Spotswood and Repatriation Commission
[2003] AATA 152
•13 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 152
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/196
VETERANS' APPEALS DIVISION ) Re RODERICK HAMILTON SPOTSWOOD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member J. A. Kiosoglous MBE Date13 February 2003
PlaceAdelaide
Decision The Tribunal sets aside the decision of the Repatriation Commission dated 11 April 2000, and remits the matter to the respondent for determination in accordance with the following findings:
1.1 the applicant’s condition of Generalised Anxiety Disorder is war caused pursuant to the Veterans’ Entitlements Act 1986; and
1.2 the applicant’s conditions of alcohol dependence and abuse, chronic pancreatitis and lumbar spondylosis are not war caused pursuant to the Veterans’ Entitlements Act 1986.
(signed)
J. A. KIOSOGLOUS
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service – whether conditions war-caused – generalised anxiety disorder – meaning of “experiencing a severe psycho-social stressor” – alcohol abuse or dependence – meaning of “experiencing a severe stressor” – chronic pancreatitis – lumbar spondylosis – meaning of “trauma” – reasonable hypothesis – Statements of Principles
PRACTICE AND PROCEDURE – jurisdiction – condition of “lumbar spondylosis” not considered in reviewable decision – “lumbar spondylolisthesis” and “lumbar spondylolysis” considered in that decision – applicant claimed for “low back pain” – whether Tribunal has jurisdiction to consider condition “lumbar spondylosis”
Veterans’ Entitlements Act 1986 ss14, 120, 120A, 120B, 175
Statement of Principles No 47 of 1997
Statement of Principles No 48 of 1997
Statement of Principles No. 76 of 1998
Statement of Principles No. 77 of 1998
Statement of Principles No. 27 of 1999Statement of Principles No. 1 of 2000
Benjamin v Repatriation Commission (2001) 34 AAR 270
Budworth v Repatriation Commission (2001) 63 ALD 422
Grant v Repatriation Commission (1999) 57 ALD 1
Re Grosvenor and Repatriation Commission [2002] AATA 601
O’Neil v Repatriation Commission (2001) 34 AAR 290Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
13 February 2003 Senior Member J. A. Kiosoglous MBE 1. This is an application brought by Roderick Hamilton Spotswood (the applicant). He seeks review of a decision of the Repatriation Commission dated 11 April 2000, which was affirmed by the Veterans’ Review Board (VRB) on 10 April 2001. The Commission rejected anxiety disorder, alcohol dependence or alcohol abuse, chronic pancreatitis, and spondylolisthesis and spondylolysis as either war-caused or defence-caused pursuant to the Veterans’ Entitlements Act 1986 (“the Act”).
2. As well as the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, the Tribunal received into evidence 24 exhibits, 13 lodged by the applicant and 11 by the respondent. In addition, the Tribunal heard oral evidence from the applicant; Dr M. Ewer, psychiatrist; Dr C. Mills, occupational physician; Mr R.T. Nott, former gunnery officer; Ms V. Martin, former nurse; and Mr R. Piper, historian. The applicant was represented by Mr T. White, of Counsel, and the respondent by Mr G. Doube, a departmental advocate.
Issues
3. It was agreed by the parties that the issues to be determined by the Tribunal are:
i) Is the condition of Generalised Anxiety Disorder (GAD) war-caused?
ii) the condition of alcohol dependence/abuse war-caused?
iii) the condition of chronic pancreatitis war-caused?
iv)the condition of lumbar spondylosis war-caused?
The respondent conceded that if the condition of alcohol dependence or abuse was accepted, then the condition of chronic pancreatitis should also be accepted.
4. The applicant indicated that the claim made before the VRB to have osteoarthrosis of both knees accepted as war-caused was not being pursued, and no evidence about this condition was led before the Tribunal.
5. The issues arise under the Act, applying the relevant Statements of Principles (SoPs) issued pursuant to that Act.
6. The respondent raised a preliminary question concerning the claim for lumbar spondylosis, claiming that the Tribunal does not have jurisdiction to decide this claim.
History of the Application
7. The applicant was born on 6 December 1948. He served in the Royal Australian Navy from 12 March 1966 to 1 June 1976. He rendered “operational service” in Vietnam for the purposes of the Act from 18 November 1968 until 25 November 1968, and again from 16 November 1969 until 29 November 1969. He also rendered “eligible defence service” for the purposes of the Act from 7 December 1972 until 1 June 1976.
8. On 9 February 2000, the applicant lodged a claim for pension in respect of a number of conditions, including pancreatitis, lower back problems, and emotional and behavioural problems.. The respondent identified chronic pancreatitis, anxiety disorder, alcohol dependence or alcohol abuse and spondylolisthesis and spondylolysis as the medical conditions in issue. On 11 April 2000, the respondent rejected the applicant’s claim that these conditions were war-caused. On 10 April 2001 the VRB affirmed that decision. The applicant has appealed to this Tribunal. A number of other conditions were initially claimed by the applicant. One was accepted by the Commission. The others were rejected. Counsel for the applicant indicated that only the conditions outlined under the heading “Issues” above were being pursued before this Tribunal, and no evidence was adduced which supported a claim for any other condition, nor was any argument made in support of any other condition.
The Jurisdiction Issue
9. It is convenient to deal first with the jurisdictional issue, as it determines the relevance of some of the evidence before the Tribunal.
10. The respondent contended that under s175 of the Act, the applicant only has the right to apply for review of a decision of the Repatriation Commission that has been affirmed, varied or set aside by the VRB. In this instance, the respondent argued that there was no decision of the Commission or of the VRB concerning lumbar spondylosis. Rather, the Commission had made a determination concerning lumbar spondylolisthesis and spondylolysis. These conditions are different from the condition of lumbar spondylosis, and have a different SoP. The Commission received no evidence that the applicant was suffering from lumbar spondylosis until more than 18 months after it made its decision, and more than 6 months after the VRB affirmed that decision. The respondent contended that the AAT will only have jurisdiction to make a decision concerning lumbar spondylosis once that condition has been the subject of a determination by the Repatriation Commission, and that determination has been affirmed, varied or set aside by the VRB. The respondent referred to the decision of this Tribunal in Re Grosvenor and Repatriation Commission [2002] AATA 601 to support its contention. The applicant contended that the condition of lumbar spondylosis was before the Tribunal and the Tribunal has jurisdiction to make a determination on this issue.
11. The Federal court has held in a number of cases that this Tribunal is obliged not to limit its determination to the case articulated by the applicant, and that the Tribunal is obliged to determine the substantive issues raised by the material and evidence before it (Grant v Repatriation Commission (1999) 57 ALD 1; Benjamin v Repatriation Commission (2001) 34 AAR 270). A case that is particularly pertinent in the current instance is Budworth v Repatriation Commission (2001) 63 ALD 422. That case involved a claim for Post-Traumatic Stress Disorder (PTSD). The Repatriation Commission had originally accepted that the applicant had compensable PTSD. It then revoked this decision. This revocation was upheld by the VRB, and the matter appealed to this Tribunal. The Tribunal found that the veteran did not have PTSD, but that there was evidence he had some psychiatric disease. However, as only PTSD was argued before the Tribunal, it did not consider whether the applicant was entitled to compensation under the Act. The court held that:
“[44]….. It is true that the decision under review was the decision of the Commission to revoke the entitlement for PTSD. However, it must also be remembered that the AAT in conducting its review "stands in the shoes" of the decision-maker (see Repatriation Commission v Maloney (1993) 45 FCR 563 at 568 and ss 43(1) and (6) of the AAT Act) and is able to determine the matter de novo, in the process of making the "correct or preferable decision" to stand as the decision of the primary decision-maker: see Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J and Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J.
[45] As indicated earlier (at para 37), there is no requirement that a veteran making a claim under s 14 of the Act should attempt to put a medical label on the malady said to constitute a "disease". It is enough if the claimant suffers from a disease. However, the applicant had initially been successful in his claim, basing it, on his medical advice, on the hypothesis that what was wrong with him was PTSD and that this condition was war-caused. Such also was the primary way in which his case was put to the AAT in its review of this case. Two of the applicants' doctors stated that the applicant had PTSD and one of them, Dr Dent, stated that PTSD was the only available diagnosis. A different diagnosis was proposed by Dr Spragg, a physciatrist [sic] engaged by the Secretary, namely a passive-aggressive personality disorder, unrelated to the applicant's service. It was submitted by counsel for the applicant that although the claim was primarily for PTSD, that had not closed off the alternative possibility of the applicant suffering from a disease other than PTSD.
[46] It is fair to say that it was a case of PTSD which the applicant urged before the AAT. In an exchange between the Deputy President and counsel for the applicant, counsel conceded that, although Dr Spragg had suggested that the applicant might be suffering from something other than PTSD, there was no actual evidence of any "qualified and learned [psychiatric] diagnosis" other than PTSD. However, the context was that counsel had stressed that the applicant "is claiming nerves" and that "it might not be PTSD but he certainly has a serious psychiatric condition.
[47] In any case, it is evidence of a disease as defined by the Act that is in question, not of some particular, precisely defined medical condition. There was ample evidence that the appellant had some kind of mental malfunctioning that could be regarded as a disease comprehended by his claim (see para 3 above). If there is material before a decision-maker which positively suggests that a veteran may be suffering from a disease then, pursuant to the sections set out above, the primary decision-maker has a duty to determine whether the veteran does have a disease, even though this may impose an onerous task on the decision-maker.” (at 437)
12. Although it does not appear that the Commission framed its arguments before the Federal Court in Budworth in terms of jurisdiction, it is clear that the argument presented to the Tribunal in the present matter is answered by the passage quoted above. In Budworth, PTSD was the only condition argued before the Commission. Nevertheless, the Tribunal was bound to consider any other psychiatric condition that arose on the material before it, regardless of the fact that no such condition was argued before it. The Tribunal is similarly bound in this matter to consider medical conditions that arise on the evidence before it, despite the fact that they were not argued in the same form before the Commission in the first instance. It should be noted here that the applicant’s original claim form stated that he was claiming for “low back pain” (T5/106). Lumbar spondylosis fits within this broad claim, so it cannot be stated that the applicant has introduced a completely new condition before the Tribunal.
13. Consequently, the Tribunal finds that it does have the jurisdiction to decide whether the applicant is entitled to compensation under the Act for war-caused lumbar spondylosis. In fact, the Tribunal is bound to determine that question.
Evidence of the Applicant
14. Mr Spotswood stated that he made two voyages to Vung Tau Harbour in Vietnam aboard the HMAS Duchess. He served as an electrical mechanic. He described a number of stressful incidents that occurred while the boat was approaching or anchored in that harbour. In his written statement (Exhibit A2), Mr Spotswood stated that all of these incidents occurred on the first of the two voyages. In his oral testimony he revised this statement, saying that the events described took place over thirty years ago and that he was unsure which events occurred on which voyage. He stated that appearing before the Tribunal had increased his confusion about these events.
15. Mr Spotswood said that on one occasion when entering Vung Tau Harbour early in the morning, he was asleep when woken by an alarm bell. This alarm was a call to “action stations”. He stated that this was to put the ship in a state of readiness for entering a war-zone. The event was, he said, “a bit horrific”, as “all hell breaks loose”, and the crew had to “do things in a precise manner”, such as safely stowing equipment and bedding, getting dressed, getting “anti-flash” gear and breathing apparatus and hurrying to their stations. Mr Spotswood said that this was “something that I suppose we were prepared for but not prepared for.” His branch did not perform shift work unless the ship was on an alert, hence it was unusual to be woken up in these circumstances. He stated that the crew, including himself, knew that that the ship would “close up” at some stage when entering the war-zone or Vung Tau Harbour, although he could not recall how he had learnt this. Despite knowing that this would occur, it was still a surprise, due to being woken early in the morning and the rush to get ready in the darkness. Mr Spotswood informed the Tribunal that he had practised action stations as part of his training.
16. Mr Spotswood stated that the HMAS Duchess remained in a state of “action stations” for the duration of its stays in Vung Tau Harbour. During this time the applicant worked “four hours on, four hours off”. His position was in the boiler room; hence he was in the boiler room the “whole time” he was in harbour. In the event that the ship was damaged, his job was to restore power to those parts of the ship affected. Mr Spotswood said that the boiler room was below deck, and below the waterline.
17. Mr Spotswood was referred to the “HMAS Duchess Report of Proceedings” for the month of November 1969 (Exhibit A8). This report covered the period of the applicant’s second trip to Vung Tau Harbour. The report recorded that:
“The ship went to Defence Stations on entering the War Zone at 1600H on 27th November. DUCHESS was detached to proceed ahead of HMAS SYDNEY for the entry to Vung Tau at 0400H on 28th November. The ship came to the starboard anchor in position 315 Cape Ganh Rai Light 6 cables at 0535H and assumed operation Awkward State 2….” (Exhibit A8/4)
It was put to the applicant that this indicated that the call to action stations was in the afternoon of the day before the ship entered harbour, not early in the morning. The applicant agreed. The applicant was then referred to the “HMAS Duchess Report of Proceedings” for the month of November 1968 (Exhibit A7). This report covered the period of the applicant’s first trip to Vung Tau Harbour. That document contains the following passage:
“I made a rendezvous with HMAS SYDNEY… at 2225 on 18th November for escort duties to VUNG TAU. After a quiet night… both ships went to action stations at 1600 that afternoon, breaking down to defence watches when all systems had been tested through….
DUCHESS was detached at 0530 on 20th and proceeded up harbour to the anchorage ahead of SYDNEY”.
It was put to the applicant that this recorded that the ship went to action stations at 4pm, not in the morning as he had claimed. The applicant replied that he definitely was woken from sleep and called to action stations early in the morning on one of his trips to Vietnam. He stated that he did not agree with the document.
18. Mr Spotswood described another incident which occurred while in Vung Tau Harbour. He was working in the “A” and “B” boiler rooms, and had to traverse part of the upper deck of the HMAS Duchess to travel between these rooms. It was common, he said, to “dawdle” and take in the surroundings after being closed up in action stations. While on deck on one such occasion, he saw a lot of activity to the rear of the boat in the distance, with helicopters and barges. He saw 3 helicopters which were “obviously strafing the hills-zone.” He could not tell whether they were Australian or American. One of these helicopters “disappeared”, there was smoke, and the applicant’s impression was that the helicopter had been shot down or crashed. He said that it was impossible to accurately judge distances over water, but he guessed that the helicopters might have been 5000 yards away. Mr Spotswood said he was on deck observing these events for about 5 minutes. He stated that this incident “brought home the shock of how close we actually were to the situation and the threat that was obvious to us”.
19. It was put to Mr Spotswood in cross-examination that he had told Dr Ewer that the helicopter had crashed on shore and exploded in flames. The applicant replied that that was his assumption. The helicopter disappeared from sight and he saw smoke and flames, but he said these might have been caused by rockets fired at the ground by the helicopters. Mr Spotswood was asked whether there was an airbase behind the hills in Vung Tau. Mr Spotswood said that he did not know.
20. Mr Spotswood was referred to a letter of Rodney Nott (Exhibit A5). In that letter Mr Nott describes an incident which occurred while the HMAS Duchess was anchored in Vung Tau Harbour in November 1969. In that incident, a helicopter malfunctioned and ditched in the harbour, some 2 or 3 miles from the ship. Mr Spotswood was asked whether this could be the incident he referred to in his testimony. He repeated that his impression of what occurred is as he previously described it.
21. Mr Spotswood referred to a third event that occurred while he was at his action station in the boiler room while the HMAS Duchess was in Vung Tau Harbour. In his written statement, he said that while working he heard “loud explosions” (Exhibit A2/2). In his oral testimony he said that in particular it was the first such explosion that scared him. This was very loud, and echoed through the hull of the ship. He stated that this noise “scared the hell out of me”. He thought it might be an enemy attack. He stated that he and several other sailors attempted to climb a ladder to get out of the boiler room. He was called back and told by a petty officer that it was a “scare charge”, or an explosive dropped from the side of the ship or from a small boat circling the ship to ward off enemy divers. Mr Spotswood said that other scare charges were dropped, infrequently and further away. He said that prior to hearing the first one, he had never been on a ship when scare charges were used. He stated that he had had no warning that scare charges were to be used. The boiler room was noisy, and only the petty officer had access to speakers connected to the ship’s PA system. He said that he could not recall which trip this incident occurred on, but he thought that scare charges were used on both of his trips to Vietnam and that it was the first one which really frightened him. Mr Spotswood said that when he recently heard fireworks, it brought back memories of the foregoing incident, and he “jumped out of [his] skin”.
22. During cross-examination Mr Spotswood was referred to an extract from a book “Vung Tau Harbour”, which contains a report stating that approximately 60 scare charges were dropped during the HMAS Duchess’ stay in harbour (Exhibit A11/68). Mr Spotswood said he was surprised that the number was so high. Mr Spotswood was then referred to the report of Dr Ewer, prepared after their first consultation (T7/116). Dr Ewer did not mention the scare charge incident. Mr Spotswood explained this by saying that he only answered the questions Dr Ewer asked him.
23. Mr Spotswood described a fourth distressing incident which occurred while the HMAS Duchess was in Vung Tau harbour. He said that while he was crossing the upper deck, he heard repeated gunfire. In his written statement (Exhibit A2/2) he said that he did not know who was firing at whom, and hence felt “intensely anxious and fearful”.. He later found out that it was a sailor firing an SLR rifle at debris in the water. In his oral testimony he contradicted this statement, saying that “Initially… I knew what an SLR was and the close proximity, I knew it had to be us”. The sailor told him that he was firing at debris as enemy divers sometimes used it to hide themselves as they approached a vessel. He said that he understood this as he had previously undertaken a course of instruction in diving. He stated that this incident was a “shock”, as it made him realise “how near we were to possible attack or the frogmen or whichever”.
24. In cross-examination it was put to the applicant that he had given a different account of this incident to Dr Ewer, his psychiatrist. He was referred to a report prepared by Dr Ewer (T7/116). It was suggested to the applicant that he had told the psychiatrist that he heard shots fired on a number of occasions, felt very anxious, and only found out at a later time what the origin and cause of this gunfire was. Mt Spotswood said that he must have used some “licence” when describing the incident to Dr Ewer. He said that once called to action stations, he would not have kept crossing the deck, although he would have done so if the ship was upgraded to a higher “awkward” state, that is, to a higher degree of readiness.
25. Mr Spotswood said that the most distressing incident, or the “main scare”, out of those described above was hearing the first scare charge. Since that incident, up to the present day, “the slightest noise… puts a panic system in place”. After going to Vietnam, Mr Spotswood said that he had difficulty sleeping, and “thought about things a lot more”. He started to “hide it behind a few quiet drinks”.. He stated that he was a fit person before going to Vietnam. He was a non-drinker and non-smoker before joining the Navy. He first drank in recruit school after football matches, but this was social drinking and he did not drink excessively. He stated that “I didn’t even like the stuff [ie alcohol] to tell you the truth”.. When at sea before he visited Vung Tau Harbour for the first time, he did not take up his beer ration. After going to Vietnam, the applicant said that his alcohol consumption increased significantly. As part of a group of 3 or 4 the applicant would purchase the beer ration for his entire mess, that is, 35 cans. They would consume the whole amount between the 3 or 4 of them. Although the cans were punctured when they were issued so that they could not be consumed later, the applicant and his colleagues developed a technique to reseal the cans. When the boat docked at, for example, Singapore, he, along with others, would get off the ship at 4:00pm and drink all night until they had to be back on the ship at 7:30am the next day. Mr Spotswood said the beer issue occurred several days after leaving Vietnam and his drinking continued, and increased, thereafter.
26. Mr Spotswood described a further incident that occurred while the HMAS Duchess was in Vung Tau Harbour. He said that he slipped down a stairwell on the way to the main switchboard, and landed at the base of the stairwell. In his statement (Exhibit A2/3) he said that he “landed heavily on [his] lower back and spine”. In his oral testimony he stated that he believed that he “slid down the vertebrae on [his] back” and landed in a “huddle or a heap” at the bottom of the stairway. At another point he said he landed on his knees. He had skin “taken off” several vertebrae, and felt a great deal of pain in his lower back. The ladder or stairway was about 8 feet high, and he fell about half or two thirds of that distance. He said this incident occurred when he was on his way to his action station. After the incident, he continued on to that station, and “put up” with the pain. The pain was in fact much worse later, after the applicant had “cooled down”.. When the ship left the harbour he went to the sick bay. The sick bay attendant suggested the applicant have a “couple” of days confined to his bunk and then light duties for “10 to 20” days. He could not recall whether he took any medication in this period. In a medical report prepared by Dr Mills, an occupational physician, that doctor wrote that the applicant had told him that the sick bay attendant gave the applicant two days rest, then the applicant returned to full duties (Exhibit A4/3). Mr Spotswood repeated that he had returned to light duties. Mr Spotswood was then referred to the following passage taken from the transcript of his hearing before the VRB:
MR WHITE: the statement of principles for these conditions of spondylolisthesis and spondylolysis, they actually require that you can’t walk, that you can’t walk unless you are aided for 2 weeks.
MR SPOTSWOOD: Well, I was bedridden for 2 weeks.
MR WHITE: Well, according to this you were actually confined to bed for a few days and then you were on light duties for 14 days.
MR SPOTSWOOD: Well, I was only guessing a couple of days. I would assume it would be longer period than that.
MR WHITE: Well, if you had been bedridden for 14 days, I would be surprised if there hadn’t been a record made of it.
MR SPOTSWOOD: Well, there was a lot of things that never – that there’s no records of. (Exhibit R2/12)
Mr Spotswood stated that he “definitely did have difficulty walking”, and that that was the reason he went to the doctor, was given bed-rest and was then confined to light duties. Mr Spotswood said he was “surprised” that he had told the VRB he was bedridden for 2 weeks, and “confused” as to why he had done it. He stated that he was not bedridden for 2 weeks.
27. Mr Spotswood stated that he could not recall exactly where the boat went after leaving Vung Tau Harbour after each trip. He was referred to the “Record of Proceedings” for each trip (Exhibits A7 and A8). These indicated that after the applicant’s second trip in 1969 the HMAS Duchess was in Singapore within 2 days of leaving Vietnam. Mr Spotswood said that he did not recall being confined to his bunk due to his back while the ship was in port in Singapore.
28. Mr Spotswood was referred to his initial claim form, wherein he claimed, inter alia, for “Low Back Pain” (T5/106). In that form, he wrote that his service had caused his back pain because of “heavy lifting”.. He also wrote that he first became aware of symptoms on 8 November, 1985. He stated that this section of the form had been filled out by his chiropractor. He had, in fact, seen chiropractors for over 20 years, and that the date quoted must refer to when he first saw a new chiropractor. He further stated that he believed that he had told the chiropractor of heavy lifting, but that the chiropractor had “half the story”.. Mr Spotswood stated that he did not know why he had not mentioned the accident wherein he fell down stairs in his initial claim form.
29. Mr Spotswood was referred to his subsequent claimant report for the condition of “spondylolisthesis or spondylolysis” (T6). On that form, in response to the question “1. When were the symptoms of the spondylolisthesis first noticed?”, Mr Spotswood wrote:
“BEING A FIT YOUNG MAN, IT WAS NOT “MANLY” TO CONSULT A DOCTOR AT ANY SIGN OF PAIN, BUT INITIAL PAIN WAS ON HMAS DUCHESS IN 1968”.
In response to the question “2. Has there ever been an injury to the spine?”, he ticked the box marked “yes”.. In response to the question “3. When did the injury occur?”, Mr Spotswood wrote:
“Whilst ammunitioning ship, and aggravating, lifting equipment too heavy whilst at work”.
In response to the question “Please describe how the injury occurred, including the injury and the nature of the trauma suffered:”, he wrote:
“AS ABOVE – TRAUMA IS RECURRING LOWER BACK PAIN AND LEG PAIN EVENTUALLY TIRED LEGS AND NOT BEING ABLE TO STAND FOR LONG PERIODS”.
In his answer to the question “5. What symptoms did you suffer following the accident?”, he wrote:
“LOWER BACK PAIN – SORE LEGS
WHILST PLAYING FOOTBALL AT HMAS CERBERUS I COLLAPSED, BECAUSE I SUDDENLY HAD NO FEELING FROM THE WAIST UP”
Mr Spotswood explained that he had had no assistance in filling out the forms. He said that his response to the first question was a reference to the accident described to the Tribunal. He stated that his answer to question “3” was a description of an “aggravation” of the accident, while carrying supplies onto the ship. He said that this occurred in Singapore, and that “the pain was there and the pain’s been there ever since”. Mr Spotswood again described the incident in his response to question “5” above, wherein he lost feeling in his legs on while playing football. He said that occurred in 1970 or 1971. Mr Spotswood said he has received treatment for his back pain from chiropractors. He still has this treatment fortnightly or weekly. Mr Spotswood was asked in cross-examination why he had not described the accident wherein he fell down stairs on this claim form. He said that it was an “aggravating situation”, and that this form was providing further information to that already provided (ie in T5 as discussed above in para 21 of these reasons). It was pointed out to him that he had not mentioned the accident in his original claim form either, to which he replied “I’m surprised”, and stated by way of excuse that he did not have access to the first claim form when he filled in the second one.
30. Mr Spotswood was referred during cross-examination to the medical statement he filled in on his discharge from the Navy (Exhibit R11). It was put to him that he did not mention any back injury in that statement. Mr Spotswood stated that he had filled the form in very quickly. He stated that he was in fact suffering from back problems when he left the Navy. He said that the Navy should have known about his back problems, but there were no records of his treatment aboard the HMAS Duchess.
31. Mr Spotswood said that he was posted back to HMAS Cerberus, the training base, in late 1970 or 1971. Initially, his main duties were cleaning an accommodation block. He then commenced a petty officer training course, which was a full time course running for 10 months. He said that he had started to have difficulty sleeping while on board the HMAS Duchess, and these difficulties continued. It was, he said, easier to spend time in the “wet canteen”. Alcohol helped him to sleep. He said that he would drink for up to 6 hours a night. Mr Spotswood stated that his marks were poor in this course. This was in contrast to the ability he had shown earlier on, when he achieved early promotion to “leading hand”, and when he was recommended for officer training in 1968. He stated that he could not recall missing any of the course, but that he was “pretty hung over” while attending, and would fall asleep during the day.
32. Mr Spotswood described an incident when he was taken to the Navy Fleet Hospital by two nurses who noticed his behaviour in the sailor’s mess at HMAS Cerberus. He said that the alcohol caused a crimson rash on his chest, shoulders and down his spine. He was examined by a Dr Whitehead on two separate occasions about this. However, he never sought medical advice about his excessive drinking, as he did not regard it as a problem. He also did not see any need to discuss his emotional problems with anyone.
33. Mr Spotswood stated that while he was at HMAS Cerberus he had disagreements with other personnel, including physical altercations. He also had a motor vehicle accident while at the base while inebriated.
34. Mr Spotswood provided a history of his employment since leaving the Navy in a form he filled in and returned to the respondent (T5/101). He stated that the description given therein is accurate. He said he experienced alcohol-related problems in the jobs he described. He said that he ceased his last job running hotels in December 2001, as he couldn’t stand up for long periods of time, and spent “more time on the stool having a drink than what I was supposed to be doing”.
35. In cross-examination, Mr Spotswood was referred to his original claim form, which asked when he had started to drink alcohol. He wrote that he had started while in recruit school at HMAS Cerberus (T5/107). In response to the question “How much did you drink?” he answered: “10 MAINLY BEER, PORT, RED WINE SOME NIGHTS A BINGE ON PORT”. He was then asked to explain how his service had increased his alcohol consumption. He wrote:
“PEER PRESSURE, SOCIALLY ACCEPTABLE. ALSO AFTER SPORT I FELT THAT THERE WAS A NEED AND HAVE CONSIDERED THIS INTO LATER LIFE EVEN THOUGH MY DOCTOR HAS WARNED ME TO QUIETEN DOWN MY HABIT AFTER PANCREATITIS WARNINGS.
ON JOINING THE NAVY I WAS A FITNESS FANATIC, AND DIDN’T DRINK OR SMOKE (I STILL DON’T SMOKE)” (T5/108)
He added at another point:
“CONSUMPTION GREW AS EXPERIENCE GREW”.
36. It was put to Mr Spotswood that he had not mentioned events involving Vietnam at all on this questionnaire. He responded that these statements referred to when he had first consumed alcohol, but that he had never drunk heavily until after his first period in Vietnam. At another point in his cross-examination, Mr Spotswood said he was unable to recall whether his alcohol consumption increased between his two voyages to Vietnam. He said he could not recall his alcohol consumption immediately after his first trip, nor could he give dates for when his consumption increased.
37. Mr Spotswood was referred to a naval medical record, concerning treatment he received for a venereal disease (Exhibit R11/7). The date of onset was given as 8 January 1968. On that report, it was indicated that the applicant was under the influence of alcohol at the time he contracted the disease. It was put to the applicant that this incident occurred some 11 months before his first trip to Vietnam, and contradicted the applicant’s statement to the effect that he had never drunk heavily before going to Vietnam.. Mr Spotswood stated in reply that he had probably told the doctor that he had been intoxicated as an excuse having contracted the disease. He stated that he certainly could not recall drinking to that extent at that time.
Dr M. Ewer, Psychiatrist
38. Dr Ewer has seen the applicant on 4 occasions since March 2000, and has prepared 3 reports which are before the Tribunal (in chronological order: T7, T12, Exhibit A3). These three reports are consistent, with the later reports adding some extra detail. In cross-examination, Dr Ewer stated that he had received and considered some documentation relating to the applicant’s service, but had principally relied on what he was told by the applicant in making his diagnosis and preparing his reports.
39. Dr Ewer diagnoses the applicant as suffering from GAD. He has prescribed medication for this condition. He identified a number of symptoms of that anxiety, and stated that he understood that the onset of these was gradual. On the history the applicant gave him, some of the symptoms were present immediately after visiting Vietnam, and others developed later.
40. Dr Ewer outlined four stressful events experienced by the applicant while in Vung Tau Harbour. These were substantially the same as the four stressful events Mr Spotswood described to the Tribunal. They were:
i)The call to “action stations”. Dr Ewer recorded that the applicant was woken up and “did not know what was happening” (T7). He initially did not know why “action stations” was called, felt “locked up” (T12), and feared the ship was in danger (Exhibit A3). He was “frightened” and “anxious”.. After about 5 minutes he discovered that there was no immediate threat to the ship, but continued to be in a state of vigilance and anxiety (Exhibit A3). In his oral evidence, Dr Ewer stated that he did not recall whether the applicant told him that he knew it was standard procedure to go to “action stations” when entering Vietnam. He said that even if the applicant had had this knowledge, being called to that station in the middle of the night might have “caught him unawares”.. He said he did not recall the applicant telling him that he had practised action stations, but the doctor presumed he would have undertaken such practice.
ii)Hearing gunfire on deck. Initially, he did not know what this signified (T7). In Dr Ewer’s first report, he wrote that the applicant told him this happened on several occasions before he found out the origin and cause of the gunfire. In his oral testimony Dr Ewer said that his notes recorded that there was more than one gunshot, but did not record the number of occasions on which the applicant heard these shots. He further said he understood that there was some delay between the applicant hearing the gunfire and discovering its cause.
iii)The helicopter crash. In his first report, Dr Ewer recorded being told that one of the helicopters disappeared in “a plume of flames” (T7). He said that Mr Spotswood identified with the pilot he thought had died and consequently feared for his own safety (T12, Exhibit A3). In his third report, Dr Ewer said the applicant described the helicopter disappearing in “a puff of smoke”. Dr Ewer stated in his oral evidence that the applicant was clear that the helicopter had disappeared into the mountains, not into the sea.
iv)Hearing a scare charge. Mr Spotswood did not report this on his first consultation with Dr Ewer, but told him on his second visit (T12). Dr Ewer wrote that the applicant told him that on hearing the explosion, he was ”shitscared”. At the time he heard the explosion, he did not know what it was, finding out only later. In his oral testimony Dr Ewer stated that sometimes patients did recall further events on subsequent consultations. On questioning by the Tribunal, he agreed that in the case of the applicant, the confidence he gained with further consultations made him confident to “open up” more. Furthermore, often in the pressure of an interview, a patient might forget to tell his doctor something, especially in the case of events which occurred many years beforehand, and which the patient may have been trying to block out. The patient might recall such information during a later consultation.
Dr Ewer informed the Tribunal that the applicant did not identify which events happened on which trip to Vietnam. He spoke about specific events, rather than describing each voyage.
41. Dr Ewer stated in his second report that each of these events was perceived by Mr Spotswood to be a threat, and he experienced distress at all of them. Dr Ewer believed that each would qualify as a “severe psychosocial stressor” under the SoP for GAD (T12). He stood by this opinion in his oral testimony. He elaborated during cross-examination, and said that “objectively”, each event just qualified as such a stressor. That is to say, each event was “objectively” as stressful as the examples given in the definition in the SoP. He further said that based on the applicant’s account of his experience of these events, he had felt significant distress, and so the stressors “subjectively” met the definition in the SoP.
42. Dr Ewer wrote in his first report (T7) that he believed that the applicant’s GAD was caused by his service in Vietnam. His reasons for so thinking were that the applicant said he did not suffer from anxiety before going to Vietnam, there was a temporal connection between visiting Vietnam and experiencing anxiety, and that the applicant’s GAD could be “well understood” in the context of the above stressors.
43. Dr Ewer further diagnosed the applicant as suffering from alcohol abuse and dependence (T7). He wrote that he believed these began after the applicant went to Vietnam and were caused by that visit. He said that the applicant reported starting to drink in Vietnam, that alcohol was cheap and plentiful in the services, and that the applicant reported that he had commenced drinking heavily to cope with his distress (T7). Dr Ewer said the applicant told him he drank 6 large cans of beer a day after leaving Vietnam, to “escape and to ease the boredom” (T7). In his oral evidence Dr Ewer added that the applicant drank to help him sleep. Dr Ewer said that he was unsure if the applicant resumed drinking moderately between his two trips to Vietnam, and recommenced drinking heavily after the second trip. He said that the applicant did not specify which trip marked the start of his heavy drinking.
44. Dr Ewer was referred to the SoP for alcohol abuse and dependence (T14). He stated that he believed that the applicant satisfied the definitions for both alcohol dependence and alcohol abuse. He further stated that Mr Spotswood satisfied the factors “(a)” and “(b)” (T14/181), thus establishing a causal connection between the applicant’s service in Vietnam and these conditions. He stated that he related the conditions to both the experiencing of a stressor (factor “(a)”) and having GAD (factor “(b)”), but that “(a)” was more important. Dr Ewer was referred to the definition of “experiencing a severe stressor” in the relevant SoP (T14/181). He stated that of the stressors described by the applicant, only the fourth, that is the scare charge incident, met this definition.
45. In cross-examination, Dr Ewer was referred to the applicant’s original claim form for alcohol abuse and dependence (T5/107). Dr Ewer acknowledged that he had never seen this form before, and agreed that in that form, the applicant made no mention of stressors experienced in Vietnam. Dr Ewer stated that this provided evidence that the applicant drank to excess before Vietnam, but he could not be sure from this evidence whether he abused alcohol or had a dependence upon in before going to Vietnam. The doctor said this evidence cast some doubt on his earlier opinion.
46. Dr Ewer reported that the applicant said he had sought an early discharge from the Navy in 1970. Dr Ewer gave the opinion that this was an indication that the applicant was not coping with naval life.
Mr R. Nott, Retired Naval Officer
47. Mr R. Nott first joined the Navy in February 1949 and retired in June 1992 with the rank of Lieutenant Commander. He is the co-author of the book “Vung Tau Ferry” (extracted in Exhibit A11). He made two voyages to Vietnam, one aboard the HMAS Parramatta, and one aboard the HMAS Duchess. The voyage on HMAS Duchess was the second voyage the applicant made to Vietnam on that vessel, in 1969. At the time of that voyage, Mr Nott held the rank of lieutenant and was a gunnery officer of the ship. He stated that he was the senior lieutenant and the third in command on the ship. He referred to his diary to refresh his memory of events.
48. Mr Nott described the voyage to Vietnam aboard the HMAS Duchess. He said that as the ship approached Vung Tau Harbour, “defence watches” were commenced 100 nautical miles from the coast. This occurred on the evening of 27 November 1969. At 4:00am the next morning, the ship went to action stations. It proceeded to enter the harbour. Mr Nott said that not all ships entered the harbour at action stations. The decision to do so was made after receiving the “situation report” the night before, which informed the ship’s command of the level of military activity around the harbour. Mr Nott estimated that the ratio of ships entering the harbour at “action stations” to those entering at “defence stations” was in the vicinity of 60:40. Mr Nott said the ship anchored at 5:30am and commenced “Operation Awkward State 2”.
49. Mr Nott explained that “defence watches” were different from “action stations”. He reiterated that the ship only went to “action stations” at 4:00am to enter Vung Tau Harbour. He said that during “defence watches”, half the men were at their stations and half were stood down. In “action stations”, everyone had a position. Mr Nott further stated that “action stations” were not adopted constantly or regularly as it disrupted the routine of the ship. It was, he said, very disruptive to be at “action stations” for longer than 1 hour. Once the ship was anchored, “action stations” would “break down” to “defence watch” when all systems had been tested. Mr Nott was asked in cross-examination why there was no mention of going to “action stations” at 4:00am of the morning in question in the report of proceedings. He replied that it was not mandatory to make such a record, but that there would be a record in the ship’s log.
50. Mr Nott explained that “operation awkward” was a defensive measure to protect against underwater threats, predominantly enemy divers. The ship can only go to this state once it has stopped. The state involves posting sentries on the upper deck, having patrol boats circle the ship with shark hooks, and throwing scare charges both from the patrol boats and from the side of the ship. If a swimmer was sighted, the ship would proceed to “awkward state 1”.. Awkward state 2 was adopted without exception as soon as any ship anchored in Vung Tau Harbour. This was an operational requirement.
51. Mr Nott stated that between 5:30am and 11:00am SLR rounds were fired into flotsam and around 60 scare charges were dropped. He said that these were generally thrown around 10-15 metres from the ship, but sometimes closer, for instance they were thrown near flotsam around the ship, and if this was 5 metres from the ship, that is where the scare charge would be thrown.
52. Mr Nott said that the noise made by a scare charge would vary in volume depending on where in the ship a person was. He said that in the artillery and magazine compartments, they made a loud noise, while in the boiler room, they would probably be recognised as a “dull thud” no matter how far a person was from them. This was because there was so much heavy machinery running to obscure the noise, and many men there wore ear-muffs. He stated that the boiler rooms extended to the hull of the ship. He said that in some areas of the engine rooms where no machinery was running, they would be heard as a loud noise. He stated that the noise they produced was perceived to be louder if it was heard by a person below the water line. He conceded that he never spent time in the boiler rooms, and was basing his comments on what he had been told by others.
53. Mr Nott said that some young inexperienced seamen became very distressed while at action stations below the water line, and some were physically ill. However, he had never heard of any attempting to leave their posts.
54. Mr Nott said that no warning was given as to when a particular scare charge would be detonated. He further stated that sailors were not necessarily trained in the use of scare charges. There were not many places in Australia where the ship could anchor and throw scare charges. It was possible that the applicant had never heard a scare charge before entering Vung Tau Harbour. The use of scare charges would only be demonstrated to those who were to handle them.
55. Mr Nott stated that at 4:15am he saw helicopters and fixed-wing aircraft attacking targets in the Long Hai Hills, about 10 miles north west of the ship, firing rockets, heavy machine guns, and “spectacular” white phosphorus marker shells. He said “you could see every round they fired”. Then at 4:30am, he saw helicopters attacking VC Hill with white phosphorous and rockets. This activity ceased as the HMAS Duchess approached its berth.
56. Mr Nott stated that at 7:59am he saw 2 US helicopters attacking Nui Nua, a mountain on Long Son Island. He said they made two runs and fired 6 rockets each. He stated that the crew on the HMAS Duchess made contact with these aircraft, who informed him that such attacks were routine and designed to make “Charlie…keep his head down” while the HMAS Sydney was in harbour. Mr Nott stated that this occurred about 3 miles from the ship, and was clearly visible to the naked eye. He further stated at 10:00am, it was reported that two helicopters attacked the southern side of VC Hill. That side of the hill however was not visible from the HMAS Duchess. Then at 10:15am it was reported that a reconnaissance helicopter ditched into the sea about 3 miles from the vessel, but the crew were soon rescued. Mr Nott said that he did not personally witness this incident. He stated that he assumed that this was the incident described by Mr Spotswood. He said that the engine malfunctioned and issued smoke, and it was reasonable to assume that it was involved in Long Son Island. At 10:32am 2 US helicopters again attacked Nui Nua. Mr Nott stated that when the helicopters fired rockets, and especially the “white phosphorous”, a lot of smoke was produced. He stated that sometimes helicopters would disappear behind this smoke, and that this was a known way to escape an area after an attack.
57. Mr Nott was referred to the report of Mr R. Piper dated 3 April 2002 (Exhibit R8). Mr Nott stated that the information contained therein regarding the anchorage of the HMAS Sydney and HMAS Duchess was incorrect. He further stated that the reports of proceedings referred to therein made no mention of unusual events because the events described by the witness did not affect the HMAS Sydney or the HMAS Duchess. He further said that that the fact that the Australian helicopter squadron recorded no activity while the ship was in harbour was not significant. These records were of Australian activity, and were “not terribly accurate” when dealing with other matters. The records were not intended to be a record of, for example, US military or airforce activity.
58. Mr Nott stated that he could not comment about helicopter activity in Vung Tau Harbour during the HMAS Duchess’s voyage there in 1968.
Ms V. Martin, former Nurse
59. Ms Martin stated that she joined the Navy in 1968 and left in 1971. She informed the Tribunal that she was a sick-berth attendant. She first met the applicant in about 1970, but was unsure as to the actual date. She met him at HMAS Cerberus, and knew him in a social capacity. Ms Martin had prepared a signed statement dated 8 March 2002 (Exhibit A6), which she stated was accurate to the best of her recollections. In that statement she described an occasion “early in 1971” when she saw the applicant in the junior sailors’ mess, looking “very unwell”. She stated He was very red, disorientated, his speech was slurred, his vision seemed impaired and he was cold to touch. She said that she and a friend took the applicant to the hospital, where he was seen by a Dr Whitehead and diagnosed with alcohol poisoning. She stated that she saw the applicant drinking heavily on many other occasions. She said that she would go to the mess 3 or 4 times a week, and the applicant was usually there. He was drunk on the majority of occasions that Ms Martin saw him. She stated in cross-examination that it was unusual to see a sailor drinking to this extent.
Mr R. Piper, Historian
60. Mr Piper stated that he has 22 years experience in the Department of Defence. For 15 of these years he was the RAAF historian or historical officer. He has conducted research on military, airforce and naval matters, involving Australia, Japan, the United States and Papua New Guinea. He prepared a report dated 3 April 2002 (Exhibit R8) at the request of the respondent.
61. Mr Piper was referred to the book “Vung Tau Ferry”. He stated that it is “more of a souvenir booklet than anything else”.. He said that many of the statements in that book do not provide their sources, and that it contains a lot of personal information based on people’s memories.
62. Mr Piper said that he had been unable to confirm or deny the existence of “VC Hill”, which was referred to by Mr Nott.
63. Mr Piper stated that he accepts the proposition that as it approached enemy waters, the HMAS Duchess assumed a heightened status of alert, being a lower level of alert than “action stations”. He stated that “action stations” was often practised by sailors.
64. Mr Piper agreed that he could find no record of any action around Vung Tau Harbour apart from what was recorded in “Vung Tau Ferry”. He stated that the “Report of Proceedings” for each voyage (that is in 1968 and in 1969) indicates that that voyage went smoothly. There was, he said, no record that the HMAS Duchess ever came under attack during the Vietnam war.
65. Mr Piper informed the Tribunal that he understood that scare charges were used on the HMAS Duchess prior to that ship entering Vung Tau Harbour. He further stated that the crew would have known when they were to be used from notices on bulletin boards and announcements over the PA system. He stated that it was “common sense” that the PA system would reach all areas of the boat.
66. Mr Piper stated that the boiler room “would be” in the centre of the ship. He said that the engines would have been left running while the ship was in harbour, as it was there for a short time. In his experience, engine rooms are “noisy places”, but he said he is not an expert on the noise-level in a ship’s boiler room. He stated that it was “logical” that a scare charge would sound loud in a quiet area of the ship, but that the noise of the boiler room would lessen the impact of a scare charge.
67. Mr Piper stated that was unable to find any information about US helicopters in Vung Tau Harbour at the relevant times. He said such information was difficult to obtain.
Dr C. Mills, Occupational Physician
68. Dr Mills is an occupational physician who has specialised in occupational medicine since 1970. He first saw the applicant on 27 August 2001. At the request of the applicant, he produced a written report dated 17 September 2001 (Exhibit A4).
69. In his report, Dr Mills described the applicant’s range of movement and the pain in his back. He stated that the applicant has suffered from low back pain since he slipped on a ladder in 1968. He said that in that accident, the applicant
“slid down the ladder abrading the lower back and spine – finishing on his buttock. The sick bay attendant treated an abrasion of the low back, rested him two days then he returned to normal duties – de did not consult the medical officer.” (Exhibit A4/3)
He stated that the applicant had experienced episodes of low back pain and “heaviness of the thighs” since that date.
70. In his report, he diagnoses the applicant with spondylolisthesis and spondylosis. He stated that this “means his back vulnerable to injury was aggravated by the fall on HMAS Duchess”. In his oral testimony, he stated that he believed that the applicant’s spondylolisthesis was developmental in origin. He does not believe that the applicant satisfied any of the requisite factors in the relevant SoP (Instrument No. 15 of 1997, T14/172-174) to have that condition accepted as war caused. On the other hand, Dr Mills believes that the applicant’s spondylosis is war-caused. In his report, he referred to the Statement of Principles for Lumbar Spondylosis (Instrument No. 27 of 1999, Exhibit R5), and stated that the applicant meets the following factors:
“5(e) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis;”
Dr Mills explained in his oral evidence that he thought this was satisfied because he believed the accident triggered a previously asymptomatic malalignment of the back, making it symptomatic.
“5(g) suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis;”
Dr Mills explained in his oral evidence that this factor was satisfied because it is a “reasonable assumption” that the applicant’s ligaments were stressed by the fall.
“5(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;”
Dr Mills stated orally that trauma was a good explanation for the subsequent degenerative changes that have occurred in the applicant’s spine.
“5(p) having a malalignment of the lumbar spine before the clinical worsening of lumbar spondylosis;”
Dr Mills stated orally that he believed this factor to be a variation on factor 5(e).
71. Dr Mills was referred during cross-examination to the definition of “trauma” contained in the relevant SoP. He stated that he believed the treatments described there were outdated. He repeated that the applicant had told him he was confined to bed for two days after the accident, and then returned to full duties.
72. In his oral evidence, Dr Mills explained that the most likely scenario was that the applicant had a pre-existing back injury, which made him vulnerable to further injury. The fall down the stairs while in the navy applied a compressive force to the spine, occasioning further injury. He said that this account accorded with the history given by the applicant, regarding the slip and the presence of pain thereafter.
73. Dr Mills said he had access to some but not all of the applicant’s medical records. He did not have access to the applicant’s medical notes at discharge. He admitted he was reliant on what the applicant had told him.
Discussion and Findings
74. The Respondent submitted that the applicant’s evidence was unreliable, inconsistent, and sometimes appeared to be the result of attempts to change his account to fit the relevant SoPs. It may be noted at the outset that the Tribunal finds this to be a broadly accurate assessment. However, the credibility of the witness is an issue that must be considered in relation to each claimed condition at the appropriate step of the process laid down by the Act and subsequent caselaw.
75. The applicant contends that he suffers from Generalised Anxiety Disorder, Alcohol Abuse and Dependence, Chronic Pancreatitis, and Lumbar Spondylosis. He contends that all of these conditions are war-caused, arising out of his operational service. The process of determining whether a disease is caused by operational service is determined by s120 of the Act, as affected by s120A. Section 120 relevantly provides:
“(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.…
(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.”
Section 120A relevantly provides:
“(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
….
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
….”
76. The process which the Tribunal is to follow in applying this legislation is laid down in the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Court described the process thus:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” (at 97-98.)
These steps must be applied for each of the conditions.
77. Counsel for the applicant suggested in his opening statement that, in the alternative, this alcohol abuse and dependence was caused by the applicant’s eligible service. Pursuant to s120(4) of the Act, the Tribunal is to decide the matter “to its reasonable satisfaction”, that is, on the balance of probabilities. Pursuant to s120B of the Act, in so doing, the Tribunal must refer to the relevant SoP.
Generalised Anxiety Disorder
78. The Tribunal finds that on the balance of probabilities the applicant suffers from GAD. This is based on the uncontradicted evidence of Dr Ewer. The Tribunal notes that Dr Ewer based this diagnosis on the symptoms of the applicant, not on his assessment of the stressors described in Vietnam. The Tribunal therefore rejects the respondent’s apparent submission that the applicant’s description of those stressors was vital to the psychiatrist’s diagnosis. The applicant raised 4 hypotheses connecting his GAD to his operational service. These were that he experienced 4 separate events, each of which was objectively and subjectively distressing, and sufficient to cause his GAD. These events are outlined above, but will from herein be described as “the action stations incident”, “the gunfire incident”, “the helicopter incident” and “the scare charge incident”. Each of these events was stated to occur during the applicant’s accepted “operational service”. The process outlined in Deledio must be applied to each in turn.
The Action Stations Incident
1) The Tribunal is satisfied that the testimony of the applicant raises a hypothesis connecting his GAD to this event. The final version of his evidence before the Tribunal was that he knew that action stations would be called going into harbour, but that he nevertheless found this event extremely stressful.
2) There is an SoP in force relating to GAD, being Instrument No. 1 of 2000.
3) The hypothesis raised is that the incident was a “severe psychosocial stressor” under factor 5(a)(ii) of the SoP. In that SoP,
“Severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.
Furthermore, the hypothesis is that the applicant’s GAD began immediately after that voyage to Vietnam, which is well within the two years specified in the SoP. The respondent contended that the incident does not fit the template of a “severe psychosocial stressor” as it was not objectively as stressful as the examples given in the definition. The respondent further contended that there was never any actual threat of attack to the HMAS Duchess, and that any fear the applicant may have had of such an attack was not enough to satisfy the SoP as in the absence of actual attack or actual threat of attack there was no “identifiable occurrence” to satisfy the SoP. The Tribunal rejects both these submissions. In the first place, the SoP refers to an event which “evokes feelings of substantial distress in an individual”. It is inherently subjective. This proposition was endorsed by North J in O’Neil v Repatriation Commission (2001) 34 AAR 290. The only objective requirement is that the fear that was felt by the applicant was as severe as that which an average person might conceivably suffer in one of the given examples. No fact-finding arises at this stage, and the material certainly points to a hypothesis that the incident caused this amount of fear in the applicant. As to the second objection, it need merely be pointed out that a concrete, identifiable event did occur. Under the raised hypothesis, it was the calling of action stations that aroused fear in the applicant’s mind. This itself constitutes an “identifiable occurrence” which, under the raised hypothesis, caused the applicant distress and fear. The arousing of such fear clearly constitutes a “severe psychosocial stressor” under the SoP. In any event, given the evidence of Mr Nott to the effect that numerous young seamen became distressed, sometimes to the point of being sick, while confined below deck at “action stations”, the Tribunal is satisfied that any “objective” test of the severity of the stressor would also be met. Consequently, the Tribunal finds that the hypothesis satisfies the “template” of the SoP, and hence is reasonable.
4) As was remarked at the outset of this discussion, the applicant’s evidence over the course of his proceedings with the Commission, the VRB and this Tribunal has been somewhat changeable, and the Tribunal is cautious in accepting his evidence on all points. However, with respect to this hypothesis, any such uncertainty is insufficient to persuade the Tribunal beyond reasonable doubt that any of the key facts did not occur. It follows that pursuant to the Act, the applicant’s GAD must be accepted as war-caused.
79. Having made this finding, it is unnecessary to investigate the applicant’s claims in respect of the other three incidents. The Tribunal is satisfied, however, that the above reasoning applies equally to each hypothesis.
80. The remaining question is one of onset. On the evidence of the applicant, all three of these events occurred on one of the two trips to Vietnam. The hypothesis found to be reasonable is thus that his GAD commenced on one of his trips to Vietnam. As there was nothing in the applicant’s evidence to favour the events occurring on one trip over the other, the hypothesis could be equally well described as being that the GAD commenced by the end of the second trip to Vietnam. The Tribunal therefore finds that the applicant began to develop initial symptoms of anxiety on his return from his second trip to Vietnam in 1969. This condition developed until it warranted a diagnosis of GAD, which occurred well within two years of experiencing the stressor in question.
Alcohol Abuse and Dependence
81. The Tribunal is satisfied on the balance of probabilities, based on all the evidence before it, that the applicant suffers from alcohol abuse and alcohol dependence. The relevant SoP (Instrument No. 47 of 1997, T14/146-7) provides definitions for these conditions. It is apparent from those definitions that a diagnosis of “alcohol dependence” subsumes a diagnosis of “alcohol abuse” and that it is inappropriate to find that under the SoP the applicant suffers from both conditions. As the Tribunal is satisfied that the applicant satisfies the criteria for both conditions, it therefore finds that the applicant suffers from the more severe of the two, being “alcohol dependence”.. The applicant submitted that this condition arose due to the applicant’s operational service. The Tribunal therefore applies the test outlined in Deledio:
1) The Tribunal is satisfied that the evidence before it raises a hypothesis connecting the applicant’s alcohol dependence to his operational service. That hypothesis is that the applicant began to abuse alcohol and to depend on it while on operational service to cope with stress and anxiety, and the effects thereof including sleep-loss.
2) There is an SoP in force for these conditions, being Instrument No. 76 of 1998.
3) The relevant SoP states that one of 5 factors must be present for the raised hypothesis to be reasonable. The relevant factors in this instance 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.”
Counsel for the applicant contended that factor “(b)” in particular was met. The definition of “experiencing a severe stressor” given in the SoP requires that:
“…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 notes that this is a stricter definition than that in the SoP for GAD. The evidence of Dr Ewer is that of the 4 stressors identified by the applicant, only the “scare charge incident” is a “severe stressor” within this definition. However, based on the applicant’s account, the Tribunal is not satisfied that the hypothesis involves the applicant “being confronted with an event that involved… threat of death or serious injury.” The SoP refers to a “threat”, not a perceived threat. Consequently this factor is not met.
The Tribunal now turns to factor “(a)”. The Tribunal has already determined that the applicant’s GAD is war caused under the Act. GAD constitutes a “psychiatric disorder” within the definition given in the SoP as it is an “axis 1… disorder of mental health attracting a diagnosis under DSM IV” (see the report of Dr M Ewer dated 14 March 2000, T7/119). As this condition was caused by the applicant’s operational service, if the factor is satisfied then even if the onset of the applicant’s alcohol dependence was after the period of that service, the factor may still be satisfied. The question remaining is does the account of the applicant involve the applicant suffering GAD “at the time of the clinical onset” of his alcohol dependence? At first glance, it appears that the hypothesis raised by the applicant is that both conditions commenced simultaneously. However, on a closer reading of the SoP for alcohol dependence, it is clear that a lengthy pattern of alcohol consumption and problems resulting from that consumption must be present before the condition is diagnosed. Hence it could not be said to be present immediately after the applicant visited Vietnam. It follows that the onset of this condition was preceded by the onset of the applicant’s GAD. Therefore, the factor is satisfied, and the hypothesis fits the “template” of the SoP. The hypothesis is therefore “reasonable”.
4) The final question is whether any fact essential to this hypothesis has been disproved beyond reasonable doubt. The respondent contended that the applicant’s testimony concerning his alcohol consumption was wholly unreliable and inconsistent. The respondent contended that there was clear evidence that the applicant was drinking to excess before going to Vietnam. The Tribunal accepts that there is evidence to this effect. The applicant presented widely varying accounts of the commencement of his drinking at the varying stages of his proceedings before the Commission, the VRB, and the Tribunal. In his initial applications, he did not mention stress as a cause for his drinking, and he stated that he commenced drinking while at HMAS Cerberus before going to Vietnam for social reasons and to relieve boredom. His explanations for these different accounts were unsatisfactory. The Tribunal is satisfied beyond reasonable doubt that the onset of the applicant’s drinking conditions pre-dates his operational service. Hence his claim must fail.
82. The Tribunal finds nothing in the evidence before it that could enable it to decide on the balance of probabilities that the applicant’s alcohol dependency and abuse was caused by his “eligible service”, even if the development of these conditions occurred during this period.
Chronic Pancreatitis
83. The respondent conceded that if alcohol abuse or dependence were accepted as war-caused then chronic pancreatitis should also be so accepted. As such was not the case the Tribunal must determine whether chronic pancreatitis can nevertheless be accepted as war-caused. It is sufficient to note that if alcohol dependence is not accepted as war-caused, no factor under either SoP (Instrument No 47 of 1997 and Instrument No. 48 of 1997) relating to chronic pancreatitis is satisfied. The factor
“(a) having evidence of prolonged and heavy alcohol consumption before the clinical onset of chronic pancreatitis”
can only be satisfied if that alcohol consumption is related to the applicant’s war-service. The Tribunal has found that alcohol dependence and abuse are not war-caused. There is no other material before the Tribunal that raises a hypothesis connecting the applicant’s war service to his chronic pancreatitis.
Lumbar Spondylosis
84. Dr Mills informed the Tribunal that the applicant is suffering from lumbar spondylosis. Based on this evidence (the only evidence on this point before the Tribunal), the Tribunal is satisfied that on the balance of probabilities the applicant does have this condition. For the reasons given at the outset of this decision, the Tribunal finds that it has jurisdiction to consider this condition, despite the fact that it was not considered by the Repatriation Commission or the VRB. The applicant claimed that the condition was caused by a fall during his operational service. Therefore the 4-step analysis laid down in Deledio must again be applied.
1) The Tribunal finds that the material before it clearly raises a hypothesis linking the applicant’s lumbar spondylosis to his operational service. That hypothesis is that the applicant slipped while descending a ladder/flight of stairs; slid down that ladder, grazing his back; and landed at the bottom of that ladder, injuring his back.
2) There is a SoP in force for lumbar spondylosis, being Instrument No. 27 of 1999.
3) The SoP provides that for a hypothesis concerning lumbar spondylosis to be reasonable, one of a number of factors must be met. The hypothesis in this case, insofar as it concerns causation, is based on the evidence of Dr Mills. Dr Mills stated that the following factors of the SoP were met:
“5(e) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis;
5(g) suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis;
5(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;
5(p) having a malalignment of the lumbar spine before the clinical worsening of lumbar spondylosis;”
It is clear that to be relevant, these factors must be related to the applicant’s operational service. To hold otherwise would be to make a mockery of the scheme of SoPs being used to determine whether an injury is war-caused. Dr Mills stated that factors “5(e)” and “5(p)” were met because the applicant had a malalignment of the lumbar spine that was developmental in origin and pre-dated his war-service. Consequently, these factors are not related to any period of the applicant’s naval service, and the hypothesis does not satisfy them.
Dr Mills stated that factor “5(h)” was satisfied, as he believed that the accident described the applicant involved trauma to the lumbar spine. The SoP provides the following definition:
“trauma to the lumbar spine” means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.”
The applicant’s evidence before the Tribunal was not consistent with respect to his condition. He stated orally that he was given two days bed rest, then assigned to “light duties” for 14 days. The Tribunal is satisfied that the return to light duties indicates that the applicant did not have “acute symptoms” after the two days of bed-rest. The applicant gave no evidence that he suffered such symptoms during this period. Furthermore, no medical intervention matching those described above was made. Consequently, the Tribunal is satisfied that the applicant does not meet this factor.
Dr Mills stated that it was probable that the applicant injured the ligaments in his back when he fell down the ladder. The Tribunal therefore finds that factor “5(g)” of the SoP is met.. The hypothesis is thus a reasonable one.
4) The question remains whether any fact essential to the hypothesis has been disproved beyond reasonable doubt. The Tribunal is struck by the fact that the applicant made no mention of the accident on his initial claim form. It is strange, to say the least, that an incident he remembered in such detail before the Tribunal, and which he identified as initiating his back pain, was completely forgotten when he first claimed compensation for that back pain. Rather, he described carrying heavy weights. The applicant has significantly altered his account of his symptoms following the accident on several occasions. Before the VRB, he contended that he was bedridden for 2 weeks. He informed this Tribunal that he was bedridden for 2 days, then given light duties for 2 weeks. He informed Dr Mills that he returned to “normal duties” after two days bed-rest. There is no record of his treatment for the accident. Taking the evidence as a whole into account, the Tribunal is satisfied beyond reasonable doubt that the accident did not occur as the applicant described it. At the very least, the accident was not as severe as he described it. As the applicant’s account was essential to Dr Mill’s assessment that the applicant satisfied factor “5(g)”, The Tribunal is satisfied this factor is not in fact met. Consequently, the application in respect of this condition must fail.
Decision
85. For the foregoing reasons, the Tribunal sets aside the decision of the Repatriation Commission dated 11 April 2000, and remits the matter to the respondent for determination in accordance with the following findings:
1.1 the applicant’s condition of Generalised Anxiety Disorder is war caused pursuant to the Veterans’ Entitlements Act 1986; and
1.2 the applicant’s conditions of alcohol dependence and abuse, chronic pancreatitis and lumbar spondylosis are not war caused pursuant to the Veterans’ Entitlements Act 1986.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE
Signed: .......................................................................................
John Howell, AssociateDates of Hearing 8 & 9 April, 20 & 21 November 2002
Date of Decision 13 February 2003
Counsel for the Applicant Mr T. White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent Department of Veterans’ Affairs
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