Smith and Repatriation Commission - [2002] AATA 526

DECISION AND REASONS FOR DECISION [2002] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1424

VETERANS' APPEALS DIVISION       )
           Re      RAYMOND JOHN SMITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member

Date28 June 2002
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that Post Traumatic Stress Disorder and Alcohol Abuse or Dependence are war-caused diseases.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – whether post traumatic stress disorder and alcohol substance abuse war-caused – meaning of "experiencing a severe stressor" in Statement of Principles Instrument No. 3 of 1999 as amended by No. 54 of 1999 – meaning of "experiencing a severe stressor" in Instrument No. 76 of 1998 – decision set aside

Veterans' Entitlements Act 1986 ss 9, 120(1) and (3)

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Budworth (2001) 66 ALD 285
Statement of Principles Instrument No. 3 of 1999
Statement of Principles Instrument No. 54 of 1999
Statement of Principles Instrument No. 76 of 1998

REASONS FOR DECISION

28 June 2002 Mrs Joan Dwyer, Senior Member Mr A Argent, Member

background

This is an application for review of a decision of the Repatriation Commission made 15 December 1999 (T10 pp31–35) and affirmed by the Veterans' Review Board ("the VRB") on 18 August 2000 (T2 ppvi–xv). The Repatriation Commission ("the Commission") refused Mr Smith's claim to have "emotional behaviour problems" later diagnosed as post traumatic stress disorder ("PTSD"), and alcohol substance abuse accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act").
Mr Moore, of Counsel, appeared for Mr Smith. Mr Purcell, of Counsel, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Smith gave evidence. Evidence was also given on his behalf by Dr Carroll, who served in HMAS Sydney at the same time as Mr Smith and who is the Secretary of the HMAS Sydney and Vietnam Logistic Support Veteran's [sic] Association. The respondent called Commodore Mulcare, a naval historian. The Tribunal received two further respondent's exhibits (R6 and R7), and written submissions from Counsel for the parties after the hearing had concluded.
Mr Smith served in the Royal Australian Navy from 28 February 1966 to 27 July 1969. The periods of service which are relevant are the periods of operational service while Mr Smith was serving in HMAS Sydney on voyages to Vietnam. Those periods are as follows:
8 April 1967 to 22 April 1967
28 April 1967 to 12 May 1967
19 May 1967 to 14 June 1967
20 December 1967 to 3 January 1968
17 January 1968 to 17 February 1968
27 March 1968 to 26 April 1968
21 May 1968 to 13 June 1968
13 November 1968 to 28 November 1968
8 February 1969 to 25 February 1969
8 May 1969 to 30 May 1969
This claim was lodged on 7 July 1999. Accordingly the provisions of s 120A apply and the matter is to be decided in accordance with the relevant Statements of Principles ("SoPs"). The parties agree that they are:
Post Traumatic Stress Disorder ("PTSD") Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999; and
Alcohol Dependence or Alcohol Abuse Instrument No. 76 of 1998
Ms McCulloch in the respondent's Statement of Facts and Contentions provided a helpful summary of the relevant provisions of the applicable SoPs as follows:
4.5The applicant relies on factor 5(a) of the SoP for PTSD: "experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder:
4.6For the purposes of the SoP on PTSD "experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as stressors include:
(i)        threat of serious injury or death; or
(ii)       engagement with the enemy; or
(iii)       witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
4.7The applicant relies on factor 5(b) of the SoP for Alcohol Dependence or Alcohol Abuse: "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse".
Mr Smith claimed in his alcohol questionnaire (T5 p18) that both conditions were due to being locked in the engine room while in Vung Tau Harbour. He wrote (T5 p11):
DUE TO ACTIVE SERVICE IN SVN, I WAS A STOKER ON HMAS SYDNEY, AND WHILST IN VUNG TAU HARBOUR, WE WERE LOCKED IN THE ENGINE ROOM WHILST ON DUTY FOR EIGHT HOURS AT A TIME. THIS WAS BECAUSE IF WE WERE ATTACKED OR MINED ONLY WE WOULD BE KILLED AND NOT THE REST OF THE SHIPS COMPANY.

He added (T5 p18):

STRESS, ANXIETY, DUE TO BEING LOCKED IN ENGINE ROOM WHILST IN VUNG TAU HARBOUR.

At the time of the Repatriation Commission decision, the only additional evidence as to any stress or anxiety suffered by Mr Smith during his service, was the account in the report of Dr Thacore, psychiatrist, dated 18 November 1999 (T9 p27-30). At pages 28 and 29, Dr Thacore wrote:
He was in the Navy from the years 1964 to 1969 and was posted on the HMAS Sydney for three years. He said that he did eleven trips to Vietnam.
Initially the trips did not bother him but then one day he discovered that he, along with the others working in the engine room were routinely "locked in" and he was told that it was better to have twenty dead than five hundred. Quite frequently the "drops", that is the "death [depth] charges", vibrated the ship.
This started to cause him great anxiety and fear and on one occasion he did not want to go back to the ship and took off with a girlfriend. He was caught by the navy patrol and taken back and drafted to the HMAS Sydney "like a punishment".
. . .
He said that he cannot be in an enclosed room in the dark and has nightmares, even now waking up screaming. His wife told him that he often woke up in a nightmare shouting "there's an explosion get out".
Normally he describes himself as "soft hearted" person and spends his time helping his friends when he is not working. In his young days he played various sports and coached young players.
He said that for a while, in the 1980's, he worked in the Merchant Navy on the condition that he would not go down to the engine room, however, later he did not pass his medical examination and became unemployable.

Dr Thacore concluded:

From the information provided by Mr. Smith it would appear that he is suffering from signs of Post Traumatic Stress Disorder in that he was involved in a life threatening situation during his trips to Vietnam, he still suffers from nightmares, developed alcoholism and violent behaviour which resulted in the breakup of his marriage, difficulties in his job, loss of his family and finally ended up living on his own.

When Mr Smith lodged an application for review by the VRB on 19 February 2000 (T11 p36) he added another stressor, writing:
MY CLAIMED WAR-CAUSED DISABILITIES, ARE THE RESULT OF MY TIME SPENT IN SVN, [SOUTH VIETNAM] WERE [sic] I WITNESSED A BOAT BEING BLOWN OUT OF THE WATER, AND THE BODIES FLOATING PAST THE SHIP.
After the application for review by the VRB was lodged, a report was obtained from Dr Schrueder, consultant psychiatrist, dated 14 April 2000 (T docs p39). Dr Schrueder obtained the following history:
Mr Smith is fifty five, divorced father of three. He works in the Merchant Navy basically as a cook. He joined the Royal Australian Navy and went to Vietnam between 1967-69 on the HMAS Sydney making about eleven voyages to Vietnam. At times they would be in Vang [sic] Tau for three days at a time off loading and on loading troops. He and others would be locked in the engine room there. At other times he would be in the engine room when depth charges were being dropped and there was some other fighting. This resulted in very loud vibrations in the engine room and he feared that he would die.
At other times there was shelling of the coast and also on one occasion a chopper blew up a boat that was coming towards the Sydney. One man's head was blown off and Mr Smith saw the body and blood.
On many occasions there were planes coming over and on once [sic] occasion a helicopter nearly crashed into the ship. He though that he was going to die again.

Dr Schreuder wrote (T docs p41):

I think that he has War Related Post Traumatic Stress Disorder with chronic alcohol dependence consequent upon this illness:

When the matter came before the VRB, Mr Smith's representative, Mr Wiltshire, lodged a written submission with the Board. That submission read in part as follows (T2 ppix-xi):
e.Mr Smith was confronted with events that were out of his control whilst he was in Vietnam. When on watch in the engine room in Vung Tau harbour he was locked in the engine room so that in the event of an underwater attack, he, (along with his ship mates who were also on watch) would be the only ones to perish, and the rest of the ship's company would be relatively safe and that compartment would be the only one damaged or destroyed. (There were other compartments locked for the same reason). Mr Smith was in fear of his life as he was in a situation over which he had no control. He even went AWOL on one occasion so that he would not have to go back to that situation again.
f.Mr Smith also remembers that whilst locked in the engine room he could hear what he thought were depth charges exploding around the ship. In fact I think you'll find that hand grenades were actually dropped over the side of the ship to try to stop enemy divers from approaching and attaching some kind of limpet mine etc to the ship.
g.On one occasion Mr Smith was on deck of the ship when an American helicopter blew up a small craft. This craft had been approaching the ship and would not stop or change course. Mr Smith remembers the head of one of the people on the craft being blown off and bodies and blood floating in the water near the ship. This horrified him; he still has nightmares about this incident. Another incident involved a helicopter that almost crashed onto the ship near where he was standing and he thought he was going to be killed. The helicopter did not crash and was brought under control by the pilot.
Before this hearing the Repatriation Commission and Mr Smith had both obtained reports as to the incidents referred to in the submission lodged on behalf of Mr Smith. Dr Walton, in a report dated 28 August 2001 (R2), confirmed that on the history provided by Mr Smith the clinical profile was that of PTSD.
THE PROCESS OF DECIDING WHETHER A DISEASE IS WAR-CAUSED
Section 9 of the Act sets out the circumstances in which an injury or disease shall be taken to be war-caused. So far as relevant it provides:
9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
The standard of proof is set out in s120 of the Act. Where a veteran has operational service the relevant provisions are s120(1) and (3). They provide as follows:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
. . .
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
In respect of claims made after 1 June 1994, s 120A(3) provides that a hypothesis is reasonable only if there is a Statement of Principles ("SoP") which upholds the hypothesis. Section 120A(4) provides that s120A(3) does not apply where there is no SoP in respect of the relevant injury or disease.
It is well established that the approach to be adopted by the Repatriation Commission, the VRB and the Tribunal, in deciding whether or not a disease is war-caused, where a veteran has operational service, is as set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206. The Full Court described the application of the relevant legislative provisions as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

PTSD

Three psychiatrists, Dr Thacore (Tdocs p30), Dr Schrueder (Tdocs p41) and Dr Walton (R2) have diagnosed Mr Smith as suffering from PTSD on the basis of the history and symptoms he reported to them. The issue of diagnosis is a medical matter (Repatriation Commission v Budworth (2001) 66 ALD 285). We accept their evidence and find on the balance of probabilities that Mr Smith suffers from PTSD.
The VRB in paragraph 2 of its reasons for determination said:
The Board does not have before it a diagnosis that the veteran is suffering from post traumatic stress disorder. Dr Vinod Thacore, consultant psychiatrist, in his report of 18 November 1999 concludes that "it would appear that (the veteran) is suffering from signs of Post Traumatic Stress Disorder" (Board emphasis). Dr Cas Schrueder, consultant psychiatrist, in his report of 14 April 2000 states that Í think that he has War Related Post Traumatic Stress Disorder with chronic alcohol dependence consequent upon this illness". (Board emphasis). Moreover, Dr Schrueder's report is scant in detailing the symptoms suffered by the veteran that are in accordance with the Statement of Principles (SOP) description of the condition.
We regard that as adopting an unduly legalistic and pedantic approach to the opinions of the psychiatrists. For a psychiatrist to say that a person is suffering from signs of a disease, or that the psychiatrist thinks a person has a disease, are just two ways of expressing the opinion that a person has a disease.
A third way is that adopted by Dr Walton when he wrote (R2):
1.This veteran provides a history of intrusive, disturbing recollections of what he recounts as distressing military experiences, a variety of nightmares but some of which appear to be recapitulation dreams of the same experiences, fairly intense feelings of vulnerability when confronted with reminders, avoidance behaviour in the sense that he retreats to drunkenness to escape his symptoms, social withdrawal, detachment from family members and a sense of a foreshortened future. There is a lengthy pattern of insomnia, recurring outbursts of frank aggression, difficulty sustaining concentration and an exaggerated startle response.
Thus the clinical profile is that of a post-traumatic stress disorder.

The service history set out in Dr Walton's report, does not refer to being locked in the engine room but does refer to fear caused by the reverberations of depth charges in the engine room. It also refers to both the sampan incident and the helicopter "near miss".

Mr Smith gave evidence and told psychiatrists about four different stressors during his operational service. They are set out in summary form in the respondent's written submissions at paragraph 10 as follows:
(i)on one occasion the applicant was told by a petty officer that he and others on watch would be locked in the boiler room; on occasions he was also frightened by the sound of exploding scare charges and by the pulsating of the boiler front ("the boiler room incidents");
(ii)the applicant witnessed an American helicopter flying too close to the island superstructure on Sydney necessitating a warning broadcast from the bridge which caused the applicant and others to scurry below to take cover ("the helicopter near-miss"); and,
(iii)the applicant witnessed a Vietnamese sampan explode after being strafed and bombed by an American helicopter gunship and saw bodies and parts of bodies in the water ("the sampan incident").

It is convenient to divide (i) into two separate stressors (i)(a) being the incident when Mr Smith believed he was being locked in the boiler room and (i)(b) the more general state of anxiety due to the dropping of depth or scare charges and the pulsating of the boiler.
STEP 1

Applying the first of the Deledio steps, the Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by Mr Smith.

Mr Smith gave evidence of a number of incidents, which he regarded as stressful, during his operational service. Mr Moore in his written submissions stated that the hypothesis relied on, in regard to PTSD, was that it was a reaction to the stressful events Mr Smith experienced during his operational service. He added that the applicant's own evidence pointed to the "explosion of scare charges while he was below the water line of HMAS Sydney as being the dominant severe stressor".
In his evidence Mr Smith described each of the four raised stressors.
(i)(a)the incident when Mr Smith believed he and others were being locked in the boiler room
Mr Smith did not mention this in his examination-in-chief although it was opened in some detail by Mr Moore. In cross-examination when Mr Smith was asked about the incident he said (trans. pp47-50):
Yes, I recall that. That incident was - I went down to the engine room to relieve a friend of mine and he wanted to come up and take some photos and when I went to go down there, there was a PO standing at the air lock and he had the padlock and I said, "What's the padlock for?" He said it was to lock the engine room because if the ship was sunk, and I can recall this, this comes back to me, he said, "If the ship was sunk the people down in the engine room, there's only 50 of us down there, they'd go down with the ship and the rest would be saved. It's better 50 than 500."
. . . .
Had you ever heard a suggestion like that previously by anybody else that personnel would be locked in the engine room with a padlock? --- No, it was only because I went there early and he was standing outside the door.
But surely, if you were put in that - I withdraw that. Surely, you would have objected strenuously, wouldn't you, to the notion of being locked in the boiler room? --- I just said that I did.
Yes? --- I said to him, "What's the idea of that?" and he stated that the reason for that was because if the ship was attacked because we were in Vung Tau Harbour, if the ship was attached, it's better to lose 50 than to lose 500.
But you were never actually locked out, were you? --- Well, I can't say because when I went down there I never came out and when I came out the door would be open but when I was down there I can't say if he locked it behind me or if he - or he locked it and then opened it again because when he came out, out of the engine room, the boiler room, there was a light, right? Now, if that light was red, right, it would go green and then it would go back to red when you went into the air lock and then you had to wait a few minutes for something and then you would come out.
(i)(b)the general state of anxiety due to the dropping of scare charges and the pulsating of the boiler
The evidence on this issue is at trans. pp14-15:
All right. Now, do you recall being frightened on any occasion after you got to Vietnam whilst in the engine room or the boiler room? --- First couple of times I was frightened down there when the boiler pulsated and jumped out at us.
Yes? --- Other times was - I got really frightened when they were dropping the - I don't know if they were scare charges or depth charges in Vietnam because it used to really vibrate and rock the ship.
What about the loudness of the noise? --- Yes, it was very loud.
Tell us - - - ? --- It was like an explosion going off.
Yes, and did you have any warnings before these scare charges were let off? --- If you were on deck they used to spruik over the speaker, but down in the engine room you couldn't hear that so you didn't have a warning.
Yes. In the earlier trips you had to Vietnam, what did you think when the explosions went off? --- The first time I thought we had been hit by a torpedo or by a bomb or something and then when we found out it was depth charges going off but it didn't matter, it still made you jumpy and nervous because down in the boiler room or the engine room, you had to go down a lot of flights of stairs to get to the bottom.
What was your concern? --- My life.
Just how scared were you? --- Well, I used to shake and the PO used to say, "You'll be right, you'll be right, son".
(ii)the American helicopter incident
Mr Smith described how American helicopters used to take off from and land on the deck of HMAS Sydney. He explained the particular incident at transcript page17):
Well, when they took off the deck they circled the tower and one of them came in really close. Next minute they said over the loud speaker, "Veer off, veer off, you're going to crash." and they told us to get off the deck and we had to get off the deck.
How did it come or appear to you to come to the tower? --- Well, from where I was standing, I was aft of the tower, and it seemed - I thought it was going to hit the front of the tower, forward of where we were standing. But he came in and he swerved and then he went off. He was just swooping and showing off, I think.
When this occurred and when you were ordered off the deck from the tower, no doubt, how did you feel? --- Well, I was scared and thought, "Jesus, this is going to happen, we're going to all die." because, I mean, you're supposed to be able to land and take off without accidents, I think.
When you got that order, what did you do? --- We all went off the deck.
I should have asked you this. You were there with others, were you, on the deck? --- Yes, the time this happened there was ABs and that but there was four stokers that were there, we used to hang around together and the four of us got off the deck.
Yes. Where did you go? --- They had - I can't recall what they're called - sort of little side pockets and when you had to get off the deck you had to go down. We went down there and then we went down inside afterwards.
Did anything further happen? --- Well, we weren't allowed back on the deck.
Yes, and how did that incident leave you feeling? --- Well, you know, I mean, they told us we were supposed to be safe and nothing like that would happen to us.
Mr Smith described his reaction to the incident. He said that when he saw it, "Well, I was scared and thought, "Jesus, this is going to happen, we're going to all die"" (trans. p17). He also said that if he hears helicopters flying overhead at night he wakes up in a cold sweat just hearing the helicopter.
(iii)the sampan incident
Mr Smith's evidence of this incident is at transcript pp18 and 19:
Was there a third incident that left you very fearful whilst you were in Vietnam? --- Yes, a sampan that was blown out of the water.
This was some time after the helicopter incident, was it? --- Yes.
What occurred? --- We were on the deck and the cutter was going around, they had the dye - they used to put a dye around the ship and they used to tow barbed wire behind the cutter and that was in case any frogmen sneaked in and planted depth charges or anything on the ship. On this day, the reason we heard it because the gunships came over and they told us: sampan to stay out of the dye, stay out of the dye and there was two blokes on the ship, I think there was three, but two were actually standing up waving, telling as though the boat had broken down or something.
This was on the sampan? --- On the sampan. They give them another warning as soon as they come near the dye, they just blew them out of the water.
This is the helicopters? --- The gun ships or whatever they're called.
Right. How long did you have the sampan under observation yourself? --- Oh, a good quarter of an hour and then we were ordered off the deck.
How long into that quarter of an hour was it before the explosion occurred? --- Probably five minutes, ten minutes.
Were you aware of whether or not bullets were used to sink the sampan or a bomb or what? --- They used a machine gun on the gun ship.
Did the sampan disintegrate or was it - - - ? --- Well, it blew out - it was like a big explosion and there was a big gush of water and then there was I seen a body and I seen a head.
Now, you say you saw a body, was that an intact body? --- No, just parts of body.
You saw a head? --- Yes, the head was blown not far from the ship itself. There was all blood in the water.
Yes. How did that make you feel when you saw all that? --- Well, to be honest I've never been a person who likes violence or anything like that but I just felt sorry for them because I felt they were only fishermen or something and the boat had gone out of - lost control but when it blew up in the water it sort of - and then they told us that - well, everybody thought that it had explosives on it so I can't - - -
MRS DWYER:   When you say "everybody thought" or "they told us"? --- Well, all the boys that were on deck and rumours spread on ships.
MR MOORE:   There was no official announcement in relation to that? --- We were just told to get off the deck.
MRS DWYER:   But these rumours were that it wasn't just fishermen who had lost control of their boat, that it had explosives? --- Yeah, that it had explosives on it.
MR MOORE:   But those rumours were never confirmed by the ship's authorities? --- Well, not to us, they weren't.
I see.
Mr Smith said that he started drinking "heavy" after the sampan incident, because "I used to see a body, see a person's head and blood in the water" (trans. p20). He said he still has dreams of that incident where he sees parts of bodies and a head. He added, "I see a head" (trans. p20). He said those dreams wake him up and then he cannot go back to sleep so he has some alcohol.
STEP 2
As set out above it was agreed that the relevant SoP for PTSD is Instrument No. 3 of 1999 as amended by No. 54 of 1999.
Step 2 provides that if the material does raise a hypothesis connecting the disease with the circumstances of Mr Smith's operational service, the Tribunal must ascertain whether there is a relevant SoP. As already stated there is a relevant SoP.
Instrument No. 3 of 1999 includes as a factor that must as a minimum exist, before it can be said that a reasonable hypothesis had been raised connecting PTSD with the circumstances of a veteran's service:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.

The definition of "experiencing a severe stressor" in No. 3 of 1999 was amended from 24 June 1999 by No. 54 of 1999 to provide:

"'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;".

STEP 3

At step 3 the Tribunal must form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis is consistent with the "template" to be found in the SoP. The hypothesis must contain one or more of the factors which the Repatriation Medical Authority ("RMA") has determined to be the minimum which must exist and be related to Mr Smith's service. The Full Court has explained that if the hypothesis does contain these factors it can neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
(i)(a) the incident when Mr Smith believed he and others were being locked in the boiler room
The definition of experiencing a severe stressor as set out above is difficult to satisfy. The incident when Mr Smith believed he and other crew were being locked in the boiler room, was not a response to any particular event or events involving actual or threat of death or serious injury. If it happened it was a routine procedure but not in response to any threat from the enemy.
Dr Carroll prepared a most detailed report (A1) after researching each of the HMAS Sydney voyages to Vietnam during Mr Smith's operational service. As to being locked in a boiler room he wrote at pages 55 and 56:
To gain access to the Boiler Room in HMAS Sydney one would have had to access this compartment through an airlock. The purpose of the airlock is patently obvious to those with necessary technical knowledge to understand the principles behind the necessity of such requirements. To the lay person or someone with limited knowledge the airlock is merely two doors into a machinery compartment, which have to be opened and closed in a set sequence. Nothing could be further from the truth.
With reference to BR 3003(1) 'Naval Marine Engineering Practice Vol. 1' a standard text for all engineering sailors of the time, it will be noted that under the sub-heading, Forced draught at page 29 of this text, that the following principles would have applied, especially in Sydney.
Forced draught is necessary in warships to supply the large amounts of air which are required to burn the fuel in the high powered boilers.
Forced draught can be applied by different methods, one of which is the closed boiler room system where air is drawn from the weather decks by fans and forced into an airtight boiler room. The air is then led to the furnace of the boiler directly through open type fronts or registers, or may be led around the boiler casings into closed type registers. Airlocks are necessary so that the boiler room can be entered without air escaping when the doors are opened.
The emphasis here is obviously on the word Airlock. Some people have problems with words and word association. By referencing a basic text on Cognition such as Martindale C, (1981) 'Cognition and Consciousness' one can find chapters on 'Word Association' and associated hierarchies leading into the phenomenon called 'Functional Fixity'. (Dunker, 1945) maintains that: 'If an object has a dominant function or use, this tends to prevent us from thinking of using it in another way.'
As a consequence of the above, I am advancing what I consider to be a plausible hypothesis, which suggests that Smith saw the doors to the Airlock more as locking devices than a means of retaining air pressure in a machinery space. And, as much as he may have tried, he only perceived these doors as locks. What certain senior sailors may have said to him in relation to this only confirmed in his mind that a prime function of these doors was as locks or locking devices.
Whether this hypothesis is psychologically correct or not, I would need to defer to his treating psychiatrist(s). His psychiatrist(s) would have more of an idea of Smith's powers of cognition, in relation to the hypothesis that I have advanced. They may also wish to support or give other explanations regarding this subject.
As to that passage, Commodore Mulcare wrote at R4 paragraph 6:
I am not qualified to comment on the hypothesis advanced by Dr Carroll at page 56 of his report. However the principles of boiler combustion were drummed into Engineering Mechanics and the veteran should have been aware of the reason for the air locks at the entrances to each of SYDNEY's machinery spaces. He would have entered and left the machinery spaces through an air lock a number of times each day. To do so he had to operate a lever to open and shut the inner and outer air lock doors, but there were no locks on the doors to prevent him entering or leaving.
We find that the evidence in regard to being locked in the boiler room is not such as to raise a reasonable hypothesis in accordance with factor (a) in the relevant SoP. We accept the respondent's submission, at paragraph 22.6, that for the definition of "experiencing a severe stressor" to be met, the event needs to be significant and cannot be just general apprehension or foreboding.
(i)(b)the general state of anxiety due to the dropping of scare charges and the pulsating of the boiler
Similarly, while there is evidence that scare charges did make a loud sound which could be frightening the first time they were heard, we do not accept that such a sound is of the character required to fit the definition of "experiencing a severe stressor" in the SoP. Mr Smith said after the first time he found it was depth [the evidence suggests it was scare rather than depth charges] charges going off, "it still made you jumpy and nervous". He said the Petty Officer reassured him when he used to shake.
That evidence establishes that the sound of the scare charges did frighten Mr Smith. But they were used as part of Operation Awkward as a precautionary measure to discourage enemy divers attempting to place limpet mines on the hull of HMAS Sydney and other Australian Navy ships in Vung Tau harbour (see A1 pp33-34). We do not consider those precautionary measures have a character such as required to satisfy the definition of "experiencing a severe stressor". Nor is the pulsating of a boiler in a boiler room such a stressor. Those matters give rise to general apprehension rather than being events such as described in the definition.
(ii)the helicopter alert
Dr Carroll's research found that there was an actual incident consistent with Mr Smith's evidence. We refer to it now, at Step 3 of the Deledio process, not as confirmation or proof of Mr Smith's evidence but to glean more information as to the nature of the incident. Dr Carroll set out at page 29 of A1, an extract from the Report of Proceedings ("ROP") of Commander F R Woods RAN, the Commanding Officer of HMAS Parramatta, for the month of April 1968. HMAS Parramatta at the time was the escort for HMAS Sydney. Commander Woods wrote:
On 05th April at 0830 GH, Parramatta cast off and proceeded via the Api passage to the western entrance of the Balabac Strait. A rendezvous was made with HMAS Sydney at 0745 GH on 07th April and both ships then proceeded in company for Vung Tau. During passage various exercises were carried out. During Sydney's flying operations on 08th of April one helicopter developed mechanical trouble and two crew members were jettisoned into the sea in case of worse developments. The Observer and the POUC (Air) were picked up by Parramatta while the disabled helicopter made a successful landing on Sydney.

This incident and another report on it at page 28 of A1 indicates that the helicopter was Australian, not American, as described by Mr Smith in paragraph 26 of this decision. The Tribunal accepts that as the incident occurred more than 30 years ago Mr Smith may well be confused as to the type of helicopter involved and the circumstances of the incident. The description of the incident establishes that there was "actual or threat of death or serious injury" to the crew when a disabled helicopter landed on HMAS Sydney during one of the periods of Mr Smith's operational service. Commander Mulcare (R4) doubted if "the helicopter almost crashed onto the ship near" Mr Smith, when it was landing. The evidence is capable of satisfying the template.

(iii)the sampan incident

Mr Smith's evidence on this incident of an explosion, and him then sighting parts of a body and a severed head in the water, clearly satisfies the definition of experiencing a stressor. The respondent conceded that this event would constitute a stressor as defined (paragraph 22.10 of Mr Purcell's submission).
STEP 4
Step 4 is very important and so we are repeating it, although it is set out earlier. The Full Court explained:
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

Thus the question is whether we are satisfied beyond reasonable doubt that Mr Smith's incapacity due to PTSD does not arise from a war-caused disease. If we are not so satisfied, beyond reasonable doubt, the claim must succeed.

Dr Carroll's evidence establishes that a helicopter incident involving HMAS Sydney, which is consistent with Mr Smith's evidence, did occur during Mr Smith's operational service in HMAS Sydney.
As to the sampan incident, Dr Carroll agreed with Commander Mulcare that there is no record of it in the ROP of HMAS Sydney or any of the escort vessels and that it is the sort of incident one would expect to have been reported. However, Dr Carroll did obtain evidence providing some support for Mr Smith's evidence that he saw a floating part of a body in Vung Tau harbour. He quoted from a letter, dated 15 November 1999, in which Commander Woods wrote as to the month of April 1968 when HMAS Parramatta was acting as escort to HMAS Sydney (A1 pp33-34):
At the Vung Tau open anchorage it was mandatory for all ships to implement Operation Awkward against the real threat from underwater swimmers placing limpets on ship's hulls. This involved adopting defensive measures which included dropping scare charges over the ship's side and from a ships boat towing a deterrent device. In addition the US Army patrolled the anchorage in a fast motor boat firing sub-machine guns at random, at any suspicious objects.
I can recall hearing that a body or bodies had been seen in the water, possibly as a result of U.S. Army shootings. It is open to conjecture whether the body hooked by Parramattta's boat was that of an underwater swimmer or a body swept down the delta with other debris. As the body was reportedly partly decomposed, it was probably the latter. I was unaware that the body was 'blown up' with scare charges. (Tribunal emphasis)

Dr Carroll then commented in his report:

This incident is not reported in either the Ship's Log or in the Commanding Officer's Report of Proceedings. However, this does not disqualify Commander Woods from recollecting that such an incident did take place. Several further examples may be found in US Naval Monthly Historical Summaries, however, these may not be as immediate, date wise, as the specific incident mentioned above appears to be.
Commander Woods also states that: "Had any of these incidents resulted in hostile action then they would have been reported in the ROP." He also stresses that, in his view, "a young and inexperienced sailor may well have been stressed or disturbed by the random sound of scare charges, machine gun fire and the sighting of a body or bodies."
Several further examples similar to the above may be found in the US Naval Force Vietnam Monthly Historical Summary for January 1970. (Tribunal emphasis)

In his summary Dr Carroll stated:
Both Commander F R Woods and the USN Monthly Historical Summaries give examples of bodies being sighted in the Port of Vung Tau. That the example cited by Commander Woods, the Commanding Officer of the escort frigate Parramatta happens to coincide with a happening related by Smith, (and maybe embellished by him over time) is, in my view, too much of a coincidence. Maybe there is an element of truth in what he has stated to the VRB.
Commander Woods makes specific reference to the fact that "a body or bodies had been seen in the water possibly as a result of US Army shootings." Whether these shootings, per se, had been by helicopter gunship or by fast patrol craft is open to conjecture, no one seems to know for sure. However, the fact still remains that a body had been "hooked" by Parramatta's boat's crew, and that this may well have happened in the immediate vicinity of where Sydney and the Parramatta would have been in the near vicinity of both ships.
The material produced by Dr Carroll establishes that a body could have been seen by Mr Smith in Vung Tau harbour in April 1968. It is possible that it could have been of a person killed by American gunship fire. The letter from Commander Woods establishes that such an event would not necessarily have been reported in a ship's ROP. Dr Carroll, at transcript page 116, conceded that he had not found a record of a sampan being blown up.
Commodore Mulcare at R3 paragraphs 9 and 10 stated:
9. There is no record of any attack or attempted attack by small craft on SYDNEY, nor of a helicopter blowing up a small craft nearby SYDNEY, while she was at anchor in Vung Tau. Commodore D H Thomson AM RAN Rtd, who was SYDNEY's Navigating Officer from late December 1966 to early May 1968 does not recall any incident of this nature during his time in the ship. One of his duties was to draft the ship's ROP and he believes he would have included reference to such an incident in the ROP, had it occurred.
10. HMA Ships YARRA and STUART escorted SYDNEY into Vung Tau in December 1967 and February 1968 respectively. Although these ships had responsibilities for the protection of SYDNEY while it was discharging/embarking Australian Army personnel in Vung Tau, neither of their ROPs mention any incident involving a helicopter blowing up a small craft in the vicinity of SYDNEY, or of any other violent activity in the vicinity of the RAN ships in either December 1967 or February 1968.

That evidence does not allow us to be satisfied beyond reasonable doubt that the Sampan incident did not occur, particularly when we bear in mind the statement of Commander woods at page 34 of A1, "Had any of these incidents resulted in hostile action then they would have been reported in the ROP". On Mr Smith's evidence there was no hostile action by any Australian ship or by American helicopters flying from HMAS Sydney. He said it was an American gunship that blew the sampan up.

On the evidence, although we have significant doubts as to the sampan incident, we cannot be satisfied beyond reasonable doubt that Mr Smith did not witness the helicopter incident and the sampan incident. As we said under Step 3, witnessing both those events would satisfy the definition of "experiencing a severe stressor" in the SoP.
Dr Walton in his report acknowledged that the helicopter incident could have been a factor leading to the PTSD. He expressed reservations about the role of the sampan incident. He wrote:
In relation to the sampan incident, while the veteran now describes himself as having experienced "horror", when further questioned, he merely speaks of feeling nauseated and I could not state that his response amounted to intense fear, helplessness or horror on that occasion.
In relation to the helicopter incident. Mr. Smith does seem to have been in fear that he would lose his life if the helicopter crashed, he scurrying to protect himself.
Thus, if it should be determined that this man does meet the necessary objective component of having experienced a severe stressor, it seems that he might cross the threshold as defined in the Statement of Principles.
Clearly he meets the clinical criteria and his symptoms certainly have persisted for more than one month and are associated with clinically significant distress and impairment of social and occupational functioning.
I have relied upon Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999 concerning Post-Traumatic Stress Disorder.

Mr Smith in his evidence described a reaction which we consider did equate to helplessness or horror at what he saw, even though he did not use those words.
clinical onset of PTSD

There is no evidence as to the date of clinical onset of PTSD. Mr Smith has given a history of suffering some of the symptoms reported to the psychiatrists since his discharge from service. The first diagnosis of PTSD would seem to have been by Dr Thacore who saw Mr Smith on 12 December 1999 (T9). On that occasion Dr Thacore obtained a history of longstanding problems dating back some years, but there were no precise dates other than the break up of his marriage about 10 years earlier and the fight which led to him being put on a good behaviour bond in 1990. Dr Walton, at page 2 of his report, describes the habit of drinking to excess as having started after the depth charge exposure and then states that Mr Smith went AWOL a few times to go drinking following the sampan incident. He describes a reduction of alcohol consumption after meeting his wife, the marriage and then the marriage failure and a resumption of heavier drinking. Dr Walton noted consultation with a general practitioner for about 15 years but no psychiatric treatment.
CONCLUSION AS TO PTSD
The evidence does not allow us to determine the date of clinical onset of PTSD. It is clear however that Mr Smith experienced his severe stressors prior to the clinical onset of his PTSD as required by factor (a) of the SoP. We find that PTSD is a war-caused disease.
ALCOHOL ABUSE
Dr Thacore noted that Mr Smith had developed alcoholism, Dr Schrueder diagnosed War Related Post Traumatic Stress Disorder with chronic alcohol dependence consequent upon the PTSD. Dr Walton wrote at pages 5 and 6, paragraph 3, of his report:
This veteran provides a history of sustained excessive alcohol consumption. There does seem to be a pattern of escalation over the years, perhaps indicative of tolerance. I obtained no clear history of withdrawal symptoms but the veteran admits to consuming larger amounts than intended on occasions. There has been the one unsuccessful effort to avoid alcohol use and clearly important social, occupational and recreational activities have been compromised by this veteran's alcohol misuse.
This veteran is properly described as an alcohol abuser but because he meets the diagnostic criteria in relation to alcohol dependency, that is the preferred clinical diagnosis.
Dr Walton in that paragraph refers to the diagnostic criteria for alcohol dependence. The DSM-IV diagnostic criteria are set out in the SoP and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2)withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
On the psychiatric evidence, we find that Mr Smith suffers from alcohol dependence in accordance with the diagnostic criteria in DSM-IV.
STEP 1
The hypothesis relied on by Mr Moore was set out on the last page of his written submission as follows:
ALCOHOL DEPENDENCE OR ABUSE
It is submitted that the medical evidence currently before the Tribunal is strongly supportive of the proposition that the Applicant's alcohol dependence and abuse (which is clearly established on the evidence) is secondary to his post traumatic stress disorder. The hypothesis raised here on behalf of the Applicant is consistent with the template provided by the relevant Statement of Principle. Again, the real issue dividing the parties is whether the Applicant's material can satisfy the "experiencing a severe stressor" definition in the Statements of Principle.
If the Tribunal is prepared to accept that the relevant definition is satisfied for the purposes of the Statements of Principle regarding post traumatic stress disorder, then, and for the same reasons, it ought be satisfied that the definition is satisfied for the purposes of the alcohol dependence or abuse Statement of Principle. Moreover, and in that event, it is submitted that the Tribunal should conclude that the evidence before it is entirely insufficient to disprove the Applicant's hypothesis beyond reasonable doubt.

STEP 2

The next question is whether there is a relevant SoP. The parties agreed that the relevant SoP is No. 76 of 1998.
STEP 3
The relevant factors in Instrument No. 76 of 1998 are factors 5(a) and (b) which read:
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:
suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
. . .
The term "experiencing a severe stressor" is defined in that SoP as follows:
"experiencing a severe stressor" means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
The Tribunal must consider whether the raised hypothesis fits the template in the SoP. As to factor (a) the evidence does refer to Mr Smith having, as we have found, war-caused PTSD. The difficulty for Mr Smith is to determine in the absence of precise evidence as to clinical onset of PTSD and of alcohol abuse or alcohol dependence, whether Mr Smith was suffering from the PTSD at the time of the clinical onset of alcohol abuse or alcohol dependence. As to factor (b) the difficulty is to determine whether Mr Smith experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence, or alcohol abuse. According to Dr Walton, alcohol abuse may have been the correct diagnosis at an earlier time.
Mr Purcell submitted at paragraph 27 of the respondent's submission:
Having regard to all of the evidence the respondent concedes that the date of clinical onset of alcohol abuse occurred within the last two years of the applicant's service in the Navy. However, there is no medical evidence suggesting he was suffering from PTSD or any other psychiatric disorder at that time. Thus risk factor 5(a) does not apply.
We accept that submission as to factor 5(a).
As to factor 5(b) the respondent submitted in paragraph 28:
In respect of risk factor 5(b) the respondent contends, for the reasons stated earlier in these submissions, that the applicant did not experience a severe stressor on service. Therefore his alcohol use cannot be said to be war-caused.
We have now found that the helicopter incident and the sampan incident were severe stressors for the purpose of the PTSD SoP. Those events do satisfy the objective aspects of the definition of a severe stressor. As set out in paragraph 49 above, Dr Walton was of the view that the sampan event did not evoke intense fear, helplessness or horror. The SoP definition does not require that the event did evoke intense fear, helplessness or horror but that it might do so. As we have said earlier, we consider that the way Mr Smith described his reaction to the event did involve a feeling of helplessness and horror at seeing people "blown out of the water" and then seeing a body and a head and blood in the water, particularly when he felt they were only fishermen and trying to tell people that their boat had broken down or something. Certainly such an event might evoke the specified reaction.
However, the difficulty remains as to factor 5(b) of Instrument No. 76 of 1998, that we do not know whether the helicopter and sampan incidents occurred before or after the date of clinical onset of alcohol abuse. If, as the evidence suggests, they both occurred in April 1968, that was only about 15 months before Mr Smith's discharge from the Navy. Was that before or after the onset of alcohol abuse? Mr Smith's evidence was that he started "drinking heavy" after the sampan incident (trans. p21). The respondent conceded that the onset of alcohol abuse was within the last two years of Mr Smith's service. That is consistent with it being after April 1968 and in particular after the sampan incident.
We consider factor (b) is raised on the material before us.
STEP 4
There is no evidence which satisfies us beyond reasonable doubt that Mr Smith's alcohol abuse which later developed into alcohol dependence was not related to him experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse.
CONCLUSION AS TO ALCOHOL ABUSE OR DEPENDENCE
The Tribunal finds that alcohol abuse or dependence is a war-caused disease.
DECISION
The decision under review will be set aside. In substitution the Tribunal will determine that PTSD and alcohol abuse or dependence are war-caused diseases.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr A Argent, Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  13 December 2001
Date of Decision  28 June 2002
Counsel for the Applicant        Mr G Moore
Solicitor for the Applicant         Geoffrey Tobin
Counsel for the Respondent    Mr G Purcell
Solicitor for the Respondent    Nil