently the applicant believed – but did not observe – women and children were onboard some other vessels. There was a “violent destruction” of one such vessel and by reason of the applicant’s belief that women and children were on board it, he suffered a reaction. His Honour decided that whilst the perception of a stressful event will not encompass “a totally irrational perception or baseless apprehension”, “whether the stressor is severe . . . (is a) question of fact or degree in any particular circumstance”. Specifically His Honour decided that such an analysis indicates that the definition must be approached in a manner which is not unduly restrictive. Later His Honour continued (paragraph 28):
There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor
136. I am satisfied that the applicant may reasonably infer that civilian fishing vessels, being located some distance from port would have persons on board. Those persons would be on board necessarily for the purposes of undertaking fishing operations. Those vessels would be necessarily small compared to the naval vessel which when travelling at speed, would cause turbulence causing the civilian vessels to become unstable. I am satisfied and find as a fact that the applicant did subjectively react to his observation – and I find as a fact that he did observe – of such vessels being tossed about and that he could reasonably conclude that persons were either injured, killed or drowned. The applicant was then confronted with an event involving the threat of death or serious injury to another person’s physical integrity. I am satisfied therefore that the applicant in so far as this event is concerned did experience a severe stressor within the SOP with respect to alcohol dependence and PTSD.
137. Another incident relied upon by the applicant was being locked down in a vessel whilst it experienced a typhoon off the coast of Hong Kong. The applicant said that he experienced his vessel rolling and he was in fear that it would sink. He has subsequently had dreams where he is on board a vessel which is turning over. That evidence was repeated in cross-examination. I am satisfied as a fact that the applicant was located off shore for a considerable period of time whilst his vessel was exposed to a typhoon and during that occasion his vessel suffered turbulence and rolled considerably. I am satisfied and find as a fact that the applicant was then in fear of the vessel turning over. I am also satisfied as a fact that the subsequent dreams of such an event are, on the applicant’s evidence, related to that episode. I am satisfied that that incident – being thereafter portrayed and relived by his dreams constituted experiencing a severe stressor within the meaning of the respective SOPs. It was an event where the applicant experienced and confronted his actual or threatened death or a threat to his physical integrity.
138. Another event relied upon by the applicant was the escorting by him of Mr McGrath to a detention facility on a train which was exposed to the risk of attack by “local terrorists”. In cross-examination Mr Siegrist said that he was then armed and had been instructed to lie on the floor of the train to avoid the risk of being observed through a window and being shot. Nonetheless he acknowledged that during that journey, whilst he heard guns firing outside the train, as far as he was aware the train itself was not fired upon, nor was he aware of any person onboard the train having returned fire.
139. Commodore Mulcare said in evidence that there was documentation which pointed to Mr McGrath having been convicted and sentenced to a period of detention. He said that there was no evidence that the applicant was the escort of Mr McGrath. The applicant relied on a letter completed by Mr McGrath found at pages 61 and 62 of the T-documents that confirms that he (McGrath) was the prisoner under escort and that the journey by train to the detention facility did occur. Consistent also with the evidence of Mr Siegrist, McGrath himself was issued with a weapon (despite him being a prisoner) because of the perceived threat of attack by local terrorists. There were inconsistencies in the evidence as to whether the train was fired upon and whilst I am satisfied that it was not, the journey was stressful and was severe.
140. In the circumstances I am satisfied also that the journey escorting Mr McGrath objectively was stressful and subjectively caused the applicant to react to that stress. It seems to me that having been notified of the risk of attack from local terrorists, being instructed to lie on the floor of a train to reduce the risk of being shot, to be armed and to issue the prisoner with a weapon, is an indication of the risk of attack. The applicant then experienced and was confronted with a “threat of death or serious injury” as those words appear in the definition of “experiencing a severe stressor”. I am satisfied that this episode also satisfies that definition within each SOP.
141. Mr Siegrist also relied on an episode where he observed the burial at sea of Able Seaman Spooner. He said that he knew Mr Spooner and had drunk with him and other sailors in Singapore. He observed his body being lowered into the sea from a distance of approximately 500 metres and his reaction then was of being “tearful”. In cross-examination Mr Siegrist also said that he had trained with Mr Spooner at gunnery school. I accept and find as a fact that Able Seaman Spooner was killed as described by both the applicant and Commodore Mulcare and I am satisfied also by the documentation provided that the event did occur and the burial formed part of a ceremony involving foreign vessels. Nonetheless I am not satisfied that the applicant experienced a severe stressor by that event within the meaning of the definition.
142. Mr Siegrist also referred to an event in his evidence (which was not the subject of cross-examination), that he went onboard some fishing vessels to locate “bandits” and he regarded that experience as being frightening. I can find nothing from the documents lodged in these proceedings of that event being corroborated. It is surprising that little attention was paid to it nor that it was investigated. I am prepared to accept for the purposes of this analysis that this event did occur although the circumstances are vague. Nonetheless the applicant’s explanation in evidence that the experience was “frightening” does not, in the absence of any other description of the event amount in my view to an event which satisfies the definition.
143. Two other events occurred in service were alleged by Mr Siegrist, to have given rise to his illnesses. For reasons which follow I am not prepared to accept as a fact that they actually occurred.
144. On one occasion Mr Siegrist said that he assisted in the location and removal of bodies which were floating in Hong Kong harbour following the typhoon (which is referred to earlier in these reasons). A comprehensive analysis of protocols was provided by Commodore Mulcare and documentation was supplied. I do not accept, nor find as a fact, that the applicant did assist in the location and removal of bodies. I accept that local personnel and agencies would have been responsible for the collection of bodies and I also accept that whilst one body was sighted (refer documents pertaining to Commander Steven) the Hong Kong Water Police were then notified. I also accept that the Australian personnel onboard HMAS Parramatta were aware that in the event that any bodies were collected by Australian officials that they would then become liable for disposal and funeral arrangements. This is consistent with Hong Kong Water Police being notified of the location of a body to permit the agency to retrieve it. I accept that Commander Steven would not have been aware of each and every event which would have occurred onboard his vessel but the despatching of a relatively young inexperienced sailor to assist local persons and agencies charged with the responsibility of locating bodies would have been the subject of a report and knowledge onboard Parramatta. I do not accept as a fact that the applicant was engaged in such an activity.
145. The applicant also said that he was directed to assist in the quelling of riots in Hong Kong. I do not find as a fact that the applicant was so engaged. I note from the documents lodged that the “Hong Kong riots” had in fact occurred in Kowloon some distance from Hong Kong and again I am satisfied that local authorities would have been responsible for such an event. Consistent with the documents supplied and the evidence of Commodore Mulcare I am satisfied that local persons and authorities would not have engaged persons from visiting ships of foreign nationalities to assist in a local dispute. Equally I am not satisfied that Mr Siegrist, being a young inexperienced sailor, would have been despatched to engage in and assist in such an activity by his superiors. I also note that the riots had been quelled by the time the applicant and his vessel berthed in Hong Kong.
146. It was submitted that the applicant had an alcohol habit associated with ready availability of alcohol, peer pressure and domestic concerns. It followed, on these submissions that the consumption and subsequent dependence was for these reasons and not by the applicant having experienced any severe stressors in service.
147. The applicant acknowledged his heavy consumption of alcohol but said that his drinking increased after he returned to HMAS Cerberus in 1960. This was at a point in time after he had been a member of the crew of Warramunga and had experienced the severe stressor of the train journey and witnessed the turbulence of fishing vessels. After he returned to sea, at the conclusion of his gunnery training at Cerberus, he was involved in the typhoon whilst a member of Parramatta.
148. The commencement and continuation of alcohol consumption after enlistment does not overwhelm or exclude the contribution to the alcohol dependence by events in service. The applicant experienced severe stressors which I am satisfied as a fact, did occur. The hypothesis of a service relationship is no less reasonable and I am not satisfied beyond reasonable doubt that this illness is not war-caused.
conclusion
149. I am satisfied for the above reasons that the events in service, being the train journey, the typhoon and the voyage causing turbulence to fishing vessels did occur. The applicant’s reaction to each event amounted to him experiencing a severe stressor. The hypotheses are reasonable and facts supporting these hypotheses have not been disproved beyond reasonable doubt (refer Byrnes). I am also satisfied that these events are responsible for the alcohol dependence and PTSD. The other events raised by the applicant were not responsible because, for reasons given earlier, two events did not constitute “experiencing a severe stressor” and two other events did not occur.
150. The decision under review is set aside and in substitution IT IS DECIDED –
1.The condition of “nervous problems” should be substituted with the diagnoses of Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse.
2.Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse are war-caused.
3.The application is remitted to the respondent to assess entitlement, if any, to pension at the rate of extreme disablement adjustment.
I certify that the 150 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior MemberSigned: Holly Weston
AssociateDates of Hearing 22 April and 25 August 2004
Date of Decision 15 December 2004
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate (First day of hearing) Mr R Douglass
Counsel for Respondent (Second day of hearing) Mr G Purcell
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